The British Yearbook of International Law ß The Author 2012. Published by Oxford University
Press. Available online at www.bybil.oxfordjournals.org
doi:10.1093/bybil/brs001
Advance Access published on 10 June 2012
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LAUTERPACHT’S METHOD
By PATRICK CAPPS*
ABSTRACT
Hersch Lauterpacht’s method for international legal science, which he calls
progressive interpretation, is reconstructed here. This method takes as its starting
point the claim that international law should be functionally oriented
towards two ideals – the establishment of peace between nations and the protection
of fundamental human rights. It is the need to anchor his idealism to the
‘realities of international life’ (e.g. state practice) which provides the basis for his
important, and highly plausible, method for the study of international law. That
is, progressive interpretation articulates the international community’s on-going
attempts to express preferred normative goals which are immanent within the
day-to-day workings of the international legal system. International legal
doctrine is the institutional expression of the international community’s fundamental
normative commitments, it is not simply that which is considered ideally
just. Alongside a reconstruction of Lauterpacht’s method, two substantive contributions
are made. The first traces the connections between progressive
interpretation and more recent legal philosophers who adopt an interpretivist
methodology, such as Ronald Dworkin. The second reconsiders Lauterpacht’s
qualified constitutive theory and shows how his method reveals it to be a plausible
legal doctrine, despite a relative lack of supporting state practice, and in the
face of considerable academic criticism.
Keywords: Hersch Lauterpacht, Recognition, Ronald Dworkin,
Interpretivism.
*School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS7
9HW, p.capps@bris.ac.uk. This article is based upon a paper presented at Warwick University,
New College, Oxford University, and at a joint colloquium held at Macfarlanes LPP which was
organised by the University of Bristol and University College, London. Thanks to Julio Faundez,
Dino Kritsiotis, Elihu Lauterpacht, Julian Rivers, James Upcher, Colin Warbrick and the editors of
BYIL for comments on earlier drafts of this paper. This paper was completed with the support of
the Herbert Smith Visitors Scheme at the University of Cambridge.
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The British Yearbook of International Law (2012), Vol. 82 No. 1, 248–280
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[The] legitimate province [of international lawyers] is and must remain the
exposition and progressive interpretation of the existing law in terms of the
abiding purpose of the Law of Nations.1
I. INTRODUCTION
The academic writings and judicial opinions of Hersch Lauterpacht are
full of theoretical insight into the nature and structure of the international
legal order. The originality of his thought and his ability to
incorporate a coherent and sophisticated philosophy of law into both
his writings on international legal doctrine and his role as an international
judge place him in the first rank of international lawyers of the
twentieth century. This article is an examination of Lauterpacht’s work
and, more specifically, sets out his method for international legal science,
which he calls progressive interpretation. The focus is on his writings
from 1940 onwards, and especially on his controversial work Recognition
in International Law.2
Method, in what follows, concerns the questions
of how international legal science is possible and how claims about the
international legal order are to be justified.
Progressive interpretation centres on Lauterpacht’s concept of international
law. His concept of international law implies a necessary connection
between law and morality. That is, international law should be
functionally oriented towards both the establishment of peace between
nations and the protection of fundamental human rights. From his 1925
paper on Westlake onwards, the moral value of peace is at the centre of
his claims about the function of international law. The claim that the
protection of human rights is also a function of the international legal
order is only explored fully after 1940.3
1
H Lauterpacht, ‘The Reality of the Law of Nations’ in E Lauterpacht (ed), International Law.
Being the Collected Papers of Hersch Lauterpacht, volume 2, The Law of Peace (CUP, Cambridge
1975) 47. This lecture was delivered on 27 May 1941. References to Lauterpacht’s Collected Papers,
which are edited by E. Lauterpacht, are given as CP, followed by the volume and page number.
Hence, the above citation would be CP, II, 47.
2
H Lauterpacht, Recognition in International Law (OUP, Oxford 1947).
3
Lauterpacht’s earliest published work is his doctoral thesis from the University of Vienna from
1922 entitled ‘The Mandate Under International Law in the Covenant of the League of Nations’.
Here, he considers and defends the work of positivists such as Nippold and Jellinek, and consequently
offers a very different position to that found in any of his publications in English (See CP,
III, 29, esp. 52-55). It is tempting to suggest that Lauterpacht’s first major article in English from
1925, on Westlake, establishes the view set out in the present article. Here Lauterpacht endorses
Westlake’s claim that international law must be rooted in, on the one hand, the ‘realities of international
life’ as well as, on the other, an appreciation of the fundamental moral concerns of the
international community (See H Lauterpacht, ‘Westlake and Present Day International Law’ (1925)
5 Economica 307-325; CP, II, 385-403, 402-403). After the Second World War, a human-rights
oriented interpretative method becomes explicit. According to Brian Simpson, Lauterpacht was the
first person to defend the normative primacy of human rights in a modern British academic setting.
Simpson also argues that Lauterpacht was the first to defend the claim that such rights could not be
adequately protected by state legal orders, and that they could only satisfactorily be protected at the
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Although his functional orientation leads some to consider his method
as overly idealistic,4
Lauterpacht’s philosophy of international law is
sensitive to both the pragmatics of dispute settlement, and the relevance
and importance of what states do in determining the proper content of
international legal norms. The need to anchor his idealism to the ‘realities
of international life’5
is that which distinguishes his work from traditional
natural law theory. As is clear from the extract which opened this
article, the interplay between fact, function and morality is at the core of
progressive interpretation.6
Progressive interpretation offers an important, and highly plausible,
methodological approach for the study of international law which has not
been explored sufficiently.7
Alongside a reconstruction of Lauterpacht’s
method, I make two substantive contributions. My first contribution
traces the connections between progressive interpretation and more
international level. See B Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human
Rights’ (2004) 120 LQR 49 and also see H Lauterpacht, ‘The Law of Nations, the Law of Nature
and the Rights of Man’ (1943) 29 Transactions of the Grotius Society 1.
4
See EH Carr, The Twenty Years’ Crisis, 1919-1939: An Introduction to the Study of
International Relations (Palgrave MacMillan, Basingstoke 2001, first published in 1939). See also,
M Koskenniemi, ‘Hersch Lauterpacht (1897-1960)’ in J Beatson and R Zimmermann (eds), Jurists
Uprooted (OUP, Oxford 2004) 601-680; K Wohlstro¨m, ‘On Disillusionment and its Limits: Images
of the Interwar Legal Project in International Relations and International Law’ (2010) 80 BYIL
361-408.
5
H Lauterpacht, ‘Westlake’, CP, II, 402-403.
6
This combination of idealism, pragmatism and sensitivity to function also permeate his approach
to judicial practice. Rosenne makes this point when he writes that despite his lack of experience
of litigation or arbitration, ‘. . .it may fairly be stated that, of all members of either the
Permanent Court or the present Court, Lauterpacht was probably the one who, prior to his translation
to The Hague, had. . . studied in depth the fundamental problems of contemporary international
litigation, and had done so within the context of a new, and generally satisfying, underlying
philosophy of contemporary international law. . ..’ (S Rosenne, ‘Sir Hersch Lauterpacht’s Concept
of the Task of the International Judge’ (1961) 55 AJIL 825, 826). Lauterpacht was formally
admitted as a judge on 10 February 1955. His separate opinions are found in the following cases:
Question of Voting Procedure Related to Reports and Petitions Concerning the Territory of South West
Africa [1955] ICJ Rep 67, 90-123; Admissibility of Hearings of Petitioners by the Committee on South
West Africa [1956] ICJ Rep 23, 35-59; Application of the Convention of 1902 Governing the
Guardianship of Infants [1956] ICJ Rep 55, 74-101; Case of Certain Norwegian Loans [1957] ICJ
Rep 9, 34-66. His dissenting opinions are found in the following cases: Interhandel Case
(Preliminary Objections) [1959] ICJ Rep 6, 95-122; Case Concerning the Aerial Incident of July
27, 1955 (with Wellington Koo and Sir Percy Spender) [1959] ICJ Rep 127, 156-194; Case
Concerning Sovereignty Over Certain Frontier Land [1959] ICJ Rep 209, 230-232. 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. His only concurring
judgment is the Case Concerning a Right of Passage over Indian Territory [1957] ICJ Rep 125.
7
The European Journal of International Law has published a number of symposia on important
international lawyers since its inception in 1990, and considered Lauterpacht’s work in 1997, alongside
reprints of recollections of Lauterpacht. See M Koskenniemi, ‘Lauterpacht: The Victorian
Tradition in International Law (1997) 8 EJIL 215-263; I Scobbie, ‘The Theorist as Judge:
Hersch Lauterpacht’s Concept of the International Judicial Function’ (1997) 8 EJIL 264-298;
C Herzog, ‘Sir Hersch Lauterpacht: An Appraisal’ (1997) 8 EJIL 299-300; R Jennings, ‘Hersch
Lauterpacht: A Personal Recollection’ (1997) 8 EJIL 301-304; S Schwebel, ‘Hersch Lauterpacht:
Fragments for a Portrait’ (1997) 8 EJIL 305-308; H Kelsen, ‘Tributes to Sir Hersch Lauterpacht’
(1997) 8 EJIL 309-312; E Lauterpacht, ‘Sir Hersch Lauterpacht: 1897–1960’ (1997) 8 EJIL
313-320. See also A Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and
Lemkin in Modern International Law’ (2009) 20 EJIL 1163-1194.
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recent legal philosophers who adopt an interpretivist methodology.
While there are similarities between Lauterpacht’s method and that of
recent natural lawyers who adopt a kind of interpretative method (for
example, John Finnis8
), it is the parallels between Ronald Dworkin’s
constructive interpretation and progressive interpretation which will be
focused on in what follows.9
In the last fifteen years or so, Dworkin’s
methodology has been applied to the study of international law by,
amongst others, John Tasioulas, George Letsas, Anthea Roberts and
Bas° ak C¸ ali on the grounds that it provides a powerful and novel way
of thinking about the international legal order.10
Dworkin, himself, has
recently made some tentative steps toward articulating an interpretative
vision of international law.11
I will show that an interpretative approach
to international legal science, which bears a close resemblance to
Dworkin’s, was advanced by Lauterpacht. The key resemblance is
that, for both, legal science should proceed on the basis of an attempt
to interpret existing legal practices through an appreciation of the function(s)
or purpose(s) of law. Those who argue that international law
might benefit from an interpretivist method, and who turn to
Dworkin, should take note of this point.
Although various aspects of progressive interpretation are reflected in
Lauterpacht’s writing on, for example, non-justiciability,12
state immu-
nities,13
the sources of international law,14
and the laws of war,15
my
starting point is Lauterpacht’s much-derided qualified constitutive
theory. This theory, set out in Recognition, is a defence of the claim
that states have a duty to recognise.16
The duty to recognise is often
charged with being an inaccurate representation of state practice and
for this reason it is here that his methodological approach is clearest.
This is because he takes a position on international legal personality
which does not straightforwardly conform to the majority of state
8
J Finnis, Natural Law and Natural Rights (OUP, Oxford 1980) chapter 1.
9
As far as I am aware, this was first noted by M Koskenniemi in From Apology to Utopia: The
Structure of International Legal Argument (revised edn CUP, Cambridge 2005) 55-59. Note that
Dworkin uses the word ‘interpretive’ rather than the usual English spelling which is ‘interpretative’.
For the sake of consistency, throughout the text I use the words ‘interpretative’ and ‘interpretivism’
throughout the text. See N. Simmonds, Central Issues in Jurisprudence (2nd
edn. Sweet and Maxwell,
London 2002) 193n7.
10
J Tasioulas, ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua
Case’ (1996) 16 OJLS 85; G Letsas, A Theory of Interpretation of the European Convention on Human
Rights (OUP, Oxford 2007); B C¸ ali, ‘On Interpretivism and International Law’ (2009) 20 EJIL 805;
A Roberts, ‘Traditional and Modern Approaches to Customary International Law’ (2001) 95 AJIL
757.
11
R Dworkin, ‘Human Rights and International Law’ (2011, unpublished manuscript).
12
H Lauterpacht, The Function of Law in the International Community (OUP, Oxford 1933). Also
see M Koskenniemi’s introduction to the revised edition of Function (OUP, Oxford 2011) xxix.
13
H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 BYIL
220.
14
H Lauterpacht, ‘The Convent as the “Higher Law”’ (1936) 17 BYIL 54
15
H Lauterpacht, ‘The Limits of the Operation of the Laws of War’ (1953) 30 BYIL 206.
16
H Lauterpacht, Recognition. See also E Lauterpacht, The Life of Hersch Lauterpacht (CUP,
Cambridge 2010) 299-300 and 332-8.
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practice. It is on this point that a second, and more important, contribution
is offered. In Lauterpacht’s duty to recognise, the relationship
between state and judicial practice, on the one hand, and his vision of the
function and purpose of international law, on the other, becomes attenuated.
There has been a considerable amount of discussion of this
point, but in a more general context, by Dworkin and those who support
or criticise his work. By using this discussion I aim to deepen and enhance
Lauterpacht’s 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. My discussion of Lauterpacht’s duty
to recognise, leads into a reconstruction of his progressive interpretation.
My aim is to show how Lauterpacht intends for the latter to defend the
former. Attention is then turned to an explanation of the links between
progressive interpretation and Dworkin’s interpretivist method. I then
conclude by explaining in more general terms, how progressive interpretation
can aid international lawyers’ attempts to construct customary
international law.
II. RECOGNITION AS A LEGAL DUTY
Lauterpacht accepts that statehood and personality under international
law is conferred on communities through recognition by existing states.
Thus, recognition has a legal effect and he adopts a form of constitutive
theory. What makes his position different from the traditional constitutive
theory is the argument that existing states are under a duty, rather
than having discretion, to recognise communities as states which have
fulfilled certain factual criteria like a defined territory, stable population
and effective governance. Thus states have a duty to recognise. This position
is not well accepted, and Recognition has been subject to some very
critical reviews. The hostility to the duty to recognise is generally for the
reason that while states obviously recognise each other, there is little
evidence that they act under any sense of obligation or duty in doing
so. According to his critics, Lauterpacht gets it flatly wrong: states have
discretion, rather than the duty, to recognise. 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. As this criticism, and
the view on personality determination in international law that it implies,
was well-accepted at the time Lauterpacht wrote on this subject, one
must wonder why he took such a controversial view. The answer to
this problem is ultimately to be found in his method of progressive interpretation.
However, in order to get to this answer, it is first necessary
to set out briefly the debate on legal personality within which the duty to
recognise is Lauterpacht’s contribution.
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A. Recognition and Personality Determination
In any legal system, there must be a way to determine those to whom its
norms apply: that is, who are legal subjects. This is because it is generally
the case that only subjects can be right-bearers and duty-holders within a
legal order. Non-subjects need not normally be held responsible for violations
of, or to be protected by, legal norms. 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. In all legal orders, answers to questions of personality are
sometimes vague and difficulties concerning exactly who or what falls
within the jurisdiction of the legal order must be determined by its
courts.17
But this dissonance must be minimised as far as possible so
that legal subjects are clear about what they owe to, and what they are
owed by, other legal subjects.
There are a number of reasons why this dissonance is a serious problem
for the international legal order. One is that the subjects of the
international legal order are no longer just states. There has been a proliferation
of international organisations, as well as a general recognition
of rights and responsibilities of individuals, non-state ethnic groups and
political organisations. Often these non-state subjects have rights and
duties which are different to those traditionally held by states. This
first reason is of lesser importance for present purposes than a second
reason. The demise and reconfiguration of states through secession,
revolution, devolution, civil war, invasion, annexation, and so on, is a
crucial source of uncertainty in the international legal order. As states
break up, become governed by morally reprehensible groups, or invade
each other, so those who administer the international legal order are
faced with difficult questions of legal personality.
In order to limit the effect of these two sources of uncertainty, the
international legal order should have a system which stabilises personality.
Focusing on statehood, this system must stabilise personality so that
it is clear (i) what the content of the criteria of statehood are; and, (ii)
how difficult cases are to be resolved. Through this system, the rights
and duties which flow from statehood can then be conclusively determined
as a matter of international law. There are two ways in which the
problem of system design is tackled by international lawyers. These are
the well-known constitutive and declaratory theories. Neither, as will be
shown, provides an entirely satisfactory system which can determine and
stabilise personality if this means that both aims (i) and (ii) must be
satisfied. The duty to recognise is proposed by Lauterpacht as a way
to minimise the defects of both of these theories.
17
This has recently emerged in cases concerning questions of ‘effective control’ over overseas
territory, as well as the immunity of foreign sovereigns and officials. See, for example, Al-Skeini and
others (Respondents) v. Secretary of State for Defence [2007] UKHL 26; and, Jones and Mitchell v
Kingdom of Saudi Arabia) [2006] UKHL 26.
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The declaratory theory holds that factual criteria (like effective government,
stable population and defined territory) must be held by a
putative state before it can genuinely attain statehood. This was the
predominant view at the time Lauterpacht was writing. It remains so
today, but Crawford has argued persuasively that now factual criteria
must be supplemented by a limited set of criteria of legitimacy
(e.g. self-determination).18
From this perspective, recognition by states
is either a purely political act (Brownlie19
) or establishes ordinary diplomatic
relations (Verdross20
). Either way, recognition by other states has
no legal effect in the creation of states.
While declaratory theory establishes clear criteria by which it is possible
to determine, as a matter of international law, when a state comes into
existence, many of its proponents do not readily acknowledge the problem
that it is sometimes controversial whether such criteria have been met by a
putative state. They dodge this issue by assuming that statehood arises as a
matter of fact, and that normally no legal judgment is required to determine
whether something is a state or not. Declaratory theory presupposes
that conditions like effectiveness or legitimacy are legally relevant facts
like turning eighteen, and they assume that both sort of legal relevant fact
can be calculated objectively. However, while we may know what being
eighteen means, it is sometimes controversial whether someone is in fact
eighteen.21
By analogy, it is difficult to see how the existence of criteria of
statehood is calculable in the same way as someone’s age is, and whether
such conditions are present in a given circumstance is much more factually
ambiguous. Thus, for declaratory theory, the problem of settling difficult
cases is not solved and is often ignored.22
In Recognition, Lauterpacht repeatedly states this problem. For
example, he writes ‘[t]he declaratory view . . . avoids 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’. Elsewhere he writes that ‘[l]egal personality
is a creation of law, not of nature . . . .The question is whether
[states] are independent in the meaning of international law. But this is
not a question admitting of a self-evident answer.’24
Thus, the primary
defect of declaratory theory is that it does not include a necessary institutional
mechanism which is capable of resolving difficult cases.
18
J Crawford, The Creation of States in International Law (2nd edn, OUP, Oxford 2006).
19
I Brownlie, Principles of Public International Law (7th
edn, OUP, Oxford 2008) 89-90.
20
A Verdross, Die Verfassung der Volkerrechtsgemeinschaft (Julius Springer, Vienna 1926) 180.
See also, J Crawford, Creation of States, 27-28 and see H Lauterpacht, Recognition, 2.
21
The need for a legal judgment must always be a possibility. In this context, the registration of
births as a matter of legal obligation can be seen as specific legal mechanism to preempt controversy.
22
See J Crawford, Creation of States, 20-26.
23
H Lauterpacht, Recognition, 58.
24
Ibid, 49.
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The alternative, constitutive, theory is that recognition is determinative
of statehood as a matter of international law. Thus, states exist to the
extent that they are recognised by other existing states.25
Criteria of
statehood deployed by declaratory theory are properly understood as
commonly used reasons offered by states when they recognise others.
There is some sense in this approach if one accepts a consent-based
theory of legal obligation. 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. However, without the
consent of existing states these rights cannot be valid. The act of recognition
constitutes that acceptance.
The constitutive approach may hint at a solution to at least one problem
with declaratory theory which was identified above. Kelsen, who
approves of the constitutive view, and who taught Lauterpacht at the
University of Vienna,26
sets out this solution. Foreshadowing
Lauterpacht’s critique set out above, he writes: ‘[i]f international law
did not determine what a state is, then its norms, which obligate and
empower the states, would not be applicable’.27
But how does the international
legal order settle this issue? His answer relies on a form of what
he elsewhere refers to as ‘peripheral imputation’.28
That is, if the international
legal order ‘attaches to a certain fact as condition a certain consequence,
then it must determine in what manner and especially by
whom the consequence provided for may be attached to it.’29
This indicates
that the legal fact (state in the sense of international law), from
which flows the consequence (the rights and duties associated with statehood),
must be determined by some institution. For Kelsen, this determination
is made by states recognising one another as ‘organs’30
of the
international legal order. This is the only realistic institutional possibility
in the absence of ‘special organs’31
designed for this purpose such as an
international court. Constitutive theory identifies recognition by states as
the institutional mechanism by which questions of legal personality are
settled in the international legal order, thus providing a practical solution
to the problem of declaratory theory.
There are, however, several serious problems with constitutive theory
as a mechanism for personality determination. Two are particularly relevant
for present purposes. First, statehood becomes contingent and
25
See H Kelsen, ‘Recognition in International Law: Theoretical Observations’ (1941) 35 AJIL
605.
26
H Kelsen (1961) 10 ICLQ 2 (reprinted in (1997) 8 EJIL 309-312).
27
See H Kelsen, ‘Recognition in International Law’, 606.
28
H Kelsen, Introduction to the Problems of Legal Theory (S Paulson and B Litschewski-Paulson
(trs), Clarendon Press, Oxford 1992, first published in 1934) 23-25. See also H Lauterpacht,
‘Kelsen’s Pure Science of Law’ in Modern Theories of Law (OUP, Oxford 1933) 105-38; and, see
CP, II, 410, 416.
29
H Kelsen, ‘Recognition in International Law’, 606.
30
H Kelsen, Introduction, 123.
31
H Kelsen, ‘Recognition in International Law’, 607.
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variable, thus we might question whether it provides an effective system
of personality determination.32
Secondly, while constitutive theory
establishes a mechanism by which personality can be determined,
unlike declaratory theory it does not offer stable legal criteria by which
statehood can be determined. In its most extreme form, (i) recognition is
an act which has a legal effect in determining statehood; (ii) states have a
discretion whether to recognise or not; and, (iii) states can recognise on
whatever terms they choose. This extreme form of constitutive theory
seems to be a straw man to be attacked by critics.33
Most advocates of
constitutive theory are more moderate. On this moderate view, states are
not granted an unprincipled discretion to recognise. For example, Kelsen
argues that ‘[e]xisting states are only empowered – they are not obliged –
to perform the act of recognition.’34
But if they do choose to recognise,
they should do so using criteria of effectiveness. Regardless, though, of
whether one adopts an extreme or moderate constitutive theory, the
problem with it is that to not recognise certain factual conditions as constitutive
of statehood does not constitute a wrongful act.35
Even in its moderate
form, there is no wrong committed if states refuse to recognise an
effective putative state.36
Constitutive theory provides a mechanism
(i.e. recognition) but there are few or no constraints which control how
states should recognise in accordance with law. This is in stark contrast to
the highly developed sets of legal constraints which control how states as
organs of the international legal order can create legal obligations
32
This problem with constitutive theory is remarked on by Kelsen. He writes (without passing
judgment) that ‘the legal existence of a state. . . has a relative character. A state exists only in its
relations to other states. There is no such thing as absolute existence’. (Ibid, 609). Talmon makes the
same point but adopts a more pejorative tone: ‘[t]he most compelling argument against the constitutive
theory is that it leads to relativity of the “State” as subject of international law. What one State
may consider to be a State may, for another, be a non-entity under international law.’ (S Talmon,
‘The Constitutive Versus the Declaratory Theory of Recognition: Tertium non Datur?’ (2004) 75
BYIL 101, 102). This same problem is acknowledged by Lauterpacht in Recognition. He writes:
‘The State is bound by minute rules to respect the sovereignty and independence of other States.
But as, in accordance with the traditional view of the function of war, it is left to its discretion, it is
free to decide, according to its unfettered discretion and by consulting its own interests only,
whether another community shall enjoy the rights of sovereignty and independence in statehood.
By the simple device of refusing – or possibly withdrawing – recognition, a State is legally entitled,
according to a widely adopted [constitutive] view, to deny the right of independent existence to a
political community apparently fulfilling the conditions of statehood.’ (H Lauterpacht, Recognition,
4).
33
For example, E Borchard, ‘Recognition and non-Recognition’ (1942) 36 AJIL 108. Kelsen
speculates that the extreme form of constitutive theory may have existed in the early development of
the international legal order but it did not exist by the time he was considering the subject. Given the
pre-positivistic origins of the international legal order, this is unlikely. See H Kelsen, ‘Recognition
in International Law’, 608.
34
Ibid, 610.
35
Ibid, 608.
36
Crawford identifies the problem with this approach: ‘[i]f individual States were free to determine
the legal status or consequences of particular situations and to do so definitively, international
law would be reduced to a form of imperfect communication, a system for registering the assent or
dissent of individual States without any prospect of resolution. Yet it is, and should be, more than
this—a system with the potential for resolving problems, not merely expressing them.’ (J Crawford,
Creation of States, 20).
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(e.g. the law of treaties), or hold other states responsible for wrongful
acts (e.g. the law of state responsibility).
Put this way, the difficulties of the constitutive and declaratory theories
appear as mirror images of each other. 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. Lauterpacht accepts this
diagnosis of the problem at the heart of the international legal order, and
offers his duty to recognise as a solution.
B. The elements of Lauterpacht’s duty to recognise
Lauterpacht claims that constitutive theory is correct in all but two
respects. First, states must recognise as a matter of legal duty rather
than recognition being a discretionary power. Second, states have a
duty to recognise according to the criteria established by the declaratory
theory like an effective government, stable borders and permanent popu-
lation.37
This duty to recognise provides, at least functionally, a neat
solution to the perennial problems with the constitutive and declaratory
theories just set out. This is because the conditions of statehood are
borrowed from declaratory theory, but the institutional mechanism by
which the existence of these conditions is determined is state recognition.
For the duty to recognise, Lauterpacht regards state recognition as performing
an administrative function within the international legal order
qua interstate system which parallels the law of treaties or the law of state
responsibility.38
Despite its functional plausibility, international lawyers have been
sceptical about Lauterpacht’s claims.39
This scepticism is expressed
most forcefully by another of Kelsen’s students from the University of
Vienna, Josef L. Kunz.40
His view will be set out, before considering in
brief whether Kunz’s criticism is entirely plausible on the basis of
Kunz’s own inductive empirical method. Attention will then be focused
on why Kunz’s criticism is ill-founded given Lauterpacht’s interpretivist
method.
37
He writes: ‘To recognise a political community as a State is to declare that it fulfils the conditions
of statehood as required by international law. If these conditions are present, the existing
States are under the duty to grant recognition.’ (H Lauterpacht, Recognition, 6).
38
He writes ‘[i]n the absence of an international organ competent to ascertain and authoritatively
to declare the presence of requirements of full international personality, States already established
fulfil that function in their capacity as organs of international law. In thus acting they administer the
law of nations.’ (H Lauterpacht, Recognition, at 6). See also, A Cassese, ‘Remarks on Scelle’s Theory
of “Role-Splitting” (de´doublement fonctionnel) in International Law’ (1990) 211 EJIL 210.
39
See J Kunz, ‘Critical Remarks on Lauterpacht’s “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.
40
See J Kunz, ‘Critical Remarks’. More generally see J von Bernstorff, The Public International
Law Theory of Hans Kelsen (CUP, Cambridge 2010, first published in 2001).
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In a ‘savage’41
review of Lauterpacht’s approach in the American
Journal of International Law from 1950, Kunz claims that the duty to
recognise could not find any purchase in state practice. Referring to his
own work he writes:
In 1928 this writer published a comprehensive monograph on recognition, in
which he tried to state the positive international law on the basis of a full study,
summary and critique of the practice of states, court decisions and the literature.
His neutral and impartial study led to the adoption of the so-called ‘declaratory
doctrine’. He proved that under positive international law there is no legal right
to recognition by new states or de facto governments, nor is there any duty to
recognise them.42
Specifically, it should be stated, Kunz’s claim must be that while it
was obvious that states recognise one another as a matter of state
practice, what is lacking is the belief by state officials that recognition
is a matter of legal obligation: there is no or little opinio juris to support
Lauterpacht’s claims. So, as states do not recognise as a matter of duty,
there is no wrongful act and no international responsibility.
This critique is well-accepted, but it is neither entirely nor obviously
correct. This is because there is some, albeit scant, evidence of relevant
state practice, backed by opinio juris, which exists both now and at the time
Lauterpacht was writing. It is necessary to consider some of this evidence
for a specific reason. I do not want to claim that Kunz is wrong and that
the duty to recognise is a norm of customary international law. There is, in
my view, little state practice to support Lauterpacht’s claims. Rather, I
show in part four of this article that, for Lauterpacht, there is a complex
interplay between function, justice and fit to various state practices
involved when an international lawyer attempts to describe customary
international legal norms. His view is that scant evidence of state practice
(and relevant opinio juris) is not always fatal for the existence of a customary
international legal norm. However, he does argue that there must be
some practice to interpret. If there is no practice, the jurist fails to interpret
existing practices and instead invents new ones. Thus the viability of
Lauterpacht’s duty to recognise relies, on this method, on there being at
least some state practice to interpret, even if it does not require the extensive
uniform state practice which Kunz is looking for. Kunz’s position is
that the scant practice, which suffices for Lauterpacht, is fatal to the existence
of custom: custom can only arise from induction from steady and
intentional conformity to customary norms in the practice of states. This
is why the evidence must be considered here.
If it exists, the duty to recognise has three elements. These elements
establish (i) the substance of the duty; (ii) the scope of the duty; and, (iii)
the consequences of a violation of the duty.
41
J Dugard, Recognition and the United Nations (Grotius Publications, Cambridge 1987) 8.
42
See J Kunz, ‘Critical Remarks’, 713.
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(i) The first element is the substance of the duty to recognise. If it
exists, it must be a duty for states to act on the customary rule which
requires them to recognise a state to the extent that it is effective.
Existing states, qua organs of the international legal order, are tasked
with making the judgment of whether a putative state is effective or
otherwise. Although some reconstructive work is necessary here, it can
be suggested that a wrongful act arises in three cases. First, a violation of
the duty emerges when a state refuses to recognise what is correctly
judged to be an effective state. Lauterpacht traces the diplomatic correspondence
of the United States regarding the independence of various
South American states at the beginning of the nineteenth century as an
illustration of practice which regards this conduct as illegal.43
On the
basis of this practice, for European states to not recognise these new
effective states is a violation of their rights. On Lauterpacht’s account,
refusal to recognise Kosovo would be an omission which constituted a
wrongful act if Kosovo should be correctly judged as an effective state.
These examples are plausible, even if it is unclear exactly how the
wrongful act would be characterised in each case.44
Second, a violation
of the duty emerges when a state recognises what is correctly judged to
be an ineffective putative state. Lauterpacht points to practice in which
the premature recognition of secessionist movements is considered to be
a violation of international law. 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 Serbia’s rights. Once again, these
examples are plausible, even if it is unclear how the wrongful act in each
case should be characterised.45
Third, a state could commit a wrongful
act by recognising on the basis of another rule. 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 duration . . . be granted to Spain’.46
His
position was that this would be an ‘abuse’ of the function of recognition
43
H Lauterpacht, Recognition, 18-19.
44
The question of whether there is a violation of a duty to recognise qua independent wrongful
act, or whether it is a violation of a more fundamental norm of international law. For example, the
recognition of Kosovo, assuming that the correct judgment is that it is an ineffective state and part of
Serbia, could be alleged to be a violation of the duty to recognise and/or a violation of article 2(7) of
the Charter of the United Nations. Lauterpacht’s position is set out in his discussion of premature
recognition in Recognition. He writes ‘Premature recognition is a wrong not only because, in denying
the sovereignty of the parent State actively engaged in asserting its authority, it amounts to
unlawful intervention. It is a wrong because it constitutes an abuse of the power of recognition.’
(H Lauterpacht, Recognition, 9; and E Lauterpacht, A Life, 332-338). Lauterpacht’s position
appears to be that many rights in international law are derived from those inherent in statehood.
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. On the basis of this
argument, certain acts of recognition, which are violations of the duty to recognise, are conceptually
similar to many other established rules of international law in that they can be ultimately rooted in
the sovereign rights of states.
45
See above (n 44).
46
H Lauterpacht, Recognition, 33 and also 162-163.
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in the international legal order. A more recent example of a violation of
this rule could be the recognition by European states of Croatia and
Bosnia-Herzegovina in 1992. It could be said that the recognition of
these states was based upon the commitment or otherwise of the political
bodies which claimed governmental authority in these putative states to
various normative principles, rather than being based on a judgment of
effectiveness.47
There will be significant differences of opinion as to
whether there has been a violation of international law in all the examples
just given. However, it is suggested all would be illegal on Lauterpacht’s
account if the three types of wrongful act just described are indeed subsumed
by his duty to recognise.
(ii) The second element of the duty to recognise concerns its scope.
There were two options open to Lauterpacht. First, the duty to recognise
could be a bilateral relationship between the potential right-holder (the
putative state) and the duty bearer (the recognising state). Alternatively,
the obligation could be erga omnes and owed to all states. Lauterpacht’s
view is that it is a duty each state ‘owed to the society at large’ and is
therefore erga omnes.48
There is some equivocation as to whether acts of recognition which
violate international law are erga omnes on Lauterpacht’s own account.
One example he uses is the premature recognition by France of the United
States in the late eighteenth century. This triggered reprisals by the
United Kingdom justified on the grounds of a perceived violation of
British sovereignty. This example suggests that an act of recognition
may imply the responsibility toward those states subjectively harmed by
the act. This suggests the bilateral character of the wrongful act.49
Returning to the example just given, the United Kingdom appears to
take the position that by recognising one of its colonies which claims independence,
but which is in fact not at that time independent, France has
committed a wrong against it. This conclusion, however, should be held
with a degree of caution for two reasons. 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. Judicial review, for instance, has exactly this role in
most legal orders. Following this line of argument, the state which has
suffered a wrongful act of recognition has the greatest interest in holding
the responsible state to account and should normally do so. However, this
is not inconsistent with the possibility that such actions defend more
47
See C Hilgruber ‘The Admission of New States to the International Community’ (1998) 9 EJIL
491; C Warbrick and V Lowe, ‘Recognition of States’ (1992) 41 ICLQ 473; M Craven, ‘The European
Community Arbitration Commission on Yugoslavia’ (1995) 66 BYIL 333; R Rich, ‘Recognition of
States: The Collapse of Yugoslavia and the Soviet Union’ (1992) 4 EJIL 36-65. S Talmon, ‘The
Constitutive Versus the Declaratory Theory of Recognition’. See Restatement (Third) Foreign
Relations Law of the United States, x202, comment ‘f’ on ‘unlawful recognition’. See 32-33, below,
for a discussion of Lauterpacht’s discussion of the legitimacy as a criterion of statehood.
48
H Lauterpacht, Recognition, 74.
49
J Crawford, Creation of States, 376-378 and H Lauterpacht, Recognition, 17-19.
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general interests protected by the international legal order, or that third
states could have standing when a dispute arises. Second, the examples of
direct violations of the duty to recognise given above rest upon one factual
scenario: there is a state which has suffered a wrongful act. In other examples
of violations of the duty to recognise, the entity which has suffered
is not a state, or not a state as far as the non-recognising state is concerned.
Functionally speaking, the duty to recognise must be erga omnes to ensure
that there is international responsibility in each case of a violation of the
duty, and should not simply be based upon the status of the entity which
has suffered. With normative criteria like the right of self-determination
in mind, this is exactly the rationale for the development of obligations
erga omnes through the jurisprudence of the ICJ in the Namibia and
Western Sahara Advisory Opinions, the East Timor case and Article 48
of the Articles on State Responsibility.50
However, there is no evidence of
this reasoning having been applied to situations when the factual existence
of a state was denied.
(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. Although examples of these responses are littered
throughout Recognition, they are not dealt with systematically by
Lauterpacht.
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. But they are tenuous, perhaps construct the relevant
wrongful act in a way that is far-fetched, and there are many other
examples of state practice which could be pointed to which do not support
the duty to recognise. In light of this, Lauterpacht must face the
question of how practice like that just set out ‘adds-up’ to customary
international law. What is the threshold beyond which Lauterpacht fails
to interpret existing practices as legal doctrine and instead begins to
invent new doctrine?
Kunz would undoubtedly argue that Lauterpacht is inventing a new
doctrine, and that his claims cannot be verified in a ‘neutral’ or ‘impartial’
sense. Kunz claims that for Lauterpacht ‘the wish was the father of
the thought’ which resulted in ‘a book, written with the preconceived
wish to “impress upon the student the fact that the practice of states in
the matter of recognition is more permeated with law and principle than
is currently assumed.”’51
Therefore, the book was ‘in danger of falling
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. See also J
Crawford, The International Law Commission’s Articles on State Responsibility (CUP, Cambridge
2002) 276-280.
51
J Kunz, ‘Critical Remarks’, 715. 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.
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short [or fell short] of scientific truth.’52
According to Kunz, if
Lauterpacht had adopted a more scientific (inductive and empirical)
method which focused on the facts (i.e. 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 facts, Kunz argues, do not lead to this duty, but rather lead
to declaratory theory. Lauterpacht makes a mistake if he thinks, as he
does in part, that the duty to recognise is justified because it is ‘believed
to have been accepted by the preponderant practice of States.’53
This was not the first time that Lauterpacht was criticised by positivists
or realists for his idealism and lack of scientific accuracy.54
If
Lauterpacht’s method is inductive, Kunz has a point given the relatively
scant practice which can be pointed to, to defend the duty to recognise.
Equally, though, if Kunz thinks that this is all there is to Lauterpacht’s
method, Kunz is also mistaken. Kunz is attempting to judge Lauterpacht
and his duty to recognise according to Kunz’s own empirical inductive
method, rather than taking seriously Lauterpacht’s own methodological
perspective which is set out and applied in Recognition and generally
throughout his work.
C. Justification of the Qualified Constitutive Theory
It is simply the case that Lauterpacht refuses to hold that legal science
can be understood in a neutral or value-free way. Rather, Lauterpacht’s
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. This is immediately clear when
one considers the sentence after the quotation just set out in which
Lauterpacht seems to endorse some form of empirical inductive
method. He writes that the duty to recognise is ‘. . . also considered to
represent rules of conduct most consistent with the functional requirements
of international law conceived as a system of law.’55
In essence,
Lauterpacht’s claim is that an understanding of function – that is, the
point of international law – is necessary to interpret the complex, disparate
and multifaceted practices just described as legal doctrine.
Lauterpacht holds, problematically, that the majority of state practice
corresponds to the duty to recognise. But he does not defend the claim
that it does so either uniformly or universally. He writes that ‘. . . although
followed in practice with some regularity, [the duty] cannot be
52
Ibid.
53
H Lauterpacht, Recognition, 33.
54
E Lauterpacht, A Life, 66 and above (n. 4).
55
H Lauterpacht, Recognition, 6.
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regarded as having been uniformly acted upon or clearly perceived by
governments. Neither [has it] secured the assent of the majority of
writers on the subject.’56
It is apparent from this statement that if
Kunz claims that the duty to recognise fails because it does not fully
correspond to state practice, then Lauterpacht agrees. Of course this
must be the case to some extent. For any rule of custom, there will be
divergence in state practice (not least, because there are wrongful acts
committed in violation of a custom, and because custom changes through
changing practice), and writers on the subject will often disagree about
the exact content of its rules. But this is not exactly Lauterpacht’s point:
it is more subtle and should not be misunderstood. Neither state practice
as a whole nor the agreement of international lawyers can be taken as
conclusive evidence that the duty to recognise is correct or incorrect.
Specifically, Lauterpacht’s point is that there is no complete uniformity
of motive as to why states recognise other states, and therefore we cannot
use such state’s practice or motives as straightforward evidence which can
verify a particular customary norm. Rather, the international lawyer has
to interpret state practice in order to make sense of it as examples of legal
doctrine: state practice does not, so to speak, stand up by itself, and those
practices which are legally relevant must be distinguished from those that
are less relevant or not relevant. With this in mind, Lauterpacht claims
that recognition by states of putative states has to be split into two categories.
The first is where states act in accordance with the rule which
requires them to recognise a state to the extent that it is effective. The
second is where states do not act in accordance with this rule: that is, they
refuse to recognise an effective state, recognise an ineffective putative
state or recognise on the basis of another rule. The first category of acts
establishes the duty to recognise. The second category of acts is, strictly
speaking, ultra vires, irrelevant in terms of personality determination, and
often wrongful under international law. Lauterpacht’s step, then, is to
distinguish acts of recognition which are pursued as a ‘as a matter of
arbitrary policy’ from those which are pursued as ‘a legal duty.’57
Both
have attendant consequences under international law.58
To take his argument one step further, the following passage is
important. He writes ‘. . . it is a fact that the tests of recognition, although
supported by the bulk of state practice and by cogent legal principle,
have often yielded to motives and considerations often foreign to the
56
Ibid.
57
H Lauterpacht, Recognition, 56. Koskenniemi describes this aspect of Lauterpacht’s strategy
well. He writes that ‘Recognition is a consistent and far reaching attempt to imagine international law
as a complete and self-regulating system. What first appears as an act of political will is revealed as
an exercise in interpretative discretion.’ See M Koskenniemi, ‘Victorian Tradition’, 239.
58
This also gives a potential response to Brownlie’s criticism of the duty to recognise when he
writes ‘Recognition, as a public act of state, is an optional and political act and there is no legal duty
in this regard. However, in a deeper sense, if any entity hears the marks of statehood, other states put
themselves at risk legally if they ignore the basic obligations of state relations.’ (See I Brownlie,
Principles, 90).
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purpose of recognition.’59
The straightforward point here is the one just
made: states sometimes recognise on the grounds of policy rather than
legal principle. But the crucial part of this statement is that Lauterpacht
introduces a twin justificatory strategy for the duty to recognise. It must
conform to (i) cogent legal principle; and, (ii) state practice. Regarding
(i), he is referring to the idea discussed above that the international legal
order must be rooted on a principled system for personality determination
in order to ensure the proper functioning of the international legal
order. However, and responding to (ii), this must not be merely a hypothetical
system. At the time he was writing, it could not be, therefore,
‘the special organs’ which Kelsen speculates might be best able to effectively
resolve the problem of personality determination, simply because
they did not exist. Rather, the proposed institutional system must find
some purchase in the mass of material that might broadly be considered
part of the international legal order. Put another way, we must take state
practice as we find it, and try to discern a system of personality determination
within it.
Lauterpacht can be left to summarise the approach just set out.
He writes that ‘[i]n a properly constituted political society the function
– which is perhaps the most important function of any legal
system – of ascertaining the presence of the conditions of legal capacity
and existence is performed by impartial organs delegated by the
law for that purpose.’60
He considers that state recognition performs
this institutional function: ‘In international society that task is as a
rule fulfilled by individual states acting on their own responsibility
and endowed with wide discretion in the appreciation of the relevant
facts.’61
However, ‘it is a discretion determined by international law.
In granting or refusing recognition the State administers international
law; it does not perform a legally indifferent act of national policy.’62
Thus, there is a legal duty to recognise effective states, but whether a
state is effective or not is a matter of judgment by states. Understood
this way, Lauterpacht will, in part, agree with Kunz’s critique that
state practice does not uniformly or consistently support the duty to
recognise. But in making this criticism Kunz does not recognise that
Lauterpacht is engaged in a process of interpretation of state practice
which is neither ‘neutral’ nor ‘impartial’.
III. PROGRESSIVE INTERPRETATION
The approach to state recognition just set out is an example of
Lauterpacht’s general methodological approach which he calls
59
H Lauterpacht, Recognition, 32.
60
Ibid, 33.
61
Ibid.
62
Ibid.
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progressive interpretation. In brief, this approach requires that various
facts associated with international life – such as state practice or acts of
international organisations – be interpreted in line with the international
law’s function and substantive value orientation. This leads to a novel
way of explaining how state practice can give rise to customary international
legal norms, such as the duty to recognise. Progressive interpretation
needs to be set out in detail before it can be shown how his duty to
recognise fits into this general methodological approach.
A. Lauterpacht’s concepts of law and international law
Lauterpacht sets out his general approach to legal theory in his essay
from 1932 entitled ‘The Nature of International Law and General
Jurisprudence’.63
His discussion in this essay concerns the familiar problem
of ‘the determination of the legal nature of international law’.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’.65
Later
in the same essay he writes: ‘[t]he notion of law with the help of which
the international lawyer gauges and determines the nature of the rules
which form the subject-matter of his science is necessarily an a priori
one’.66
The idea that we need an a priori concept of law to allow the
cognition of empirical phenomena is, it can be surmised, one that flows
from his teacher, Kelsen.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’.68
This approach, which is in its own way interpretative,
is one that is pure from morality and empirical fact.69
While
Scobbie, von Bernstorff and Koskenniemi have identified the strong
epistemological links between Kelsen’s method and that of Lauterpacht,
it is the morally substantive and purposively orientated concept of law
which Lauterpacht adopts which distinguishes his philosophy from
that of his teacher.70
By 1932, Lauterpacht is explicit about his different
63
H Lauterpacht, ‘The Nature of Law and General Jurisprudence’ (1932) 12 Economica
301-320 and CP, II, 3. This essay was rewritten and formed part of The Function of Law in the
International Community.
64
Ibid, 7.
65
Ibid.
66
Ibid, 21.
67
Ibid, and J von Bernstorff, International Law Theory of Hans Kelsen.
68
S Paulson and B Litschewski-Paulson, Normativity and Norms (OUP, Oxford 1998) at xxxvi.
69
Ibid.
70
See I Scobbie, ‘The Theorist as Judge’, 264; J von Bernstorff, International Law Theory of
Hans Kelsen; and, M Koskenniemi, ’Victorian Tradition’, 215 and Function, xxxiii. von Bernstorff
argues that through the 1920s Lauterpacht began to distance himself from Kelsen. He writes
‘[Lauterpacht] had been influenced by Hans Kelsen at the beginning of [his] academic career[],
but later distanced [him]self from [Kelsen] intellectually precisely because of his moral agnosticism.
For both men, morality assumed a foundation role in international law, though in different ways.’
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approach. He writes that: ‘[a] more satisfactory solution [to the positivism
of Kelsen] can be found in the hypothesis which, by courageously
breaking with the traditions of a past period, incorporates the rational
and ethical postulate, which is gradually becoming a fact, of an international
community of interests and functions’71
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. However, by the early 1940s, he had
fleshed out these concepts. In a lecture given to the Royal Institute of
International Affairs, Chatham House, London on 27 May 1941 called
‘The Reality of the Law of Nations’ he claims that international law has
five social purposes.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’.73
Secondly, a purpose of international
law is ‘to render the elimination of force tolerable and durable by the
provision of an absolute duty of judicial settlement of disputes and of
submission to the decisions of a supra-national political authority decreeing
changes in the existing law and existing rights’. The third purpose is
‘to give effect, through appropriate limitations and international supervision
of the internal sovereignty of States, to the principle that the
protection of human personality and of its fundamental rights is the
ultimate purpose of all law, national and international’. The fourth purpose
is, ‘by fostering the sentiment of and obedience to law among nations,
to develop and finally establish the consciousness of the essential
identity of moral standards applicable to States and individuals alike’.
The fifth and final purpose of international law is ‘the creation of conditions
and institutions calculated to bring about the transition to the
realisable and certainly not infinite ideal of the Federation of the World
conceived as a commonwealth of autonomous States exercising full
internal independence, rendered both just and secure by the power of
the impersonal sovereignty of the civitas maxima’. Put another way,
his vision comprises a substantive orientation (which is the protection
of human rights), a functional orientation (peaceful settlement of
(J von Bernstorff, International Law Theory of Hans Kelsen, 228). So, while ‘Lauterpacht shared
Kelsen’s conviction that the international legal order had to be conceptualised as a complete system
of legal rules. . .both authors dismissed the notion of gaps in the international legal order. For
Lauterpacht, however, completeness was a question of substantive unity, which had to be achieved
by the ingenious application of natural-law principles by the legal craft.’(Ibid, 259). Although this is
not a thesis which is defended here, it seems to me that Lauterpacht’s work on Westlake is crucial in
the development of his philosophy of international law. It is in his paper from 1925 on Westlake that
we first see the tentative endorsement of the twin commitments to function and fit to state practice
that pervade his interpretative approach throughout his work. However, it is clear that the aspects of
Kelsen’s work described by von Bernstorff do pervade Lauterpacht’s method throughout his career
and render it much more theoretically sophisticated than that of Westlake.
71
H Lauterpacht, ‘Nature’, CP, II, 18.
72
H Lauterpacht, ‘Reality’, CP, II, 22-52.
73
Ibid, 47. The rest of the quotes on this page are from this essay.
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disputes and co-ordination of international relations) and institutional
mechanisms which can effectively implement these two purposive
orientations. Ideally, the institutional structure to which his concept of
international law aspired was the modern (and federal) state.74
This, at least in his later academic writings, is his concept of international
law.
He then employs this concept of international law to interpret the
bulk of the past practices of international law (institutional developments,
state practice, etc.) as examples, or not, of his concept of
international law becoming reality. This is progressive interpretation.
He writes:
[i]t is within the province of the science of international law to supply a
progressive interpretation of these constitutional charters and of any supplementary
instruments calculated to add to their effectiveness and their authority.
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.75
A good example of his approach to methodology is found in his essay
from 1950 entitled ‘International Law after the Second World War’.
Here he argues that there are ‘three principal contributions of the
post-war period to the development of international law’.76
These ‘lie
mainly in the undoubted improvement of the structure of international
organisation; in the growing acceptance of the principle of enforcement
of international law not only in relation to States, but also against individuals
acting on their behalf; and in the recognition of the inalienable
rights of the individual conceived as the ultimate unit of all law’.77
The
concept of international law is used in this interpretative exercise as ‘a
rational standard of both political action and academic study’, rather
than an ‘infinite ideal.’78
B. The immaturity of the international legal order
While Lauterpacht sees considerable progress in the institutional structure
of the international legal order, he does not regard it as conforming
to his institutional ideal. The federation of states, or civitas maxima, was
clearly lex ferenda at the time he was writing, and it remains so now: the
74
He writes that ‘[o]f these institutions the State is, in the relations of the individual, the normal
and typical manifestation’ (ibid, 47). See also his lecture ‘Sovereignty and Federation in
International Law’ (written around 1940, and first published in CP, III, 5 for an extended treatment
of his views on institutional form.
75
H Lauterpacht, ‘Reality’, CP, II, 44.
76
H Lauterpacht, ‘International Law after the Second World War’ (lecture to the Hebrew
University of Jerusalem in 1950. Published for the first time in CP, II, 159), 167.
77
Ibid.
78
H Lauterpacht, ‘Sovereignty’, CP, III, at 25.
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international legal order is institutionally immature.79
As an immature
order, state institutions have to collectively bear various administrative
roles within the international legal order qua interstate system. The
obvious example of this immaturity is in the creation of international
legal norms: ‘the organs of the formation of the will of the international
community are, in default of an international legislature, States themselves,
their consent being given by custom or treaty’.80
The duty to
recognise is to be understood in the same way. It describes the institutionalised
process, undertaken by states, that leads to personality determination.
These two ways in which states administer the international
legal order are defects of the system but,
. . . even when viewed in their alarming comprehensiveness, [they] are not
destructive of the legal nature of international law so long as they are conceived
as associated with a transient state of immaturity which humanity, prompted by
the growing interdependence of the modern world, is destined to overcome by
conscious effort. So long as this is borne in mind, it is better to admit the various
defects of international law . . .81
We are now in a position to state why Lauterpacht endorsed the duty
to recognise. Progressive interpretation requires the international lawyer
to acknowledge the functional necessity of a system which settles questions
of personality in international law. The question of the institutional
form of this system is left open and need not resemble the systems found
in domestic law, although this is often and ideally the case. The duty to
recognise is this system, even if it is functionally imperfect in many
ways.82
Lauterpacht is then able to be critical of state practice which
fails to recognise on the basis of a legal duty as being ‘mistakes’, ‘lofty
policy’, where ‘the function of recognition is being abused for the purpose
of securing particular national advantages’.83
It could be supposed that the International Court of Justice’s willingness
to offer an Advisory Opinion on the Unilateral Declaration of
Independence issued by the democratically elected Assembly of
Kosovo is evidence of the progressive development of international
law. This could be on the grounds that personality determination is
being settled by international adjudicative institutions rather than the
imperfect, flawed and immature interstate system described by the
79
He writes ‘[i]nternational law will not achieve a full measure of reality until it is organically
woven into the fabric of a supra-national entity.’ (H Lauterpacht, ‘Reality’, CP, II, at 47).
80
H Lauterpacht, ‘Nature’, CP, II, at 17.
81
H Lauterpacht, ‘Reality’, CP, II, 31.
82
These imperfections mean that the duty to recognise is problematic for some of the same
reasons as other forms of constitutive theory. Specifically, the existence of states remains necessarily
contingent, but his approach can be said to limit the dissonance associated with other versions of
constitutive theory. Lauterpacht, however, would undoubtedly regard this problem as another illustration
of the immaturity of the international legal order. This is perhaps how he would respond
to Crawford’s criticism of qualified constitutive theory and constitutive theory in general. See J
Crawford, Creation of States, 20-22.
83
H Lauterpacht, Recognition, 33.
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duty to recognise. However, this optimism can only be tempered by the
judgment itself. It is suggested that Lauterpacht would share Judge
Simma’s lament about the narrow interpretation of the question submitted
to the Court by the General Assembly, and highly limited discussion
of whether Kosovo might be considered an independent state
and why. The court refused to consider the question of the relevance of
recognition in the formation of legal doctrine.84
As a result, Judge
Simma said of the Opinion that it ‘excludes from the Court’s analysis
any consideration of the important question whether international law
may specifically permit or even foresee an entitlement to declare independence
when certain conditions are met.’85
For the above reasons, Kunz’s claim that international legal science
should proceed on the basis of ‘neutral and impartial study’86
seems alien
to Lauterpacht’s method. Rather, state practice does not reveal anything
in itself, and is only revealed as international legal doctrine to the extent
that it conforms to an immanent understanding of the function of the
international legal order. This obviously begs the question of what
the function of international law is, and Lauterpacht is up-front about
the concept he supports. By adopting this method, the legal scientist
neither assumes conformity in state practice nor assumes that it is an
incoherent mess of material in which no order can be discerned.
Lauterpacht’s view is that his concept of international law mediates
state practice: practice is revealed as meaningful qua legal doctrine to
the extent that it reflects one’s underlying concept of international law.
While this argument will be set out in detail in section 4, Lauterpacht’s
position must be that if practice does not correspond at all to his concept
of international law, it cannot be law-creating.
C. Legitimacy
The substantive moral orientation which is at the heart of Lauterpacht’s
concept of international law arises in relation to questions of statehood
when he considers revolutions. 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. Perhaps somewhat surprisingly,
criteria of legitimacy affirm the existence of an effective regime for
84
Advisory Opinion of 22 July 2010, para 51. ICJ declared that the question submitted to by the
GA does not ‘ask about the validity or legal effects of the recognition by Kosovo by those States
which have recognized it as an independent State’.
85
Declaration of Judge Simma para 1.
86
J Kunz, ‘Critical Remarks’, 713.
87
H Lauterpacht, Recognition, 139.
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Lauterpacht.88
After the quotation just cited, he writes ‘whatever its
merits, the test of subsequent legitimation must be regarded as an affirmation
of the legal view of recognition, i.e. of the view that there is a
duty of recognition, as distinguished from the purely optional right to
recognise, as soon as there is present the primary condition of effectiveness
of governmental power.’89
Thus, it would seem that the duty is to
recognise effective, not legitimate, states. His scepticism about legitimacy
as a condition of statehood is at least in part driven by a worry that in
some circumstances popular approval can be manipulated or conjured up
by morally dubious, but effective, regimes. However, he regards the
potential for abuse can be removed by ‘appropriate [international] ma-
chinery’.90
He writes that ‘[t]here is no reason why, once collective recognition
based upon the principle of consent of the governed has become
a rule of international law, the international organisation of States should
not develop organs and procedures for achieving that object.’91
Furthermore, he regards the international supervision of elections to
be ‘a rational development’ in the international legal order.92
This idea of the rationality of international institutions which are able
to ensure that the governments of states are legitimate chimes with both
the substantive orientation, as well as the ideal institutional form, associated
with progressive interpretation. However, it remains the case that
he sought to restrict the duty to recognise to criteria of effectiveness
alone in Recognition. Why did he do this given his method? It is difficult
to say. His view that legitimacy might only be a condition of statehood
when a much greater level of institutional integration had come about in
international life was one he stated in his early essay on Kelsen published
in 1933.93
It seems that his view did not change after human rights came
to the fore in his writings at the start of the 1940s and in Recognition from
1946 (even though much of this book was drafted in the late 1930s). One
possibility, though, is that in 1946, to add a criterion of legitimacy to the
88
H Lauterpacht, ‘The Principle of Non-Recognition in International Law’ in Q Wright,
H Lauterpacht, E Borchard, P Morrison (eds), Legal Problems in the Far Eastern Conflict
(Institute of Pacific Relations, New York 1941) 129-156. See also, E Lauterpacht, A Life, 334.
89
H Lauterpacht, Recognition, 140.
90
Ibid.
91
Ibid, 138.
92
Ibid, 139.
93
In this essay, he writes: ‘If there existed an effective international order it might be possible to
secure in the fundamental hypothesis of municipal law some element of material justice by the
simple means of international law refusing to recognise a municipal system which is lacking in
certain minimum standards of justice. At present there is no such international authority, and,
recognition being a matter for each individual State, i.e. its legal order, on the sole basis of actual
power, that is to say, of habitual obedience to the successful authority. Peace and authority and
government are in any case better than anarchy. This de´sintere´ssement of the international society in
the quality of the bases of the municipal system is not necessarily permanent. It is a function of the
degree of integration of the international community. But in the meantime an initial hypothesis
transforming power into right undoubtedly constitutes, juridically, the basis of a peaceful order.’
(CP, II, 427) This is perhaps the clearest expression of the substantive orientation of his early
interpretative method, which became more closely aligned to the protection of human rights after
1941.
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factual criteria upon which the duty to recognise rests would fail against
his method. While there are a variety of possible systems for personality
determination which are closer to his idealised concept of international
law, this is not the task he sets himself: he is interpreting existing practices
not inventing new ones.
IV. INTERPRETIVIST THEORIES OF LAW
Kelsen’s philosophy of law is often perceived as influential to
Lauterpacht’s writings. But though this connection is interesting historically,
Lauterpacht’s claims about the substantive and functional orientation
of law and international law render his interpretative approach
fundamentally different to that offered by Kelsen.94
Looking forward
to current legal philosophers, it should not be surprising that
Lauterpacht’s method resembles that of some modern natural lawyers.
There are, for instance, connections between the work of Lauterpacht
and John Finnis. Both accept (i) practices should be interpreted as legal
phenomena according to their relevance or correspondence to the central
case of law; (ii) the central case of law must be conceptualised from the
point of view of practical reasonableness which is a moral viewpoint; and
(iii) that law must be conceptualised as a purposive phenomenon.95
There are, however, two differences which take Lauterpacht some distance
from Finnis (and neo-Thomist natural law in general). The first is
that Lauterpacht sees law as an expression of fundamental and commensurable
human moral interests like human rights and peace, whereas
Finnis considers law as a system which pursues the common good by
mediating varied and incommensurable basic goods. Secondly, and more
importantly for present purposes, Lauterpacht considers that the moral
interests which he defends should be used to interpret various practices
of international law. As will be shown, ‘fit’ to these practices operates as a
constraint on possible interpretations of legal doctrine, even if ultimately
these practices can be considered non-legal if they fail to correspond to
his concept of international law. To explain, practices are, inter alia,
judicial decisions, resolutions of international organisations, conventional
moral or legal principles, and the norm-guided practices of
states.96
These are, we should note, past practices and interpretation is,
in this sense, backward looking. Legal doctrine is an interpretation of
what has occurred in the past in light of his preferred normative
94
See note 71 above.
95
J Finnis, Natural Law and Natural Rights, chapter 1.
96
See S Shapiro, ‘On Hart’s Way Out’, in J Coleman (ed), Hart’s Postscript: Essays on the
Postscript to The Concept of Law (OUP, Oxford 2001) 150-191.
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orientation. Past practices and an understanding of the normative orientation
of international law are both constraints on plausible attempts to
articulate legal doctrine. These two constraints operate in what
Lauterpacht calls his ‘socially obtainable natural law’.97
In Finnis’s natural
law theory, fit to past practices does not obviously operate as a
strong constraint. Thus, past practices which do not correspond to his
central case of law are defective as law and ultimately not law at all.98
These two differences move Lauterpacht’s progressive interpretation
away from traditional natural law theory and its modern restatements,
and closer to Dworkin’s constructive interpretation.
Tracing the link between Lauterpacht and Dworkin is not only useful
because of recent interest in interpretivist approaches to international
law, but also for the following reason: A general problem with interpretivist
theories, which has been considered extensively in the literature,
concerns the extent to which any particular proposal for a legal doctrine
must fit with past practices of law. Dworkin considers that it must, as
does Lauterpacht, but the extent to which it must raises problems. One is
how much past practice is required for a legal doctrine to exist. Another
is whether the amount of practice required varies given the importance of
a particular doctrine to maintain fundamental values of a legal order.
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. Let me set out this argument by first
considering the relationship between the interpretative methods adopted
by Dworkin and Lauterpacht, before moving to consider the problem of
how and why proposals for legal doctrine (such as the duty to recognise)
should fit past practices.
A. Constructive interpretation and progressive interpretation
Dworkin’s central methodological preoccupation concerns how the legal
scientist (qua observer) can articulate the viewpoint of legal officials
(such as the judge99
) and explain what this articulation says more generally
about the nature of law. His argument is that the legal scientist
must engage in an interpretative exercise which attempts to reconstruct
97
H Lauterpacht, ‘Kelsen’, CP, II, 425.
98
In general it is not entirely clear how much distance can be drawn between Finnis and
Dworkin on the issue of fit. However, in my view ‘fit’ is less of both a real and perceived constraint
in Finnis’s work when compared to Dworkin’s. See J Finnis, Natural Law and Natural Rights,
chapter 10. J Finnis, ‘Natural Law and Legal Reasoning’ in R George (ed.), Natural Law Theory:
Contemporary Essays (OUP, Oxford 1992) 134-157. See also, M Murphy, Natural Law in
Jurisprudence and Politics (CUP, Cambridge 2006) chapter 2.
99
See M Koskenniemi, ‘Victorian Tradition’ and I Scobbie ‘The Theorist as Judge’ on the role
of the judge in Lauterpacht and Dworkin’s work. Also, see H Lauterpacht, The Development of
International Law by the International Court (Stevens and Sons, London 1958) chapter 1.
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the internal viewpoint of the legal official in accordance with a set of
preferred normative values.100
Dworkin focuses on the past practices of law which, he explains, consist
of various propositions of law and various justificatory grounds for
them. A proposition of law is, for example, a provision of a statute.
A justificatory ground is that Parliament enacted the provision. These
practices are identified at a pre-interpretative stage. Dworkin then moves
to the interpretative stage. There are intuitively a range of plausible
linkages between these propositions and justifications. However, his
claim is that the relationship between propositions of law and the justificatory
grounds of law is explained by understanding the value or point
of law. 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. In the
example just given, the act of legislation is capable of justifying the
legal proposition because the former expresses the democratic will,
seeks to achieve justice, or helps put in place a coherent and stable
system of co-ordination. Dworkin’s central point is this: an understanding
of the point of law is ultimately rationally inescapable if the legal
official is to have a justification for coercing a legal subject into conformity
to a legal norm.
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. However, for Dworkin, the interpreter
must not take his interpretation directly from the officials’ interpretations
of the social practice. This is because various conceptions
of the point of law evolve over time, and vary between legal officials.
Rather, the interpreter can only impose his or her own understanding of
the point or purpose of law to justify various past practices. However,
this imposition cannot be arbitrary: the ‘interpretation of any body or
division of law . . . must show the value of that body of law in political
terms by demonstrating the best principle or policy it can be taken to
serve.’101
Thus, constructive interpretation explains why past practices
of law are justified in accordance with a normatively preferred understanding
of the point and purpose of law. A plausible interpretation,
therefore, must fit with past practices but it must also provide a plausible
justification for them.
Dworkin then argues that serving the political value of integrity provides
the most plausible candidate for the point and purpose of law, and
how past practices of law can be justified. Although a complex and
multifaceted concept, integrity is at root a value which encompasses a
100
See R Dworkin, ‘Objectivity and Truth: You’d Better Believe It’ (1996) 25 Philosophy and
Public Affairs 87 and ‘Hart’s Postscript and the Character of Political Philosophy’ (2004) 24
OJLS 1.
101
R Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) 160.
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set of fundamental legal and political principles, like equality and dignity,
by which a community, through its institutions, give expression to
the idea of justice.102
Thus integrity is an institutionalised conception of
justice. To explain, if a judge sees law as purely an expression of substantive
justice, then he is a legal realist. This is because he does not take
into account the ways in which similar questions have been answered by
previous officials within the legal order of which he is a part. Officials
who are part of political and legal institutions should make decisions by
taking into account past practices because these practices are examples of
where the institutions of which they are a part have previously spoken on
a matter on behalf of the community. Put another way, integrity requires
that the legal official makes decisions which take account of the way in
which substantive justice has been expressed through legal doctrine in
the history of the institution in which he plays a role. In a sense, for the
judge, ‘fit’ is a principle of procedural justice.103
For a legal scientist,
who observes a legal order rather than being an engaged participant, the
same constraints apply, but in a slightly different way. If the legal scientist
just states what is just, he fails to interpret existing practices, and
instead invents new ones. If he just states practice, without attention to
the point and purpose, he fails to explain its character as an exercise in
justifying the coercive acts of legal institutions.
The final stage is a post-interpretative stage where the interpreter
‘adjusts his sense of what the practice “really” requires so as better to
serve the justification he accepts at the interpretative stage.’104
This is a
‘reforming’105
stage where the interpreter comes up with proposals about
how practices can be reformed so as to better correspond to the point and
purpose of law. For Dworkin, this stage concerns how past practices can
be reformed so as to increase the integrity of the system.
Constructive interpretation intersects with progressive interpretation
in a number of ways which become clear when one recalls the main
features of Lauterpacht’s method. The conceptualisation of international
law proceeds on the basis of Lauterpacht’s preferred normative orientations
(that is, peace and the protection of human rights). Second, past
practices are correctly interpreted as international legal doctrine to the
extent that they further these aspirations. It can only be from these
practices that the network of duties and responsibilities which regulate
state action emerge, and his normative orientations allow Lauterpacht to
explain why this network is legally obligatory. In a general sense,
Lauterpacht identifies many doctrines, as well as the developing institutional
form of the international legal order, that can be interpreted as
102
See R Dworkin, Justice for Hedgehogs (Harvard University Press, Cambridge Mass. 2011)
chapter 9 and also see G Postema, ‘Integrity: Justice in Workclothes’ (1997) 82 Iowa Law Review
821.
103
See R Dworkin, ‘Hart’s Postscript’, 25-26.
104
R Dworkin, Law’s Empire, 66-67.
105
R Dworkin, A Matter of Principle, 160.
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international legal phenomena in accordance with his preferred normative
orientation. State recognition in pursuance of a legal duty is revealed
through this method as performing a vital institutional function in the
international legal order.
This argument reveals that for Lauterpacht, international legal doctrine
cannot be free-floating; it must be connected to, and must explain
the legality of, past practices. This is exactly where the distinction
emerges between Lauterpacht and other natural lawyers, and where
his interpretative method comes to the fore. 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 community’s 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. Therefore, international law is interpreted as the institutional
expression of the international community’s fundamental normative
commitments and is not simply that which Lauterpacht considers to
be ideally just. Although not quite capturing the depth of Lauterpacht’s
claims, von Bernstoff makes this point when he writes:
For Lauterpacht – in contrast to Verdross – direct recourse to foundational
moral principles was no longer an option. He understood morality as natural
justice that always remained in the background of the positive legal order.
Morality for him played a vital part through filling gaps and directing legal
development towards the ends of universal justice.107
The third step of Lauterpacht’s method requires that those elements
of past practices that genuinely carry legal significance, and which provide
the grounds for legal rights and duties, should be distinguished
from those that that are best described as mistakes, peripheral to the
international legal order. For example, and as already mentioned, recognition
on the basis of policy alone is to be understood as where ‘the
function of recognition is being abused for the purpose of securing particular
national advantages.’108
This stage also involves a critical examination
of state recognition as a system of personality determination and
how the system itself can be improved or replaced by another system
which is better justified against his concept of international law.
It should be clear from this comparison that both Lauterpacht and
Dworkin adopt a similar method which attempts to interpret existing
practices in light of a similar preferred normative orientation. 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 Lauterpacht’s view
106
H Lauterpacht, Recognition, 5-6.
107
See J von Bernstorff, International Law Theory of Hans Kelsen, 252.
108
H Lauterpacht, Recognition, 33.
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which was just stated. His claim is that international legal norms are
justified by the application of two sorts of constraint. First, the principle
of salience requires that any putative norm must have widespread
acceptance by states in their past practices. Second, any such norm
must be consistent with the point of international law, which is to protect
communities from external aggression (i.e. they must have peace) as well
as from domestic barbarism (i.e. each member of a community must
have their dignity protected through the enforcement of fundamental
human rights).109
B. Fit and Justification
For both Dworkin and Lauterpacht, the interpreter articulates legal
doctrine by interpreting past practices in accordance with the point or
purpose of law. Plausible interpretations must fit with, as well as justify,
past practices. However, this leads to a problem. On the one hand,
morally preferable interpretations which exclude (or underdetermine)
many past practices should presumably be rejected.110
On the other
hand, past practices must sometimes be rejected as aberrant if they
cannot be rendered consistent with the moral point of law, and undermine
the integrity of law.
Dworkin does not accept that a failure to fit to past practices is a reason
to reject an interpretation. On Postema’s reconstruction of Dworkin’s
concept of integrity, this is a point where the legal official qua participant
must show ‘regret’ about the past practices of the institution of which he
is a part.111
For the externally situated and observing legal scientist,
Dworkin’s position, according to Stavropoulos, is that past practices
are not ‘immune from discount as a mistake, as a piece of fool’s gold
lurking among the genuine samples.’112
But then one might rightly
wonder at what point does the interpretation become sufficiently disconnected
from existing practices so as to fail as an interpretation of them.
Moreover, in other places, Dworkin seems to contradict this view. For
instance, Dworkin argues that the interpreter has failed to provide an
interpretation of law if he fails to fit the interpretation to past practices.
To fail in this way would amount to simply declaring what the interpreter
considers to be just, rather than interpreting what is law.113
109
R Dworkin, ‘Human Rights and International Law’.
110
See L Alexander and K Kress, ‘Against Legal Principles’ (1996-1997) 82 Iowa Law Review
739, 777; G Postema, ‘Justice in Workclothes’; and, S Guest, ‘How to Criticise Ronald Dworkin’
(2009) 69 Analysis 1.
111
G Postema, ‘Justice in Workclothes’.
112
N Stavropoulos, ‘Interpretivist Theories of Law’ [2003] Stanford Encyclopedia of
Philosophy.
113
Dworkin writes that ‘if [the lawyer’s] threshold of fit is wholly derivative from and adjustable
to his convictions of justice, so that the latter automatically provide an eligible interpretation – then
he cannot claim in good faith to be interpreting his legal practices at all.’ R Dworkin, Law’s Empire,
255.
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Dworkin offers at least two ways to steer between these two possibilities,
the second of which is more satisfactory than the first. First, he
does suggest that there is often no clear way of providing a precise formulation
of the relationship between fit and justification but this should
not concern us unduly and is unproblematic. For instance, he writes that
the ‘judge’s duty is to interpret the legal history he finds, not to invent a
better history. The dimension of fit will provide some boundaries. There
is . . . no algorithm for deciding whether a particular interpretation sufficiently
fits . . . not to be ruled out.’114
Presumably Dworkin would argue
that a similar attitude should be taken by a legal scientist attempting to
interpret past practices. Either way, he seems to be saying that fit to past
practices operates as a constraint, but in a relatively loose and nonexclusionary
way and it cannot be conclusively determined when an interpretation
should be ruled out.115
Second, Dworkin writes that the
guiding principle of the ‘integrity and coherence of law as an institution’
structures the judge’s ‘convictions about how much of the prior law an
interpretation must fit, and which of it, and how.’116
The political value
of integrity implies an inverse relationship, or for some a ‘sliding
scale’,117
between the two variables of fit to past practices and justification
of past practices in line with the point and purpose of law, when
selecting an interpretation of what the law requires. Put straightforwardly,
if a particular legal doctrine is crucial for the integrity of the
system then the interpreter can accept a lower level of correspondence to
past practices.
C. The duty to recognise and ‘fit’
Put in Dworkin’s words, the problem with the duty to recognise may be
that ‘[t]he justification [of the duty to recognise] need not fit every aspect
or feature of the standing practice, but it must fit enough for the interpreter
to be able to see himself as interpreting that practice, not inventing
a new one.’118
At this point, Kunz’s criticism can be seen in a new light.
An interpretivist who takes the general critical attitude of Kunz may
argue that Lauterpacht had invented a new practice and has failed to
114
R Dworkin, A Matter of Principle, 160; S Fish, ‘Working on the Chain Gang: Interpretation
in Law and Literature’ (1981-82) 60 Texas Law Review 551.
115
See Alexander and Kress, ‘Against Legal Principles’ on the distinction between looser and
tighter relationship between ‘fit’ in judicial and legislative reasoning. My suspicion is that, in the
final analysis, Dworkin’s view is that less ‘fit’ is required the greater the importance of the normative
principle at stake. Therefore, ultimately, a loose relationship between ‘fit’ and ‘justification’ is accepted
by Dworkin.
116
Ibid.
117
See J Tasioulas, ‘In Defense of Relative Normativity’, 109-112 and F Kirgis, ‘Custom on a
Sliding Scale’ (1987) 81 AJIL 146. See J Rivers, ‘Proportionality and Variable Intensity of Review’
(2006) 65 Cambridge Law Journal 174-207.
118
R Dworkin, Law’s Empire, 66.
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interpret past practices. This is a genuine problem for Lauterpacht on
the basis of his own methodological precepts.
How might Lauterpacht respond to this criticism? One response could
be that if we do not accept a duty to recognise, our conclusion may well
have to be that there is no functionally coherent system of personality
determination in international law. While this conclusion might confirm
the opinion of the law student that personality is an area where international
politics is dressed up as international law, it does leave the international
lawyer with an ontological problem about the existence of a
fundamental aspect of the international legal order which he or she
would do well to avoid if possible. As Dworkin puts it, to take this
line would undermine the ‘integrity and coherence of [international]
law as an institution’. Dworkin, however, then asks the interpreter to
alter their ‘convictions about how much of the prior law an interpretation
must fit, and which of it, and how’. Reading this claim into
Lauterpacht’s duty to recognise, it could be said that the importance
of a stable system of personality determination which is able to cohere,
and maintain the integrity of, the existing system of international law
would only require a relatively small correspondence to past practices to
be justified. In other contexts, for example, the extent of maritime
delimitation, where the integrity of the system is not at stake if we
adopt one rule or another, a clear and consistent line of past practice
would be required to establish the rule.
This argument helps defend Lauterpacht’s duty to recognise. That is,
having a stable system of personality determination is of such importance
to the integrity of the system that only a small amount of past practice is
necessary to sustain it as a legal doctrine. This idea is perhaps what
Lauterpacht is expressing when he writes that ‘[w]e are not at liberty
to assume, without overwhelming proof, the existence of a gap so detrimental
to the reality of the international legal order’, where the gap
referred to corresponds to the absence of a stable system of personality
determination.119
And there is, at least, a small amount of practice which
supports the duty to recognise. Thus, if Lauterpacht’s method has any
plausibility, the duty to recognise is more credible than has generally
been thought.
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. For
example, John Tasioulas has argued that an interpretative approach
similar to that set out in this article is reflected in the judgment of the
ICJ in the Nicaragua Case where it ‘adopted a revolutionary technique
that enabled it to derive customary norms prohibiting the use of force
and intervention despite the absence of supporting general state practice,
119
H Lauterpacht, Recognition, 7.
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and in the face of considerable inconsistent practice.’120
On Tasioulas’s
reading of this case, the importance of securing the world order value of
peace between states allows the ICJ to accept a lower standard of fit to
past practice when determining the existence of relevant customary
international law. Obviously, the past practices the ICJ has to interpret
were much richer than the relatively sparse examples from state practice
which Lauterpacht relied upon in the 1930s and 1940s. Furthermore, it
has to be recognised that the Nicaragua Case was legally anomalous in
that the ICJ’s jurisdiction was restricted in a way that prevented it from
considering parallel obligations found in the Charter of the United
Nations.121
Despite these differences, this Judgment does seem to reflect
the idea that a lower threshold of fit to past practice may be sufficient
when the integrity of the international legal order is as stake. We should
note that this exact position is taken by Dworkin when he argues that
past practices can be disregarded when they fail to further the purposes
of international law.122
International law is a relatively immature system of law. One feature of
this immaturity is that it is not clear how questions of personality are to
be settled. Lauterpacht’s duty to recognise provides an answer as an
attempt to interpret state practice in a way that maintains the integrity
and coherence of the international legal order. If there are reasons to
value integrity and coherence in law, then Lauterpacht’s duty to recognise
should be valued for the same reasons. This is the case even though
alternative and more plausible interpretations may be on offer which
correspond to Lauterpacht’s concept of international law and fit more
closely to past practice.123
Kunz considered Recognition was written to
‘impress upon the student the fact that the practice of states in the matter
of recognition is more permeated with law and principle than is currently
assumed.’124
This is true – even inevitable – but is it such a bad thing?
V. CONCLUSION
Lauterpacht’s duty to recognise is a proposed legal doctrine which is not
supported by a steady and consistent body of state practice. However, it
is an attempt to solve a problem which threatens the integrity of the
international legal order. If one requires the duty to recognise to be
consistent with clear and constant state practice, it cannot be said to be
law. This is why positivists, such as Kunz, reject Lauterpacht’s claims.
120
J Tasioulas, ‘In Defense of Relative Normativity’, 97.
121
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America) Merits (1986) ICJ Rep 14
122
R Dworkin, ‘Human Rights and International Law’, 34.
123
Perhaps Talmon’s incorporation of non-recognition into a response for a wrongful act by a
state is a contender here. See S Talmon, ‘The Constitutive Versus the Declaratory Theory of
Recognition’.
124
J Kunz, ‘Critical Remarks’, 715.
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However, international lawyers’ obligation to find coherence and integrity
of the system can lead to support for the duty to recognise despite
the claims of positivists. To apply progressive interpretation requires us
to not accept that fit to past practice is the only reason for accepting or
rejecting various doctrines as customary international law. The most
important values and needs of the world community should structure
our interpretation of past practices.
Lauterpacht’s method was never developed in systematic detail, or
discussed at great length. This article is a reconstruction of material
found in a number of Lauterpacht’s lectures and articles. One may wonder
why he did not spell out his methodology explicitly. Obviously, he
was a practical man well versed in theory, but perhaps the former characteristic
led him to be more concerned with providing solutions to the
severe problems of international relations which existed at the time he
was writing. This said, what remains clear is that by 1940 in his earliest
works on human rights, he had developed a novel and sophisticated
method for legal science which underpins the rest of his academic and
judicial work, and which resonates with the most advanced legal theory
on offer today. In this sense, Lauterpacht’s method was not an anachronistic
approach to international law rooted in ‘Victorian’ values.125
Rather,
it is an important contribution to international legal theory which can be
used to solve persistent problems concerning the integrity of the international
legal order.
125
M Koskenniemi, ‘Victorian Tradition’.
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