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Max Planck Encyclopedia of Public International Law [MPEPIL]

Institut de Droit international

Peter Macalister-Smith

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 March 2019

Judicial assistance — Practice and procedure of international organizations

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Origins, Structure, and Aims

The Institut de Droit international (‘IDI’), or Institute of International Law, is a private association founded in 1873 at Ghent, Belgium. The main objective of the Institute expressed in its Statute is to contribute to the progress of international law. In pursuit of this aim the IDI’s work concentrated from the outset on furthering the codification and progressive development of international law, by conducting studies and making recommendations which are published. From its origin the Institute’s membership is restricted in number, international in composition, and still of predominantly European background, comprising scholars and practitioners of public international law as well as private international law. The IDI convenes at varying locations in closed session, usually for about one week biennially.

Election to the Institute is by a process of cooptation. The principal officers of the Institute are the president, the secretary-general, and the treasurer. The president holds office for the period up to and including each forthcoming session, whereas the other officers serve on a continuing basis. Numerous commissions and rapporteurs support the academic work of the IDI between the sessions. The motto of the Institute is iustitia et pace (justice and peace).

The Institute has always operated without a permanent headquarters or offices, and thus it cannot be visited. In accordance with the Statute, the headquarters and secretariat are located with the secretary-general, who is responsible for the overall administration of the IDI and its activities. Since 2003 the secretary-general has been Joe Verhoeven (in Brussels). So far the seat of the Institute has been located mainly in Belgium and in Switzerland, with short periods in the Netherlands (1913–1919, inactive) and France (1963–1969). The language of the IDI and of its publications from the beginning was French. In recent years English has been increasingly used.

The Statute of the Institute, setting out the aims and structure of the IDI, was adopted at Ghent on 10 September 1873. The Statute, revised on several occasions, makes reference to the purely scholarly and non-official character of the association (Non-Governmental Organizations). The Institute’s constitutional texts are published in the Annuaire de l’Institut de Droit International (for the founding instruments see [1877] 1 AnnIDI 1–10; for amendments and later versions see the subsequent volumes of the Annuaire).

Under Art. 1 (2), the Statute currently provides that the Institute aims to facilitate the progress of international law by: a) stating its principles according to the juridical conscience of the civilized world; b) co-operating with all serious efforts for gradual and progressive codification; c) promoting the official acknowledgment of recognized principles in harmony with the needs of modern societies; d) contributing to the maintenance of peace and to observance of the laws of war; e) enquiring into difficulties in the interpretation and application of international law and where necessary issuing legal opinions; and f) furthering the principles of justice and humanity in international relations, through publications, teaching, and other means.

The revenue of the Institute derives from membership dues and from gifts, legacies, return on investments, and other sources. An auxiliary foundation established under Swiss law with its seat in Lausanne serves to manage the IDI’s assets and financial affairs with its own Statute (Acte de constitution et Statuts de la Fondation auxiliaire de l’Institut de Droit International [18 April 1947] [1947] 41 AnnIDI XLVIII; Règlement intérieur et financier de la Fondation auxiliaire [24 November 1947] [1957] 47(2) AnnIDI LVII.).

B.  Founders and Membership

The Institute’s founders were 11 eminent jurists, from nine countries, in alphabetical order of their State of origin: Carlos Calvo (1824–1906, Argentina); Emile de Laveleye (1822–1892, Belgium); Gustave Rolin-Jaequemyns (1835–1902, Belgium); Johann Bluntschli (1808–1881, Germany); Pasquale Mancini (1817–1888, Italy); Augusto Pierantoni (1840–1911, Italy); Tobias Asser (1838–1913, Netherlands); Vladimir Besobrasov (1828–1889, Russia); Gustave Moynier (1826–1910, Switzerland); James Lorimer (1818–1890, United Kingdom); and David Field (1805–1894, United States of America).

Mancini was the first president of the Institute and Rolin-Jaequemyns the first secretary-general. A limit to the number of members was set initially at 50, with an equal number of associates. Under a revised Statute of 1880, the membership was increased to 120 in total (Statuts votés par la Conférence Juridique internationale de Gand [1888] 10 AnnIDI 1). However, even by the beginning of the 20th century the attendance of the membership at sessions was often much less than 30. Since 1977 membership has been limited to a total of full members and associates not exceeding 132 persons. From 2005 members and associates aged 80 years and above were not counted within this quota.

From its origin up to the outbreak of World War I the Institute had a membership drawn from the following States, in numerical order: France, Germany, United Kingdom, and Italy, each with more than 20 members and together supplying over half of the total; Switzerland, Belgium, Spain, United States of America, Austria-Hungary, Russia, Sweden, Netherlands, and Norway, each with more than five members; Argentina, Denmark, Greece, Japan, Poland, Portugal, and Romania, each with more than one member; and a single member coming from Chile, Costa Rica, Cuba, Luxembourg, Peru, Serbia, Turkey, and Venezuela.

10  In the period following World War I there was little change in this distribution up to 1947, as only 10 persons were elected from nine additional States, some of which had recently emerged: Brazil, China, Colombia, and Mexico (1921); Czechoslovakia (1922); Finland (1924); Hungary (1927, 1931); Guatemala (1929); and Estonia (1932). Except for Brazil, Japan, and the United States, all the States mentioned above were members of the League of Nations. Jurists from countries or territories under colonial rule were not included among the IDI’s membership. The election of a member from formerly colonized regions did not happen until well after the attainment of independence of their State, if ever. No member from the Soviet Union was elected until 1947 (Cold War [1947–91]; Russia), and only one from China before 1948.

11  After World War II and up to 1979 some 24 persons were elected from 18 further States: Algeria (1977); Australia (from 1947); Bulgaria (1979); Canada (from 1967);, Egypt (from 1948); El Salvador (1947); India (1961); Iraq (1961); Israel (from 1956); Lebanon (1971); Malta (1950); New Zealand (1967); Nigeria (from 1963); Panama (1954); Philippines (1965); Senegal (1963); Thailand (1973); and Uruguay (1961). Within the same period, 32 persons were elected from the United Kingdom and the United States combined, 22 from Spain and Italy, 19 from France, 18 from Belgium and the Netherlands, and 9 each from Germany and Greece, in addition to many others of Western origin. From the 1980s the membership continued to reach out very slowly, to include one jurist each from 11 further States up to 2001: Ghana (1989); Guyana (1993); Indonesia (2001); Iran (1999); Kenya (1991); Korea (1997); Madagascar (1995); Morocco (1985); Somalia (1999); South Africa (1995); and Tunisia (1997); and three members from Sri Lanka (from 1981).

12  The current membership of the Institute comprises persons from 58 out of over 190 States having general international recognition. The membership from the start has included persons from a total of 71 States. Among the present membership, 13 of 134 are women, the greatest number at any point in the Institute’s history, eight of them coming from Western Europe. Despite gradual geographical expansion of the membership, the IDI remains predominantly white and European in composition, with notably few jurists from North America, South America, or Africa (cf Commonwealth; Francophonie). The numerical restriction on the membership combined with the principle of lifetime membership means that room for recruitment is limited.

C.  The Institute and Other Institutions

13  In the last decades of the 19th century and in the early 20th century other societies were formed to cater especially for regional and domestic membership of international lawyers. Only a few institutions founded in that period and relevant for understanding the situation of the Institute can be mentioned briefly here.

14  The Association for the Reform and Codification of the Law of Nations, which exists today as the International Law Association (ILA), was established in Brussels one month after the founding of the Institute. The ILA became an open association, sought a wide membership, and welcomed the formation of domestic branches. Its early membership originated mostly in the Anglo-American world including the British colonies and dominions.

15  The Inter-Parliamentary Union (IPU) founded in 1889 worked initially for propagation of arbitration between States, and its conferences reflected a more political treatment of international issues compared to the juristic approach taken by the IDI and ILA. In 1912 the American Institute of International Law was founded in Washington DC as a regional association of international lawyers originating from the United States of America and Latin America, modelled on the Institute of International Law.

16  The first domestic society of international law was probably the Association of International Law founded in Japan in 1897. The Association was regarded by its founders as like a branch of the Institute of International Law (see avant-propos in [1902] 1 Kokusaiho-zasshi [Journal of International Law] 1–4). The American Society of International Law, initiated in 1905, had over 750 members within two years, though not all of them were international lawyers. The objective of the American Society was to study international law and to ‘promote the establishment of international relations on the basis of law and justice’ (Art. II Constitution [1907] 1 AJIL 131). Other domestic associations concerned with international law were founded in France, Switzerland, China, and in Latin American States before World War I.

17  The Carnegie Endowment for International Peace, established in 1910 by the industrialist Andrew Carnegie in the United States of America, supported the foundation of domestic societies of international lawyers in Latin America and elsewhere. In 1912 the Institute of International Law entered into a relationship with the Carnegie Endowment which lasted for a quarter of a century. The Endowment proposed that the first session of the Institute after World War I should take place in Washington DC, but it was not until 1929 that the IDI held a session in a city outside of Western Europe, in New York (see the reports on the Institute in the Carnegie Endowment for International Peace Yearbook[s], up to 1937). The Hague Academy of International Law (Académie de Droit International de La Haye), inaugurated in 1923, was organized with strong initial support from the Carnegie Endowment. Many members of the IDI have lectured at the Hague Academy or served on its governing bodies.

D.  Activity and Publications

18  The collective activity of the Institute takes place mainly at its sessions. The method of work is specified in the statutory texts. The questions to be treated are selected, the rapporteurs and the members of commissions are nominated, reports are presented, and discussions are held. Ballots for the election of new associates are a feature of each session. The results of the IDI’s work are given expression in concluding form through collective recommendations adopted usually in the form of resolutions. The subjects covered by the reports and resolutions over more than 135 years are too numerous to be mentioned here even in selection or in outline. For further information, reference should be made to the IDI’s publications, and to other publications about the Institute. The Institute’s own publications include the historical record of its work as well as some self-assessments of its achievements.

19  The principal publication of the Institute is the Annuaire de l’Institut de Droit International. The Annuaire first appeared in 1877 in Belgium. The Annuaire’s contents include reports on the sessions, as well as biographies and obituaries of the membership, and some details of the elections and attendance. The resolutions of the IDI were collected and indexed alphabetically in two volumes, edited in 1957 and 1992. A systematic index to the titles of the resolutions was published in the Annuaire ([1950] 43 AnnIDI II lv–lxvi, up to [1963] 50 AnnIDI II lxxviii–lxxxv). The centenary of the founding of the Institute was commemorated by publications which reported extensively on the IDI’s history, activities, and achievements.

20  It is certain that the preparatory work by many members of the Institute contributed to the codification efforts of States up to the Hague Peace Conferences (1899 and 1907). In preparation for the League of Nations codification conference of 1930, the Institute presented resolutions and a general declaration on codification of international law, proposing revision and systematization of its own work as a basis for official codification, but this did not happen. Scholars and private associations could no longer expect a role in regard to codification, which depends on the acts of States and their governments. The extensive research in international law known as the Harvard Research was organized at this time, under the auspices of the Harvard Law School, and was published in phases up to 1939.

21  The Institute at first viewed with scepticism the codification activity of the UN, under Art. 13 (1) (a)United Nations Charter (145 BSP 805). In a resolution adopted in 1947 the IDI concluded that codification by collective treaty would be disruptive, because States would tend to call existing law into question and adapt it to their particular interests; the better course was to pursue comparative research, express the existing rules in terms of abstract principles and rules, and to exercise great care in the preparation of treaty texts (La Codification du Droit international [12 August 1947) [1947] 41 AnnIDI 261–2).

22  Around its centenary in 1973, the IDI started a reassessment of its role, including consideration of new arrangements for its activities (Propositions de revision des statuts et du règlement [1973] [1973] 55 AnnIDI 609–34). At that period the Institute debated a suggestion for publication under its auspices of an encyclopedia of international law, and a resolution was adopted (Publication of an Encyclopedia under the Auspices of the Institute [7 August 1975] [1975] 56 AnnIDI 554–5).

23  The Institute has so far not been called upon to decide an international dispute, or to give a legal opinion to the parties in a contentious matter. Hardly ever has the IDI appealed on its own initiative for respect for international law in a specific situation. In this regard, the bureau of the IDI issued a call directed at Russia and Turkey aiming to end the cruelties of the war of 1877/1878; the Institute’s 1877 session approved the appeal, stating that the humanitarian law of war should be observed even by the irregular units participating in the fighting on both sides (Combatants; Combatants, Unlawful). The Institute’s reaction to World War I was not so forceful: in 1919 the IDI reconvened in special session at Paris and some members moved to condemn the violation of the neutrality of Belgium and Luxembourg by Germany (Neutrality, Concept and General Rules), along with other contraventions of the laws of war; a declaration formulated to this end without mention of Germany was not regarded as a resolution of the Institute as a whole ([9–10 May 1919] [1919] 27 AnnIDI 331–3 and 341–5).

24  Exceptionally, after controversial discussion in 2003 the Institute adopted a text entitled Bruges Declaration on the Use of Force, without mentioning any State by name; this was a reaction to the bombardment and invasion of Iraq principally by the United States of America (‘Bruges Declaration on the Use of Force’ [2 September 2003] [2004] 70(2) AnnIDI 285–9) (Iraq, Invasion of [2003]).

E.  Appraisal

25  Succeeding generations of the membership of the Institute of International Law respected the original conception of the IDI and preserved its structural features as an exclusive private association as provided for by the founding members. The limitation placed on the size of the membership as a constituent principle was questioned at times but not significantly altered. The early emphasis given by the Institute to progressive codification of international law and dispute settlement was congruent with similar trends in international relations towards the end of the 19th century, leading up to the establishment of the League of Nations and the Permanent Court of International Justice after World War I (History of International Law, 1815 to World War I; History of International Law, World War I to World War II). The practical significance of the Institute’s collective work for codification has diminished since that time. The Institute’s efforts were of greater use when the results could keep ahead of official codification and contribute to it. Some texts produced by the Institute were received with attention at governmental conferences, while others remained known mainly to the specialists who instigated them.

26  Despite the Institute’s strong early impetus, overall it is not possible to state conclusively to what extent the development of international law was influenced by the IDI and its activity. A private association can formulate ideas much more readily than States may act to realize them. Nevertheless, among the membership of the IDI were and still are found practising lawyers, advisers to governments, and those who serve in judicial functions on international courts or tribunals. Members and associates of the Institute have thus contributed to shaping the development of international law and they continue to influence its evolution in their individual capacity.

27  Whether or not the reports and resolutions of the Institute were ever effective products, they have no significance among the formal sources of international law. The Statute of the International Court of Justice (ICJ) (145 BSP 832), following that of the Permanent Court of International Justice, admits scholarly doctrine albeit as a subsidiary means for the determination of rules of law (Teachings of the Most Highly Qualified Publicists [Art. 38 (1) ICJ Statute]). Yet international courts and tribunals do not usually cite the pronouncements of scholars or societies. The Institute’s resolutions cannot count as doctrinal statements in the sense of contributing to international legislation, and their influence is not empirically observed on the level of international practice. Scholars working outside the IDI do not noticeably rely upon the IDI’s resolutions.

28  By publishing its resolutions, reports, and a summary of the discussions, the Institute has contributed to the propagation of the knowledge of international law among specialists. However, the publications of the Institute were not widely distributed and they are mainly out of print today. Many other types of materials on international law have much higher circulation and accessibility.

29  In one respect the Institute can be regarded as itself a microcosm of the world of powerful States, and thus significantly representative of the condition of international law in international society. From its origin in the 19th century the Institute was a product of Western European States. Jurists coming from North America, Latin America, and Africa still comprise in each case less than 10 per cent of the membership, while those from Asia amount to about 15 per cent. The exclusivity that was determined as a principle of the membership upon the Institute’s establishment reflected the prevailing situation in the formation of international law and continued to mirror its characteristic evolution since that time. The notable hallmark of the Institute from its establishment until today was the lack of attainment of culturally and geographically balanced proportions among the membership. The Institute’s only gradual and partial opening to cultures and concerns outside the Western world was indeed representative over the same period of the condition of public international law, which only over the past two or three decades has been able to start moving towards a post-decolonization era.