Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence

Abstract

Hersch Lauterpacht is widely celebrated as a pioneering figure in the cosmopolitan revival of international law during the mid-20th century. This article is a first in-depth analysis of an overlooked episode in his life’s work: his secret involvement in drafting Israel’s Declaration of Independence. The article analyzes Lauterpacht’s draft of this declaration, from its original manuscript form, in light of its historic circumstances and his general jurisprudence. This article contributes to international legal theory by discussing unexplored tensions in Lauterpacht’s work – tensions that have reached their boiling point in his draft declaration. Their incidence, and his attempts to resolve them, are telling not only regarding Lauterpacht’s jurisprudence, but also revealing of the nature (and limitations) of international legal argument at large. Namely, they reflect the inherent tension in international legal discourse between cosmopolitanism and sovereignty, universalism and particularism. We argue that by participating in a national project, Lauterpacht’s cosmopolitanism was compromised. His attempt to reconcile, in the Draft, between cosmopolitanism and national sovereignty – an attempt so common in the argumentation of international lawyers – ultimately led not only to the Draft’s rejection by the nascent Israeli establishment, but also, perhaps, to its downplaying by those that have reconstructed Lauterpacht’s cosmopolitan legacy.