JUSTICE - No. 71

9 Spring 2024 cataclysm that we gather here today. (As an aside, I feel privileged to have lived here 25 years ago, to know people like Mijnheer Stemmer, who survived by taking his family across the Swiss border; Mevrouw Niehom, who was hidden by Dutch Christian farmers who saved her life; and many others.) The United Nations was founded in the immediate aftermath of the war, and among its purposes was to “reaffirm faith in fundamental human rights.”10 In the short period between the founding in 1945 and the UDHR in December 1948, we see the formation of a new set of institutions to advance the protection of individuals. The Nuremberg trials provided the basis for the field of international criminal law, later embodied in the International Criminal Tribunal for the former Yugoslavia and later the International Criminal Court here in The Hague, along with others such as the Kosovo Specialist Chambers and the Special Tribunal for Lebanon. It also led to the writing of the Universal Declaration of Human Rights by the Human Rights Commission, with Cassin playing a central role. The conceptual break was to treat rights as individual, and protection as universal. To understand the intellectual underpinnings of this shift, I must delve more into the person of Hersch Lauterpacht, whose life embodies the fusion of particularist and cosmopolitan visions. He was born in Galicia in 1897, and experienced the usual levels of antisemitism prevalent in his time and place. He became politically active in Zionist youth movements, but his life turned in a more cosmopolitan direction. He eventually moved to Vienna and ultimately to London where he quickly became an important scholar of international law. He contributed a good deal to the transformation of international law, from a framework focused on interactions among sovereign states, to one in which human rights were seen as being a legitimate subject of international concern; individuals enjoyed rights, as well as duties, so that they could bear international criminal responsibility; and intergovernmental organizations like the United Nations became important actors. His career culminated in service in this building as the British judge on the International Court of Justice from 1955 to 1960. Lauterpacht’s 1945 book, An International Bill of the Rights of Man, foreshadowed the Universal Declaration.11 His was one of several proposals to the United Nations Human Rights Commission, which was charged with drafting the text in 1948.12 Lauterpacht, however, was ultimately disappointed that the United Nations did not include a right of petition for victims of abuses. He wanted a direct appeal from the individual to international institutions, as he understandably did not trust states to be uniform guarantors of rights. His proposal was rejected, and so the glaring gap between normative articulation of rights and their actual enforcement on the ground was present at the beginning. It is interesting that a “globalist” like Lauterpacht also remained a Zionist and contributed to the drafting of the Declaration of Independence of Israel. Shortly after his appearance in this building in March 1948, arguing the famous Corfu Channel case before the International Court of Justice, he went to New York for the International Law Commission. He was contacted by the Jewish Agency, which had decided to move forward with a declaration of independence for the prospective country. Lauterpacht produced a draft, including a justification for Jewish self-determination within a cosmopolitan legal order.13 As with the Universal Declaration, his proposal was one of many, and not adopted, although part of the conversation. (The final document makes explicit mention of the Nazi Holocaust, and mentions both the selfdetermination rights of Jewish people as well as the “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and a promise to guarantee freedom of religion, conscience, language, education and culture. Thus, even a very particularist project, the establishment of the State of Israel, was accompanied by some notion of rights granted to all.) So far, I have shown that the Holocaust led, as many have argued, to what Henkin has called the Age of Rights after 1945. What is notable is the outsized contributions of many Jewish lawyers as individuals, as well as the important role of arguments about Jews in general in the 10. UN Charter, Preamble. 11. Hersch Lauterpacht, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN (N.Y.: Columbia University Press, 1945). 12. Besides Lauterpacht, the American Jewish Congress provided its own draft text, which helped inform the content. James Loeffler, “The Conscience of America”: Human Rights, Jewish Politics, and American Foreign Policy at the 1945 United Nations San Francisco Conference, 100 JOURNAL OF AMERICAN HISTORY 401 (2013). 13. Eliav Lieblich and Yoram Shachar, “Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence,” 84 BRITISH YEARBOOK OF INTERNATIONAL LAW 1 (2014).

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