Hersch Lauterpacht

Sir Hersch Lauterpacht (born August 16, 1897 in Żółkiew, Galicia, Austria-Hungary; died May 8, 1960 in London) was an Austro-British jurist who achieved high reputation and professional recognition both nationally and internationally due to his diverse activities in the field of international law.

His views were particularly influenced by the First World War and he received his legal training in the 1920s at the University of Vienna under Hans Kelsen and at the London School of Economics, where Arnold McNair became his academic teacher and patron. After a subsequent period as a lecturer at the London School of Economics and at the University of London, he held the Whewell Chair of International Law at the University of Cambridge from 1938 to 1955. He also served on the United Nations International Law Commission from 1951 to 1954. In 1955 he retired from his university duties and became a judge at the International Court of Justice in The Hague, where he served until his death.

Hersch Lauterpacht was a representative of the natural law philosophy of Hugo Grotius and criticized a strict legal positivist view in the field of international law. In the course of his career, he significantly shaped the theory and practice of international law with fundamental contributions, in particular, to the concept of human rights, international criminal law, the question of the recognition of states, and international treaty law. In the historiography of international law, he is regarded as one of the most outstanding legal scholars of the 20th century and received a number of high academic and state honors for his work. He was admitted to the Institut de Droit international in 1947 and to the British Academy a year later, and was knighted in 1956. His son Elihu Lauterpacht was also a renowned expert on international law in Great Britain and abroad.

Reception and aftermath

Influence on international law

Hersch Lauterpacht, who in the course of his career dealt with almost every topic of international law relevant in the first half of the 20th century, made fundamental and formative contributions in several areas. Outstanding among these was his work on the concept of human rights, which helped found this area of law and culminated in his 1950 work International Law and Human Rights. His ideas in this area created the basis for the system of human rights protection currently established in Europe, including the European Court of Human Rights and its predecessor institution, the European Commission of Human Rights. Like his previous positions on other issues of international law, this work was influenced by natural law considerations shaped by Grotius. At the time of the founding of the United Nations, his 1945 work An International Bill of the Rights of Man was the only comprehensive treatise on the establishment and protection of universally applicable human rights. He was critical of the Universal Declaration of Human Rights adopted by the UN General Assembly three years later, considering it too general and vague and thus ineffective in terms of its enforceability. Nevertheless, in his book published in 1950, he was convinced that the UN Convention on Human Rights had, for example, had a significant influence on some decisions of the United States Supreme Court on issues of racial segregation and equality.

Another area to which Hersch Lauterpacht devoted himself was the question of the recognition of states. In this area, he basically proceeded from the constitutive theory of sovereignty, according to which an entity becomes a subject of international law only by virtue of recognition by other states. However, he extended this view to include the principle, later referred to as the "Lauterpacht Doctrine", that there would be an obligation to recognize entities as states provided that they fulfil the characteristics of states defined under the declarative theory of sovereignty. These characteristics, formulated in the Montevideo Convention, include the existence of a state people, a state territory and a stable government exercising state power. The duty of recognition it postulates, for example, forms the basis of Britain's foreign policy and contrasts with the practice of recognition on the basis of unilateral discretion. To avoid conflict between this duty of recognition and national self-interest, he proposed the transfer of jurisdiction over recognition to an international body such as the ICJ. Hersch Lauterpacht's view, which was positioned between the constitutive and declarative theories and combined elements of both theories, sought to establish a collective and legally regulated process for the recognition of states. However, this approach was criticized because, for example, according to the Austrian-American jurist Josef Laurenz Kunz, its rationale was not based on logical arguments but on ethical considerations, thus devaluing the importance of positive law. Moreover, according to Kunz, the doctrine proposed by Lauterpacht was not in line with the practice of the international community.

From 1940 until after the end of the Second World War, Hersch Lauterpacht also made important contributions to international criminal law. For example, he influenced the contents of the British Military Manual with his view that the view that "orders are orders" (Superior Orders) had no suitable legal basis for justifying an illegal military act. He also played a major role in the conception of the London Statute of 1945, which formed the legal basis for the military tribunals of the Nuremberg Trials. His activities were of particular importance for the threefold division of the offences defined therein into war crimes, crimes against peace and crimes against humanity, which he proposed to the American chief prosecutor Robert H. Jackson, as well as for the conception of the term "crimes against humanity". Other topics to which Hersch Lauterpacht devoted himself included international treaty law and international law affecting the continental shelf.

Awards and recognition

People close to him described Hersch Lauterpacht as dignified, distinguished and humorous in his appearance as well as courteous and hospitable in his dealings with other people, but at the same time he was also regarded as energetic, demanding and exacting towards his students and colleagues. Throughout his life he never lost the continental European accent in his English pronunciation, which lawyers who were friends of his found distinctive in his lectures and conversations. In a country to which he had emigrated without significant connections or financial resources, he achieved rank positions in his professional environment and later high academic and government honors in less than 15 years. The encouragement and advocacy of his friend Arnold McNair, as well as his assimilation into the British academic elite through the positions he advocated, are seen as contributing factors to his success. His work is seen as a benchmark and a paradigm that continues to shape the understanding of international law in Britain to the present day. Characteristic of his work, compared to other legal scholars, was his extensive engagement with philosophy, with practical problems and with the limits of international law. Typical of most of his writings were his examination of fundamental questions, his extensive references to aspects of legal philosophy in his argumentation, his repeated criticism of rigid legal positivism, and his encyclopedic knowledge of law, political theory, and the history and practice of diplomacy.

Hersch Lauterpacht was admitted to the Institut de Droit international in 1947 and a Fellow of the British Academy a year later. He was also appointed Queen's Counsel in 1949 and Master of the Bench (appointed senior member) of Gray's Inn Bar Association in 1955, and knighted Knight Bachelor in 1956. He received honorary doctorates from the University of Geneva, the University of Aberdeen and the Hebrew University of Jerusalem, as well as in 1960 for the publication of his work "The Development of International Law by the International Court" and posthumously in 1972 together with his son for their joint work as editors of the "International Law Reports" in each case the "ASIL Certificate of Merit" of the American Society of International Law, which had already appointed him as its honorary member in 1955. The Lauterpacht Centre for International Law at the Faculty of Law of the University of Cambridge, which was founded in 1983 and is one of the most important research institutions in the field of international law in Great Britain, as well as the Chair of International Law at the Hebrew University of Jerusalem bear his name. Jehuda Zvi Blum was appointed full professor of this chair in 1965. In addition, since the opening of the Centre, an annual lecture dedicated to his memory has been held in Cambridge, to which internationally renowned experts in international law have been invited, including John Dugard, Ignaz Seidl-Hohenveldern, Mohamed Shahabuddeen, as well as the Swedish diplomat Hans Blix and the Finnish jurist Martti Koskenniemi. The entire body of writings by Hersch Lauterpacht, published in five volumes by his son between 1970 and 2004, comprises 7,860 pages. A biography of his father, also written by Elihu Lauterpacht, was published in 2010 as a supplementary volume of 450 pages, which also includes excerpts from private correspondence of Hersch Lauterpacht. His estate is kept at Trinity College, University of Cambridge.

Even during his lifetime or at the time of his death, Hersch Lauterpacht was considered one of the leading figures of his time in the field of international law. The Austrian jurist Alfred Verdroß-Droßberg, at the time a member of the International Law Commission and a judge at the European Court of Human Rights, described him after his death was announced as "the greatest contemporary authority in the field of international law". Due to his theoretical and practical work as a legal scholar, university lecturer and judge, he is still considered one of the most outstanding jurists in the history of international law in the 20th century and, along with the French jurist Georges Scelle, one of the most influential international lawyers of his time. Stephen Schwebel, who became one of Hersch Lauterpacht's most prominent students due to his own work as a professor of international law and as a judge on the International Court of Justice, described the latter's achievements as "unsurpassed by any other international lawyer of the 20th century." His writings and activities are considered fundamental to the formation of the contemporary international legal order. According to Philip Jessup and Richard Reeve Baxter, who later also served as judges at the ICJ, he influenced the development and function of international law in particular, unlike his teacher Hans Kelsen, who was primarily concerned with its structure and systematics. Martti Koskenniemi rated Hersch Lauterpacht's treatise "The Function of Law in the International Community", published in 1933, as the most important English-language book in the field of international law published in the 20th century.

Hersch Lauterpacht's major work, published in 1933, a treatise on legal theory on the function of law in the international community