As early as the 1930s, the development of plans for an international legal order to be created in the aftermath of the Second World War were commonplace. This particularly concerned a group of refugee scholars hailing from the German-speaking academic world. The plans of three scholars that were personally affected by the Nazi regime are discussed, those of Hans Kelsen, Hersch Lauterpacht and Charles De Visscher. This contribution compares the plans of the three scholars as formulated in the period between 1934 and 1947, as well as the historical narratives at their core, and ventures to answer the question whether these narratives should be seen as ‘invented traditions’ or that the scholars perceive them as significant and crucial stages of development at the basis of their plans for a post-War international legal order.
The historical turn in international law under influence of scholars such as Martti Koskenniemi and Randall Lesaffer is well-known and widely commented upon. In the context of this historical turn, several recent publications have examined the idea of the longue durée history from a number of angles.1 With Rose Parfitt and Annabel Brett, I understand the term ‘longue durée history’ in the sense given to it by Fernand Braudel: in a 1958 article he defined it primarily in a negative way, as the opposite of ‘event history’ (histoire événementielle).2 For historians such as Braudel, the function of the longue durée history is to signal and understand cycles, structures and models, which can really only be determined when looking at history as it were from a distance, over a longer period of time. However, even in the longue durée, the historian solely looks back. In the twentieth century there are several examples of legal scholars influentially employing longue durée histories, not only for the purposes of writing legal history, but also for the creation of new legal concepts. The term ‘legal concept’ is understood here in the broad sense, as including concepts that are defined in the legal context itself, but also those that form a constitutive part of the vocabulary of jurists and lawyers employed to discuss and explain the law more generally.
This contribution is about three of these legal scholars, and their usage of history in the service of the creation of new law, particularly an international legal order made to deal with the aftermath of the Second World War. As early as the 1930s, the first proposals came out to create such an order in view of the rapidly deteriorating political situation, and in some cases, dire personal circumstances. Although these proposals were composed by legal scholars with much experience in legal practice also, several of them contain longue durée histories in the service of the proposed new international legal order.
The first one to be discussed is that of the Austrian constitutional lawyer and legal philosopher Hans Kelsen (1881–1973).3 Kelsen was not a historian per se, but employs in his work specific historical models for constructing an international legal order that, in the 1930s and 1940s when he wrote his main works on this topic, had all but broken down. The first part of this article will examine Kelsen’s construction of an international legal order, his relation to the political developments to his day, and the choice for the historical model at the basis of his theory of international law.
In the second part of this article, Kelsen’s theory will be contrasted to that of someone who may count as his pupil, and who had an even bigger influence than Kelsen on the development of international law in the twentieth century both in theory and in practice: Hersch Lauterpacht (1897–1960). While some have held that Lauterpacht begins his work on war crimes and human rights in the early 1940s in a confrontation with the horrors occurring on the European continent,4 the historical models at its core can be traced back to the 1920s, for example his emphasis on the Dutch legal scholar Hugo Grotius and the judge Cornelis van Bynkershoek. The interesting paradox is whether Lauterpacht takes his conceptions of war crimes and human rights from history, or provides them with a history after formulating them. Regardless, much like in Kelsen’s work, there seems to be an intricate relation between concept and history, something that may have been a remnant of a more Germanic scientific method even after his move to Great Britain in the 1920s.
The third part of this article shall also focus on a method in which history and international order are related, however with respect to a lawyer and scholar who is far less well-known among Anglo-American scholars than Kelsen or Lauterpacht: the Belgian professor of international law and judge at the International Court of Justice Charles De Visscher (1884–1973). Much like Kelsen and Lauterpacht, De Visscher was personally affected by the rise of fascism and Nazism, Belgium having been occupied by Nazi Germany from 1940 until 1944. Also like Kelsen and Lauterpacht, De Visscher saw the solution for the problems of international law in the 1940s in history.
However, even though they were truly gifted international law experts, the outlook of Kelsen, Lauterpacht and De Visscher differed fundamentally. Apart from their thought being both theoretical as well as inspired by their work in legal practice, these three scholars are singled out also based on the fact that in the literature there outlooks are often compared.5 Their uses of history however is taken at face value, not as fundamental for their methods and models. This contribution aims primarily to do just that. As such, the fourth part of this article will compare and contrast the longue durée histories of the three scholars, and assess the relation between history and concept implied by them.
2 Hans Kelsen: The ‘New Commonwealth’, Classical Just War Theory and the Conception of an International Court (1934/1942)
Already in 1920, Kelsen had published on international law and sovereignty. From 1933 onwards, the scholar produces a flurry of writings, building on his earlier work but incorporating the theoretical considerations into concrete institutional structures and arguments. It is a matter of debate in what measure Kelsen’s 1920s works on international law are informed by the horrors of the First World War as well as the disintegration of the Austro-Hungarian Empire. In his recent biography, Olechowski writes that Kelsen was drafted but was allowed to stay at home (Heimschläfer), and that under the limitations set by his military service kept on publishing.6 Moreover, from 1917 onwards Kelsen worked at the Ministry of War, coming in direct contact with high-placed government officials and having first-hand knowledge of the business of warfare.7 His 1920 work on the problem of sovereignty and the theory of international law according to Olechowski however was not primarily informed by the political circumstances, considering the conceptual relation to some of his pre-war works, and due to its abstract-theoretical character.8 For this period, Olechowski discusses various writings of the scholar on international law, international order and international organizations. The writings are basically subdivided into two periods, the first composed straight after Kelsen’s forced dismissal from the University of Cologne in 1933, and his subsequent move to Geneva, coinciding with the publication of his most famous work, the Introduction to the problems of legal science or the Reine Rechtslehre (‘Pure theory of law’ (1934)). The second period commences after Kelsen’s move to the United States, ending up at the University of California at Berkeley. In this period, Kelsen focuses on concrete international organizations and processes, above all in early conceptions of the United Nations as a replacement for the League of Nations, and a post-conflict court for the punishment of war crimes, eventually becoming the Nuremberg tribunal.
Thus the 1933 catastrophe may have been a watershed moment in Kelsen’s thinking, being forcibly ousted from the University of Cologne after the Law for the Reinstitution of the Civil Service of April 1933.9 From 1932 onwards in consecutive publications Kelsen details concrete proposals for viewing and changing positive international law and its institutions.10 Olechowski mainly relates this period to his teaching assignment in Geneva consisting of the black-letter-law of nations.11 This depends on how broad the category of ‘writings concerning international law’ by Kelsen should be seen in this period. For example, in 1934 Kelsen composes a piece on ‘party-dictatorships’, which entails a comparison between various types of dictatorships around the world, indicating the uncomfortable relation between dictatorships and the international legal order:12 does this concern a publication on (positive) international law, and is it thus related to Kelsen’s assignment in Geneva, or is this a publication that is the result of a broader scientific response to the catastrophe including, but going beyond, thinking about international law alone?
The largest contribution to international law of Kelsen in the 1930s may however be his work on the restructuring of the League of Nations, culminating in his textual critique of the League Covenant and his eventual commentary on the United Nations.13 The publication is preceded by a number of lectures and pieces, primarily attacking the lack of effective sanctions and coercion of the League.14 Clearly, the League needed to be reformed from the ground up, a plan that Kelsen presented for the predominantly British New Commonwealth Society in 1934.15 As it appeared so closely to the catastrophe and the publication of the Reine Rechtslehre, but considering it pre-empts much of Kelsen’s arguments concerning international law in his 1930s and 1940s publications, it is worth focusing on this particular plan for a moment. At the core of the argument is the idea that international law, if to be seen as ‘law’ in the traditional sense, is a law in its primitive stage, hall-marked by the prominence of self-help.16 If it is to be brought out of this stage, the development of international law should be seen as analogous with the historical evolution of municipal law. Central to the latter evolution have been the courts as these for lack of centralized legislation and enforcement were able to apply effective sanctions and coercion to their judgments.17
For the reconstruction of a League of Nations that has as its purpose the prevention of war by disarmament and the sanctioning of unlawful reprisals and acts of war this means any form of legislation or codification is not opportune, rather an international court should gave far-reaching powers to curb the acts of member states.18 The objective is to impose minor limits on self-help by making it dependent on a sanction imposed by a court, to be lawfully executed by the state in question.19 Only after an exclusive jurisdiction is in this manner acquired by the international court can there be a move to the next evolutionary stage, namely the inclusion of disputes between states and individuals.20 But particularly considering the jurisdictional competition within the League of Nations, mainly between the Council and the Permanent Court of Justice, there is still a long way to reach this goal.21 The 1934 contribution contains many of the ideas Kelsen would expand on in later publications in various contexts. The notion of international law as law in its primitive stage for example emerges both in arguments on international institutions and in the development of the Pure theory of law.22 Based on their inner similarities, it is noteworthy Kelsen seems to be at pains to maintain a certain conceptual unity in all of this writings.
The idea of courts as main catalysts of building law from a primitive to a more advanced stage by sanctioning specific forms of self-help, thus supporting a focus on the judicial process to support better functioning international institutions to regulate acts of war, returns also returns in several later publications. In 1941 the argument in favour of a court is reiterated after the start of the Second World War from the United States.23 A year later Kelsen took part in a conference organized by the American Academy of Arts and Sciences, of which he had been made a honorary member already in 1933, on the topic of ‘Post War problems’.24 Central to his relation were the problem of fascist dictatorships under international law, and the creation of a new international organization including a strong court with an obligatory jurisdiction.25 In the same years, Kelsen delivered the Oliver Wendell Holmes lectures at Harvard, which, together with Peace through Law (1944), may be the most extensive plan for a post-conflict international legal order by Kelsen. The 1944 work was published in the same month as D-Day,26 with light at the end of the tunnel becoming a real possibility. Nevertheless, I will focus here on the Holmes lectures, as Kelsen provides his most extensive account of the historical models he employs to construct his plan for a post-war international legal order.27
From the lectures, it is clear that both in a theoretical and in a practical sense the main problem of international law is that of coercion or enforcement. Since international law is law in a primitive state, coercion does not primarily happen through an international court, but by individual states, employing for this purpose reprisals and out and out warfare.28 This law represents the actual legal rules in earlier historical societies, and these legal rules thus make up a historical model for the modern functioning and to a degree development of international law.29 Subsequently, Kelsen makes clear what he means with the content of these historical rules: the traditional doctrine of the ‘just war’ (bellum iustum).30 The doctrine maintains that war can only be waged justly if it meets certain conditions, such as a proper declaration of war and a ‘just cause’ (iusta causa), e.g. the unsanctioned infringement of the territory of another state.31 This tradition is made very concrete, stemming from the works of Cicero in Roman Antiquity via the Church Fathers Augustine and Isidore of Seville through to Aquinas and eventually Grotius.32 The problem with the doctrine is its intergovernmental character:33 only with the establishment of a centralized court can the transfer be made from an international law consisting of rules enforced beyond the prerogative of the individual nation states.
Having thus set out the nature of international law in his second lecture, Kelsen presents a possible structure for a centralized international organization in the fifth and sixth Holmes lectures. The possible models for this are those for types of nation-states, the federal state and the confederacy of states. According to Kelsen, the federal state is hall-marked by a separation between territorial and federal norms resulting in a division between spheres of validity, with the component state having its own limited constitutional autonomy, and lastly a legislative organ divided into two houses or chambers.34 Foreign and economic matters should then be lifted to the federal level, as well as including a federal form of citizenship: the US and Switzerland are the models Kelsen envisions for this federalized international organization.35 However, history shows it is only possible to get there via the gradual elimination of self-help via an effective court system, primarily one that can impose sanctions.36 As such, rather than the just war-doctrine, the historical model for the creation of more supranational international organizations according to Kelsen are those where the application of law preceded the creation of law, above all the judicial structure of the Roman Empire, and the English Common Law from the Middle Ages onwards. In these models a development is discernible from a primitive tribunal to an eventual centralized state.37
3 Hersch Lauterpacht: The Federalist Principle and the Grotian Tradition (1940/1943)
However great the influence of Kelsen on legal theory, his importance for the development of twentieth-century international law is overshadowed by that of someone who could count as his pupil, Hersch Lauterpacht.38 In the literature, Lauterpacht is often presented as an idealist, attempting to anchor cosmopolitan considerations into an effective system of international law aimed at preventing nation-state atrocities. Koskenniemi has referred to Lauterpacht’s work from the 1930s onwards as building a ‘rule of law writ large’, i.e. on an international scale. The centerpieces of this rule of law would come to be individual human rights on the one hand, and the prevention and punishment of war crimes on the other. Comparing Lauterpacht to more realist international thought it has been suggested the image of two far sides of a debate should be nuanced: most realists certainly allow for moral criteria to determine the content of law, even the legal acts of nation-states, and Lauterpacht employs his extensive knowledge of and experience with international legal practice to support and demonstrate his theoretical advances.39 In this vein Lauterpacht for example responds to the critique of a realist, suggesting no-one in their right mind would be an idealist according to his description.40
Moreover, Lauterpacht had composed a critique of Kelsen’s Pure Theory of Law almost as soon as it came out.41 His 1930s work on turning the international legal order into a rule of law writ large could thus perhaps be seen as an attempt to walk the line between a practical yet somewhat normative realism and Kelsen’s abstract theory: the question is how to counter international law’s anarchical character without disconnecting it from its formative sociological, political and economic realities. Considering his own view on the Universal Declaration of Human Rights, the success of Lauterpacht’s endeavor can be debated.42 However, where Lauterpacht in the academic literature is usually discussed in terms of his contribution to individual concepts such as crimes against humanity and human rights, compared to Kelsen his ideas on international organizations are relatively minimal: there is no proposed structure for a United Nations nor an argument for an international court superseding the authority of the states.43 Despite its cosmopolitan and normative tendencies, the view of Lauterpacht remains by-and-large an intergovernmental treaty-based one where nations-state within a balance of power are responsible among themselves to uphold legal norms.
On the other hand, like for Kelsen, the municipal law of the nation-state remains the model for the formation of an international legal order, as evidenced early on by his 1927 dissertation at the London School of Economics on Private Law Analogies in International Law.44 More than a decade later and having occupied the Whewell chair of international law at Cambridge, Lauterpacht delivers a lecture which is published in the third part of his collected writings, titled ‘Sovereignty and federation in international law’.45 Rather than the announced re-evaluation of the concept of sovereignty and the juxtaposition between federation and confederation,46 the lecture appears to provide a roadmap for a post-war creation of an international legal order. This international legal order is specifically ‘European’, which is defined in first instance as the European members of the League of Nations, which in 1940 would exclude Spain, Italy, Germany, a large part of the Balkans and the Soviet Union. However, Lauterpacht himself elsewhere (non-comprehensively) names Great Britain, France, Germany, Holland, Sweden and Switzerland.47 In the conclusion of the contribution, he then ventures to exclude Germany, Italy, and the Soviet Union as non-democratic states.48 The problem of whether to include or exclude non-democratic or fascist states from prospective international organizations is recognized in the 1930s and 1940s among (international) legal scholars and political theorists.49
The lecture has three objectives: to restate the meaning of national sovereignty in international law, to review the principal features of the federal system as distinguished from a confederation of states, and to examine the practical possibilities for a federal system and to see if it can be realized in the context of the League of Nations.50 The main differences between the federation and the confederation indicated by Lauterpacht are the suppression of the international legal personality and a direct link between the state and the individual in the former.51 After having discussed the problems concerning the suppression of the international legal personality of states in general and in the context of the League of Nations, Lauterpacht to the principle of immediate federal rule to ascertain whether or not it can be realized in a new international legal order. This relation would manifest itself in various different ways: the direct participation in the creation of legislative organs; the guarantee of certain fundamental rights in a constitution; the principle of direct taxation; and the access to a federal tribunal.52
Following Lauterpacht, this principle of immediate federal rule in the form of a direct relation between the individual and a legal political association is beneficial, and could actually be realized. This is very much in conjunction with his early work on human rights.53 The centrality of the individual in the system can on the other hand be maintained even without compromising the current international position of states. On the basis of these considerations Lauterpacht then opts for the model of a confederation rather than a federation, or more simply just to continue the structure of the League of Nations.54 Some enhancements and modifications are made, such as the extension of the protections for minorities to an obligation for an adequate respect for individual rights, including a jurisdiction of final appeal for the Permanent Court of International Justice.55 As such, a progressive political integration of human society can be achieved, even with the possibility of closer forms of association.
Naturally, it is interesting to place this contribution in the wider context of Lauterpacht’s scientific development. At this point, he is on the cusp of formulating his influential ideas of human rights and the punishment of war crimes, the former of which plays a significant part in Lauterpacht’s views on a post-war international legal order as set out in 1940. However, he does not keep his historical models under wraps: already in 1927, the dissertation references humanist scholars such as Grotius and Bynkershoek, the former central in his post-War work on human rights and of course in his 1946 reclaiming of the Grotian tradition in international law.56 The Dutch humanist is similarly prominent in an early iteration of the historical narrative at the basis of Lauterpacht’s concept of human rights.57 The question is whether and how the content of the 1940 lecture fits into – or is even inspired by – this historical narrative. As Hans Morgenthau would write in his review of Lauterpacht’s 1945 An international bill of the rights of man:58
The idea of natural law may be eternal, but the particular manifestation it found in Grotius’ philosophy of the ‘natural system’ is not. It is inseparably tied up with humanistic individualism, the belief in the completely rational nature of man, the faith in the deductive method and the universality of the natural sciences. These intellectual convictions, nourished by a peculiar constellation of social forces, were the common possession of the 17th century. Today they are only a vague remembrance without creative powers, a intellectual ritual which is still performed, but whose substance is no longer firmly believed by all members of the international society.
If Lauterpacht’s idea of human rights is supported by a historical narrative, does this narrative extend to a broader ordering of the international legal order, whether or not in the service of the protection of individual rights?
The 1943 article containing Lauterpacht’s historical human rights- narrative was a lecture held in 1942 before the (British) Grotius Society. The political thrust of the argument is clear from several passages, for example by a reference to Carl Schmitt as a ‘writer with authoritarian tendencies’ decrying the right to freedom in Antiquity.59 The first two parts, on natural rights and natural law, then provide fairly general histories, emphasizing the importance of Stoic philosophy in Antiquity,60 and presenting Machiavelli as a retrograde stage superseded by calls for tolerance after longstanding religious strife, and the development of social contract-theories.61 Grotius only really enters into the third section on international law, but it is through him that the history of a relation between international law and the natural rights of man should be told. First, his natural law theory reinvigorated the development of international law by providing it with an individual rights-based focus. Moreover, even though Grotius only recognizes a very limited right of resistance, he does stress the possibility of humanitarian intervention, in which he also exerted a large influence on Locke, Vattel, Wolff and Pufendorf.62 Lastly, Lauterpacht stresses the protection of aliens as a fundamental influence of natural rights-thinking on international law.63 All of this leads Lauterpacht to conclude that the protection of human rights by means of an international bill of the rights of man should be made a part of positive (international, state constitutional) law.64 An enhanced version of the article forms the first part of his 1945 An International Bill of the Rights of Man.65
4 Charles De Visscher: Catholic Personalism and Human Rights in Roman Law Countries (1946/1947)
With the revival of natural law-thinking in the wake of the War particularly historical models for human rights that placed the concept in longue durée contexts were composed by as wide a variety of scholars as Jacques Maritain,66 Helmut Coing,67 Gerhard Ritter,68 and of course Hannah Arendt’s scathing chapter in The Origins of Totalitarianism.69 The question of how human rights were actually to be realized beyond the legal confines of the nation-state was harder to solve than to determine in what tradition they were to be included. The adoption of the Universal Declaration on Human Rights was preceded by and embedded in the newly minted United Nations: both in the early deliberations on the international organization and on the human rights declaration referring to historical models seems to have taken a back seat to pragmatic political problem solving. Between the erection of the UN and the adoption of the UDHR however a programmatic documents emerges that does intend to substantively connect the historical narrative to the institutional dimension.
The document is a report of the International Law Institute for the commission on human rights of the Economic and Social Council of the UN titled The Fundamental Rights of Man as the Basis for a Restoration of International Law, composed by Charles De Visscher. De Visscher had been a professor of international law at Gent and Leuven, becoming a judge at the Permanent Court of International Justice in 1937.70 In an address in homage to his teacher, the Italian giant of international law Dionisio Anzilotti (1869–1950), De Visscher himself compared his work to that of Hans Kelsen, in the sense that the Second World War had given new vigor to their work.71 As such, much like that of Kelsen De Visscher’s work can be divided into two parts, although the watershed moment of De Visscher is not 1933, but the year of the publication of the report for the ECOSOC, 1947. From this moment on, his work is committed to the creation of an international legal order combining the theory and practice of international law, culminating in his main work, the Theories and Realities in International Law.72 Contrary to Kelsen, his conception of the international legal order revolves around human rights, already a year before the Universal Declaration was to be adopted.
The conception of human rights of De Visscher is strongly personalist, an intellectual current that emphasizes the position of the person within a communitarian context, closely connected to Catholic theology and conservative Christian-Democrat politics.73 This personalist communitarianism is at the basis of post-war thinking about human rights, and the construction of early European institutions generally.74 However, where the historical human rights-narratives of Maritain and Ritter emphasized Thomist doctrine above all, the perspective of De Visscher is broader, as evident from the 1947 programmatic document in which his narrative is included, but also an earlier contribution in which it is set out in more detail. For the American Academy of Political and Social Sciences, De Visscher had composed an article titled ‘Human rights in Roman law countries’ in 1946. The occasion for the piece is the adoption of the San Francisco Charter stipulating the promotion and assurance of the fundamental rights of man.75
De Visscher primarily defines human rights as fundamental rights of the individual anterior and superior to the state, thus fixing limits on the power of that state. Turning to historical examples, this idea is antithetical to Greek and (theoretically) Roman Antiquity when the power of the state was absolute.76 Nevertheless, Roman law did have some measure of legal protection for religious minorities and against expropriation.77 Like Maritain, De Visscher then refers to the Roman notion of the ‘law of nations’ (ius gentium), and like Lauterpacht, he discusses the Stoic contribution particularly in applying natural law-norms to slaves.78 Interestingly, De Visscher goes on to consider the Christian tradition and the liberal view as building on the Roman one, his personalist view clearly shining through.79 Eventually this individualism was made into public law as the human rights declarations, and private law as the codifications inspired by Roman and natural law, such as the French Civil code.80 Important in the public law sphere are the constitutional guarantees with which individual rights are endowed, e.g. with respect to a balance of powers and a system of adjudication and appeal.81 Individual rights in Roman law countries had come under threat, primarily by virtue of the uncritical attitude of the masses: to combat this, De Visscher argues for the cultivation of grass-roots pluralism to ensure compromise between the individual and the state.82
A similar historical narrative as set out in the 1946 article is provided in De Visscher’s 1947 report. Christian ideas on individual rights and natural law are the starting-point, with the emphasis however more on international law than the previous piece.83 However, De Visscher does not just refer to international law in an abstract sense: it becomes clear that he has the creation of a new post-war international legal order in mind based on the historical narrative previously set out.84 This international legal order is not to be based on the relations between states, as history has shown the nation-state tends towards extending its sovereignty. A change nevertheless has to come with respect to a mentality towards international order and fundamental rights from within the state, in a similar process as set out in the 1946 article. De Visscher thus does not provide for a legal structure85 inasmuch as he aims to deal with two shortcomings of the nation-state by means of this change in mentality: countering modern threats to security, and providing economically for their civilians.86 Interesting in this regard is that De Visscher does recognize the role of the states in effecting social justice, and following this maintaining a technical distinction between international and territorial law.87 The report closes with the text of the Declaration of the International Law Institute, divided into five articles.
5 Comparison between the Plans and the Historical Models at Their Core
In the preceding sections, the plans of three scholars for a post-war international legal order have been considered. Moreover, these plans were placed into historical narratives composed by these same scholars. The backgrounds of these scholars are similar, all of them have a background in Western-Europe centric black-letter international law, being important if not crucial for its development in their lifetimes. Nevertheless, within this context, the scientific, methodological and philosophical convictions of these scholars differ, leading to a variety in the content and character of the plans. Therefore, also the historical narratives at the core of these respective plans show interesting divergences. The question here is how the fundamental differences between the respective plans relate to the divergencies between the historical narratives, leading to a possible answer to the query of how substantial the historical narratives actually were for constructing the plans: are they crucial in the technical, moral or ideological advancements made playing a formative role in the plan, or are the histories invented traditions formulated to provide authority or palatability to previously developed ideas and notions?
Before getting into any comparison, the longue durée histories proposed by the three scholars in question can by-and-large be described as follows: central in Kelsen’s Holmes-lectures is the link or perhaps rather the transfer from an intergovernmental upholding of the doctrine of just war, found in writings from classical Antiquity onwards, to a system under a centralized court capable of upholding and inflicting sanctions. Theory and history in Kelsen are intimately related, in the sense of the main issue of the lack of coercion in international law leading to it being ‘law in a primitive state’ rather than dispelling its legal character. Thus, Kelsen looks to concrete historical periods to see how law would have developed from this primitive state, and tries to apply this mechanism to international law. For Lauterpacht the position of the individual and the link between natural law and international law are crucial. This link emerges in classical Antiquity, but is only fully developed doctrinally by the seventeenth-century Dutch legal humanist Hugo Grotius, in general a core-figure in Lauterpacht’s historical-theoretical writings. It is then through doctrine how international unity can be achieved. De Visscher in turn emphasizes the transition in the seventeenth and eighteenth century from a Roman-canon continental legal tradition to a secular liberal legal order, centered on the French Declaration of 1789 and its protection of the dignity of the individual human personality. History shows that only shared values provide the most effective bulwark against the arbitrary exercise of power by states.
Comparing the plans, the notion of human rights is central for a post-war international legal order in both Lauterpacht and De Visscher.88 In his 1945 work, Lauterpacht enumerates what he envisions as human rights, encompassing traditional freedom rights such as speech (article 4) and association (article 5), but also rights that imply more extensive state policies, particularly the economic rights stated in article 13. De Visscher provides a similar list, with both freedom and (suggested) social rights.89 The individual coupled with a large measure of state-skepticism plays an important role in the historical narratives of both scholars: for De Visscher, the ideological background is his communitarian personalism, thus emphasizing the scholastic tradition of natural law even to the point of mediaeval distinctions between canon and worldly law.90 Nevertheless, De Visscher considers a large continuity between the scholastic tradition and later liberal thought. Both traditions place respect for the human personality of the individual central, particularly with regard to the state or more specifically an arbitrary exercise of its powers.91 It is noteworthy De Visscher stresses the importance of both the French 1789 Declaration of the Rights of Man and of the Citizen and the 1804 French Civil code, seeing as these documents tend to have a secular character and to establish a strict separation between Church and state. Moreover, Roman law can only be tied indirectly to the Civil code, as it mostly contained French customary law coupled with natural law-derived principles.92
The background for Lauterpacht’s individualism is similar to that of De Visscher, both scholars for example emphasize the historical role of the humanitarian intervention, discuss the private law dimension of public rights, and maintain a technical separation between international and municipal law.93 However, whereas De Visscher perceives human rights primarily as internationally shared values, Lauterpacht’s tradition is a secular doctrinal one, explicitly employing national private law mechanisms in an international context. De Visscher decries legal doctrine as a basis for a post-war international legal order,94 Lauterpacht sees it as its fundamental character, much like the German Rechtsstaat, or, arguably, the Grotian tradition in international law.95 To a much larger degree than in De Visscher, human rights in Lauterpacht therefore should be taken as legal concepts in that traditional sense, evidenced for example by De Visscher arguing against making the individual a subject under international law.96 This difference in approach to human rights seems to be directly related to the historical narrative they see at the basis of it.
Moyn has recently demonstrated that arguing for social rights was a common occurrence among post-war human rights scholars.97 Much like with respect to his state-skepticism, the cultivation of social rights in De Visscher can be understood from the perspective of his communitarian personalism, naming the right to social security under Belgian post-1945 law.98 For Lauterpacht, however, the idea of social rights, or rather the relation between political freedom and economic freedom, is the result of a development that began with the 1789 French Declaration.99 Nevertheless, in the nineteenth century natural law and by extension international law often was invoked to condone or support economic oppression and even slavery.100 Both scholars view the economic aspects of the international legal order as broader than social or economic rights alone: Lauterpacht considers economic unity to be achievable primarily as a condition for peace and the prevention of war under the auspices of international agreements and permanent international organs.101 De Visscher in turn refers to a free movement of persons and goods.
In Lauterpacht, the manner of enforcement of human rights is made clear in the proposed bill itself, made dependent on a High Commission of the UN (article 17) and the highest courts of its member states (article 19).102 Concretely, Lauterpacht envisions the incremental proliferation of enforcement mechanisms under international law, although states remain the primary actors, taking a critical stance towards the possibility of judicial review.103 Comparing this incremental approach to Kelsen’s progressive development of an international legal order beginning with international law the approaches share an initial intergovernmental character. This character follows from Kelsen rooting his approach in the historical just war-doctrine, including the notion in Antiquity, the Church Fathers and Grotius. Classical just war-theory is subdivided into two parts: the cause for waging a war has to be just, e.g. self-defense, and the conduct in war has to be proper, e.g. treating prisoners of war humanely, for a war to be a ‘just war’. Thus, particularly after the development of the theory of Grotius and its purported practice in the Treaty of Westphalia in 1648, just war-doctrine tends to be seen as protecting interstate relations and national sovereignty first.104 Lauterpacht advocates a similar balance of power, theoretically stemming from the Grotian tradition, put into practice into the Treaty of Westphalia. The concrete enforcement mechanisms Lauterpacht envisions are the humanitarian intervention from outside the transgressing state and the rebellion of the citizens against their own state.
From the realist view, this Westphalian balancing of interests was explicitly criticized. However, even a relative utopianist like De Visscher demonstrates a skeptical approach to any natural harmony of interests. States according to De Visscher historically show to be inclined to expand their sovereignty whenever possible rather than allow for any curtailment based on shared values. This means that enforcement mechanisms that go beyond the scope of the nation-state, e.g. in the context of the shaping of an international community, are doomed to failure.105 Similarly, despite his cosmopolitan philosophy and argument for a High Commission, Lauterpacht does not appear optimistic about the possibility of any development beyond this stage, e.g. instituting any form of judicial review. The difference with the realists, and De Visscher, is primarily in the status of human rights as doctrinal obligations to be executed by the high courts of the cooperating member states. Because everyone upholds the same doctrine, a form of community is created in the vein of Grotius’ appetitus societatis, his doctrine of sociability. But much like in Grotius, the formation of international doctrine does not include the creation of truly international institutions.
Here, Kelsen’s plan differs fundamentally from that of Lauterpacht. Whereas Lauterpacht views subsequent stages of the development of an international legal order primarily as the development of doctrine, Kelsen envisions an actual development mimicking the transfer from self-help to adjudication by state-institutions in Roman Antiquity and the early stages of English Common Law. Moreover, these historical processes are remarkably similar in the sense that the magistrate (the praetor and provincial governor in Rome, the sheriff and royal judge in England) mitigates between local and universal legal orders. Kelsen concretely proposes a more-or-less federative structure that following this historical process would lead to the creation of generally upheld norms, the Roman ‘law of nations’ (ius gentium) which likely included the regulation of war, and the English Common law as the law of the King’s judges.106 Like municipal law, international law thus in theory develops from a primitive state to a fully-fledged legal system. Kelsen consequently opts for a post-War international legal order to be overseen by a court rather than executive or legislative organs. Neither Lauterpacht, who decries an international court over judicial review in individual states, nor De Visscher, who denied individuals any form of claim rights under international law,107 are in agreement with Kelsen in this context.
Lastly, from Antiquity comes the idea present in various scholars of the existence of a ius gentium, a Roman ‘law of nations’, of which the content was considered by the Romans as present in the laws of all known peoples.108 The idea of a local set of local versus universal laws remained especially prevalent in scholastic Mediaeval and later natural law-thinking. Certainly, there is also an echo in twentieth-century scholarship on human rights, the measure of enforcement possibility however inversely proportionate to the universal character of these rights. As such, Lauterpacht is skeptical about the possibilities of an international federation, opting rather for a confederation albeit one with obligatory judicial review. Moreover, in Lauterpacht the confederation is given substance in the form of individual rights easily linked to his international bill of rights, an economic program encompassing a currency and a common foreign policy. Cultural and traditional aspects as covered by national legislation need however to remain the prerogative of the member states. Lastly, in Kelsen, the judicial alternatives to self-help remain undefined, despite the possibility of a more centralized international legal order.
More generally problematic for historians of international law is the question what the history of international law is a history ‘of’ exactly. The longue durée histories of Kelsen, Lauterpacht and De Visscher seem to be aimed at discerning how international law can be made effective in a situation where political and practical interests are dispersed. Rather than ‘concepts’ (Begriffe) as someone like Reinhart Koselleck would have it, Kelsen focuses on the creation of norms via court judgments, Lauterpacht on doctrine primarily by legal scientists, and De Visscher on shared values between individual state subjects. Since the aim of the envisioned international legal orders differs, the longue durée histories at their core differ too. Although the Treaty of Westphalia is central to all narratives, the main feature that sets the histories of Kelsen, Lauterpacht and De Visscher apart from for example that of Koselleck is the relative skepticism towards the position of the ‘state’ and ‘state sovereignty’ in international law, even in Kelsen. This allows for all three to go back in history a lot further than the eighteenth century, presenting historical models and processes by means of which not just international law, but law in general came into being. The answer to the question posed earlier, what is the history of international law a history ‘of’, would thus be answered by all three with ‘one of a type of law’.
The main topic of this contribution was a discussion of the plans developed in the period between 1934 and 1947 by a group of scholars for a post-War international legal order. The seeds of these plans were generally sown at a time when the totality of the war was not yet clear, let alone the extent of the barbarities committed by the Axis powers. Often decried as utopian or overly positivist, there is a sense of realism to all of the plans, whether present from the start, or gradually included in the course of the 1940s. More surprising than the utopianists’ (if Lauterpacht can be qualified as such considering his replies to Carr) insistence on historical models, primarily the Grotian tradition and the Treaty of Westphalia, is a positivist turn towards the past at least in Kelsen. Even more surprising is perhaps the measure in which he employs the models, not so much the just war-doctrine, but most of all the idea of an international court-system emerging from the transfer of self-help as it had in republican Roman law and early English Common law. Compared to this, Lauterpacht’s insistence on national forms of judicial review and interstate relations is minimal, however large his contribution to human rights as an international doctrine.
Instructive for all plans discussed is the employment of examples from Antiquity: whereas in Koselleckian terms the ‘saddle period’ for all plans differs – Aquinas, Grotius, Westphalia, the French Declaration –, ancient law and philosophy play a remarkably similar role. This entails specifically the Stoics and the Roman concept of ius gentium, perhaps because in these contexts utopianism is mixed with (a degree of institutional) realism and enforcement. Despite the criticism on the legal positivism espoused by Kelsen, his model comes closest to reflecting post-War reality, particularly in the European institutional context, at least in the long term. In the short term, apart from the centrality of human rights, it is interesting to note the prevalence of economic aspects: for these, there does however not seem to be a direct historical predecessor, in Antiquity or otherwise, apart from social rights in the French Declaration or economic matters as central to the American federation. In general, the employment of historical narratives for the creation of an international legal order does not seem to be random in the sense of crucial ideas being actually founded on or related to similar notions in previous historical periods. However, this is not true across the board: the ideas tend to be mixed and matched with new and novel conceptions, for which no direct historical narrative is discernable, at least as the three scholars in question is concerned.
The three scholars in question are giants of their field, and were also responsible for many practical legal innovations, from drafting constitutions to adjudicating disputes. As Lauterpacht puts it most eloquently:109
It is unhistoric to interpret history as teaching that war and power must for ever remain paramount in the relations of States for the reason that they have always been so.
For legal scholars in particular, the value of longue durée-histories is not in confirming a status quo, be it legal or political, but actually in driving innovation. Kelsen and De Visscher were confronted with a collapse of the legal and political order first-hand, Lauterpacht certainly was well-aware viewing it from Great Britain. The longue durée histories of Kelsen, Lauterpacht and De Visscher thus not only show an intimate relation between history and legal concept, but even between history, legal concept and personal circumstances.
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. ‘ Brett, Annabel Between History, Politics and Law. History of Political Thought and History of International Law’, in History, Politics, Law: Thinking through the International, eds. ( , Annabel Brett and Megan Donaldson Martti Koskenniemi Cambridge: Cambridge University Press, ), 2021 19– 48.
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. ‘ , Busch, Jürgen , and Schmädel, Judith von Staudigl-Ciechowicz, Kamila “Peace through Law”. Kelsen (and his School’s) Struggle for Universal Peace’, in Legal and Political Theory in the Post-National Age, eds. ( and Péter Cserne Miklós Könczöl Frankfurt-am-Main: Peter Lang, ), 2011 161– 180.
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. ‘ De Visscher, Charles The Fundamental Rights of Man as the Basis for a Restoration of International Law’. Report of the Institute of International Law for the Commission on Human Rights of the Economic and Social Council of the UN E/CN.4/40 ( Lausanne: Institute for International Law, ). 1947
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Koskenniemi, Martti. The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002).
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Lauterpacht, Hersch. ‘Règles générales du droit de la paix’, in Recueil des Cours de l’Académie du Droit International de la Haye 62 (1937), 95–422.
Lauterpacht, Hersch. ‘The Law of Nations, the Law of Nature and the Rights of Man’. Transactions of the Grotius Society 29 (1943), 1–29.
Lauterpacht, Hersch. ‘Kelsen’s Pure Science of Law’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 2.1, ed. Elihu Lauterpacht (Cambridge: Cambridge University Press, 1975), 423–429.
Lauterpacht, Hersch. ‘Sovereignty and Federation in International Law’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 3, ed. Elihu Lauterpacht (Cambridge: Cambridge University, 1977), 5–25.
Lauterpacht, Hersch. ‘The League of Nations’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 3, ed. Elihu Lauterpacht (Cambridge: Cambridge University, 1977), 575–588.
Morgenthau, Hans. ‘Review of Lauterpacht, Hersch. An International Bill of the Rights of Man’, University of Chicago Law Review 13 (1945), 400–402.
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Parfitt, Rose. The Process of International Legal Reproduction. Inequality, Historiography, Resistance (Cambridge: Cambridge University Press, 2019).
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Paulson, Stanley. ‘Arriving at a Defensible Periodization of Hans Kelsen’s Legal Theory’. Oxford Journal of Legal Studies 19(2) (1999), 351–364.
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Vrdoljak, Ana. ‘Human Rights and Genocide. The Work of Lauterpacht and Lemkin in Modern International Law’. European Journal of International Law 20(4) (2009), 1164–1194.
Above all Pitts, Jennifer. Boundaries of the International: Law and Empire (Cambridge: Harvard University Press, 2018); Parfitt, Rose. The Process of International Legal Reproduction. Inequality, Historiography, Resistance (Cambridge: Cambridge University Press, 2019); Tallgren, Immi and Thomas Skouteris, eds. The New Histories of International Criminal Law: Retrials (Oxford: Oxford University Press, 2019); and now Brett, Annabel. ‘Between History, Politics and Law. History of Political Thought and History of International Law’, in History, Politics, Law: Thinking through the International, eds. Annabel Brett, Megan Donaldson and Martti Koskenniemi (Cambridge: Cambridge University Press, 2021), 19–48.
Parfitt, Legal Reproduction 2019 (n. 1), 91 (also referring to Eric Hobsbawn); Brett, ‘History’ 2021 (n. 1), 47: Braudel, Fernand. ‘Histoire et Sciences Sociales. Longue durée’. Annales. Histoire, Sciences Sociales 13(4) (1958), 725–753, 727.
E.g. Simpson, Gerry. ‘After Method’, in History, Politics, Law: Thinking through the International, eds. Annabel Brett, Megan Donaldson and Martti Koskenniemi (Cambridge: Cambridge University Press, 2021), 96–126, 114.
E.g. Sands, Philippe. East West Street. On the Origins of ‘Genocide’ and ‘Crimes against Humanity’ (New York: Knopf, 2016), 105.
E.g. Dupuy, Pierre-Marie. ‘The European Tradition in International Law: Charles De Visscher. By Way of an Introduction’. European Journal of International Law 11(4) (2000), 871–875.
Olechowski, Thomas. Hans Kelsen. Biographie eines Rechtswissenschaftlers (Tübingen: Mohr Siebeck, 2020), 185–188.
Ibid., 264: ‘Mit an Sicherheit grenzender Wahrscheinlichkeit waren es aber nicht etwa der Krieg und die durch ihn bewirkten Folgen für das positive Völkerrecht, die all diese Verzögerungen bewirkt hatten. Denn das Buch hatte, ungeachtet seines hohen politischen Potentials, einen ausgesprochen theoretischen und damit überzeitlichen Charakter, hierin durchaus den “Hauptproblemen der Staatsrechtlehre” von 1911 vergleichbar, auf denen es vielfach aufbaute ... .’ See, however, Bernstorff, Jochen von. ‘Autorité Oblige. The Rise and Fall of Hans Kelsen’s Legal Concept of International Institutions’. European Journal of International Law 31(2) (2020), 496–523, 504.
Olechowski, Hans Kelsen 2020, (n. 6) 549. Kelsen found out reading the newspaper at breakfast. The periodization of Kelsen’s works according to Heidemann, Carsten. Die Norm als Tatsache. Zur Normentheorie Hans Kelsens (Baden-Baden: Nomos, 1997), 103–158 is founded on his confrontation with Legal realism in the US. See, however, Paulson, Stanley. ‘Four Phases in Hans Kelsen’s Theory? Reflections on a Periodization’. Oxford Journal of Legal Studies 18(1) (1998), 153–166 and Paulson, Stanley. ‘Arriving at a Defensible Periodization of Hans Kelsen’s Legal Theory’. Oxford Journal of Legal Studies 19(2) (1999), 351–364.
See, for example, Kelsen, Hans. Unrecht und Unrechtsfolge im Völkerrecht (Berlin: Springer, 1932). Kelsen’s writings on international law were noted very early on in the Anglo-American academic world, e.g., Stern, W. B. ‘Kelsen’s Theory of International Law’. The American Political Science Review 30(4) (1936), 736–741. For Kelsen on international law in general apart from Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002), 238–249: Rigaux, François. ‘Hans Kelsen on International Law’. European Journal of International Law 9(2) (1998), 325–343; Bernstorff, Jochen von. The Public International Law Theory of Hans Kelsen (Cambridge: Cambridge University Press, 2010) and Busch, Jürgen, Schmädel, Judith von, and Staudigl-Ciechowicz, Kamila. ‘“Peace through Law”. Kelsen (and His School’s) Struggle for Universal Peace’, in Legal and Political Theory in the Post-National Age, eds. Péter Cserne and Miklós Könczöl (Frankfurt am Main: Peter Lang, 2011), 161–180. Now focusing on international organizations Bernstorff,’ International Institutions’ 2020 (n. 8), 497–523.
Olechowski, Hans Kelsen 2020 (n. 6), 595.
Ibid., 597–598: La Dictature de Parti (Paris, 1934). The piece is originally a lecture for the Institut International de Droit Public in Paris, Métall, Rudolf Aladár. Hans Kelsen. Leben und Werk (Wien: Deuticke, 1969), 66; Kelsen, Hans. ‘Party-Dictatorships’. Politica 2 (1936) 19–32, e.g. at 25: ‘(A)n Internationale of fascist dictatorships, given their imperialistic tendency, is a self contradiction.’
Koskenniemi, Gentle Civilizer 2002 (n. 10), 239; Olechowski, Hans Kelsen 2020 (n. 6), 638–639: Bernstorff, ‘International Institutions’ 2020 (n. 8), 509–513, 515–519: Kelsen, Hans. Legal Technique in International Law (Geneva: Geneva Research Center, 1939); Kelsen, Hans. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems (London: Stevens and Sons, 1950).
The basis already in 1920, developed in the context of the Reine Rechtslehre in the 1930s: Koskenniemi, Gentle Civilizer 2002 (n. 10), 239–249; Busch/Schmädel/Staudigl- Ciechowicz, ‘Peace through Law’ 2011 (n. 10), 165–167; Olechowski, Hans Kelsen 2020 (n. 6), 639–641.
Olechowski, Hans Kelsen 2020 (n. 6), 641–643. Kelsen, Hans. ‘The Legal Process and International Order’, in The New Commonwealth Research Bureau Publications Monograph Series, ser. A, vol. 1, eds. Ernst Jäckh and Georg Schwarzenberger (London: Constable & Co.,1934).
Kelsen, ‘Legal Process’ 1934 (n. 15), 10–11.
E.g. ibid., 15–17, 19.
E.g. ibid., 20.
Ibid., 24–25, 25: ‘It is only the simple minded enthusiast who can imagine such a far-reaching abdication on the part of the State authority vis-à-vis its subjects before the highest grade of inter-State judicial process has been reached.’
Cf. critically Rigaux, ‘International Law’ 1998 (n. 10), 337.
Kelsen, Hans. ‘International Peace – By Court or by Government?’. American Journal of Sociology 46(4) (1941), 571–581.
Olechowski, Hans Kelsen 2020 (n. 6), 723.
Ibid., 724, with a number of publications on the same theme. Together with an alignment of the political and economic interests of the member states.
Ibid., 726. On the work, see Busch/Schmädel/Staudigl-Ciechowicz, ‘Peace through Law’ 2011 (n. 10), 162–164, 168–170. Research proposals dating from 1939 detailing a future international legal order are provided at 175–177.
Already in his dissertation on Dante Alighieri’s De Monarchia Kelsen shows an interest in historical instances of a relation between universal norms and particular state institutions, see Olechowski, Hans Kelsen 2020 (n. 6), 80–85. Interesting to note moreover is Kelsen taking classes from Moritz Wlassak (ibid., 69), a specialist in Roman procedural law.
Kelsen, Hans. Law and Peace in International Relations (Cambridge: Harvard University Press, 1942), 30–34.
Kelsen, Law and Peace 1942 (n. 28), 51: ‘History teaches that evolution everywhere proceeds from blood revenge toward the institution of courts and the development of a centralized executive power; that is, toward steadily increasing centralization of the coercive social order.’ Cf. Hexner, Ervin. ‘The Timeless Concept of Law: Observations on Kelsen’s Law and Peace in International Relations’. The Journal of Politics 5(1) (1943), 48–64, 50: ‘Kelsen’s statement that international law is primitive law means that its rule system resembles the rule systems of former and contemporary undeveloped societies.’
Kelsen, Law and Peace 1942 (n. 28), 35–38.
See, e.g., Walzer, Michael. Just and Unjust Wars. A Moral Argument with Historical Illustrations (New York: Basic Books, 2006).
Kelsen, Law and Peace 1942 (n. 28), 40–45. The basic text in Cicero, De re publica 3,35 has been lost, but was taken up by Isidore of Seville in De Etymologiae 18,1 (Illa iniusta bella sunt quae sunt sine causa recepta).
Hexner, ‘Timeless Concept’ 1953 (n. 29), 50.
Kelsen, Law and Peace 1942 (n. 28), 126–127.
Ibid., 132–142. Set out already in his Allgemeine Staatslehre (1925), Bernstorff, ‘International Institutions’ 2020 (n. 6), 506.
Kelsen, Law and Peace 1942 (n. 28), 146–150.
Ibid.: ‘Natural evolution tends towards an international judiciary.’
Having studied in Vienna, Olechowski, Hans Kelsen 2020 (n. 6), 584. Assisting in exile by contacting the Rockefeller Foundation; ibid., 658. Visiting Harvard before Kelsen in 1942; ibid., 707–708. Contributing to Kelsen’s 1953 international law-themed Festschrift; ibid., 826.
E.g. Koskenniemi, Gentle Civilizer 2002 (n. 10), 364–365.
Jütersonke, Oliver. Morgenthau, Law and Realism (Cambridge: Cambridge University Press, 2010), 156.
Lauterpacht, Hersch. ‘Kelsen’s Pure Science of Law’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 2.1, ed. Elihu Lauterpacht (Cambridge: Cambridge University Press, 1975), 423–429; Koskenniemi, Gentle Civilizer 2002 (n. 10), 409.
Cf. Moyn, Samuel. Human Rights. The Last Utopia (Cambridge: Harvard University Press, 2010), 184.
His 1938 plan entails a modification of the League of Nations, Lauterpacht, Hersch. ‘The League of Nations’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 3, ed. Elihu Lauterpacht (Cambridge: Cambridge University, 1977), 575–588.
Koskenniemi, Gentle Civilizer 2002 (n. 10), 366.
Lauterpacht, Hersch. ‘Sovereignty and Federation in International Law’, in International Law. Collected Writings of Hersch Lauterpacht, vol. 3, ed. Elihu Lauterpacht (Cambridge: Cambridge University, 1977), 5–25 (Koskenniemi, Gentle Civilizer 2002 (n. 10), 388). Elihu dates the lecture at ‘early spring 1940’. Cf. Lauterpacht, Elihu. The Life of Hersch Lauterpacht (Cambridge: Cambridge University Press, 2010), 58; Koskenniemi, Martti. ‘Hersch Lauterpacht (1897–1960)’, in Jurists Uprooted. German-Speaking Émigré Lawyers in Twentieth-century Britain, eds. Reinhard Zimmermann and Jack Beatson (Oxford: Oxford University Press, 2004), 601–662, 618.
Lauterpacht,’Sovereignty’ 1977 (n. 45), 5.
Ibid., 19. Calling Italy and Germany ‘totalitarian’.
E.g. Giltaij, Jacob. ‘Hermann Kantorowicz and Hans Kelsen: From Debating Legal Sociology to Constructing an International Legal Order’. History of European Ideas 48(1) (2022), 112–128.
Lauterpacht, ‘Sovereignty’ 1977 (n. 45), 5–6.
Ibid., 18. He names the US Constitution, and as the fundamental rights the equal right to vote, the prohibition to deprive anyone from life, liberty or property without due process of law, and the equal protection of the law.
Seemingly first in Lauterpacht, Hersch. ‘Règles générales du droit de la paix’, in Recueil des Cours de l’Académie du Droit International de la Haye 62 (1937), 95–422, particularly 228–240. Cf. Vrdoljak, Ana. ‘Human Rights and Genocide. The Work of Lauterpacht and Lemkin in Modern International Law’. European Journal of International Law 20(4) (2009), 1164–1194.
Lauterpacht, ‘Sovereignty’ 1977 (n. 45), 21–24.
Lauterpacht, Hersch. ‘The Grotian Tradition in International Law’. British Yearbook of International Law 23 (1946), 1–53. Cf. Koskenniemi, Gentle Civilizer 2002 (n. 10), 406–411.
Lauterpacht, Hersch. ‘The Law of Nations, the Law of Nature and the Rights of Man’. Transactions of the Grotius Society 29 (1943), 1–29.
Morgenthau, Hans. ‘Review of Lauterpacht, Hersch. An International Bill of the Rights of Man’, University of Chicago Law Review 13 (1945), 400–402, 402.
Lauterpacht, ‘Rights of Man’ 1943 (n. 57), 3. Also, at 21, revival of natural law after the First World War as a response to ‘German paganism’.
Ibid., 4, 11.
Lauterpacht, Hersch. An International Bill of the Rights of Man (Oxford: Oxford University Press, 2013 ), 3–53, with an additional section devoted to natural rights in a British constitutional context at 54–65.
Maritain, Jacques. Les droits de l’homme et la loi naturelle (New York: Editions de la Maison Française, 1942); Moyn, Samuel. ‘Personalism, Community, and the Origins of Human Rights’, in Human Rights in the Twentieth Century, ed. Stefan L. Hoffmann (Cambridge: Cambridge University Press, 2010), 90–96.
Coing, Helmut. Die obersten Grundsätze des Rechts. Ein Versuch zur Neugründung des Naturrechts (Heidelberg: Schneider, 1947), cf. Tuori, Kaius. Empire of Law. Nazi Germany, Exile Scholars and the Battle for the Future of Europe (Cambridge: Cambridge University Press, 2020), 227–235.
Ritter, Gerhard. ‘Ursprung und Wesen der Menschenrechte’. Historische Zeitschrift 169(2) (1949), 233–263; Moyn, ‘Personalism’ 2010 (n. 66), 102–103 and Moyn, Samuel. Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015).
Arendt, Hannah. The Origins of Totalitarianism (New York: Harvest, 5th ed. 1973), particularly at 290–302 (The Perplexities of the Rights of Man). See also Moyn, Utopia 2010 (n. 42), 12.
Rigaux, François. ‘An Exemplary Lawyer’s Life (1884–1973)’. European Journal of International Law 11(4) (2000), 877–886 (with the report on 884); Genin, Vincent. Incarner le Droit International. Du mythe juridique au déclassement international de la Belgique 1914–1940 (Frankfurt am Main: Peter Lang, 2018), e.g 114–116.
Rigaux, ‘Exemplary’ 2000 (n. 70), 885. However, decrying any ‘monism’ in the sense of Kelsen, stating that international and domestic law are and remain markedly different.
Verhoeven, Joe. ‘Charles De Visscher: Living and Thinking International Law’. European Journal of International Law 11 (4) (2000), 894–900.
Moyn, ‘Personalism’ 2010 (n. 66), 85–87. Cf. also Moyn, Utopia 2010 (n. 42), 186, 191.
Moyn, ‘Personalism’ 2010 (n. 66), 100, referring to Kaiser, Wolfram. Christian Democracy and the Origins of the European Union (Cambridge: Cambridge University Press, 2007). See also Duranti, Marco. The Conservative Human Rights Revolution. European Identity, Transnational Politics, and the Origins of the European Convention (Oxford: Oxford University Press, 2017), 302–320.
De Visscher, Charles. ‘Human Rights in Roman Law Countries’. The Annals of the American Academy of Political and Social Science 243(1) (1946), 53–59.
De Visscher, ‘Human Rights’ 1946 (n. 75), 53.
Ibid., 54. But cf. also 55.
Ibid., 55: ‘… Christianity established a basic distinction between the civil order and the divine order, a religious community which in the sphere of supernatural values is independent of political society. Out of this emerged the principle of spiritual autonomy with reference to the state, and, in turn, that of legitimate resistance by Christians to the abuse of power. Both historically and philosophically, the entire liberal school grew out of this view ... .’
Ibid., 55. On the Roman character and individualism of the French Civil code cf. 58.
Ibid., 58–59, 58: ‘Lacking a critical mind, they attach but little value to individual liberties. This tendency is reinforced by the influence exercised on people’s minds by those powerful instruments of collective and directed thinking which are represented by the cheaply priced dailies, the radio, and the motion pictures. These contribute to form a type of average man who without personal reactions accepts ready-made ideas.’ An extended version of this narrative is provided in De Visscher, Charles. Theory and Reality in Public International Law (Princeton: Princeton University Press, 2016), 22–52 (until the First World War), with various references to Carr, Morgenthau and Kelsen, e.g. 66. The work is the 1957 English translation of Théories et Realités du Droit International Public (1953).
De Visscher, Charles. ‘The Fundamental Rights of Man as the Basis for a Restoration of International Law’. Report of the Institute of International Law for the Commission on Human Rights of the Economic and Social Council of the UN E/CN.4/40 (Lausanne: Institute of International Law, 1947), 3: ‘The idea that the human person is the justification and the final end of all law (territorial or international) established by the will of men we regard as intimately bound up throughout history with the development of natural and international law.’
De Visscher, ‘Fundamental Rights’ 1947 (n. 84), 4: ‘The battle which has today been joined over the issue of human freedoms is intimately connected with the establishment of an international legal order.’ Cf. also 5 for linking the totalitarian state to imperialist expansion.
Compare however the declaration of the International Law Institute under V (De Visscher 1947, ‘Fundamental Rights’ 1947 (n. 84), 8): ‘The Institute considers acceptance and dissemination of the ideas contained in the present document essential to the observance of international law and to its technical development.’
De Visscher, ‘Fundamental Rights’ 1947 (n. 84), 5–6, mentioning a movement of persons and goods going beyond the state.
Ibid., 6–7, 6: ‘The personalist view-point has nothing in common with old-fashioned individualism, based as it is on the false postulate of a natural harmony of interests.’
E.g. De Visscher, Theory 2016 (n. 82), 123.
De Visscher, ‘Human Rights’ 1946 (n. 75), 57: ‘The list of individual rights, constitutionally guaranteed against attacks by those in power, is almost the same in all countries. Essentially it includes civil equality, individual liberty, freedom of conscience and of religion, freedom of assembly and of association, freedom of the press and of instruction ... . To these rights we should, however, add those which the progress of social ideas has recently introduced.’
Particularly as a response to totalitarianism, De Visscher, Theory 2016 (n. 82), 3–4, 121.
De Visscher, ‘Human Rights’ 1946 (n. 75), 55.
Cf., e.g., Batiza, Rodolfo. ‘Origins of Modern Codification of the Civil Law: The French Experience and its Implications for Louisiana Law’. Tulane Law Review 56(2) (1981–1982), 477–601, 480.
De Visscher, Theory 2016 (n. 82), 122–124.
Ibid., 9–21, with Grotius at 14: ‘… priority of the idea of justice over the notion of common utility …’, referring to Lauterpacht in the context of Spinoza.
Giltaij, Jacob. ‘Refugee Scholarship and the Universality of Legal Concepts’. History of European Ideas (2022), 1–15.
De Visscher, Theory 2016 (n. 82), 125.
Moyn, Samuel. Not Enough. Human Rights in an Unequal World (Cambridge: Harvard University Press, 2018), e.g. 42–67 (with Carr at 64–66). Whyte, Jessica. The Morals of the Market. Human Rights and the Rise of Neoliberalism (London: Verso, 2019), e.g. 40–85, has connected historical narratives of human rights to economic neoliberalism particularly via the idea of a ‘European’ market-based notion of civilization.
De Visscher, ‘Human Rights’ 1946 (n. 75), 57.
Lauterpacht, International Bill 2013 (n. 65), 90–91, 56–157, also Thomas Paine and Blackstone are mentioned. Cf. Whyte, Morals 2019 (n. 97), 75–85 for the economic counterpart of this narrative with respect to social rights.
Lauterpacht, ‘Rights of Man’ 1943 (n. 83), 18: ‘The reliance upon natural law on the part of vested interests inimical to the economic freedom of man was destined to prove a persistent feature of the nineteenth century.’
Explicitly so, compare Lauterpacht, International Bill 2013 (n. 65), 160–161. Not right to property, 163 (despite the French and US Declaration, as well as the 1929 declaration of the International Law Institute), nor freedom of commerce, 164. See also Duranti, Revolution 2017 (n. 74), 238–239.
Lauterpacht, International Bill 2013 (n. 65), 69–74. Also noteworthy are the rights of religious minorities (article 12) and the right of nationality (8). Notorious omissions are the notion of gender in the context of equality (7) and the right to private property.
E.g. Evans, Mark. ‘Introduction’, in Just War Theory. A Reappraisal, ed. Mark Evans (Edinburgh: Edinburgh University Press, 2020), 1–22, 4.
De Visscher, Theory 2016 (n. 82), 125.
The processes have been compared before, see, e.g., Van Caenegem, Raoul. European Law in the Past and the Future. Unity and Diversity over Two Millennia (Cambridge: Cambridge University Press, 2002), 38–39.
De Visscher, Theory 2016 (n. 82), 127.
Giltaij, Jacob. ‘The Rediscovery of the Roman Notion of Jus Gentium and the Post-1945 International Order’. Leiden Journal of International Law 35(3) (2022), 521–533.
Lauterpacht, ‘Sovereignty’ 1977 (n. 45), 24.