Lauterpacht's public philosophy was based on the conviction that individuals have rights which do not stem from nation states. He was an internationalist who had a lifelong mistrust of state sovereignty which, to him, reflected the aggression and injustices committed by nation states and the disasters of the two world wars.
Since the Second World War, the work of Kelsen, Lauterpacht and others has led to an increasingly powerful and international human rights movement supported by well-funded pressure groups and international bureaucracies. But success has brought to light some serious weaknesses, though true believers tend to be unprepared to acknowledge them.
First, there is the failure of the postwar human rights declarations and mechanisms to bring justice to the mass of Holocaust perpetrators and to their victims. Though one of the most common claims for the virtue of the European Convention of Human Rights and the Strasbourg court is that they came into existence as a reaction against the Holocaust, the sad reality is that their creation came at the very time when the Allies were abandoning war crimes trials, helping Nazis to escape from Europe and recruiting some of them for anti-Soviet intelligence activities. It is hard to make out how, if at all, the Council of Europe, its human rights convention and its court acted in the interests of the victims of the Holocaust. In their search for new and ambitious structures of international law, Lauterpacht and his colleagues seem to have done relatively little to ensure that Nazi mass-murderers were brought to trial.
Second, some of the new international human rights bodies have not covered themselves in glory. The UN Human Rights Council has been highly selective in its choice of targets for investigation and condemnation. Its anti-Israel obsession undermines its legitimacy, which is not to deny that there are legitimate concerns about some of Israel's human rights practices. A few years ago, the UNHRC's predecessor body was chaired by the representative of Colonel Gaddafi's regime; a number of the member countries have distinctly dubious human rights records. When human rights pressure groups and other organisations direct their attention in a disproportionate manner against particular targets and countries, human rights may all too easily become a form of propaganda and political warfare, known as "lawfare".
Third, the general terms in which human rights inevitably are set out have tended to cause problems when their meaning has been expanded by court decisions well beyond those originally intended. So-called "rights contagion", according to its critics, has over-stretched and greatly trivialised human rights.
Fourth, international organisations such as the United Nations and its agencies, the Council of Europe, the European Court of Human Rights and the International Criminal Court have all too often proved inefficient, unaccountable and overly concerned with their own organisational expansion.
Fifth, the adoption of broadly-worded human rights bills leads to a greatly increased scope for decision-making by judges. The right to family life, for example, is subject to great differences of interpretation. It tends to be assumed by professional advocates of human rights systems that judges are wiser, more moderate and more capable of safeguarding the interests of members of unpopular minorities than legislatures, which are ignorant, prejudiced and occasionally subject to capture by extremists. I was taken aback to hear repeatedly the claim that it was the "democratically-elected" Reichstag which introduced Nazi laws in Germany in the 1930s. The influential work of Ronald Dworkin also denigrates majoritarian democracy, as do statements by Lord Justice Laws.
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