This contribution commemorates the award of the tenth ever Nobel Peace Prize to Tobias Michael Carel Asser on 10 December 1911, and examines his life and his lasting contribution to scholarship and practice in private and public international law. After a biographical sketch, it considers the scholarship of TMC Asser, including his part in the foundation of the Revue de droit international et de législation comparée, and his international institution-building, particularly his role in the foundation of the Institut de droit international, the International Law Association, the ‘Hague Conferences on International Private Law’ (which ultimately became the international institution of the Hague Conference on Private International Law), the Permanent Court of Arbitration, and the Hague Academy of International Law. It also explores his legal and diplomatic practice, for example his important role as a Dutch delegate at the 1899 and 1907 Hague Peace Conferences. The article concludes with a reflection on Asser's contribution to public and private international law, and concludes that while he was no doubt a very talented scholar, it was the combination of this with his skills and initiative as a negotiator, diplomat and international institution builder which secured his reputation and his legacy.

United Nations Peace Operations and UN mandated Peace Enforcement Operations, which are usually conducted by regional organizations or ad hoc coalitions of States, are wholly dependent upon the voluntary contribution of troops by Member States. This involves transferring parts of command authority to the United Nations or to the regional organization which has undertaken the mission under UN mandate, while other aspects of authority over the troops remain under the control of the State which is contributing its troops. This partial transfer of authority results in complex multilayered command structures which has given rise to certain legal and practical questions relating to the attribution of conduct in relation to allegations of possible violations of international law and the most appropriate remedies in such cases. This article provides an overview of the types of command structures most often used in both UN and UN mandated operations and explores the questions resulting from these in relation to attribution of conduct. It also discusses possible shortcomings in the provision of remedies and offers some suggestions as to how these might be addressed.

This chapter introduces the fundamental question which is addressed from different perspectives by the authors in this Agora: what does the 2003 Iraq intervention teach us about the relation between international law and politics? This chapter briefly discusses the relevance of the work by Martti Koskenniemi to that question and it treats the different points of view put forward in the contributions. It also notes that one possible position on the intervention in Iraq is not considered in this Agora, nor in the debate more generally—viz. that an intervention would be legal but illegitimate. However, if this position were examined, it could serve discussion about the political preferences which sometimes explain the choice of international legal arguments. This chapter concludes that from the contributions in this Agora a complex image emerges of the relation between international law and politics: beyond the relative indeterminacy of the law and beyond the collapse of the separation between international law and politics, an international rule of law re-emerges as a specific way of doing politics.

This article describes the role of legal advice and legal advisers in the policy-making process toward the 2003 invasion of Iraq, on the basis of the report of the Davids Committee in the Netherlands and the documents declassified in the course of the UK's Chilcot Inquiry. The controversial nature and seemingly weak legal basis for the 2003 invasion of Iraq prompted much public and academic discussion, even leading to the leaking of otherwise confidential legal memoranda from government lawyers to the media. Unprecedented and (semi)public inquiries were carried out into the policy-making processes and motives for resorting to the use of armed force, including the role of legal advice and legal advisers. In the Netherlands, legal advisers were at a disadvantage because of the hierarchical structure in which they are placed, and because the basic policy was set at a very early stage. The legal advice rendered in the United Kingdom was given far more consideration and prominence. Yet, when advice and policy started to diverge, the formal structure in which legal advice had to be requested from the Attorney General became subject to manipulation as to timing and, perhaps, substance. This description and analysis reveal common and familiar themes regarding the role, responsibilities, and perceptions of legal advice in foreign policy.

The legality and legitimacy of the Iraq war in 2003 has been widely discussed before, during and after the hostilities. Though hardly anyone questions the lack of a legal basis for the military operation in Iraq, it has been argued that other grounds could have justified the undertaking of military action. The political support of the Dutch government for the American-led invasion in Iraq needs to be understood along these lines. This contribution focuses on the legal and intellectual trends that can be observed preceding the support given to the 2003 war. These trends could be summarised as a move from legality towards legitimacy, from positive law to morality, broadly understood. The support of the Dutch government for the war can be interpreted as a reflection of a certain discontent with existing international law and of changing attitudes vis-à-vis the international order. The following questions will be raised in this contribution: What was really relevant in this context: the international legal order of the Charter of the United Nations or some other international order dominated by certain values other than the ones embedded in the Charter? Moreover, what kind of a war was the invasion of Iraq: a legal war on the basis of international law broadly understood or an ethical war in accordance with the criteria of the just war tradition? These questions will be dealt with from the Dutch constitutional perspective and from the perspective of ethics.

This article analyzes the Iraq inquiry in The Netherlands as presented by the Davids Committee (Rapport Commissie van onderzoek besluitvorming Irak. Boom, Amsterdam, 2010). It discusses the so-called corpus theory that informed the Dutch position that the invasion in Iraq was in accordance with international law, and its deconstruction by the Davids Committee. However, this article also argues that the corpus theory was only part of the story. In the search for justifying its political support of the war, the corpus theory interacted with two other claims for legitimacy put forward by the Dutch government. These alternative strands of legitimacy moved beyond positive law to include extra-Charter values (notably with regard to state roguery in the New World Order) on the one hand, and to circumvent the politics within the Security Council (legitimacy through defiance), on the other hand. The analysis discloses how any legal argumentation and bids for legitimacy are based on a particular vision of the international society and how to safeguard law, peace, and freedom in the contemporary international order. Together this leads to a more nuanced view, which does not alter the conclusion that the Iraq war was illegal, but which does show that it can be deceptive to reduce international policy-making to a zero-sum choice between law and politics narrowly defined.

When democracies wage war, they ‘know’ that they have the law on their side. The same holds true when they condemn war. But what if democracies take divergent legal positions to one and the same war? Relying on governmental and public ‘Iraq’ discourses in the United States and Germany, this article argues that governments can no longer define the law in isolation from their societal environments. The critical relation of ‘politics,’ ‘law,’ and ‘democracy’ is increasingly established not only in the political centers of states but also in the periphery: in the public discourse. This discursive process of international law becoming ‘public’ cannot be ignored. However, the patterns of meaning of international law vary remarkably. While there is public politics of international law in democracies, a per se ‘democratic’ politics of international law is hardly recognizable.

Theories of International Relations take various positions regarding the role of international law in international politics. This article identifies four different perspectives on that role by making two distinctions: first, between approaches that assume that states act on the basis of a cost-benefit analysis and approaches that assume that states act upon shared ideas; second, between theories that assume that sovereign states are the only relevant players in international politics and theories that allow for the possibility that domestic and transnational players may affect international politics as well. Subsequently, the article investigates the choices made by France, Italy, the Netherlands, the United Kingdom and the United States prior to the 2003 war against Iraq. The four perspectives on the role of international law provide different interpretations of the weight these states attached to international law when considering the use of violence against Iraq.

Those countries, including the United Kingdom, using force in Libya in 2011 have taken much greater care to ensure that their actions are underpinned by legality. This suggests a return to respect for the jus ad bellum, but as the operation against Libya unfolded it became clearer that some of the problems that undermined the legality and legitimacy of the invasion of Iraq 8 years earlier had not been avoided, which raises the question of how such operations can be kept within the strict bounds of the law.