A fine balance

An International Bill of the Rights of Man, by Hersch Lauterpacht, with an introduction by Philippe Sands, OUP, RRP£29.99/$68.50, 272 pages

This short book is one of the acknowledged classics of 20th-century international jurisprudence, and it is hugely to the credit of Oxford University Press that they have reissued it, with an excellent new introduction by Professor Philippe Sands QC, nearly seven decades after its initial publication.

An International Bill of the Rights of Man first appeared in 1945, amid the ruins of the second world war. Its author, Hersch Lauterpacht, was 48 years of age, Whewell professor of international law at Cambridge, and already recognised as a great authority on that subject.

Growing up in the Austro-Hungarian empire near the city of Lviv (now in Ukraine), Lauterpacht had witnessed first-hand the effects of foreign occupation, anti-Semitism and war before escaping to Vienna, then to the London School of Economics and, in due course, to Cambridge. His parents, brother and sister were murdered by the Nazis.

Even early on in the war, far-sighted individuals looked to a new world order that could in part redeem its agonies. Franklin Roosevelt had given his great “Four Freedoms” speech in January 1941; in August he and Winston Churchill had signed the Atlantic Charter, calling in Churchill’s words for the war to end with “the enthronement of human rights”.

At a working level, the issue of whether and how individual rights could be secured under international law was being closely studied. But this was itself a vast legal and political minefield, given the horror stories emerging from Soviet Russia, the legally sanctioned “separate but equal” treatment of people of colour in America, the race laws in South Africa, and the treatment of subject peoples by European colonial powers.

Lauterpacht was not merely a theorist but a working lawyer. From the first he set himself against a mere declaration of rights, of the kind that had proved so unavailing in the interwar years. His focus was resolutely practical: on the elaboration of the rights themselves, and on an effective mechanism for their enforcement.

The result is a book in three parts. The first contains a wide-ranging attempt to situate the “rights of man” within the traditions of natural law, of the law of nations, and of British constitutional theory and practice. The second contains Lauterpacht’s bill of rights itself, and a detailed defence of the provisions it contains, and some it does not contain. The final part proposes an enforcement mechanism: the bill is to be incorporated by signatories into their domestic laws, and a new High Commission is to be established under the Council of the UN to supervise international compliance with it. Both individuals and organisations are to have a right to petition the commission. In the final analysis, “The Council shall [sic; this imposes a duty] take or order such political, economic or military action as may be deemed necessary to protect the rights of man.”

Much of this is broadly familiar today. We are accustomed to read of the protection of the personal freedoms of the individual; the freedoms of speech, of religion, of association; and the right to equal treatment before the law. We understand, even if not everyone agrees with, the idea of incorporating human rights into domestic law, as with the European Convention on Human Rights; or the idea of a UN Security Council resolution giving legal authorisation for international enforcement actions; or the idea of one state intervening in the affairs of another, even invading it, on humanitarian grounds. This is so in part precisely because of Lauterpacht’s book.

Nonetheless, there is much to question here. Early on Lauterpacht rejected the criticism that the book was “propaganda, and not an impartial enquiry”. But actually it is very far from impartial. This is at root a work of advocacy and argument, which hovers in a rather unhappy compromise between its ideals and its ambitions.

We see this in Lauterpacht’s attempt to position his bill as the culmination of a natural law tradition; an attempt that fails to do justice to the huge conceptual ambiguities in the idea of “natural law”, the deep tens­ions between the different traditions involved, and the genius of the British compromise, to be found in constitutional authorities from Coke to Blackstone and Burke, between basic natural rights and the “recorded rights” arising through the common law.

One pungent modern example also makes the point. For Lauterpacht’s bill deliberately does not affirm the importance of universal suffrage, preferring a watered-down version acknowledging national law and custom. Why not? Because given the racial status quo in the US and South Africa, this “would reduce the chance of its acceptance to a negligible minimum”. But if that was so, then how can Lauterpacht’s alternative right be truly fundamental? The result is thus not merely compromise but contradiction.

The book is political, and idiosyncratic, in more subtle ways as well. On the one hand, there is no formal recognition in the bill of rights that have long been considered bulwarks protecting the individual against the state, such as the right to life, the prohibition on torture, or the protection of property rights. On the other hand, states signing the bill are not merely to be permitted but required to invade a state found to have committed human rights violations. And three of Lauterpacht’s 14 substantive rights are socioeconomic in nature, and require signatories to provide schools and religious institutions for minorities from public funds; and work and education for all, with welfare for “cases of undeserved want”.

The issue is not whether these are good ideas or not. It is that they are political decisions, to be taken by democratic processes which reflect a country’s traditions, norms and priorities. Here the contradictions implied, and to some extent revealed, by Lauterpacht’s project become positively subversive, indeed revolutionary. He rightly celebrates the value of Britain’s flexible constitution, without acknowledging that his bill would make it more rigid. He affirms the value of democracy but anticipates, and even welcomes, an implicit threat posed by his bill of rights to the sovereignty of parliament itself.

Yet the final effect of reading Lauterpacht is to increase our respect for the British scholars, jurists and, yes, politicians (most notably Winston Churchill) who framed, signed and ratified the European Convention on Human Rights. In doing so, they made a bet: that the distinctively British balance between human rights and parliamentary sovereignty, demanding great care and restraint from judges and politicians alike, would be maintained over the decades to follow. Let us hope it will be.

——————————————-

Jesse Norman is MP for Hereford and South Herefordshire. He is author of ‘Edmund Burke: Philosopher, Politician, Prophet’ (William Collins)