“Gathering texts and case-law in a way which is accessible is of the utmost importance.” Professor Jean-Marc Thouvenin, Secretary-General of the Hague Academy for International Law.
Also Counsel and Advocate before the International Court of Justice, Professor Thouvenin (Paris Nanterre University / Sygna Partners) discusses the legality of extraterritorial sanctions as well as the accessibility of international law.
What are your main professional activities?
I am currently involved in three sets of functions.
The first one, the core one, is teaching international law at Paris Nanterre University. In this context, I am also the program co-director of the Master 2 degree in European and International Law and of the special diploma delivered by the ‘Collège international de droit’. I am also the current Secretary-General of The Hague Academy of International Law which is an obvious and very challenging prolongation of my job as a Professor. Even if the Academy is not a University, it does an academic work. It is a marvelous institution.
Finally, I work as legal counsel, especially for States. I provide my clients with legal advice and plead before the International Court of Justice (ICJ), the Permanent Court of Arbitration (PCA) and the European Court of Justice (ECJ).
You are advising Iran in the case it recently introduced before the ICJ concerning US sanctions. Do you believe that international litigation is a good way to solve such a dispute?
I will of course not talk about my clients or about the pending cases I am involved in. However, I can say that going before the court to settle a dispute that cannot be settled through diplomacy is a peaceful move, and a manifestation of the conviction that international law and international justice means something. In this regard, whatever the parties and the disputes are, going before the Court is always an option if the Court has jurisdiction. I remind for example that in Cameroon v. Nigeria, Cameroon made the choice of going to the Court, after Nigerian troops invaded the Bakassi Peninsula. We can now say, considering the outcome of this case, that it was the best of choices.
You are one of the leading experts in sanctions on the world stage. Last year, you lectured a course at The Hague Academy, titled “Economic Sanctions decided and implemented outside the U.N.”. Nowadays, many lawyers have to deal with this subject. What could you say about it briefly?
This is a very complex topic. On one hand, State practice seems to be without limits, as if there were no legal rule applicable to this field. On the other hand, as international lawyers, we know that if we dig deep enough, we will find some rules; and this is indeed the case when it comes to sanctions. However, the gap between practice and what I see as the law applicable to sanctions is huge. In this context, there are two ways to narrow down the gap. Either considering that the practice is contrary to the law and should be settled according to the law. Or that, if there is such a gap, it must be because the law I thought applicable is not law at all. Perhaps it has never been the applicable law, or perhaps the law has changed with the evolution of practice and the opinio juris. These are the 2 extreme positions.
In this context, the core of my course was to question the limit between what is lawful, when it comes to territorial sanctions, and what is prohibited by international law, when it comes to extraterritorial sanctions.
At the Hague Academy, the first course was held in 1923. How does it feel to be in charge of such an institution?
It was such a surprise, and definitely the most challenging function. Previous Secretary Generals are among the most renown international lawyers of the last century: Georges Scelle, even if you don’t agree with his views, René-Jean Dupuy, Daniel Bardonnet, Geneviève Bastid-Burdeau, Yves Daudet. Being their successor is an honor. It is also a huge responsibility.
The General Assembly of the United Nations regularly recognizes “the contribution of The Hague Academy to the teaching, studies, dissemination and wider appreciation of International Law”. Do you think that international law is disseminated enough among lawyers worldwide? Do you think there are other ways to make international law more accessible?
The more international law is understood as it is and in what it achieves, the better. This is basic. One problem is that this is not necessarily the priority of international lawyers. In the little world of international lawyers, lawyers have to be “seen”, and they need to be published. To emerge, there is nothing quicker than saying and writing things that look original, scandalous or new. Everybody wants to be flagged as the author of a “seminal” article, or as an “authority”. This is understandable, and lawyers must of course be ambitious. Moreover, international law must surely be improved, and improvement comes from well-founded critics. But we have more and more numerous brilliant minds, sometimes very young, exclusively focused on rethinking, destroying and questioning international law. Is it international? Is it law? The focus is more on questioning the miracle of international law, on “how could it work, where it should not?”, or on questioning its general legitimacy, rather than saying what it is and how we could reasonably think of improving it. Instead, some prefer to focus on the cost of international law or on whether it is taught in the same manner in China, Japan or USA, etc. That is surely interesting for researchers. But the public tends to focus on those critics and challenges against international law, rather than on the basics of what is international law and on what it achieves. “Normal people” finally think that international law is pure wishful thinking. There is also a tendency in State practice to consider that “soft law” is a good option — which is in many cases not true. What “normal people”, as well as decision makers, need to know is what international law is, that it is law, and that it works generally, even if it does fail sometimes. These are the basics.
Surely, international law is located in international legal texts, first and foremost, then in case-law and in some important writings of the most experienced international lawyers. Therefore, gathering texts and case-law in a way which is accessible, rather than in books addressed solely to academics is of the utmost importance.