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Recognition in International Law. 57 H Lauterpacht, Recognition , 56. These are the well-known constitutive and declaratory theories. In Recognition , Lauterpacht discusses the United States practice from 1819 which made it a condition of recognition of South American states that no special privileges of indefinite durationbe granted to Spain. What first appears as an act of political will is revealed as an exercise in interpretative discretion. See M Koskenniemi, Victorian Tradition, 239. 22 See J Crawford, Creation of States , 20-26. 63 His discussion in this essay concerns the familiar problem of the determination of the legal nature of international law. See 32-33, below, for a discussion of Lauterpachts discussion of the legitimacy as a criterion of statehood. 11 I will show that an interpretative approach to international legal science, which bears a close resemblance to Dworkins, was advanced by Lauterpacht. If Kosovo is correctly judged to be not a state because it is ineffective, there is a duty on states to not recognise it as such: to do so would be to violate Serbias rights. The focus is on his writings from 1940 onwards, and especially on his controversial work Recognition in International Law . State recognition in pursuance of a legal duty is revealed through this method as performing a vital institutional function in the international legal order. Such a progressive interpretation is fully consistent with the main established canons of construction, namely, with the principles of effectiveness and interpretation by reference to general legal principles and the social ends of law. University and Colleges work, Visiting Fellows & Scholars - Applications, Current Visiting Academics & Postgraduate Students, Collaborative projects housed in LCIL overview, Ukraine Peace Settlement Project overview, Customary International Humanitarian Law Project, What Price for Human Rights: Compensating Human Rights Violations, Art, Architecture & International Law seminar series, International Law and Political Engagement lecture series, Volume 200 of the International Law Reports(ISBN: 9781009300322), How the University Telephone: +44 1223 335 358 Email: admin@lcil.cam.ac.uk Hence, the above citation would be CP , II, 47. Because of its apparent lack of support in past practices, and because of the importance of establishing a stable system of personality determination in the international legal order, the duty to recognise is an excellent test-case which can be reconsidered so as to provide a potential answer to these problems. For example, violations of rules concerning immunity or jurisdiction are wrongful acts in themselves, but violations of these rules also deny rights inherent in statehood. 39 See J Kunz, Critical Remarks on Lauterpachts Recognition in International Law (1950) 44 AJIL 713; R Oglesby (1948) 42 AJIL 235; P Brown (1942) 36 AJIL 106; and, H Briggs, Recognition of States: Some Reflections on Doctrine and Practice (1949) 43 AJIL 113. 64 In his view, [t]he answer to this question obviously depends upon the conception of law which we adopt as the basis of the investigation. 13 H Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States (1951) 28 BYIL 220. Of course this must be the case to some extent. The only advisory opinion is the following: Judgments of the Administrative Tribunal of the International Labour Organisation upon Complaints Made Against UNESCO [1956] ICJ Rep 77. To explain, if a judge sees law as purely an expression of substantive justice, then he is a legal realist. The landmark Volume 200 of the International Law Reports(ISBN: 9781009300322)is now available. See J Finnis, Natural Law and Natural Rights , chapter 10. This article is a reconstruction of material found in a number of Lauterpachts lectures and articles. One is that the subjects of the international legal order are no longer just states. First, in many systems of law it is often open to legal subjects to hold public bodies to account for harms they suffer, even though this might also protect a public good, or help to ensure good governance. However, it is clear that the aspects of Kelsens work described by von Bernstorff do pervade Lauterpachts method throughout his career and render it much more theoretically sophisticated than that of Westlake. There are intuitively a range of plausible linkages between these propositions and justifications. It is the need to anchor his idealism to the realities of international life (e.g. (iii) In light of illegal acts of recognition, there are various demands for cessation or for the restoration of the status quo ante , declarations of legal nullities, attempts to apply countermeasures, acts of non-recognition, or calls for arbitration. By Daniel Peat, About British Yearbook of International Law, Receive exclusive offers and updates from Oxford Academic. lvi and 1029 and (index) See review by P Brown (1942) 36 AJIL 106 which is similar in content, if not the tone, to that offered by Kunz on Lauterpacht. If they choose to recognise, they can do so on whatever terms they like and it is highly unlikely that such acts of recognition are personality-conferring. These examples are plausible, even if it is unclear exactly how the wrongful act would be characterised in each case. His only concurring judgment is the Case Concerning a Right of Passage over Indian Territory [1957] ICJ Rep 125. Rather, Lauterpachts general view is that various practices of international life judicial decisions, resolutions of international organisations, conventional moral or legal principles, and, most importantly (at the time he was writing) the practices of states must be interpreted through an understanding of the function of the international legal order. 80 The duty to recognise is to be understood in the same way. By using this discussion I aim to deepen and enhance Lauterpachts method, and show how qualified constitutive theory can be considered a plausible legal doctrine (in the sense of not being outlandish, flatly wrong, or even if more plausible interpretations are on offer), despite a lack of supporting state practice, and in the face of considerable academic criticism. The International Law Reports (ILR) is the only publication in the world wholly devoted to the regular and systematic reporting in English of decisions of - Prof Marc Weller, Lauterpacht Centre for International Law 97 H Lauterpacht, Kelsen, CP , II, 425. As it turns out, in a recent, and as yet unpublished, work on interpretivism and international law, Dworkin outlines an interpretative method for public international law which is very close to Lauterpachts view which was just stated. 16 H Lauterpacht, Recognition . Dworkin focuses on the past practices of law which, he explains, consist of various propositions of law and various justificatory grounds for them. By the time of his premature death in 1960, at the age of 62, Judge Sir Hersch Lauterpacht was widely and rightly regarded as the leading public international lawyer of his To fail in this way would amount to simply declaring what the interpreter considers to be just, rather than interpreting what is law. That is, if all legal obligations flow from the consent of states, when a new state comes into existence it claims rights which are imposed as duties on existing states. Thus the justificatory ground of law offered in support of a proposition of law is plausible because it ultimately supports or helps pursue certain fundamental values embedded in legal order. Lauterpacht considers that there are clear examples of state practice which support elements of the duty to recognise, and these do not appear completely outlandish. My aim is to show how Lauterpacht intends for the latter to defend the former. 125 M Koskenniemi, Victorian Tradition. One feature of this immaturity is that it is not clear how questions of personality are to be settled. Dworkins central methodological preoccupation concerns how the legal scientist ( qua observer) can articulate the viewpoint of legal officials (such as the judge 99 ) and explain what this articulation says more generally about the nature of law. A lack of clarity concerning subject-status can be a cause of fundamental co-ordination problems because it implies that, as a matter of law, it is unclear who owes what to whom. Printed volume 195 contains Consolidated Tables of Cases for volumes 126-195 (arranged both alphabetically and by jurisdiction). The complete ILR consolidations for volumes 1-125 comprise three separate printed volumes, including the Tables of Cases (arranged alphabetically and by jurisdiction), and can be purchased from Cambridge University Press (see above). Thus, for declaratory theory, the problem of settling difficult cases is not solved and is often ignored. Thus, recognition has a legal effect and he adopts a form of constitutive theory. Declaratory theory provides the legal criteria but no institutional mechanism, whereas constitutive theory provides a mechanism, but neither the legal criteria nor an obligation to recognise in accordance with them. 72 The first is to protect and secure the independence of States by the prohibition of the use of force and by the collective enforcement of that prohibition. The reality of the Law of Nations 3. His answer relies on a form of what he elsewhere refers to as peripheral imputation. 50 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 [1970] ICJ Rep 17; Western Sahara [1975] ICJ Rep 12; Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90. Explicitly, he writes: law must be based on facts in so far as such facts are not themselves contrary to law. 106 Properly understood, the interpretation offered by the jurist should articulate the international communitys on-going attempts to give expression to preferred normative goals which are immanent within both the past and the day-to-day workings of the international legal system. 5 Cranmer Road The eighth edition, prepared by Sir Hersch Lauterpacht, had been published in 1955. WebGeneral Jurisprudence BV H. LAUTERPACHT, LL. and Colleges work. It describes the institutionalised process, undertaken by states, that leads to personality determination. 18 J Crawford, The Creation of States in International Law (2nd edn, OUP, Oxford 2006). He is prepared to apply the principle ex injuria jus non oritur to those entities created through force, but he writes that principle of effectiveness must be proved by free popular approval of the authority which has come to power by way of revolution. 87 This should not be taken out of context. This argument might not be entirely consistent with the traditional canons on how customary international law emerges, but it does have some resonance in both international legal scholarship and practice. However, he regards the potential for abuse can be removed by appropriate [international] machinery. 100 See R Dworkin, Objectivity and Truth: Youd Better Believe It (1996) 25 Philosophy and Public Affairs 87 and Harts Postscript and the Character of Political Philosophy (2004) 24 OJLS 1. Peace and authority and government are in any case better than anarchy. 67, As is well-known, Kelsen developed an austere concept of law which he used to interpret the chaotic material of the law from its statutes, regulations, judicial decisions, administrative acts, and the like as a unified legal system. If there are reasons to value integrity and coherence in law, then Lauterpachts duty to recognise should be valued for the same reasons. The substantive moral orientation which is at the heart of Lauterpachts concept of international law arises in relation to questions of statehood when he considers revolutions. There is some sense in this approach if one accepts a consent-based theory of legal obligation. An attribution of point or purpose, which is also an account of why the practice is valuable or justified , is a necessary part of any legal practice and is an essential part of any interpretation of legal practice by legal officials of coercive acts they undertake. Sir Elihu Lauterpacht CBE QC (13 July 1928 8 February 2017) was a British academic and lawyer, who specialized in international law. However, this is not inconsistent with the possibility that such actions defend more general interests protected by the international legal order, or that third states could have standing when a dispute arises. See also A Vrdoljak, Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law (2009) 20 EJIL 1163-1194. (949) 288-2253 Message. state practice and opinio juris ), and did not rely on various preconceptions or normative ideals when interpreting state practice, he could not have defended the duty to recognise. The nature of international law and general jurisprudence 2. First, the principle of salience requires that any putative norm must have widespread acceptance by states in their past practices. Dworkin then moves to the interpretative stage. The court refused to consider the question of the relevance of recognition in the formation of legal doctrine. 44 Second, a violation of the duty emerges when a state recognises what is correctly judged to be an ineffective putative state. Not surprisingly, in his work through the 1930s, the interests and functions of the international community seemed to be concerned mainly with the maintenance of peace, and he generally did not develop these concepts in detail at this time. To explain, practices are, inter alia , judicial decisions, resolutions of international organisations, conventional moral or legal principles, and the norm-guided practices of states. To establish that human rights are an appropriate concern of international law and organization, Professor Lauterpacht begins by surveying "The Subjects of the Law of Nations" and demonstrating that individual human First, states must recognise as a matter of legal duty rather than recognition being a discretionary power. 102 Thus integrity is an institutionalised conception of justice. Morality for him played a vital part through filling gaps and directing legal development towards the ends of universal justice. However, without the consent of existing states these rights cannot be valid. 6. Attention is then turned to an explanation of the links between progressive interpretation and Dworkins interpretivist method. Dworkin considers that it must, as does Lauterpacht, but the extent to which it must raises problems. (ii) The second element of the duty to recognise concerns its scope. According to Brian Simpson, Lauterpacht was the first person to defend the normative primacy of human rights in a modern British academic setting. Ideally, the institutional structure to which his concept of international law aspired was the modern (and federal) state. For example, he writes [t]he declaratory viewavoids this particular difficulty [that there are difficult cases], but it does so by the easy device of asserting that a State exists in international law as soon as it exists, and, accordingly, recognition is a formality. 23 But such existence may be and often is the question at issue.

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