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Sir Hersch Lauterpacht’s Concept of the Task of the International Judge

Published online by Cambridge University Press:  28 March 2017

Shabtai Rosenne
Shabtai Rosenne*
Affiliation:
Ministry, Foreign Affairs, Israel
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Extract

When the late Sir Hersch Lauterpacht became a member of the International Court of Justice in February, 1955 (a position he was to fill effectively for barely five years, until the fall of 1959), he went to The Hague with some thirty years of devoted study and practice of international law behind him. As teacher and student of international law, as a most highly qualified publicist (in the words of Article 38(1) (d) of the Statute of the Court) of recognized universal authority, he had devoted himself both to the law in general and in particular to the problems of the judicial settlement of international disputes, whether by the Permanent Court of International Justice and its present-day successor, the International Court of Justice, or by ad hoc arbitration tribunals. Indeed, his writings as a whole display a rare preoccupation with the entire philosophy and the practical problems of the judicial settlement of international disputes, together with a deep understanding of its limitations and a satisfying freedom both from putting forward extravagant claims in its behalf and from purely theoretical speculations.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 4 , October 1961 , pp. 825 - 862
Copyright
Copyright © American Society of International Law 1961

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References

1 His editorship of the last four editions (the fifth, published in 1935, to the eighth, published in 1955) of Oppenheim’s classic International Law, a work which he profoundly transformed both in content and in spirit, is the best known and the most significant of his contributions to general international law. Lauterpacht’s only general work of his own is his course of lectures given at the Academy of International Law at The Hague under the title, “Règles Générales du Droit de la Paix,” and published in 62 Recueil des Cours 99 ff. (1937, IV). At his death he was working on a ninth edition of Oppenheim and on a comprehensive treatise of his own. He had also written a great number of notes, articles, essays, monographs and reports on many specific topics, some of which will be referred to in this article. In addition, he had been from the start editor of the Annual Digest and Seports of International Law Cases, known since 1950 as International Law Reports. It can be asserted without fear of contradiction that this work of editorship, conducted as it was with painstaking thoroughness, gave him a keen insight into the working of the judicial process in concrete cases.

2 Apart from his many notes and articles, his major works on these aspects are : Private Law Sources and Analogies of International Law (hereinafter cited as Analogies) (1927), to which must be added, for the sake of completeness, his important essay “Some Observations on the Problem of ‘Non Liquet’ and the Completeness of International Law,” Symbolae Verzijl 196 (1958) (hereinafter cited as “Non Liquet”); The Function of Law in the International Community (1933) (hereinafter cited as Function) ; The Development of International Law by the Permanent Court of International Justice (hereinafter cited as Development (P.C.I.J.)) (1934), the ostensibly revised edition of which, entitled The Development of International Law by the International Court (hereinafter cited as Development) (1958), is in fact an independent work, four times the length of the original. Lauterpacht’s most important contribution to the theory of international arbitral procedure was made in his capacity of member of the International Law Commission in the period 1952-1954. In 1953, as the Commission’s General Rapporteur, he was responsible for the Commission’s annual report to the General Assembly, which included a significant chapter on international arbitration procedure. Doc. A/2456, 1953 I.L.C. Yearbook (Vol. 2) 200 at p. 201; also in 48 A.J.I.L. Supp. 1 (1954).

3 SirFitzmaurice, Gerald, “In Memoriam Master Sir Hersch Lauterpacht, Q.C., F.B.A.,” in Graya, No. 52 (1960), p. 113.Google Scholar

4 In the following cases: Nottebohm (Second Phase), [1955] I.C.J. Rep. 4, 49 A.J.I.L. 396 (1955); Norwegian Loans, [1957] I.C.J. Rep. 9, 51 A.J.I.L. 777 (1957); Right of Passage (Preliminary Objections), [1957] I.C.J. Rep. 125, 52 A.J.I.L. 326 (1958); Guardianship Convention of 1902, [1958] I.C.J. Rep. 55, 53 A.J.I.L. 436 (1959); Interhandel (Preliminary Objections), [1959] I.C.J. Rep. 6, 53 A.J.I.L. 671 (1959) ; Aerial Incident of 27 July 1955, [1959] I.C.J. Rep. 127, 53 A.J.I.L. 923 (1959); and Frontier Land, [1959] I.C.J. Rep. 209, 53 A.J.I.L. 937 (1959).

5 In the following cases: Voting Procedure on South-West Africa, [1955] I.C.J. Rep. 67, 49 A.J.I.L. 565 (1955) ; Hearings of Petitioners on South-West Africa, [1956] I.C.J. Rep. 23, 50 A.J.I.L. 954 (1956); I.L.O. Administrative Tribunal, [1950] I.C.J. Rep. 77, 51 A.J.I.L. 400 (1957).

6 Interhandel case (Interim Measures), [1957] I.C.J. Rep. 105; 52 A.J.I.L. 320 (1958).

7 In the following cases: Voting Procedure, [1955] I.C.J. Rep. 90-123; Hearings of Petitioners, [1956] ibid. 35-59; I.L.O. Administrative Tribunal; Norwegian Loans, [1957] ibid. 34-66; Interhandel (Interim Measures), ibid. 117-120; Right of Passage (Preliminary Objections) ; Guardianship Convention, [1958] ibid. 79-101. The two occasions on which he was content with the majority opinion as it stood were the I.L.O. Administrative Tribunal and the Right of Passage (Preliminary Objections) cases, from which it may be assumed that he was successful in having his views reflected in the majority opinion: Cf. the quotation from Development on p. 834 below.

8 Interhandel case (Preliminary Objections), [1959] I.C.J. Rep. 95-122.

9 Aerial Incident of 27 July 1955 case, ibid. 156-194. His other colleagues were Judges Wellington Koo and Sir Percy Spender. It is believed that Lauterpacht was the principal architect of that opinion, which bears all the hallmarks of his scholarship (though not of his alone).

10 Frontier Land case, ibid. 230-232.

11 The Anzilotti experience may be briefly summarized. During his incumbency, between 1922 and 1939, he participated in approximately 60 substantive decisions of the Permanent Court, voting with the majority on 45 occasions, and appending 15 separate or dissenting opinions.

1 On this reservation see pp. 844 ff. below.

13 “Les Travaux Préparatoires et l’Interprétation des Traités,” 48 Hague Academy Recueil des Cours 713 (1934, II); “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” 26 Brit. Yr. Bk. of Int. Law 48 (1949) ; Report on the Interpretation of Treaties, 43 Institut de Droit International, Annuaire 377 (1950, I) ; two Reports on the Law of Treaties, 1953 I.L.C. Yearbook (Vol. 2) 90, and 1954 ibid. (Vol. 2) 123 (U.N. Docs. A/CN.4/63 and A/CN.4/87).

It is not proposed in this article to consider specifically Lauterpacht’s judicial techniques in the matter of interpretation or his observations on that aspect of the law. Reference may be made inter alia to [1955] I.C.J. Rep. 93-98; [1956] ibid. 44-49 and passim; [1958] ibid. 80 ff.; [1959] ibid. 158 ff.; and see other instances cited herein.

14 See pp. 836 ff. below (mandated territories) and 844 ff. (automatic reservation).

15 Analogies. 305.

16 International Law and Human Rights 5 (1950). The problem of the relation between strict law and the moral position also exercised him in “Non Liquet” as well as in his opinions. This aspect of Lauterpacht’s philosophy also provided the motive force for his advanced thinking in two other distinct, but related, spheres of contemporary international law, namely, the protection of human rights, and the punishment of the individual for violations of international law, and particularly in respect to what has since come to be known as the “crime against humanity.”

17 Analogies x.

18 “ It is necessary to point out . . . that when referring ... to modern positivism, the author in no way alludes to that legitimate aspiration of the science of international law which regards custom and treaties as the primary sources, whose authority, so far as existing law is concerned, is higher than any conflicting rule of natural law or moraUty.”Ibid.

19 See, in this connection, Lauterpacht ‘s major study on Grotius, , “The Grotian Tradition in International Law,” 23 Brit. Yr. Bk. of Int. Law 1 (1946)Google Scholar. Lauter-paeht’s natural law is not to be confused with the traditional law of nature. Cf. Function 209, and the reference to the “vagueness of the law of nature” in [1958] I.C.J. Rep. at 94.

20 Two instances of this may be given. The first is his monograph on Recognition in International Law (1948) which, while controversial, displays a marked ability to work through masses of official documents, many of them unpublished, with the accuracy of a scientist. The second is his outstanding essay, “Codification and Development of International Law,” 49 A.J.I.L. 16 (1955) (consummating his experience as a member of the International Law Commission).

21 Save where the context otherwise requires, the term “International Court” in this article refers equally to the Permanent Court of International Justice and to the International Court of Justice. Lauterpacht, too, was inclined to use the same expression generically, though there is an element of inaccuracy about that usage which may, at times, be misleading.

22 Rosenne, The International Court of Justice 140-141 (1957).

23 [1955] I.C.J. Rep. 67, particularly from p. 114 onwards,

24 For further elaboration see Function 51-135; Development 158-172; and “Non Liquet.”

25 [1955] I.C.J. Rep. 108; [1956] ibid. 92; [1958] ibid. 89.

26 [1958] ibid. 94.

27 [1959] ibid. 102.

28 [1958] ibid. 100.

29 [1957] ibid. 46, 49, 56-57.

30 [1958] ibid, 84, 92: but for the contrary process, of drawing conclusions from the absence of such uniformity, see [1957] ibid. 40.

31 Ibid. 56.

32 [1956] I.C.J. Rep. 47, 55; [1957] ibid. 50; [1959] ibid. 116.

33 “ The Doctrine of Non-Justiciable Disputes in International Law, “ 8 Economica 277 (1928); “La Théorie des Différends Non-Justiciables en Droit International,” 34 Hague Academy Eecueil des Cours 499 (1930, IV).

34 Function 369. Actually, the present writer believes that this itself is only a partial definition, and that other, extra-legal, reasons may exist to establish the non justiciability of a given dispute or situation.

35 Op. cit. 354-355. And see below, p. 850.

36 Op. cit. 155-156.

37 The preface to Development is dated Jan. 1, 1957, and it states that the manuscript was “almost complete” when, at the end of 1954, the author was elected one of the Judges. There are indications that some passages of the book do incorporate views which Lauterpacht formed under the impact of his experiences as Judge, though having before us also the text of the earlier edition, in which many similar ideas and passages appear, we must be careful not to exaggerate any element of pleading pro domo suo in Development.

38 Cf. [1959] I.C.J. Rep. 191.

39 Development 6-7; similarly in Development ( P.C.I.J.) 3-4.

40 Development (P.C.I.J.) 18, 21; and Development 39-40,

41 Development 66. Italics supplied.

42 Op. cit. It may be noted that Lauterpacht also strongly advocated the inclusion of dissenting opinions in the reports of the International Law Commission. See his proposal in Doc. A/CN.4/L.43 and discussion at the Commission’s 195th meeting. 1953 I.L.C. Yearbook (Vol. 1) 66.

43 Development 69-70.

44 Thus: [1955] I.C.J. Rep. 90; [1956] ibid. 35; [1957] ibid. 34.

45 Thus: [1957] ibid. 66.

46 Development 83, and see p. 89.

47 For instances, see: [1955] I.C.J. Rep. 99-100, 104-105, 108-109, 110, 116, 122; [1956] ibid. 40, 44-49, 55-56; [1957] ibid. 35, 44, 46, 49, 58, 118; [1958] ibid. 83, 91 ff.; [1959] ibid. 104, 106, 114, 116, 120, 168, 173, 175, 187, 189.

48 See p. 832 above.

49 For an instance, see [1955] I.C.J. Rep. 102.

50 [1959] ibid. 107 ff. See further on this, p. 850 below.

51 See, for instance, [1955] I.C.J. Rep. 105, 122; [1957] ibid. 39-11; [1959] ibid. 164.

52 See, for instance, [1955] ibid. 122; [1956] ibid. 52; [1957] ibid. 47-48, 51-55; [1959] ibid. 179, 188.

53 Thus, referring in 1957 to a view he had expressed in 1953 in his First Report on the Law of Treaties (A/CN.4/63) submitted to the International Law Commission, he said with disarming frankness : “In the light of further study of this question in connection with the present case, I do not feel it possible to adhere to that view.” Norwegian Loans case, at 52. In the Preface to Development he wrote (at p. xiv) : “Clearly, any views expressed here are liable to change in the light of further study, reflection, or argument.” (Italics supplied.) On p. 25 of the same work is a useful warning against the habit of referring to previous expressions of opinion by adjudicating judges themselves, since these may undergo a change “in the light of the argument ... or of the deliberations of the Court.”

54 [1956] I.C.J. Rep. 57; [1959] ibid. 111. For a warning against an excess of judicial caution, see [1955] ibid. 105.

55 [1950] I.C.J. Rep. 128; 44 A.J.I.L. 757 (1950).

56 [1955] I.C.J. Rep. 90.

57 Ibid. 91.

58 Ibid. 92-93.

59 Ibid. 93-98. Actually it is not quite clear why, in 1955, anyone need have assumed that the question of voting procedure was not in the minds of the Court in 1950. It is possible to understand Judge Bead’s separate opinion in that case as precisely referring to the question of voting, as indicating that the question was discussed by the Judges in the Council Chamber. [1950] I.C.J. Rep. at 173. It is surprising that no reference was made in 1955 to Judge Bead’s observation—not even by Judge Bead himself !

60 [1955] I.C.J. Rep. 98-106.

61 Ibid. 106-114.

62 Ibid. 114-122.

63 [1956] I.C.J. Rep. 36.

64 Ibid. 37.

65 Ibid. 38.

66 ibid. 39-43.

67 Ibid. 44-52.

68 Ibid. 55-59. Earlier, on p. 45, he was of opinion that it was an essential function of a judicial tribunal to resolve the conflict which had arisen, which could not be deferred to a political or legislative body.

69 [1957] ibid. 25.

70 Ibid. 27.

71 See pp. 844 ff. below.

72 [1957] I.C.J. Rep. 35-36.

73 Ibid. 36-41.

74 [1959] I.C.J. Rep. 6. Earlier, the Court had asserted jurisdiction to indicate interim measures of protection at the request of Switzerland, despite a claim of domestic jurisdiction by the United States on the basis of the automatic reservation, but had declined to make the order on grounds of absence of urgency. [1957] ibid. 105. Lauterpacht, consistent with his opinion in the Norwegian Loans case, appended a brief separate opinion in which he denied the Court’s jurisdiction, but concurred in the operative clause of its order. Ibid. 117. The substance of that opinion is incorporated in his dissenting opinion of 1959.

75 [1959] ibid. 119.

76 Ibid. 120-122.

77 In the course of the pleadings the respondent government agreed to adjourn consideration of the third and fourth objections to the merits, in effect waived the second objection, and left for immediate decision the first, and, alternatively, the fifth, objections.

78 [1959] I.C.J. Hep. 103. For an earlier formulation see [1957] ibid. 34.

79 In 1960 the Court actually interpreted the words “shall be” in the constitution of an international organization as a “mandatory provision.” Maritime Safety Committee case, [1960] I.C.J. Rep. 150; 54 A.J.I.L. 884 (1960).

80 U. S. Nationals in Morocco case, Pleadings, Vol. 1, p. 262. And see Lauterpacht ‘s observations in [1957] I.C.J. Rep. at 59.

81 [1960] I.C.J. Rep. 146. That order was rendered after Lauterpaeht’s death.

82 League of Nations, Records of the Fifth Assembly, Plenary Meetings, p. 225, Third Committee, p. 198; Records of the Ninth Assembly, Plenary Meetings, p. 183; 13 U.N.C.I.O. Docs. 559. And see General Assembly Resolution 171(11) of Nov. 14, 1947.

83 “The British Reservations to the Optional Clause,” 10 Economica 137 at 169 (1930). It may be noted, en passant, how close this view is to the doctrine of “compatibility with the object and purpose of the Convention” adopted by the Court as the criterion for the admissibility of reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. [1951] I.C.J. Rep. 15 at 24; 45 A.J.I.L. 579 at 584 (1951). And see Lauterpacht in [1959] I.C.J. Rep. at 105.

84 Function 189. And note his observation that states which attempt to avail themselves of their contractual capacity for purposes alien to its primary purpose, which is to create binding obligations, act at their peril. [1955] I.C.J. Rep. 99.

85 Report on the Law of Treaties, submitted to the International Law Commission, Doc. A/CN.4/63 (cited), at p. 97. That view has since been followed by Judges Basdevant and Read in the Norwegian Loans case, and has been partly adopted by the United States Government in interpretations it has given to its automatic reservation in the course of various pleadings. See Interhandel case, Pleadings, p. 610; Aerial Incident of 27 July 1955 case, Observations on Preliminary Objections, p. 25. Lauterpacht himself came to abandon that point of view in the light of further study. [1957] I.C.J. Rep. 52, and see p. 836, note 53 above.

86 [1957] I.C.J. Rep. 57.

87 Ibid. 120.

88 [1959] ibid. 102-103.

89 [1957] ibid. 63-64, 120. Despite that clear invitation, no government expressed a desire to intervene in the later phase of the Interhandel ease.

90 Ibid. 65-66.

91 Ibid. 44, 46; [1959] ibid. 103-105.

92 [1957] ibid. 47; [1959] ibid. 104. Por an early germination of this idea, but in a different context, see Function 206, note 1.

93 [1957] ibid. 46; [1959] ibid. 105.

94 [1959] ibid. 104.

95 [1957] ibid. 46.

96 Ibid. 61; [1959] ibid. 102.

97 [1957] ibid. 43

98 Ibid. 48; [1959] ibid. 106.

99 [1957] Ibid. 49-51.

100 [1959] ibid. 106-111. It might, however, be added that the Executive Branch of the United States Government has consistently expressed its doubts as to the consistency of the automatic reservation with the Statute. See, for instance, 81st Cong., 2nd Sess., Revision of the United Nations Charter, Hearings (1950), p. 464. Yet Lauterpacht correctly indicated the impropriety of basing any interpretation on speculation as to differing attitudes of the legislative and executive branches of the Government of the United States. [1959] I.C.J. Rep. 111. In 1959 the Eisenhower Administration made an effort to repeal the automatic reservation, and a resolution to that end was introduced in the Senate on Mareh 24, 1959. After exhaustive hearings held in the early part of 1960, the Foreign Relations Committee decided to postpone further action. See 86th Cong., 2nd Sess., Hearings before the Committee on Foreign Relations, Compulsory Jurisdiction, International Court of Justice (1960). The question of the repeal of the automatic reservation was also discussed publicly in the course of the Presidential election campaign of 1960, and it is clear that the issue raises emotional attitudes in the United States.

No such analysis of French policy appears in the Norwegian Loans Opinion, probably because this is not so unvarying a feature of French policy. In another context, however, a citation is made from the statement of the Rapporteur of the Committee for Foreign Affairs of the French National Assembly, reporting on the declaration of 1949, which emphasized that “The French sovereignty is not put in issue and its rights are safeguarded in all spheres and in all circumstances.” [1957] I.C.J. Rep. 58.

101 Ibid. 52-55.

102 [1959] ibid. 111-112. Earlier, in another connection, he had pointed out that the degree of application of good faith in the exercise of full discretion does not lend itself to rigid legal application. [1955] ibid. 120.

103 [1957] ibid. 55-59; [1959] ibid. 116-117.

104 [1957] ibid. 63-64.

105 Ibid. 65.

106 [1959] ibid. 118.

107 In the Norwegian Loans ease Judges Guerrero and Read—the latter only in part—considered the automatic reservation invalid. They were not members of the Court in 1959. In the Interhandel case Judges Sir Percy Spender, Klaestad and Armand-Ugon took a similar view, but the latter two thought the tainted clause was severable from the instrument.

108 [1955] I.C.J. Rep. 115.

109 Ibid. 117.

110 Ibid. 118.

111 Ibid. 122. The legal consequence which he thought emerged from a resolution of the General Assembly was that the Members were under a legal duty to consider its terms in good faith, but that, having done that, they were free to accept or reject it.

112 [1959] ibid. 190.

113 [1956] ibid. 55. For another warning against the dangers of basing decisions on mere classifications, see [1958] ibid. 80, 83.

114 [1956] ibid. 57.

115 [1957] ibid. 65; [1959] ibid. 104-105.

116 “Non Liquet” 219-220. This writer, in his “Influence of Judaism on the Development of International Law,” 5 Nederlands Tijdschrift voor Internationaal Eecht 119 at 148 (1958), had expressed dismay at certain pronouncements of the International Court which seemed to assume a sharp cleavage between public law and public morality, and had asked “Is good law really so far removed from morality?” In forwarding him an autographed offprint of “Non Liquet,” Lauterpacht penned his expression of the hope that the passage cited above may allay those apprehensions. Perhaps these were Lauterpacht’s last words referring to his basic teaching that the same standards of morality apply to states and to individuals.

117 Function 203.

118 Ibid. 238.

119 Ibid. 232. The quotation is from P.C.I.J., Series E, No. 4, p. 75.

120 Statute, Art. 20 ; Rules of Court, Art. 5.

121 Function 215.

122 Development 68-69. The astuteness of that observation became very apparent, after Lauterpacht’s death, in the Maritime Safety Committee case, [1960] I.C.J. Rep. 150; 54 A.J.I.L. 884 (1960). The Court adopted its opinion by nine votes to five. However, only two dissenting opinions were appended, and there is no indication of the identity of the other three judges who voted against it, or of the nine who constituted the majority. Although this reticence is permitted by the Statute, it may be thought that here the principle of judicial secrecy has been carried too far, and that the absence of any identification of the composition of either the majority or the minority detracts from the general authority of the opinion, and exposes the Court to charges such as those foretold by Lauterpacht.

123 Function 232.

124 Ibid. 228.

125 Ibid. 233.

126 Yet note his concealed interpretation of it, after it had been withdrawn, in the Interhandel case. [1959] I.C.J. Rep. at 114.

127 For instances of his special stress on what he termed the international interest, see [1955] ibid. 112, 122; [1956] ibid. 57; [1957] ibid. 65-66. Indeed, this type of “bias” is very evident in his opinions on the automatic reservation.

128 Function 204, 225. But see also p. 217 for the qualification.

129 Note, as an example, the dissenting opinion of Judge Basdevant in the Norwegian Loans case, at p. 74.

130 Note, as an example, Lauterpacht ‘s observation on p. 39 of the same case.

131 The case of the Competence of the General Assembly for the Admission of a State to the United Nations is perhaps the most striking example of this use, or abuse, of the advisory procedure. In the opinion of at least one competent observer, the question there was so obvious that one may doubt whether the General Assembly was justified in making its request. Hudson, M. O., “The Twenty-Ninth Year of the World Court,” 45 A.J.I.L. 2 (1951)Google Scholar. For this Advisory Opinion, see [1950] I.C.J. Rep. 4; 44 A.J.I.L. 582 (1950).

132 Cf. Lauterpacht’s own observations in [1956] I.C.J. Rep. 46, 47. And cf. the observations of Judges Sir Gerald Fitzmauriee and Tanaka in the Temple of Preah Vihear case (Preliminary Objections), [1961] I.C.J. Rep. 17 at 38; digested below, p. 978.

133 Incidentally, that case may serve as a good illustration of the dangers encountered when the Court adopts too many grounds for its decision. It was not necessary for the Court, in that case, to interpret Art. 36(5) of the Statute as applying only to the original signatories of the Charter, an interpretation which not only runs counter to all previously accepted interpretations of the Charter and the Statute, but also opens the way to very far-reaching, and possibly destructive, reinterpretations of those instruments. For the purpose of deciding whether it had jurisdiction or not, it would have been sufficient for it to have decided that the Bulgarian Declaration of 1921 lapsed with the dissolution of the League of Nations in 1946—as had been argued between the parties. See, in that connection, the joint dissenting opinion, [1959] I.C.J. Rep. 175 ff.

134 The decision in the Guardianship Convention case was reached by 12 votes to four. However, five of the judges who voted for the decision could not subscribe to the anonymous majority opinion, and appended separate opinions of their own. The actual opinion of the Court thus expresses views to which only a minority of its members could subscribe fully.

135 “Non Liquet” 220.

136 Cf. SirFitzmauriee, Gerald, “The Law and Procedure of the International Court of Justice,” 27 Brit. Yr. Bk. of Int. Law 1, 2 (1950)Google Scholar.