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Durham E-Theses Durham E-Theses Sir Hersch Lauterpacht as a prototype of post-war modern international legal thought: analysis of international legalism in the universalisation process of the European law of nations Kita, Yasuo How to cite: Kita, Yasuo (2003) Sir Hersch Lauterpacht as a prototype of post-war modern international legal thought: analysis of international legalism in the universalisation process of the European law of nations, Durham theses, Durham University. 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Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 SIR HERSCH LAUTERPACHT AS A PROTOTYPE OF POST-WAR MODERN INTERNATIONAL LEGAL THOUGHT: ANALYSIS OF INTERNATIONAL LEGALISM IN THE UNIVERSALISATION PROCESS OF THE EUROPEAN LAW OF NATIONS KITA, YASUO LL.B. (WASEDA), M.A. (KYOlD) DOCTOR OF PHILOSOPHY LAW DEPARTMENT UNIVERSITY OF DURHAM A copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it 2003 should be acknowledged. To My Parents, Toshiaki and Takako Name: KITA, Yasuo Title: Sir Hersch Lauterpacht as a Prototype of Post-War Modern International Legal Thought: Analysis ofInternational Legalism in the Universalisation Process ofthe European Law ofNations De~:~rofPhilosophy The YearofSubmission: 2003 Abstract This thesis explains how Sir Hersch Lauterpacht constructed his international legal theory in the universalisation process of the European law of nations. Introduction presents the general background of the universalisation process of the European law of nations. Chapter 1 discusses the situationality of Lauterpacht, which affected his life as an international lawyer, namely his Jewish background, the influence of Kelsen and the English tradition of international law. Lauterpacht' s nonnative conception of the international community in the inter-war period is explicated in Chapter 2. In Chapter 3, I examine how Laute:rpacht dealt with legal problems in the outlawry of war from the inter-war period to the end of the Second World War. Chapter 4 holds Lauterpacht' s attempts to reconstruct the international community after World War II. Being opposed to political realism, Laute:rpacht employed the Grotian Tradition in order to prove the historical value of his idealism. He moulded the function of states into the framework of his normative conception of the international community as civitas maxima with regard to recognition, collective security and the international protection ofhuman rights. I demonstrate how Lauterpacht contributed to the work of the International Law Commission in Chapter 5 from 1952 to 1954. Chapter 6 examined the problems of the responsibility of international judges, namely their neutrality, legal reasoning, and the compatibility of'automatic' reservation with the ICJ Statute. The conclusion is an appreciation of legalism within the framework of the universalisation of international law in the era of decolonisation DECLARATION No part of this thesis has previously been submitted for the award of a degree in the University of Durham or any other university. This thesis is based solely upon the author's research. STATEMENTOFCOPTIUGHT The copyright of this thesis rests with the author. No quotation from it should be published without their prior written consent and information derived from it should be acknowledged. TABLE OF CONTENTS Acknowledgements V Table ofCases Vll List ofAbbreviations IX Note on Footnotes Xll INTRODUCflON A.1. GENERAL 1 A.2. WHYHERSCH LAUTERPACHT? 11 1. THE EARLY BACKGROUND OF HERSCH LAUTERPACHT 20 1.1. THE JEWISHNESS OF LAUTERPACHT AS SITUATIONALITY 20 1.2. THE DOCTRINAL INFLUENCES OVER THE INTERNATIONAL LEGAL THEORY OF LAUTERPACHT 32 1.2.1. KELSENIAN NORMATIVISM 32 1.2.1.1. The Personification of International Legal Order 34 1.2.1.2. The Gradual Concretization ofLaw 41 1.2.2. THE ENGLISH TRADITION OF INTERNATIONAL LAW 47 2. THE LEGALISTIC CONSTRUCflON OF THE INTERNATIONAL COMMUNITY IN THE INTER-WAR PERIOD 59 2.1. GENERAL BACKGROUND 59 2.2. THE UNIVERSALITY OF la conscience juridique des peuples civilises 67 2.3. THE CENTRALITY OF THE INTERNATIONAL JUDICIARY IN THE INTERNATIONAL COMMUNITY 75 2.3 .1. THE LAWYER's PERSPECTIVE OF INTERNATIONAL LAW 77 2.3 .2. PEACE THROUGH LAW? 82 2.4. THE DISINTEGRATION OF THE INTERNATIONAL COMMUNITY 86 3. LEGAL PROBLEMS IN THE OUTLAWRY PROCESS OF WAR 103 3 .1. THE CHANGE IN THE CONCEPT OF WAR 103 3.2. TI-IE PRINCIPLE OF NON-RECOGNITION 113 3.2.1. THE RELEVANCY OF THE PRINCIPLE OF NON-RECOGNITION 113 3.2.2. THE LEGAL BASIS OF THE PRINCIPLE OF NoN-RECOGNITION 118 3.2.3. THE VALIDATION OF ILLEGALITY 121 3 .3. ThE JusTIFIABILITY oF NoN-BELLIGERENCY 128 3 .4. ThE PUNISHMENT OF WAR CRIMINALS 134 3.4.1. GENERAL0BSERVATIONS 134 3.4.2. THE ROAD TO NUREMBERG 140 3.4.1.1. The Definition ofWar Crimes and Crimes against Humanity 141 3.4.1.2. The Plea of Superior Order 143 3 .4.3. THE LEGITIMACY OF THE INTERNATIONAL MILITARY TRIBUNALS 148 3.4.3.1. The Right ofVictorious Belligerents to Punish War Criminals 149 3.4.3.2. The Principle nullum crimen sine lege, nulla poena sine lege 152 4. THE RECONSTRUCTION OF THE INTERNATIONAL COMMUNITY AS Civitas Maxima AFTER THE SECOND WORLD WAR 161 4.1. THE SHADOW OF POWER POLITICS 161 4.1.1. THE INTERNATIONAL LEGAL THEORIES OF THE AxiS NATIONS 162 4.1.2. POLITICAL REALISM 165 4.1.3. LAUTERPACHT'S REFUTATION OF POLITICAL REALISM 171 4.2. ThE MANIFESTO OF THE GROTIAN TRADITION rN INTERNATIONAL LAW 175 4.3. ThE INTERNATIONAL COMMUNITY AS CIVITAS MAxiMA 182 4.3.1. THE ASSOCIATION OF DEMOCRATIC STATES 183 4.3.1.1. The Function of the State as the Organ of the International Community in the Context of Recognition in International Law 184 4.3.1.1.1. The Legalistic Theory ofRecognition 184 4.3 .1.1.2. The Legitimacy of Governments in Recognition 195 4.3.1.2. The Paradox ofKantian Republicanism 197 4.3.2. THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 207 5. THE CODIFICATION PROCESS OF INTERNATIONAL LAW FROM THE VIEWPOINT OF THE RULE OF LAW 215 5.1. THE GENERAL PURPOSE OF THE CODIFICATION AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW 216 5.2. LAUTERPACHT' S QUEST FOR THE RULE OF LAW AT THE INTERNATIONAL 11 LAW COMMISSION 223 5.2.1. THE DRAFT ON ARBITRAL PROCEDURE 224 5.2.2. THE 1953 DRAFT ARTICLE 8 ON lHE CONTINENTAL SHELF 232 5.2.3. THE TWO DRAFT CONVENTIONS ON FUTURE STATELESSNESS 236 5.2.4. THE TWO REPORTS ON THE LAW OF TREATIES 239 5.2.4.1. The Question of Reservations to Multilateral Treaties 240 5.2.4.2. The Invalidity of Treaties 245 5.2.4.2.1. Duress 247 5.2.4.2.2. The Conceptual Origin of Jus Cogens in the Law ofTreaties 249 6. THE RESPONSIBILITY OF INTERNATIONAL JUDGES 259 6.1. THE IMPARTIALITY OF JUDGES 262 6.2. THE PROBLEM OF LEGAL REASONING 268 6.2.1. JUDICIAL DISCRETION 269 6.2.2. THE APPLICATION OF LEGAL PRINCIPLES AS JUDICIAL LEGISLATION 274 6.2.2.1. The Matter of Principles 279 6.2.2.2. The One Right Answer Thesis 296 6.2.3. THE PROHIBITION OF lHE DECLARATION OF Non-Liquet 304 6.3. THE COMPATIBILITY OF AUTOMATIC RESERVATIONS WllH ARTICLE 36 (6) OF THE STATUTE 318 CONCLUSIONS 333 Bibliography 349 1. GENERAL BIBLIOGRAPHY 349 1.1. INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 349 1.2. JURISPRUDENCE, HISTORY OF LAW, AND POLITICAL THEORY 390 1.3. JEWlSH CULTURE AND ZIONISM 395 1.4. OTHER DISCIPLINES 395 2. SPECIALISED BIBLIOGRAPHY OF/ON SIR HERSCH LAUTERPACHT 396 2.1. BIBLIOGRAPHY OF SIR HERSCH LAUTERPACHT 396 2.1.1. BOOKS 396 1ll 2.1.2. LECTURES AT THE HAGUE ACADEMY OF INTERNATIONAL LAW 397 2.1.3. EDITORIAL WORKS 397 2.1.4. ARTICLES AND NOTES 398 2.1.5. BooK REVIEWS 404 2.1.6. PROFESSIONAL REPORTS SUBMITTED TO GOVERNMENTS OR INTERNATIONAL ORGANISATIONS 412 2.1. 7. INDIVIDUAL OPINIONS AS A JUDGE OF THE INTERNATIONAL COURT OF JUSTICE 413 2.1.8. OTHERS 414 2.2. OTHERS' WRITINGS ON SIR HERSCH LAUTERPACHT AND HIS THEORY 414 2.2.1. BOOKS AND ARTICLES ON SIR HERSCH LAUTERPACHT 414 2.2.2. THE SELECTED BIBLIOGRAPHY OF THE REVIEWS OF THE BOOKS WRITTEN OR EDIETED BY SIR HERSCH LAUTERPACHT 417 (1) PRIVATE LAW SOURCES AND ANALOGIES OF INTERNATIONAL LAW 418 (2) THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 418 (3) THEDEVELOPMENTOFINTERNATIONALLAWBYTHEPERMANENTCOURT OF INTERNATIONAL JUSTICE 418 (4) AN !NTERNATIONAL BILL OF THE RiGHTS OF MAN 419 (5) RECOGNITION IN INTERNATIONAL LAW 419 (6) INTERNATIONAL LAW AND HUMAN RiGHTS 420 (7) THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT 421 (8) INTERNATIONAL LAW, BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT 421 (9) 0PPENHEIM'S INTERNATIONAL LAW 421 (a) 2 VOLUMES 421 (b) VOLUME 1 (PEACE) 421 (c) VOLUME2 (DISPUTES, WARANDNEUTRALITY) 422 (10) OTHERS 423 lV ACKNOWlLEl[)GEMENT§ It is sometimes said that writing a thesis is a lonely work for anyone.
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