For the past 150 years, the Institut de Droit International (IDI) has held a prominent position in the field of international law, garnering recognition as one of the world's distinguished professional organizations for international lawyers. Yet, a closer look at its structures reveals that in fact, the IDI has been and remains an elitist club, comprised of renowned international legal jurists, practitioners, and scholars. Its goal was and is to formulate “principles from which rules [of international law] could be deduced.”1 While there may be doubts regarding the contemporary authority of the IDI in shaping today's international law, it possessed significant influence during its first century of existence. Therefore, on the occasion of its 150th anniversary, this essay offers an alternative perspective on the IDI's contribution to the field, focusing on the implications of its claimed status of the “legal conscience of the civilized world” and exploring whether this status had somehow impacted international legal norms and principles. While further empirical investigation is required to establish a definitive correlation between the IDI's affiliations with the “civilized world” and a skewed focus of international law on Western legal traditions, a few examples can serve as a starting point. The illustrations from the IDI's engagement with the laws of war—specifically, the nineteenth-century regulation of occupation and the post-World War II determination of military targets—exemplify how the inherent elitism rooted in the notion of “civilization” can be discerned in pivotal advancements of international law.

The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.

Unlike the International Law Association (ILA) and the Institut de Droit International (the Institut), the International Law Commission (the Commission, or ILC) is not 150 years old. Established in 1948, the Commission is exactly half the age of the two codification bodies to which this Symposium is dedicated and is celebrating its seventy-fifth anniversary in 2023.1 Like its older cousins, the Commission is charged with the codification and progressive development of international law. Among the many differences between the Commission and its older cousins, one that stands out and that provides the lens for this essay, is its close relationship to states. Although a comparison of both the ILA and the Institut with the younger, but apparently more “authoritative” body, the Commission, is worthwhile,2 due to space limitations, I focus my comments on the Institut and the Commission. This essay will home in on the impact of the relationship of these two bodies with states and argues that this relationship affects, to some extent, the work of the relevant bodies, both in terms of what topics they may address and how they address them. This broad conclusion, which is necessarily limited by space considerations, is substantiated on the basis of the membership and outputs of the two bodies.

Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitution-making. At the heart of Saunders's critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.

In “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders highlights that the study and practice of constitutionalism exhibit a reluctance to consider the relationship between national constitutions and international economic relations. She argues that the prevailing epistemic boundaries of constitutionalism—understood as a self-contained project, separate from projects of global economic ordering—have largely insulated it from critiques raised by scholars concerned with the material and distributive implications of reshaping the global legal order through the making and revising of constitutions. This essay takes up Saunders's call to de-insulate constitution-making as a technique of international law from such critique by pointing to the family as an institution that is central both to constitutional ordering and to economic ordering, and thus can help overcome the epistemic boundary between the two. To this end, the essay brings together various strands of critical thought that identify one particular family structure—the nuclear family—as an exploitative institution that has (re)produced structural inequality both within and between states. Described as the “original sin” of modern constitutionalism and as an essential “instrument of colonization,” the nuclear family model represents an apt entry point to reconceiving constitution-making as Saunders suggests—in a way “that both acknowledges the discipline's past collaboration with forms of dispossession and exploitation, and that actively reconsiders its future boundaries.”

How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.

In her article “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders focuses on constitution-making as an international practice of the past three decades and suggests that its “epistemic boundaries”—namely, the separation between the formal and material dimensions of constitution-making and the latter's exclusion from contemporary constitution-making assistance—were primarily established by scholarly work on constitution-making in the post-war era. Saunders explicitly acknowledges that her account is not the only possible history of constitution-making assistance. In this essay, I add a different layer to that history, focusing on the UN Transition Assistance Group (UNTAG) in Namibia. UNTAG is often considered the first instance of international constitution-making assistance, a practice that is generally understood to have emerged after the end of the Cold War. However, UNTAG's mandate, including its constitution-making assistance component, was in fact conceived many years before its actual deployment, dating back to the 1960s and 1970s. The essay shows that UN constitution-making assistance pre-dates the end of the Cold War and is linked to UN efforts to forge modern nation-states in the context of decolonization. I argue that this early case of constitution-making practice was an important blueprint for further iterations of international constitution-making assistance, not least because of the continuous involvement of individual international civil servants. Lastly, the case of Namibia is significantly different from the cases that inspired scholarly work in the post-war era, and we might ask to what extent the post-war inheritance affected this early international practice. I end with a brief reflection on Saunders's call to address the material dimension of constitution-making and caution against overemphasizing substantive questions in constitution-making assistance.

Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of different social scientists suggest that we should be humbler and more realistic about the role of constitutionalism and institutions in fostering peace, democracy, and development. Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” provides an important contribution to such a realistic reassessment of constitutionalism. Nevertheless, her critique of constitutional assistance needs to be developed further, examining the limitations of constitutional law in itself as a promoter of peace and democracy, rather than just the fact that material and economic questions are often neglected in international constitution-making. A key question is not so much whether and how to create a better constitutional design that would integrate economic and structural issues more openly, but, more fundamentally, whether traditional constitutional approaches are in fact appropriate for the promotion of peace, democracy, and development in post-conflict settings. In this essay, I argue for a democratic and experimentalist form of constitutionalism, which is often at odds with the core ideas of traditional constitutionalism, namely, rigidity and entrenchment.

I want to explore a tension in Anna Saunders's rich argument because it confronts much scholarship critical of what we can think of as the liberal democratic constitutional project (LDCP), and which has its roots in debates in the late nineteenth and early twentieth centuries sparked by the Marxist critique of capitalism. The tension is between the following two claims that she makes in her article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance.” First, LDCP focuses on the formal dimension of institutional design and thereby fails to pay attention to a significant dimension of a constitutional order: its material basis. In this case, the remedy might seem simple: “Pay attention!” The second claim, however, is that the formal structure of LDCP is formal in name only. It has its own material basis in the ideology of neoliberalism. If, then, one is concerned as Saunders is about a material basis that reproduces social inequality and economic exploitation, the remedy is to abandon LDCP. My exploration is through Saunders's attention to the divergent analyses of the Nazi state set out by Franz Neumann and Ernst Fraenkel in the 1930s as the launching pad for her investigation of the structure of thought that underpins LDCP and her suggestion that Fraenkel is responsible for the juridical turn in LDCP. I start with some biography, in part inspired by the way in which Saunders weaves the personal and the political into her narrative. It helps to show that the turn is not in itself problematic and, as I conclude, that material questions need to be posed and answered within the framework of a well-designed constitutional order.

Law, like medicine, is a practiced discipline, and the practice of international law is no exception. There are different contexts in which that practice unfolds. Here, our focus is on: (1) a specific form of practice, that of “advocates,” understood widely to include counsel advising or representing a party in legal proceedings, diplomats supporting a policy directive, and civil society activists advocating for legal causes; (2) engaging in different forms of legal advocacy, which can be organized analytically under three headings: legal advice and representation, diplomacy, and campaigning; and (3) in a specific context, that of advisory opinions and, more specifically, in the conception of requests for advisory opinions. Such requests are subject to different requirements according to the institutional setting through which they are channeled, but the most prominent and complex setting is that of requests for advisory opinions by the UN General Assembly to the International Court of Justice (ICJ). This is the setting we will refer to in our essay.

In most international tribunals, states alone can submit requests for advisory opinions.1 This is also true of requests to the International Tribunal for the Law of the Sea (ITLOS) sitting in plenary composition. The United Convention on the Law of the Sea (UNCLOS)2 does not expressly confer advisory jurisdiction on ITLOS. In practice, the Tribunal's advisory jurisdiction is governed by Article 138 of its Rules of Procedure, under which international agreements can empower entities to request advisory opinions of the Tribunal. The process leading to the making of advisory requests to ITLOS includes the drafting of legal questions and is largely political.3 In this process, sponsoring states have three goals: first, get requests before ITLOS; second, ensure that requests are not thrown out on grounds of jurisdiction or discretion; third, mobilize the constituency having stakes in the requests. This essay explores each of these goals.

The limited use of dispute settlement mechanisms under the UN Framework Convention on Climate Change and the Paris Agreement explains the recent upsurge in requests for advisory opinions on issues specific to climate change to international courts, namely the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights. However, it is still unclear how these courts will answer the questions posed, and in particular whether they will coordinate or compete with each other. As the requesting states and bodies are well aware of this uncertainty, requesting an advisory opinion from three courts simultaneously was an ingenious (not ingenuous) strategy to clarify states’ obligations to mitigate or adapt to climate change through the international judiciary. This essay assesses how the parallel jurisdiction of courts in these cases presents an opportunity to enhance states’ obligations concerning climate change through requesting concurrent views on the same rules and obligations. It considers the potential for contradictory views between courts on the same obligations. Finally, the essay analyzes the extent to which these courts may compete or cooperate in their approach to the resolution of these issues.

Advisory opinions of the International Court of Justice (ICJ) are non-binding and lack operative clauses requiring compliance. At the same time, they reflect the ICJ's views as to rights and obligations of states under international law. In that sense they are not different from binding judgments and generate expectations of implementation of the Court's determinations. Although some states may reject an opinion, others have pursued implementation through the requesting organ, or through alternative political and legal means. And although it is not always easy to ascertain the effect of an opinion on states’ behavior, advisory opinions often have practical ramifications, even if they are not implemented.

In this essay, we analyze how different actors contribute to compliance with the advisory jurisdiction of the Inter-American human rights system. The essay briefly reviews the discussion around the binding force of, and compliance with, advisory opinions. It then analyzes how the holdings in advisory opinions issued by the Inter-American Court of Human Rights (IACtHR or Court) over the last forty years have had a notable impact on states and how different interstate actors, including the executive, the legislature, the national judiciary, and local regulatory bodies, ensure compliance.