Sir Hersch Lauterpacht Research Articles

Hersch and Elihu Lauterpacht and the relevance of private law sources for international law: from theory to practice against the background of international law's evolution and the adoption of the Unidroit Principles

Abstract Private law sources in international law were a main object of study of Sir Hersch Lauterpacht, who is considered one of the greatest international lawyers of the last century. In his time, the International Institute for the Unification of Private Law’s Principles of International Commercial Contracts (PICC) did not exist. The first version of the PICC was only published in 1994, more than three decades after his death. In the year 2000, the disputing parties of an investment treaty arbitration case concluded before a tribunal chaired by his son, Sir Elihu Lauterpacht, a settlement agreement dated 20 March 2000, which would later be embodied in an International Centre for Settlement of Investment Disputes Additional Facility arbitral award issued by the tribunal on 18 September 2000, where they incorporated slightly modified PICC provisions. The present article will argue that private law sources are still important in certain areas of international law, such as investment arbitration. In investment arbitration, they are not only important in presence of contracts but they can also arguably be useful for the interpretation of treaties. Investment tribunals have indeed recognized the importance of the PICC for both the interpretation of contracts (transnational agreements) and the interpretation of treaties (international agreements).

A Lauterpachtian Affair: Security Exceptions as ‘Self-Judging Obligations’ in the Case Law of the International Court of Justice and Beyond

Abstract Although Sir Hersch Lauterpacht never dealt with security exceptions during his time at the International Court of Justice (ICJ), his entire body of work formed the intellectual premise for the approach of the Court towards security exceptions and the way in which the ICJ manoeuvers in the larger debate on the relationship between law, politics and the proper discharge of the judicial function. The Lauterpachtian approach is understood as a particular attitude towards the judicial function in which the Court serves as an instrument for the protection of peace, as a guardian of the coherence and unity of the international legal system and as a driving force for the development of international law. However, in some other important elements of its reasoning, the Court seems to remain more Lauterpachtian in spirit than in letter. Despite these inconsistencies, the Court arguably exerted significant (albeit somehow uneven) influence over World Trade Organization panels and investment tribunals.

The Squire Law Library at Cambridge: Historical Development and Current Status of International Law Collections

The Squire Law Library has existed since 1904, and it has occupied three sites: Downing Street (till 1935); The Cockerell Building, Old Schools (1935-95); and West Road (1995-present), but until the mid-1950s, there was no designated collection space for International Law materials. Prior to this, the Whewell professors had their own collections, while the arrival of Harold Gutteridge as Professor of Comparative Law in 1930 saw a nucleus of international books develop in his room in the mezzanine of the Downing Street library. Similarly, when Hersch Lauterpacht became Whewell Professor in 1937, international material tended to be concentrated in his room 6 of the Cockerell Building. Finally a space was designated within the Squire Law Library for Foreign & International Law in 1957, and in 1962 the Sir Hersch Lauterpacht Memorial Room was created for this purpose. In the mid-70s, Professor Parry arranged for the whole of the 1st floor in the Cockerell Building to be set aside for these collections. Currently, the 3rd floor of the Sir David Williams Building on West Road houses both Foreign and International materials. Collection development policy has been driven by Faculty interests, especially those of the incumbent of the Whewell Chair of International Law, which was established in 1868. Since WWII, the main growth areas have been in Human Rights, Law of the Sea, Trade Law, and Investment Law, largely prompted by UN/EU/global trade-centric studies. Since 1982, journal acquisition policy has been increasingly dictated by the University Library, especially since 2003, when the UL Journals Co-ordination Scheme was piloted. After the 1980s, material has been increasingly of an electronic nature. Establishment of a specialist post (1997) singled out International Law as the premier component of the Squire Law Library collections. Currently ~30% of both Faculty staff and research students engage in International Law.

The Life of Sir Hersch Lauterpacht, qc, fba, lld, written by Sir Elihu Lauterpacht

The Life of Sir Hersch Lauterpacht, qc, fba, lld, written by Sir Elihu Lauterpacht

International Criminal Tribunals and the Sources of International Law: Antonio Cassese's Contribution to the Canon

This piece looks at the approach of Antonio (Nino) Cassese to aspects of the sources of international law. After a small set of personal reflections, it begins by discussing Cassese’s general approach to international law, flagging up the co-existence of positivist and more naturalistic/humanistic approaches in his academic writings. It then moves on to how Cassese brought these approaches to his judicial work, in a manner which is termed ‘presentational positivism’. The piece explains this through an analysis of his contribution to the Tadić, Erdemović, and Kupreškić et al. cases, and attempts to explain how what, at first view, might seem to be different approaches in those cases to international law in fact reflect Cassese’s broader, humane view of international law. It then turns to his judicial and academic reflections on the authority of case law and how that relates to the level of reasoning they contain. This is investigated with particular reference to the difference of opinion between the ICTY and International Court of Justice (ICJ) in the Tadić and Bosnian Genocide cases, with a specific focus on how he sought to engage the ICJ in reasoned inter-judicial debate. It concludes with a comparison of Cassese with another major figure of 20th-century international law who sought to reconcile humanitarian impulses with often positivist presentations of international law, Sir Hersch Lauterpacht.

Ralph Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World. Power v. Principle

Global governance has been the buzzword for many internationalists for quite some time now, and the United Nations has been one of the primordial focal points in controversies about global order. This prominence of the UN has been especially remarkable in the context of deliberations about the legality and legitimacy of military force. For, despite the growing importance of the US as the world�s most capable superpower, internationalists have not been muted by voices stressing the impossibility of successfully grappling with power-based interests and high-political considerations of predominant states through international law and organization. The emergence of a unipolar moment, a constellation supposedly characterized by a high concentration of military capabilities and widespread scepticism as regards the fruitfulness of multilateralism in the US has rather enticed many commentators to ponder all the more seriously the potential role of multilateral institutions, such as the UN � as a mediating structure vis-a-vis national interests, as a legitimacy-conferring agent the main function of which it is to rationalize the regime of the great powers, or as a potential counterweight to US-American unilateralism. The author of the book under review adds to this list as he endeavours to show that, after the end of the Cold War in 1990, the Secretariat of the UN repeatedly championed views that brought it into conflict with the US and other influential member states of the UN. Based on his own experience as a staff member in the Office of Legal Affairs since 1973, as the Director of the UN Secretariat�s Office of Legal Counsel since 1988, and as an Assistant Secretary-General for Legal Affairs of the United Nations from 1998 to 2005, he delivered The Sir Hersch Lauterpacht Memorial Lectures at Cambridge University in 2008, in which he made a strong point for an independent role for �

THE FUNCTION OF LITIGATION IN INTERNATIONAL SOCIETY

The title of this article1 is drawn from Sir Hersch Lauterpacht's famous monograph, published in 1933, entitled The Function of Law in the International Community.2 Writing in a decade when the shattering effects of the physical destruction wrought by World War I were giving way to the debilitating effects of the Great Depression, and when the invasions of Manchuria and Abyssinia would sit side-by-side with the rise of Fascism in Germany and the great Stalinist terror in Russia, Lauterpacht was, not unnaturally, seeking a better way to a peaceful future under the Rule of Law. At that time, the recently established International Court in The Hague was dealing with acutely political cases, such as the question of the compatibility of the Austro-German Customs Union with the post-war peace settlement;3 and the cool rationality of debate in the Peace Palace seemed to offer a better way.

Editors’ Introduction: ‘Continuity and Change’

The Cambridge Journal of International and Comparative Law (CJICL) was born in Cambridge on 1 August 2011, named by Professor James Crawford SC (now known as ‘The Godfather’) and ‘baptised’ by the Faculty of Law at its Board Meeting. The independent Journal naturally complements the renowned series of Cambridge monographs—currently edited by Professors Crawford and Bell—which were established in 1946 by Professors Lauterpacht, Gutteridge and McNair. Whereas the monographs are edited by accomplished academics in the fields of international and comparative law, the Journal is run by a young, up and coming team of doctoral candidates at the Law Faculty, and builds on the experience of its predecessor, the Cambridge Student Law Review (2003–2011). It is this balance between preserving continuitywith the pastwhile fostering change for the future that the Journal seeks to capture. It focuses on public and private international law, while employing a comparative method to bridge gaps between legal orders and to assess the intersection between international, regional and national legal orders. Our vision is for the Journal to become an open platform for a constructive and critical dialogue between the junior and senior ends of the academic spectrum, as well as between international scholars and practitioners. The authors of our first issue reflect this vision—ranging from an unpublished piece of work by Sir Hersch Lauterpacht (he will therefore have featured prominently in establishing both the monograph and Journal series) to Ms Anna Cowan, who was recently awarded her LL.M. Our second issue is equally balanced: submissions by three eminent judges are published alongside the work of fifteen doctoral and masters’ candidates. The first issue also contains a piece by HE Judge Greenwood CBE QC, who, after sketching a picture of the increase in international tribunals, focuses on some of the challenges of international litigation: work level, diversity, jurisdiction and compliance. Complementing this piece, but from a different

The Element of Risk in International Investment Arbitration

AbstractInvestments have always been exposed to a degree of risk. The present article, based on the author’s presentation at the conference “Sir Hersch Lauterpacht ‐ Lawyer of Two Cultures”, organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge on 5‐6 November 2008, examines the element of risk, inherent in any investment project, as it has been delineated through international investment arbitration. The main focus is on the duty, on the part of the investor, to make a risk-assessment and act in good faith. These duties, however, do not mean ipso facto that the investor is responsible for any occurrence that may damage the investment. It is at this point that tribunals bear an important obligation to balance investor and host State interests.

Preclusion of Wrongfulness of the Use of Force

AbstractThis contribution, stemming from a presentation made at the Conference “Sir Hersch Lauterpacht - Lawyer of Two Cultures”, organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge on 5-6 November 2008, addresses the current debate on the legality of the use of force in international relations. More specifically, it considers the possibility and applicability of the ‘preclusion of wrongfulness’ argument with respect to the use of force. It is argued that although circumstances precluding wrongfulness were never expressly invoked in the context of the use of force, such a possibility may be worth consideration.

Professor Manfred Lachs: Wise Man of International Law

AbstractThis article, based on the author’s presentation at the Conference “Sir Hersch Lauterpacht - Lawyer of Two Cultures”, organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge on 5‐6 November 2008, aims at briefly presenting the life and achievements of Professor and Judge Manfred H. Lachs (21 April 1914‐14 January 1993). During the course of his prolific career, Judge Lachs was active and excelled in four different roles; those of scholar and academic teacher, diplomat and international judge. In all these roles, with his innovative and ground-breaking ideas, he has left his mark on legal discourse and his legal thought continues to be of great influence even today.

Count Rostworowski as an International Lawyer and Judge

AbstractThis article, stemming from a presentation made at the conference “Sir Hersch Lauterpacht ‐ Lawyer of Two Cultures”, organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge on 5‐6 November 2008, introduces the life and work of Count Rostworowski as a lawyer, academic and international judge. The main focus is on his approach to international law and treaty interpretation in his opinions in the cases of the Permanent Court of International Justice, on which he sat as a judge.

Where is the World Heading? Shaping a New International System

AbstractAttempting to understand the way in which the international system evolves and what the main forces that shape its future progress are, is always a complicated endeavour. In the present article, based on the presentation made at the Conference “Sir Hersch Lauterpacht ‐ Lawyer of Two Cultures”, organized by the Embassy of the Republic of Poland and the Lauterpacht Centre for International Law of the University of Cambridge, the author undertakes this daunting task. Whereas Kissinger argued that there exist only two paths to stability, hegemony or equilibrium, in this article it is argued that this does not reflect the current reality and challenges of the 21st century. By analysing the current forces and challenges of the modern international community the author of the present article strives to derive certain conclusions as to where the world is heading and what would be the shape of the international system.

Sir Hersch Lauterpacht and Poland’s Judges at the International Court: Judge Bohdan Winiarski

AbstractIn a conference devoted to Sir Hersch Lauterpacht one would be remiss to neglect all the other important judges of Polish origin, whose work and ideas influenced and were influenced by those of Sir Hersch Lauterpacht. The present article outlines the main ideas and contributions of Judge Bohdan Winiarski in an era of great turbulence but also of great strides in the evolution of the system of public international law.

Judge Stephen Schwebel: International Jurist Extraordinare. A Further Contribution to the Cambridge Eminent Scholars Archive

Emeritus Judge Stephen Schwebel was interviewed for Eminent Scholars Archive in 2009. Born in 1929 he reminisced of his life as a student at Harvard, and the founding of the United Nations at the end of WWII. He had a life-long interest in the UN, and became a confidant of the first UN Secretary General Trygve Halvden Lie, about whom he wrote a book in 1952. He was also a deep admirer of the greatest international lawyer of the modern age Sir Hersch Lauterpacht, under whom he briefly studied at Cambridge in 1950. This visit led to a great affection for the Cambridge faculty, and his helping Sir Elihu Lauterpacht secure the financial viability of the International Law Reports. Stephen Schwebel’s career included work as a NY attorney as an international lawyer, two spells in the US State Department (1961-65 & 1973-81), including postings at the UN on the International Law Commission, and a brief teaching spell at Harvard. The culmination of his career were 19 years at the ICJ (1981-2009) in The Hague, first as a judge and later, President. While at the Peace Palace he saw the rejuvenating of the ICJ’s reputation, and great improvements to its administrative arrangements. His published works include International Arbitration (1987) and Justice in International Law (1994).

Foreign Relations and the Judiciary

It is not generally appreciated that Francis Mann was not an international lawyer at all by training. His thesis at Berlin University was in company law. It was only after he had been in England for some time that he began to write about private international law,1and his interest in public international law was developed as a result of his friendship with Sir Hersch Lauterpacht. It was not until 1943 that he published anything about public international law, and in that year he published a substantial article in two parts on the relationship between national law and international law, in which he built on the previous work on Judicial Aspects of Foreign Relations by Louis Jaffe2and on acts of state by Sir William Holdsworth.3Subsequently he came to make this subject his own, at least in England,4where the subject has never attracted the attention which it has attracted in the United States.5

Human Rights Strategies of the 1960s Within the United Nations: A Tribute to the Late Kamleshwar Das

Dr. Kamleshwar Das, who died at the end of 1997, was a major source of inspiration to me and to many others in the field of human rights. After completing his doctorate at Cambridge University under the supervision of Sir Hersch Lauterpacht, he joined the newly formed Division of Human Rights at the United Nations. There he labored for twenty-eight years, retiring as its Deputy Director. I first met him in late 1967 through his friend Dr. George Barton, one of my teachers at Victoria University. I was then a graduate student at Columbia University. Dr. Das encouraged me to spend time at the Division (then in New York) as an intern the following summer. He gave invaluable help in the writing of my doctoral dissertation on the UN High Commissioner for Human Rights (published as a book in 1972) and in many later endeavors. This article, offered as a tribute to his memory, seeks to capture some of the human rights mood of the 1960s and some of the strategies that Das and those who worked with him were trying to follow. As with any other period in the life of the United Nations, initiatives across a broad series of fronts characterized the sixties. Sometimes it seemed as though these fronts were connected only by the sweeping principles of the UN Charter' and the usual stark disagreements about how

The Conventional Weapons Convention: A modest but useful treaty

The author commenced an earlier study of the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (Conventional Weapons Convention) by quoting the late Sir Hersch Lauterpacht's remark: “If international law is, in some ways, the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. He then carried Lauterpacht's statement one stage further to suggest that the vanishing point of the law of war was most likely to be found in the body of law restricting the use of weapons. Shortly after writing these words, the author discovered that a colleague had also used the remarks of Sir Hersch and asserted that the vanishing point of the law of war was the law of air warfare. More recently, the author read a paper by a younger colleague in which Sir Hersch was quoted once again, but this time it was asserted that the vanishing point of the law of war was to be found in the body of law regulating nuclear weapons. The two lessons one might derive from this brief tale are that serious students of the law of war rarely have grandiose expectations for their discipline and that a good quotation is always reusable.

Nationality and Statelessness in International Law. By P. Weis. Foreword by Sir Hersch Lauterpacht. 2nd edition. Alphen aan den Rijn: Sijthoff and Noordhoff, 1979. xlii + 337 pp. (including documentary appendices and index). Dfl. 125

Journal Article Nationality and Statelessness in International Law . By P. Weis. Foreword by Sir Hersch Lauterpacht. 2nd edition. Alphen aan den Rijn: Sijthoff and Noordhoff, 1979. xlii + 337 pp. (including documentary appendices and index). Dfl. 125 Get access Ian Brownlie Ian Brownlie Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, Volume 51, Issue 1, 1980, Pages 298–299, https://doi.org/10.1093/bybil/51.1.298-a Published: 01 November 1981

Some Legal Problems Concerning the Protection of the Human Environment

I am very happy and very honoured to have been invited to give the inaugural lecture in the series under the Sir Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. It is a great honour to be connected with the name of Hersch Lauterpacht who was one of the truly great minds in the field of international law in our epoch, great as a scholar, great as an idealist, an innovator and a prophet; and it is a source of happiness to me to bear witness to the fact that he was also a great human being whose wisdom was illuminated with kindness and warmth. His friends and pupils remember him with love and gratitude.For the purpose of this paper I invite you to accept with me the proposition that we live in an ecological crisis. The extent of the dangers confronting us is in dispute. The degree of urgency is debated. There are still serious gaps in our knowledge. The task of the scientists is enormous. Still, no one can ignore the existence of this crisis.“The two worlds of man, the biosphere of his inheritance, the technosphere of his creation—are out of balance, indeed potentially in deep conflict. And man is in the middle. This is the hinge of history at which we stand, the door of the future opening on to a crisis more sudden, more global, more inescapable and more bewildering than any ever encountered by the human species and one which will take decisive shape within the life span of children who are already born.”