Alfred Verdross or Verdroß or Verdroß-Droßberg (until 1919,Edler von Droßberg;22 February 1890 –24 April 1980) was an Austrian international lawyer and judge at the European Court of Human Rights.
After having served as an Austrian foreign ministry official,he became professor of public international law,private international law and philosophy of law at the University of Vienna. He was a pan-German nationalist and an early sympathizer with Nazism,but did not join the Nazi party. Following the German occupation of Austria,he was suspended from his teaching assignments,but from mid-1939 onwards he was allowed to resume the teaching of international law. After the end of World War II he continued his academic career in Vienna and became,among other things,member of the International Law Commission,member of the Permanent Court of Arbitration,president of the Institut de Droit International and,from 1959 to 1977,judge at the European Court of Human Rights.
Together with Hans Kelsen,Adolf Merkl[de;pt] and Josef L. Kunz,he was one the main exponents of the Vienna school of legal theory. He was an early proponent and chief theorist of the ius cogens doctrine and of the monist theory of the relationship between international and national law,and is considered one of the most influential international lawyers of the 20th century.
Life
Early years
Alfred Verdross's father,General Ignaz Verdroß-Droßberg,Commander of the Kaiserjäger Division,after 1915
In 1916,Verdross passed the judges' examination and subsequently entered military service as first lieutenant auditor (Oberleutnantauditor) at the Supreme Military Court (Oberster Militärgerichtshof) in Vienna.[4][6] Before the end of the war,on 15 January 1918 Verdross left the military service and was assigned to the legal services of the Imperial and Royal Foreign Ministry.[7] After the collapse of the Austro-Hungarian Monarchy he became secretary to the Austrian Legation in Berlin. In this capacity,he was among the experts who in December 1918 contributed to the parliamentary debates leading up to the drafting of the Weimar Constitution,[8] and in 1919 an essay of his succeeded in persuading the parliamentary Constitutional commission to redraft the constitutional provision on international law.[9] In December 1920 he returned to Vienna,where he was employed in the International Law Department of the Ministry for Foreign Affairs until 1924,and from 1923 also as a professor at the Consular Academy.[1][10] He habilitated at the University of Vienna in 1921. In 1924 was appointed associate professor (außerordentlicher Professor) of philosophy of law and in 1925 full professor of public international law,private international law and philosophy of law at the University of Vienna,where he served as a member of the Law Faculty until his retirement in 1961.[1][11]
Austria moved decisively toward an autocratic fascist state when ChancellorDollfuss began ruling by decree after the self- elimination of parliament in 1933. Verdross was offered a position as Minister of Justice,but refused,although he was personally not hostile to the values of Austrofascism. Together with the law school deans of Graz and Innsbruck,he even lodged a formal protest against the breach of the constitution by the new authoritarian government.[15][16][17][18] He agreed to join Dolfuss's Austrian nationalist party,the Fatherland Front,only on the condition that he would not renounce "the ultimate goal of the unification of all Germans",i.e.,his pan-Germanist ideals.[18]
In 1935 he was appointed as an extraordinary member of the Federal Supreme Court[de][15] and in 1937 he was elected as Corresponding Member of the Austrian Academy of Sciences.[11] In the same year,he founded the Austrian branch of the London-based anti-war organisation The New Commonwealth,which advocated for the establishment of a world court to adjudicate international disputes and an international police force to enforce its decisions.[19]
The exact extent of Verdross's sympathy for Nazism remains debated,and his relationship with the fascist government is a matter of controversy.[23][24] He was an early sympathiser with Nazism and was active in DNSAP circles even after the party was outlawed in 1933.[1] He was popular among German nationalist and Nazi students and often intervened on their behalf,[1][25] but on one occasion he also protected Jewish and democratic students from a Nazi attack at the university.[16] In 1933–1934 his assistant at the Consular Academy was Friedrich August Freiherr von der Heydte,at the time an SA member,whom he had recommended to Kelsen in Cologne.[26] In 1934,his personal friendship with Kelsen came to an end when Kelsen was forced by the editorial board of the Zeitschrift für öffentliches Recht to resign as editor on the grounds that he was Jewish.[lower-alpha 1][28]
In his successful 1937 textbook on international law,Verdross attempted to bring Nazism and Catholic-inspired universalism closer together.[29] The book calls Mussolini a defender of Christian values,characterises the Nazist doctrine of international law as "anti-imperalist and federalist",[lower-alpha 2] and contains significant traces of a völkisch approach to legal studies and international politics.[lower-alpha 3][32][24][22][33]
Verdross showed no qualms about contact with Nazism,but never joined the Nazi party either before or after the annexation of Austria into the German Reich in 1938.[1] After the annexation he was temporarily suspended from his teaching assignments in the summer of 1938,but accommodated to political pressure[34] and,from 1939,thanks to the support of the Nazi rector of the university,the legal historian Ernst Schönbauer[de],and the intervention of General Jodl,he was allowed to resume the teaching of international law,after adapting the content of his lectures to the demands of the new rulers.[35][36] He was never allowed to resume the teaching of philosophy of law,probably because his natural law theory based on Christian values was deemed incompatible with the ideology of the regime.[37][38] He managed to come to terms with the Nazi government[1] and in 1942 was appointed alternate judge at the German Prize Court of Appeals (Oberprisenhof)[11][37] and director of the Institute of Legal Sciences at the university of Vienna.[39]
In 1959,Verdross became a judge of the newly created European Court of Human Rights,where he sat for two terms until 1977.[41][39][42] In 1961,he was President of the Vienna Conference on Diplomatic Relations.[43] Until 1977,he was also a member of the Curatorium of the Hague Academy of International Law,where he taught at least five courses.[43] His textbook Völkerrecht ("International law"),which first appeared in 1937,soon became the leading treatise on international law in the German language,translated into both Spanish and Russian.[40][43][44] Verdross came to be regarded as one of the most authoritative international lawyers of the 20th century,[40][45][46][47] not least because of the resurgence of natural law theory in post-war Austria and Germany:Verdross became one of the most celebrated protagonists in this revival.[48]
Verdross died on 27 April 1980 in Innsbruck,the city where he was born.[49]
Doctrine
Alfred Verdross during a doctoral graduation at the University of Vienna in 1952
Alongside Adolf Merkl[de;pt] and Josef Laurenz Kunz,Verdross was one of Hans Kelsen's most important pupils and a leading exponent of the Vienna school of legal theory.[7][50][51] Many of his contributions to the study of international law are based on Kelsen's theory of law and the state,which Verdross largely embraced,including the idea of the unity of law,the hierarchical structure of the legal system (so-called Stufenbau[de]) and the concept of basic norm (Grundnorm).[52][53][54][55]
Thus,as early as 1921,Verdross followed Kelsen's lead and abandoned his initial "monism with primacy of state law",according to which international and national law constitute a single legal system in which national law enjoys supremacy. He also rejected the prevailing theory of the time,Triepel's "dualism",according to which international and national law constitute two separate legal systems,based on different grounds of validity and addressed to different subjects. Instead,in line with the revival of the universalist approach to international law initiated by the Dutch scholar Hugo Krabbe and continued by Kelsen,[56][57] Verdross subscribed to "monism with primacy of international law",a position he already expounded in his 1923 book Die Einheit des rechtlichen Weltbildes ("The Unity of the Legal World-View").[10][55][58][59] From that universalist perspective,international and national law are parts of a single,unitary legal system,largely effective and endowed with the power of coercion;within that common frame,international law prevails over national law and determines the scope of legitimate state action. Anticipating Kelsen,who later accepted Verdross's views in his Pure Theory of Law,Verdross admitted that in case of conflict between international law and national law the latter is not per se null and void,but remains valid until it is formally repealed or amended to make it compatible with international law:national law retains a temporary,provisional,validity (so-called "moderate monism").[53][60][61]
These conclusions were largely based on the rejection,shared by Verdross and Kelsen,of the dogma of absolute state sovereignty and voluntarist legal positivism:sovereignty is no longer the "supreme power" but only a competence conferred on the state directly by international law;[62] international law is not founded on the consent of states and therefore states can in principle be bound by rules to which they have not agreed. In Verdross' work,the "fight against voluntarist legal positivism" was the premise for further doctrinal developments,including the possibility of recognising as sources of international law,alongside the law of treaties and customary law,also the "general principles of law recognized by civilised nations".[40][63][64] In a 1931 essay,Verdross explained that these fundamental principles originate from the legal consciousness of all modern civilised nations and are binding also upon states which have not consented to them. In a 1937 essay on "Forbidden Treaties" he argued that these principles forbid the conclusion of treaties contra bonos mores,that is,offensive to the conscience and sense of justice. In so doing,he became the chief theorist of the ius cogens doctrine that prevails today and that found its final breakthrough in the 1969 Vienna Convention on the Law of Treaties:he contended that all rules of general international law created for humanitarian purposes qualify as ius cogens,and that neither international treaties nor customary international law can override these fundamental principles upon which the international legal order is built.[65][66][67][68] Verdross's work also had a strong influence on later theorization about the "constitutionalisation of international law".[69]
Consequently,Verdross radically modified the Kelsenian theory of the basic norm. For Kelsen,the basic norm is simply "presupposed" by legal science,rather than created by some human or divine authority,[74] and is "formal" because it can found the validity of any legal system,irrespective of the content of its norms.[75] In contrast,Verdross's basic norm is neither presupposed nor formal:it is rooted in the objective realm of values and is both legal and moral.[15][53][76] He believes that the social nature of human communities gives rise to objective values,and can therefore ascribe to the basic norm a substantive normative content,that of the fundamental principles of law,such as the safeguarding of human freedom,dignity and basic standards of inviolability.[77][78] According to Martti Koskenniemi,in filling the basic norm with natural law principles,"Verdross used the pure theory so as to turn what Kelsen saw as political choice into an article of faith in fundamental values. This was the language of Austrian Catholicism that did little to prevent the country’s descent into Nazism".[69]
From the mid-1930s onwards,the gulf between Kelsen and his former pupil Verdross widened,as the latter took up some of the ethno-nationalist themes then in vogue and began to argue that the Volkstum constitutes "the highest natural form of humanity" and that "every person can attain the development of his natural talents only within the Volksgemeinschaft",thus moving away from Kelsen's and his school's rejection of nationalism.[79][80]
Legacy
Verdross is regarded as the founder and leading exponent of the Viennese School of international law and legal philosophy based on natural law theory.[45] According to Armin von Bogdandy and Ingo Venzke,he is "possibly the most important representative of Catholic natural law in the international law of the twentieth century".[81] According to his disciple Bruno Simma,"[w]ithin the German-speaking countries,Alfred Verdross shaped international legal thinking in a way unparalleled in the past";[45] in the Austrian community of international law scholars,"everybody was exposed to and,to a greater or lesser degree,influenced by the teachings of the Viennese master".[82]
Alongside his academic capacity,Verdross contributed to the development of international law as a judge at the European Court of Human Rights in the early stages of this new system of international rights protection,and as a member of the International Law Commission. Thanks to his long membership of the International Law Commission,he was in a position to contribute his ideas to the international codification process.[45]
Dedication in his name of one of the "Gates of Remembrance" at the campus of the University of Vienna and memorial plaque (1998).[98]
Publications (selected)
Books
Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen, Mohr 1923)
Die Verfassung der Völkerrechtsgemeischaft (Wien, Springer 1926)
Völkerrecht (Berlin, Springer, 1937 read online; 5th ed. 1964, with Stephan Verosta and Karl Zemanek)
Die immerwährende Neutralität der Republik Österreich (Wien, Österreichischer Bundesverlag, 1958; 3rd ed. 1967)
Abendländische Rechtsphilosophie. Ihre Grundlagen und Hauptprobleme in geschichtlicher Schau (Wien, Springer, 1958; 2nd ed. 1963)
Die Quellen des Universellen Völkerrechts. Eine Einführung (Freiburg, Rombach, 1973)
(with Bruno Simma) Universelles Völkerrechts. Theorie und Praxis (Berlin, Duncker & Humblot, 1976; 3rd ed. 1984)
Österreichs immerwährende Neutralität (Wien, Verlag f. Politik u. Geschichte, 1978; also in English and French).
Alfred Verdross: Gesammelte Schriften, edited by Franz Köck and Herbert Schambeck (Wien, Verlag Österreich, 2019) ISBN978-3-7046-8267-3
Courses
"Le fondement du droit international" (1927-I) 16 Recueil des cours de l'Académie de droit international, pp.247–323. read online
"Règles générales du droit international de la paix" (1929-V) 30 Recueil des cours de l'Académie de droit international, pp.271–518. read online
"Les règles internationales concernant le traitement des étrangers" (1931-III) 37 Recueil des cours de l'Académie de droit international, pp.323–412. read online
"Les principes généraux du droit dans la jurisprudence internationale" (1935-II) 52 Recueil des cours de l'Académie de droit international, pp.191–251. read online
"Idées directrices de l'Organisation des Nations Unies" (1953) 83 Recueil des cours de l'Académie de droit international, pp.1–78.
Essays
"Das Problem des freien Ermessens und die Freirechtsbewegung", Österreichische Zeitschrift für öffentliches Recht, 1. Jahrgang, Wien 1914, pp.616–644. read online
"L'excès de pouvoir du juge arbitral dans le droit international public", Revue de droit international et de législation comparée, 1928, pp.225–242. read online
"Les principes généraux du droit et le droit des gens", Revue de droit international, 1934, pp.484. read online
"L'idée du droit des gens dans la philosophie de Platon à Hegel", Mélanges offerts à Ernest Mahaim, vol. II, 1935, p.383.
"Forbidden Treaties in International Law", American Journal of International Law, 1937, pp.571–577. read online
"General International Law and The United Nations Charter", International Affairs, 1954, pp.342–348. read online
"Jus Dispositivum and Jus Cogens in International Law", American Journal of International Law, 1966, pp.55–63. read online
"Le principe de la non intervention dans les affaires relevant de la compétence nationale d'un Etat et l'article 2 (7) de la Charte des Nations Unies", in La Communauté internationale. Mélanges offerts à Charles Rousseau, Paris, Pedone, 1974, pp.267–276. read online
"La dignité de la personne humaine comme base des droits de l’homme", Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, 1980, vol. 31, pp.271–277.
Festschriften
F. A. von der Heydte et al. (eds.), Völkerrecht und rechtliches Weltbild. Festschrift für Alfred Verdross (Vienna: Springer, 1960).
R. Marcic et al. (eds.), Internationale Festschrift für Alfred Verdross zum 80. Geburtstag (München-Salzburg: Wilhelm Fink Verlag, 1971)
H. Miehsler et al. (eds.), Ius Humanitatis. Festschrift zum 90. Geburtstag von Alfred Verdross (Berlin: Duncker & Humblot, 1980) ISBN978-3-428-04593-8.
↑ The personal friendship with Kelsen was restored in 1945 through Josef Laurenz Kunz's mediation.[27] In 1948 Kelsen wrote in a letter to Verdross: "It is true that I was somewhat disgruntled. I was upset that I was forced to resign as the main editor of the Zeitschrift für öffentliches Recht even before the Anschluss. I was also of the opinion that you had gone too far with certain political value judgements in your Völkerrecht – by far the best presentation of the subject in the German language. But I have never blamed you in the least for staying in the homeland and have always fully understood that this was not possible without making certain concessions."[27]
↑ "As the guardian of the Roman tradition, [the Italian foreign policy] defends Christian occidental values and the order that sustains them ... since it recognises the individual development of all peoples and rejects the amalgamation of foreign nations, the National Socialist doctrine of international law is anti-imperalist and federalist and therefore fundamentally different from the nationalism of the pre-war period."[30]
↑ "But if Volkstum [ethnic nationhood] constitutes the highest natural form of humanity, every person can attain the development of his natural talents only within the Volksgemeinschaft [national community]. With this, the Volkstum becomes the natural foundation of all culture. The political unity of the state, too, must do justice to this fact, since the state, by its very conception, forms the perfect community of life (civitas perfecta) for its members, but can fulfill this task only if it makes it possible for them to bring their natural talents and abilities to fruition. However, as a result of the natural [artmäßige] diversity of humanity, such a formation is possible only in the Volksgemeinschaft. The most perfect realization of this idea is possible in pure nation states."[31]
↑ In his Die Rechtstheorie Hans Kelsen's (1930), Verdross recommended that Kelsen should relinquish "the neo-Kantian prejudice that the method creates the object of enquiry".[17]
↑ Raz 1979, pp.125–126. See Kelsen 1967, pp.194–195: "It must be presupposed, because it cannot be 'posited,' that is to say: created, by an authority whose competence would have to rest on a still higher norm".
↑ Raz 1979, pp.127, 132–133. See Kelsen 1967, p.197: "The basic norm supplies only the reason for the validity, but not at the same time the content of the norms constituting the system".
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References
Académie de droit international de La Haye (1935). "Notice biographique"[Biographical note]. Recueil des cours de l'Académie de droit international de la Haye (in French). 52 (II). Paris: Recueil Sirey: 193. Archived from the original on 18 May 2023. Retrieved 18 May 2023.
Bogdandy, Armin von; Venzke, Ingo (2014). In Whose Name? A Public Law Theory of International Adjudication. Oxford New York, NY: Oxford University Press. ISBN978-0-19-871746-1.
Busch, Jürgen (2012). "Ein Mann des Widerspruchs? Teil 1. Verdross im Gefüge der Wiener Völkerrechtswissenschaft vor und nach 1938" [A Man of contradiction? Part 1. Verdross in the structure of Viennese international law scholarship before and after 1938]. In Meissel, Franz-Stefan; Reiter-Zatloukal, Ilse; Schima, Stefan (eds.). Vertriebenes Recht – Vertreibendes Recht. Zur Geschichte der Wiener Rechts- und Staatswissenschaftlichen Fakultät zwischen 1938 und 1945 (in German). Wien: Manz. ISBN978-3-214-07405-0.
Laval, Pierre-François (n.d.). "Alfred Verdross (1890–1980)". Société française pour le droit international. Galerie des internationalistes francophones (in French). Archived from the original on 2 March 2023. Retrieved 12 March 2023.
Lingens, Karl-Heinz (2001). "Verdroß, Alfred". In Stolleis, Michael (ed.). Juristen. Eine biographisches Lexikon[Jurists. A biographical encyclopaedia] (in German). C.H. Beck. pp.649–650. ISBN3406-45957-9.
Mannoni, Stefano (1999). Potenza e ragione. La scienza del diritto internazionale nella crisi dell'equilibrio europeo (1870–1914)[Power and reason. The science of international law in the crisis of the European equilibrium (1870-1914)]. Per la storia del pensiero giuridico moderno (in Italian). Vol.54. Milano: Giuffré. ISBN88-14-07768-1.
Simma, Bruno (2018). "Alfred Verdross (1890–1980)". In Kilian, Michael; Wolff, Heinrich Amadeus; Häberle, Peter (eds.). Staatsrechtslehrer des 20. Jahrhunderts: Deutschland – Österreich – Schweiz[Constitutional Law Scholars of the 20th Century: Germany - Austria - Switzerland] (in German). Berlin, Boston: De Gruyter. pp.417–430. doi:10.1515/9783110546682-024. ISBN9783110546682. S2CID240387895. Archived from the original on 11 May 2023. Retrieved 11 May 2023.
Staudigl-Ciechowicz, Kamila; Olechowski, Thomas (2014). "Völkerrecht"[International Law]. Die Wiener Rechts- und Staatswissenschaftliche Fakultät 1918–1938 (in German). Göttingen: V&R Unipress. pp.521–547. doi:10.14220/9783737097994.521. ISBN978-3-89971-985-7. Archived from the original on 11 May 2023. Retrieved 11 May 2023.
Verdross, Alfred (1928). "Le fondement du droit international"[The foundation of international law]. Recueil des cours de l'Académie de droit international de la Haye (in French). 16 (1927-I). Paris: Librairie Hachette: 247–323. Archived from the original on 13 March 2023. Retrieved 10 May 2023.
Verdross, Alfred (1937). Völkerrecht[International Law] (in German). Berlin: Springer.
Further reading
Brodherr, Anke (2022) [2005]. Alfred Verdross' Theorie des gemäßigten Monismus (in German) (2ed.). München: utzverlag GmbH. ISBN978-3-8316-8598-1.
Köck, Heribert Franz (1991). "Leben und Werk des österreichischen Rechtsgelehrten Alfred Verdross". Zeitschrift für öffentliches Recht (in German). 42.
Verdross, Alfred (1952). "[Self-Portrait]". In Grass, Nikolaus (ed.). Österreichische Rechts- und Staatswissenschaften der Gegenwart in Selbstdarstellungen. Schlern-Schriften (in German). Vol.97. Innsbruck: Universitätsverlag Wagner. p.201.
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