key: cord-0058997-fl950ons
authors: Forteau, Mathias
title: Annuaire Français de Droit International
date: 2020-08-08
journal: Netherlands Yearbook of International Law 2019
DOI: 10.1007/978-94-6265-403-7_13
sha: 0431904e18f153c91f1582d313cd7d627874d2d3
doc_id: 58997
cord_uid: fl950ons

The Annuaire Français de Droit International, which was created in 1955, was, and still is, the first French Yearbook of international law aimed at covering the entire field of international law. The present contribution explores the origins, format, editorial operating method, architecture and challenges ahead of the Annuaire. It stresses in particular its specific nature, as a Yearbook designed to address not only the French practice of international law, on a systematic basis, but also current and substantial developments of contemporary international law, which are of interest to any international lawyer. It also underlines the particular position of the Annuaire which, as a French-language publication, has to confront the increasingly monopolistic nature of English in the international academic arena.

The Annuaire français de droit international was created in 1955, well after the creation of the first two French International Law journals, the Journal du droit international (Clunet) (first published in 1874) and the Revue Générale de Droit International Public (first edition in 1894). It is the first French Yearbook of international law, and still the only one, at least covering the entire field of international law. As the Director of the AFDI stressed in 1964, the aim of the Annuaire is to contribute to a better knowledge of legal problems arising in the international sphere and the way the AFDI was designed, which was quite unprecedented when the AFDI was launched in 1955, was replicated since its creation in other countries. 1 The AFDI was created at the initiative of the French Group of the 'Attendees and Alumni of The Hague Academy of International Law' ('Auditeurs et Anciens Auditeurs de l'Académie de Droit International de La Haye', which was part of the Association of Attendees and Alumni of The Hague Academy of International Law, the A. A.A., created in 1923) . It explains why the President of the Curatorium of The Hague Academy, Gilbert Gidel, prefaced the first volume of the AFDI in 1955. 2 Gidel stressed on that occasion the common goals shared by the Academy and the AFDI, the publication of the AFDI being seen, as the mere existence of the Academy, as 'un acte de foi dans le droit international, dans sa valeur, dans son avenir, dans les services que doit attendre de lui une humanité en proie plus que jamais à une dangereuse confusion'. 3 Most of the first professors and practitioners working for the AFDI were alumni of the Academy, according to the foreword of the first volume of the AFDI. 4 The first director-for 24 years-of the AFDI, Professor Suzanne Bastid, played a prominent role in its creation, as Joe Verhoeven, former Secretary-General of the Institute of International Law and the then director of the AFDI, pointed out at the occasion of the 50th anniversary of the AFDI celebrated in January 2006. 5 The first page of each volume of the AFDI indicates today that it was created ('fondé') by Mme Suzanne Bastid. Professor Bastid was in particular the first woman elected at the Institut de droit international, in 1948, the first woman to appear before the ICJ, the first woman member and then President of the UN Administrative Tribunal, and Judge ad hoc at the ICJ. 6 1 See Bastid 1964 , at VIII. 2 See Gidel 1955 The form of an annual publication, which characterizes yearbooks, was adopted by the AFDI for two reasons: first, because no French yearbook of international law (i.e. an annual publication reporting the main elements of practice, case-law and doctrine of each year, as systematically as possible) existed in 1955; second, because it was considered that to have a journal focusing on international legal issues year by year would facilitate on the long term international legal research. 7

The object and purpose of the AFDI was clearly set forth by the Editorial Committee in the foreword of the first volume: to develop a legal approach in the observation of 'international life' (in that respect, even though some attention is given to International Relations as a science distinguished from International Law, the main focus, and perhaps the exclusive one today, of the AFDI are international legal issues); 8 and to adopt a comprehensive approach to international law, by focusing not only on general rules applicable between States, but also on special international rules, including the constitutional law of international organizations. 9 As the Editorial Committee put it in 1955, 'le domaine ainsi défini est immense' 10 and this is the reason why the 'problèmes essentiels', i.e. the main trends and events, were designed as being the ones to be scrutinized in particular, including (but not limited to) the developments that took place during the year corresponding to each volume. 11 According to these goals, it was decided when the AFDI was created to give 'special attention' to the case-law/jurisprudence of international courts and tribunals, in particular to the decisions which contribute to the elaboration of common notions and develop the general principles of law, which the Statute of the ICJ refers to. 12 Following this comprehensive approach, it was also decided at the inception of the AFDI to insert in each volume a 'general chronology of internationally relevant facts' ('chronique générale des faits internationaux'). 13 These different goals were inspired in 1955 by a particular approach to the study of international law, which has to take into account the social context within which law operates in the international sphere (even though it is not the principal object of such study) in order to prevent 'the construction of useless and dangerous systems, 7 Comité de rédaction 1955, at XIV. 8 More recently, in 2000, a French Yearbook of International Relations has been created (Annuaire français des relations internationales). 9 Comité de rédaction 1955, at XII. On the other hand, the main focus of the AFDI is public international law. Issues of private international law are dealt with in the AFDI to the extent only that they are linked to public international law. 10 Ibid., at XIII. 11 Ibid. 12 Ibid., at XIII. 13 Ibid.

detached from the reality of international life'. 14 In other words, the doctrinal approach of the AFDI is both positivistic and objectivistic, in the sense that it is focused-at least such was the intention in the first years of the AFDI-on the presentation of existing international law, considered in its social context. 15 As a result, the academic analysis of international law was conceived by the founding members of the AFDI as playing an important social role, in harmony with the position expressed by the UN Secretary-General at that time, i.e. that international law would be strengthened through its study, which would increase its 'certainty'. 16 This approach explains why the AFDI is focused not only on international law in its entirety, but also on French practice of international law. As the foreword of the first edition pointed out, the AFDI could contribute in precising positive international law by supplying information on French practice, as national yearbooks of international law usually do for the relevant national practice. Accordingly, the AFDI collects, presents and analyses, in specific 'Chroniques', treaties and other diplomatic documents related to France, the practice of French courts related to international law, and French practice (in particular of the Executive branch) of international law.

This orderly, systematic, annual presentation of France's judicial and non-judicial practice of international law is particularly crucial to help practitioners in identifying customary international law, as well as treaty practice. The important role that yearbooks of international law play in that regard has been recently underscored by the Secretariat of the International Law Commission in its Memorandum on ways and means for making the evidence of customary international law more readily available, released in its final version in February 2019. 17 So far as France is concerned, the AFDI is one of the main resources relating specifically to international law listed in that Memorandum. 18 In Resolution 73/203 on the identification of customary international law (adopted on 20 December 2018), the UN General Assembly 'noted' the said memorandum and 'acknowledge[d] the utility of published digests and surveys of practice relating to international law, including those that make legislative, executive and judicial practice widely available (…).' Emmanuelle Jouannet once observed that French journals and a yearbook of international law could likely convey a 'French internationalist thinking'. 19 It does not mean however that the AFDI is mostly French-oriented, as regards both the 14 Ibid. ('éviter de construire des systèmes inutiles et dangereux, détachés des réalités internationales'). 15 Bastid 1964, at XIII: The object and purpose of the AFDI is to 'suivre attentivement la formation du droit dans cette société des Etats où s'affirme l'interdépendance, de définir les nécessités sociales auxquelles ce droit doit répondre, d'en relever les lacunes ou les contradictions, d'en montrer l'évolution et les conséquences nécessaires'. 16 Comité de rédaction 1955, at XIII: 'il est évident que la certitude du droit est la première condition de son efficacité'. 17 See A/CN.4/710/Rev.1, 14 February 2019, paras 47-48. 18 Ibid., Annex I, at 66. 19 Jouannet 2000, at 4. topics selected and the materials used, as Christian Tomuschat recently suggested. 20 The AFDI has a twofold nature: it is not only aimed at presenting and diffusing French approaches to and practice of international law; it is also aimed, on an equal footing, at participating in the study of international law in its entirety, by both analyzing important international law issues, even if not specifically related to France, 21 and welcoming and soliciting contributions by non-French authors (mainly French-speaking ones). 22 The double nature of the AFDI (both a French and a real international Yearbook of international law) is reflected by the global structure of each volume, which remained nearly the same since 1955. Each volume is approximately-at least in the recent years-900-1000 pages. Each volume consists of two main categories of studies, ones more analytical or conceptual, ones more documentary, as initially observed by Gidel in the first volume of the AFDI. 23 A first part of the AFDI consists in legal studies on a given thematic topic (be it a theoretical topic, the commentary of a new instrument or a specific crisis or event, the analysis of a specific legal notion or legal regime, etc.).

A second part includes 'Chroniques'. It constitutes a very important (and innovative) part of the AFDI, in both quantitative and qualitative terms. It constitutes a useful tool of information and thinking (thanks also to the indexes at the end of each volume, restated in a separate volume approximately every five years). The 'Chroniques' are not limited to France's practice. 24 They consist of three elements.

First, the AFDI includes 'Chroniques' devoted to France's international conduct and practice in relation to international law, articulated along three different 'chroniques': the practice itself, i.e. the practice of non-judicial branches of government; the practice of French courts and tribunals; and (but not any longer in the 20 See Tomuschat 2017, at 221: 'The openness of the RGDIP contrasts with the general approach of the Annuaire français de droit international. In this publication, the editors wish to show, inter alia, the living presence of international law in the relevant French fora. The articles focus mostly on sources in French without becoming blind to relevant other materials. Essentially, however, the AFDI is conceived as a monument of French scholarship, a reminder that indeed the French language can legitimately claim to be number two in the science of international law'. 21 For instance, among many other examples, the first volume (1955) AFDI itself, but soon on its website) the list of treaties and agreements concluded by France, as well as other legal instruments.

Second, the AFDI contains a few book reviews, of many pages each, and a very extensive 'Critical Bibliography' of international law books recently published in French, English, but also Spanish, Italian, … It also includes an annual list of the 'thèses' (Ph.D.) in International and European law presented at French universities. There also used to be, starting in 1967, a 'review of reviews' ('revue des revues'), which summed up in one or two paragraphs, and in a quasi-systematic and exhaustive way, the content of all the articles published in other international law journals, but it ceased to exist in 2002. It has been substituted by a much more selective and concise presentation of the content of some international law journals (mainly some other yearbooks and the collected courses of The Hague Academy).

Third, the AFDI includes international 'chroniques', that is to say 'chroniques' that are devoted to international law issues not specifically related to France. Some of these 'chroniques' adopt a selective approach, focusing each year on three or four separate topics; others are systematic in character and are supposed to present and analyze the whole practice of the year of a given institution (or at least its most salient aspects). These annual (or, for some of them, bi-annual) 'chroniques' are quite diverse: they currently cover the work and activity of: (i) international organizations; (ii) the International Law Commission and the Sixth Committee of the UN General Assembly; (iii) International administrative bodies and tribunals; (iv) the European Union; (v) International Criminal Courts and Tribunals; (vi) Investment arbitration; (vii) the Dispute settlement body of the WTO; (viii) the European Court of Human Rights; (ix) Human Rights Treaty Bodies. There is no specific 'chronique' for the ICJ, or the ITLOS or interstate arbitral tribunals, because most of their decisions, judgments or awards are subject to individual contributions by separate authors in each volume.

It is interesting to note that these international 'chroniques' follow a specific approach. They are not supposed to present the activity of these institutions in every detail, as a specialized field of international law, but rather, so far as possible, to insist on general international law issues arising in the course of their activity that could be of particular interest for the readers of the AFDI. It means that the AFDI is conceived, first and foremost, as a tool for international lawyers in the general meaning of the term, i.e. those who are not-or who do not want to be-clinically isolated in a specialized domain of international law.

The AFDI is a French-language yearbook. It consists solely of articles published in French. From time to time, articles translated from English are published in the AFDI. 25 Since 2008, abstracts both in French and English are included at the top of each study.

The AFDI is managed by an Editorial Committee ('Comité de rédaction'), which is composed nowadays of 15 members. The Committee is assisted by an Editorial Team (the 'direction'), that is to say one director (since 2015, three co-directors) of the AFDI, and the Secretariat of edition ('Secrétariat de rédaction') (one or two people).

The first director, Professor Suzanne Bastid, acted for more than 20 years. She was succeeded by Professor Daniel Bardonnet, then Professor Jean Combacau (since 1994) and Professor Joe Verhoeven (since 2002). Since 2015, there are three codirectors, coming from three different (Parisian) universities (Professors Gérard Cahin, Mathias Forteau and Evelyne Lagrange). Daniel Vignes served, in the first years closely with Professor Bastid, as a member of the editorial team since 1955, for 43 years, which is quite remarkable. The current Secrétaire de rédaction is, since 2015, Laurent Trigeaud, maître de conférences at the University Paris II.

The composition of the Editorial Committee reflects the specific nature of the AFDI. It is mainly composed of professors of international law, who are, with a very few exceptions only, from France (and in their great majority from Parisian universities). It includes, acting within their personal capacity, French practitioners, from core institutions related to international law (French Judge and French former Judge at the ICJ; Director of the legal service of the French Ministry of Foreign Affairs). It also includes French-speaking prominent international judges (currently: Judge Yusuf, President of the ICJ; and Judge Sicilianos, Member and former President of the European Court of Human Rights).

The Editorial Team and the Editorial Committee play a crucial role in identifying possible topics. For the most part of the articles published in the AFDI, it is the Editorial Team and Committee which identify possible topics and then possible authors for the topics selected, who are then contacted by the Editorial Team. The manuscripts are scrutinized by the Editorial team, that engages in a dialogue with authors as needs be. This being said, a growing number of articles are submitted spontaneously and then peer-reviewed.

The AFDI has its seat at the University Paris II (Panthéon-Assas). It is published with the assistance of the Centre National de la Recherche Scientifique (CNRS) and the University Paris II. In terms of material resources, today, the AFDI is funded exclusively by the University of Paris II. 26 It has an annual budget of approximately 4500 euros. The University Paris II also provides a small office, a computer and a photocopier, and some compensation for teaching hours for the Secrétaire de rédaction. On the other hand, the directors of the AFDI are put at the disposal of the AFDI by their respective universities without any kind of compensation. The material and human resources of the AFDI can be considered as being very modest, as compared to the extensive scientific and editorial work that must be done to prepare each volume on an annual basis.

Although it is quite impossible to sum up in a few words the evolution over 65 years of the AFDI, some main evolutions can be pinpointed at.

As regards the editorial form itself, the AFDI follows the same format as the one initiated in the first volume in 1955. It is generally true also as regards its spirit, which remains essentially the same as the one defined in 1955. 27 On the substance, each volume of the AFDI is denser today than it was in 1955. The articles and studies are much longer than they used to be. In the first volumes, short contributions were preferred, which entails that there were more articles per volume than in the more recent period (with in particular in the first three decades many specific contributions on the practice of international organizations). Today, most of the articles are more than 25 pages long and then more substantial. In addition, more materials are quoted in the studies (no doubt thanks to an easier access to international materials, and because of the great expansion of international law).

The subject-matters of the 'Chroniques', which form an important part of the AFDI and its added value as a yearbook, have necessarily evolved over time. For instance, with the creation of international criminal courts, first the ICTY and the ICTR, then the ICC and other tribunals, the need was expressed to have a 'chronique' on international criminal courts and tribunals, which was thus created in the 1990s. Other 'chroniques' were anchored in a specific period and then logically disappeared (see the 'Chronique' on legal issues related to new States, born from decolonization, which was active from 1961 to 1967). Others were substituted by new forms of 'Chronique'. For instance, the one on the jurisprudence of the European Court of Justice (EU) was transformed in 2015 in a new 'Chronique' on the Law of the EU (international aspects). It means that the case-law of the European Court of Justice is no longer the exclusive focus of the 'Chronique'. Conversely, the former 'Chronique' of International Economic Law, which was instituted in 1968, ceased to exist in 1996 and has been substituted by two Chroniques, one on the case-law of the WTO, the other one on the case-law of Investment Arbitral Tribunals. In addition, the creation of the Annuaire du droit de la mer (Yearbook of the law of the sea) in 1996 may explain why there is no longer a 'Chronique' on the law of the sea in the AFDI (this 'Chronique' was published, on an irregular basis, from 1969 to 2000). 28 Another 27 See Vignes 1994 , at 8. 28 From 1969 to 1971 , 1973 to 1975 , 1977 , 1981 to 1982 , 1985 , 1987 , 1988 , 1990 , and 2000 'Chronique' on the practice of Specialized Institutions was experienced for two years only (1996) (1997) . There is now, since 2016, a general 'Chronique' on the law and practice of international organizations. It has also to be noted that the 'Chronique' on 'Teachings and conferences' ('Enseignements et congrès'), which task was to present what was discussed at the main conferences and colloquiums of the year, no longer appeared in the AFDI after 1997. Finally, the first volume of the AFDI in 1955 reproduced some international documents in a section entitled 'Documents', but it was not renewed in other volumes.

The AFDI is since the 2000s freely accessible online, on open access, at no cost at all, on 'Persée' (accessible at [https://www.persee.fr/collection/afdi]). All the volumes, since the first one, are accessible, with three years of embargo. A website dedicated to the AFDI has been created in the 2000s (accessible at [https://www.ihei. fr/afdi_annuaire_francais_droit_international/]). It is still a work in progress, and will soon be improved to provide more information to potential or actual readers. The website provides information on the last table of contents of the AFDI and on its history.

The addressees of the AFDI are students, practitioners and scholars, specialized in public international law. Given the wide scope of the topics embraced by the AFDI, and in particular the diversity of the 'Chroniques', which cover the main bodies of general international law, the AFDI is designed to be used by any international lawyer willing to follow-up the developments of public international law as a whole. Of course, the fact that it is published in French means that it is mainly used by French-speaking internationalists (meaning internationalists who can use French as a working language).

The AFDI is a successful yearbook. It is frequently quoted in articles published in other journals, international law books, Ph.D. dissertations, pleadings before the ICJ, etc. It is generally bought by French Universities libraries, as well as by non-French universities. Subscriptions come from all over the world (Europe, the Americas, the Middle East, Asia, Africa, Oceania). It is difficult however to assess its impact with more precise data. It is not likely to be captured by Anglo-Saxon rankings, first because the AFDI is published in French, second because the AFDI does not resort to anonymous peer-review for the selection of articles to be published. In addition, it does not seem to exist data on indexations, factors of impact, etc., on the AFDI or, beyond, French-language international law journals or yearbooks. This is obviously an issue for which there is considerable room for improvement.

The main challenges ahead for the AFDI and more generally the main issues discussed from time to time within the Editorial Committee as regards what the AFDI should look like and whether it should evolve and in which directions are the following ones:

a. How to accommodate the annual rhythm of publication, with its inevitable delays (the AFDI being published in the second semester of the year that succeeds the one that is commented in the published volume), with the fact that in a digital era and a trend towards more reactive academic publications (in particular on blogs and online), the legal studies released through the AFDI could be seen as outdated even on the day they are published, or at least quickly thereafter? Does it mean that yearbooks should focus on transversal, more doctrinal studies rather than on specific events or trends of the year? But is it the role of yearbooks to do so? That raises the question of what the relation to time of academic works should be, i.e. what balance should be found between the need to be reactive and then audible as lawyers and the need to take time to properly analyze recent events. How to reconcile in particular the need for more reactive and interactive academic studies and the still very important and crucial need for (i) a systematic assessment on an annual basis of international law practice, which is useful for scholars and practitioners who have in the course of their activity to establish in a systematic manner the evolution of international law on a given topic over a long period of time, and the need for (ii) sufficient hindsight to permit thoughtful, lucid and in-depth legal analysis? b. Should the AFDI be more open to 'Symposium', that is to say to focus a substantial part of some volumes on specific topics? It is interesting to note in that regard that in September 2020, the AFDI took for the first time the initiative to issue a call for papers, dedicated to Covid-19 and International Law, which will be published as a Symposium in the AFDI 2020 to be published in 2021. c. In a time of increased specialization of international law, which has an impact on the formation and careers of international lawyers, is it realistic/appropriate to maintain a 'general international law' approach in the AFDI? Should the AFDI (i) focus on general international law issues only, (ii) study any field, including specialized fields, of international law through the lens of a general approach, or (iii) adopt a mixed approach (general international law studies together with more specialized articles)? For instance, how should the AFDI approach contemporary environmental law: should it study it as a specific field of international law, in and by itself, or should it focus on the elements that can be of interest for other fields of international law or the general theory of international law? d. What balance to be struck between general studies and 'Chroniques' in a world where the number of international institutions, quasi-judicial bodies and courts and tribunals is in expansion? Is it realistic to try to follow, each year, the practice of so many institutions? If no, which criteria should be used to proceed to a selection between these institutions? e. Which format should follow the 'Chroniques'? Should they be exhaustive in the presentation of the relevant activity or case-law? Or should they focus each year on some aspects only (such is the decision that has be taken in particular by the AFDI recently for the 'Chroniques' on the law and practice of international organizations and on the law of the European Union)? f. Which criteria should be favored when selecting the relevant topics? In addition, to what extent the editorial team should be directive in proposing topics? What balance should be struck between proposals by the Editorial Committee and proposals submitted to peer-review? Also, to what extent should the AFDI favor anonymous peer-review? g. What is the best balance in the composition of the editorial team (professors/practitioners; nationals/foreigners; French-speaking/non-French-speaking; Parisian/non-Parisian; degree of diversity of doctrinal approaches)? h. How to ensure a better diffusion of the AFDI? (Wikipedia? Facebook? Twitter?

Online libraries?) i. Would it be useful to include an abstract of each study, not only in French and English, but also in Spanish (as the RGDIP does)? And/or another foreign language? j. What kind of editorial strategy should French-language yearbooks (and journals) follow in a world where there is a powerful trend towards 'switching to English' for international law journals? 29 On the one hand, there is a need for Frenchspeaking international lawyers to publish more in English to widen their audience to the whole world. On the other hand, the fact that there are fewer non-English international law journals and yearbooks than there used to be makes it all the more necessary to maintain a yearbook such as the AFDI to give a home to academics willing to publish articles in French.

Avant-propos

Comité de rédaction (1955) Avant-propos

Regard sur un Siècle de Doctrine Française du Droit International

La doctrine américaine

The (Hegemonic?) Role of the English Language

Only the Archiv des Völkerrechts has kept its sole title in German but has also switched to publishing articles in English and on some rare occasions also in French. In general, however, the French language seems to be drying up in all of the German periodicals of international law'. In addition, he points out at p. 216 that 'It is striking that some publications that first appeared in French were eventually translated

Memoriam: Madame Bastid