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Sir Hersch Lauterpacht: Teacher, Writer and Judge - a Presidential Address

Dorothy Stone

<plain_text><page sequence="1">Sir Hersch Lauterpacht; teacher, writer and judge - a presidential address* DOROTHY STONE His Excellency Sir Hersch Lauterpacht, King's Counsel, Doctor of Laws, Fellow of the British Academy, Whewell Professor of International Law at Cambridge and a judge of the International Court of Justice at the Hague, was a teacher, a writer and a judge whose contribution to the development of international law was exceptional, during a period of far-reaching changes. Hersch Lauterpacht was born in 1897 in Zolkiew, a small village outside Lemberg in that part of Austria that was formerly Poland. His father was a comfortably-off timber merchant who was intensely interested in Jewish affairs, and, like most Jewish parents, he was anxious that his children should be properly educated. To that end the family moved to Lemberg. This move proved very important to the young Hersch, because it gave him the opportunity of meeting other Jewish youngsters, many of whom at that time were becoming interested in Zionism. When war broke out in 1914- Hersch was then seventeen - he was called up for service in the Austrian Army. His service consisted of working in his father's timber factory which had been requisitioned by the military authorities. In 1917 Hersch, along with his friends, arranged a demonstration to celebate the Balfour Declaration. For this he was arrested, and tried by Court Martial, but he was eventually released. In 1918, when the war was over, Hersch was able to continue his studies. He was ready for university, but the University of Lemberg did not welcome Jewish students. He decided to go to Vienna - not that the University of Vienna received Jewish students with open arms; there was a numerus clausus - but he went there because it was the nearest university to home which had a good law school, and away from the Poland he loathed. At this period Austria was going through a period of political and economic stress, and Jewish students, even those who had been accepted, experienced difficult times. It was these circumstances that led Hersch to take a great interest in his fellow students. He seems to have been somewhat of an activist and he was recognized as a leader by his friends. He was elected head of 10-12,000 students, both from schools and the university, and became their spokesman in dealings with school and university authorities. He set up a soup kitchen for them-of which Hitler's sister happened to be the cook and * Address delivered to the Society on 10 November 1982. 102</page><page sequence="2">Sir Hersch Lauterpacht 103 supervisor. In 1919 he founded the World Union of Jewish Students and became its president, while Einstein became its honorary president. Hersch read Law. Professor Kelsen, his first teacher, remembered him as one of his outstanding pupils: 'A youngster of great intellect'. He was, however, unhappy in Vienna. Despite this he decided to stay there to take his degree of Doctor of Laws, and then that of Doctor of Political Science; his subject for the first of them was 'The Mandate under International law in the Covenant of the League of Nations.' At this time he made up his mind eventually to go to England to complete his studies, for he felt that opportunities for his work were likely to be better there than in Vienna. His thesis on the 'Mandate under International Law' was unfortunately not printed at the time, but remained in the archives of the University of Vienna where it was destroyed during the bombing of Vienna in the Second World War. A copy of it was found, however, in Lauterpacht's study after his death and an English translation published in his Collected Papers in 1977. This reveals his thoughts as a young man. Lauterpacht was a remarkable linguist. He already spoke fluent Polish, Ukranian, German and Hebrew, and had a working knowledge of French and Italian. Although he had read a little English, he had never spoken it. Yet soon after his arrival in England - that was in 19 2 3 - he went to enrol at the London School of Economics. He was interviewed by Professor (later Lord) McNair, who held the chair of international law, but they could not communicate at all in English. With McNair's smattering of German, he concluded that Lauterpacht wished to take a doctorate in international law. McNair gave him a list of books of the subject, and told him to come back to see him in two weeks' time. NcNair was staggered when Lauterpacht turned up speaking quite fluent English. He had been to lectures in English for eight hours each day, and with his flair for languages he soon became sufficiently advanced to be able to start work on his Doctorate of Laws immediately. In 1926-three years after his arrival in England - he obtained the degree of Doctor of Laws and a year later was appointed an assistant lecturer at the London School of Economics. From then on Lauterpacht never looked back. In 1935 he was appointed Reader in Public International Law at London University. His original intention had been to go to Palestine when he obtained his English doctorate. He had married Rachel Steinberg, who had been born in Palestine and whom he had met in Vienna where she was studying music. Her family was comfortably-off and her father, together with Hersch's father, had supported them throughout his studies in England. But at that time, there was little or no work for an international lawyer in Palestine, and McNair and Norman Bentwich prevailed upon him to stay in England. They recognized his potential and were sure that</page><page sequence="3">io4 Dorothy Stone he would make more of an impact in England than he possibly could from Palestine, which was then politically a Middle Eastern country of minor importance. So he stayed on in England. In 1938 he was appointed Whewell Professor of International Law at Cambridge - to the most prestigious chair of international law in the world - a position he was to hold for seventeen years until 1955, when he was elected a Judge of the International Court at the Hague-the highest office in his profession. Before this he had been called to the Bar by Gray's Inn in 1936, was made a King's Counsel in 1948 and a Bencher of his Inn in 1955. In 1956, nearly two years after he had become a judge, he was knighted. In 1959 Lauterpacht was paid a great compliment by the Calvinist University of Geneva when, on the occasion of its 350th anniversary, it conferred an honorary degree on him, the only Jew to receive one, in the presence of 150 vice-chancellors from universities throughout the world. This gave him much satisfaction. Over the years he received many honorary degrees from both British and foreign universities. These are the facts of Lauterpacht's career. They speak volumes for his industry and for his scholarship. They also reflect his character and that of his colleagues, some of whom had known him from the day of his arrival in England and had watched his career with wonderment. Apart from one or two exceptions they never displayed any hostility towards this foreigner and Jew. I hope I have not conveyed the impression that Lauterpacht was a 'dry-as-dust' lawyer. Indeed, he did not enjoy small talk, and I recall that he was quiet and reserved with people on first meeting them. There was certainly little evidence of the activist he seemed to have been in his youth. Yet he enjoyed entertaining his friends and pupils at his home in Cranmer Road, Cambridge, where he and Rachel encouraged them to come frequently. He liked a game of chess, using one of the many antique sets which he had collected. He could play a Beethoven sonata on the piano quite adequately and he enjoyed collecting Georgian English silver. He was also a constant traveller abroad. As a teacher, Lauterpacht impressed his pupils with his great personality. He took a keen interest in their welfare and was ever ready to help them if help was needed. He never failed to praise when he felt praise was due, and he gave much pleasure when he said 'that was very nice' about someone's work. He greatly enjoyed the companionship of his cleverer pupils whose minds were attuned to his. He never gave tutorials, but by frequently inviting them to his home he was able to get to know them intimately. His lectures were a great success. A former pupil has described his lectures at Cambridge in the following words: 'To attend Lauterpacht's lectures was like experiencing an art of supreme quality. He was the focus of his packed class</page><page sequence="4">Sir Hersch Lauterpacht 105 because of his dignified figure, his flow of crystal-clear exposition and balanced sentences, his elegantly phrased criticism and sound humour. He never used notes and it was astonishing how in the course of an hour he would develop a theory, substantiate it with numerous examples from international practice and express his own opinion on most of the issues - all this in the most easy and confident manner. His were the only lectures in all my student life in which I did not take notes. I was so fascinated. I did not want to divide my attention. We were deeply devoted to our great teacher.' Professor Baxter, also a former pupil, who became an eminent professor of international law at Harvard Law School and later a US nominated judge of the International Court of Justice, wrote: 'The listener could feel himself the spectator of the ultimate stage of a process of intellectual creation, rather than an auditor. The power of his lectures had a strong appeal for all his students and the large room in which he lectured was always filled.' Incidentally, King Peter of Yugoslavia was sent to Lauterpacht as a private pupil while he was living in exile in England. In addition to his chair at Cambridge, Lauterpacht was a visiting professor at the Hague Academy of International Law, as well as at many universities in America. He was a prodigious worker, finding time to serve on many committees in his field: the British War Crimes Executive from 1945 to 1946 and the International Law Commission of the United Nations from 1951 to 1955. During his time on the Commission, Lauterpacht served as its general rapporteur and was also special rapporteur on the Law of Treaties. He was frequently consulted by many governments. In the first two years of the Second World War, before the United States entered hostilities, he played an important role in providing the US Attorney General with legal arguments to justify the qualification of America's neutrality in favour of Britain by the adoption of special arrangements. This led to a flow of armaments reaching Britain. As a writer Lauterpacht's contribution was enormous - in fact there was hardly a branch of international law that was not carefully examined by him. He wrote five books and many articles dealing with the development of international law - works of original thought which have proved most useful to jurists and practitioners alike. His first book, 'Private Law Sources and Analogies of International Law' was his thesis for his London Doctorate and was published in 1927. His second, 'The Functions of Law in the International Community', appeared in 1933. The third book, 'An International Bill of the Rights of Man' was published in 1945, encouraged and assisted by the American Jewish Committee. This work had a profound influence in the development of the human rights movement in the years immediately after the War. A second edition appeared in 19 5 o under the title 'International Law and Human Rights'. A fourth book, 'Recognition in International Law' was</page><page sequence="5">io6 Dorothy Stone published in 1947 and a fifth, 'Development of International Law by the International Court of Justice', in 1955. These books foreshadowed the stance he would take as a judge, and each has become something of 'a classic in the modern law of nations'. A fellow jurist writes, 'There is a fundamental unity in all these works, inspired by a moral earnestness, and a belief in right and justice, and that right and justice will prevail.' At the request of the British Government, Lauterpacht revised Part 2 of the War Office Manual relating to the law of war on land. One of his tenets was that obedience to the order of a government or a superior, whether military or civil, or to a national law or regulation was no defence to a charge of committing a war crime, but that it may be considered in mitigation. This caused somewhat of a furore at the time. This defence, of 'superior orders', was pleaded during the Nuremberg Trials in 1945 on behalf of the Nazi War Criminals, but was totally rejected. Lauterpacht had played some part in the establishment of the Nuremberg Court, which was an International Military Tribunal, and he had assisted both Mr Justice Jackson, a Justice of the Supreme Court and Chief Prosecutor for the US, and Sir Hartley (later Lord) Shawcross, chief British prosecutor in the preparation of the cases against the major war criminals. The facts that Lauterpacht was a Jew and deeply moved by the tragedy of his co-religionists, and that he had lost so many members of his own family in the Holocaust, must have motivated him to play an active part in helping to bring to justice many of those who had committed these crimes against humanity; not out of any spirit of vengeance, but in the hope that by exacting the full penalty on this occasion, a similar catastrophe might never occur again. In addition to his original writings, Lauterpacht was an outstanding editor. His editorship of Oppenheim's International Law spanned twenty-five years. There had been four editions of this - the definitive work on international law - before Lauterpacht took over. He brought out another four editions of the first volume and three of the second. A further edition of volume one was in preparation when he died. So thorough and meticulous was his work - every word added or subtracted was necessary to incorporate all new developments in the law throughout the years-that it was acknowledged as being principally his work and became known in legal circles as Lauterpacht's Oppenheim. The work became indispensable in every law library and embassy throughout the world, and although it is nearly thirty years old it is still the book to which international lawyers turn when faced with a problem. Had he not become the editor of Oppenheim, in all probability he would have written his own book on international law. Notes for one were found when he died, and some of the chapters appear in the first volume of his Collected Papers. He also edited one of the two most important international law periodicals</page><page sequence="6">Sir Hersch Lauterpacht 107 in the English language. The utmost patience and scholarship, as well as tact, was demanded from him and his special skills were much appreciated by all his contributors. Another of his major contributions to the materials of interna? tional law was the initiation in 1929, together with Professor McNair of the Annual Digest of International Law Cases - later to become the International Law Reports - and now extending to over sixty volumes. This series, containing decisions of international law, and of national tribunals on matters of international law, is an indispensable source for any international legal research. Had Lauterpacht been no more than a teacher or writer he would have left his mark, but he went on to greater heights, to become a Judge of the International Court at the Hague in 1955. The International Court was set up in 1945 by the United Nations as its principal legal organ. It consists of fifteen judges, who are elected by the General Assembly of the Security Council of the UN on the nomination of a member state. There is only one nomination from each state, so Lauterpacht was the only British judge. Once elected, a judge is completely independent of national interests and must exercise his powers impartially. He served for only five years, until his death in i960. He could have served for nine years had he lived. The nature of the Court's work makes it impossible to hear more than two or three cases each year - there is so much evidence to be heard, so many papers and documents to be studied, as well as much research to be done into the complexities of the cases before the Court. Furthermore, Lauterpacht had advised on one particular case before his appointment, and thus was precluded from sitting on this case when it came before the Court. All in all, Lauterpacht participated in only ten cases. In eight of these he delivered a separate judgement or declaration, arriving at the same result as his fellow judges, but for different reasons, in five cases, and dissenting from them in three cases. This statement might lead one to the view that Lauterpacht was by nature a dissenter. One must, however, understand the nature of international law. It is less developed than systems of national law, and the accumulation of case-law is smaller. In practice, situations arise for which there are no ready precedents. Thus there is plenty of scope for creative thinking and for the identification and development of principles. Lauterpacht was ideally equipped for this judicial task. He regarded the law 'as a vehicle for ethical values and moral ideals'. To this end he would apply his tremendous knowledge, acquired both in Vienna and in England, from editing Oppenheim, The British Yearbook, the International Law Reports, and from writing five important books. He had firm ideas as to how he wished to see international law evolve. With all this he was courageous. He believed that moral and legal principles</page><page sequence="7">io8 Dorothy Stone apply to the conduct of states in the same way as they do to individuals; that public international law is simply the law which applies to an individual on a wider scale - it is a law above states; that treaties between nations are like contracts between individuals, binding on its signatories; and that it was one of the primary objects of international society to protect the human rights of individuals. He was a profound believer in the United Nations' aim to promote an order based on justice and mercy and to preserve peace. I am sure he would be saddened to know how the character of the United Nations has changed and how in that body subjective considerations of national interest have so largely replaced objective considerations of what is right and equitable. It could prevent neither the battles over the Falkland Islands nor the war in the Lebanon. Not even the Helsinki Final Agreement on Human Rights could prevent the Sakhoroff and other cases in Russia, or the terrible atrocities in South America. The international lawyer can and must guide, and Lauterpacht brought standards of rightness and reason with him to the Hague Court that led his fellow judges to hold him, dissenter or not, in the highest esteem. This is not the place to go into great detail about the cases on which he adjudicated. There are, however, three decisions on which I would like to comment briefly, because Lauterpacht especially displayed in them his judicial talents. He was not content to adjudicate solely on points of law raised by the parties appearing before him. He thought it his duty to examine every point of law, raised or not, that might be relevant to the case, and it was this fact, and the fact that his decisions were written so clearly, that raised his judgments to a standard attained by few of his fellow judges. He wrote a most courageous separate judgment in the case of 'Certain Norwegian Loans' between France and Norway in 1957, and another later in the similar 'Interhandel' case between Switzerland and America. In each, France and the US, although accepting the compulsory jurisdiction of the Hague Court, had added an exclusion not to litigate on disputes falling within their domestic jurisdiction as determined by themselves. Lauterpacht held that this reservation was not compatible with the statute of the Hague Court. The impact of this decision was great and went a long way in discrediting what became known as the 'automatic reservation'. Another case in which he gave an important judgment was that relating to the guardianship of infants - a child had been taken out of the jurisdiction of its native country, Sweden, to Holland. There existed a treaty relating to guardianship between these two countries, but Sweden had passed an internal law altering its terms. In spite of this, Lauterpacht agreed with his fellow judges that the child should be returned to its grandparent in Sweden, on the grounds that the welfare of the child was paramount - adopting the principle of the</page><page sequence="8">Sir Hersch Lauterpacht 109 English Act, the Guardianship of Infants Act of 1925 - but he went on to hold further that an agreement between the two states cannot be altered by an internal law passed by one of the contracting states. The third case which I wish to mention relates to the position of South Africa and Southwest Africa. Southwest Africa was mandated to South Africa by the League of Nations. But the League of Nations was disbanded and the United Nations set up in its place in 1945. A legal problem arose. Did the Mandate continue, and on what terms? The Hague Court had given an advisory opinion in 1950 (before Lauterpacht was a judge), deciding that the Mandate continued on basically the same terms as under the League. But the same terms no longer existed - the voting powers of the United Nations were different from those of the League, and South Africa contended that they were more onerous - so the Voting procedure' case came before the Court. Lauterpacht gave a separate opinion on the point - on the degree of supervision that the UN might exercise over Southwest Africa - and in this connection expressed some important views on the effect of resolutions of the General Assembly. He reached the same decision as the majority of the Court, but was critical of the judgments of his colleagues. He did not consider that a bald statement in the affirmative was enough. He felt that an international court should not behave in the same way as, say, an English Magistrate's Court, but rather as a Court of Appeal or a House of Lords, giving detailed argument and comments in its judgments. For instance, Lauterpacht made no bones about the fact that Apartheid was abhorrent to him. On the other hand, when valid points in favour of South Africa were made, he was prepared to concede them. Although independence has since been declared for Southwest Africa under the name of Namibia by the United Nations, South Africa ignores this fact and still clings to the territory, doubtless because of its strategic position. It is unfortunate that the International Court has so little power to enforce its judgments. The use of force would be out of the question and sanctions are difficult to enforce. There are always nations prepared to break them for financial reasons, as we have seen in the case of Rhodesia. Lauterpacht was deeply conscious of being a Jew. Although he took little or no part in the Jewish life of England, he certainly enjoyed the company of Jewish students, as he earlier had in Vienna. In England he frequently visited the summer schools of the Inter-University Federation of Jewish Students, and my late husband told me that when he went to the Jewish Students' Centre in Warsaw in 1935 he found Lauterpacht there chatting with a group of them in Polish, completely at home. He was consulted a number of times by the Jewish Agency on the interpretation of the Palestine Mandate. On the occasion of the twenty-fifth</page><page sequence="9">no Dorothy Stone anniversary of the founding of the Hebrew University he was invited to deliver two lectures. This he did in Hebrew and in English. One of them included the words: 'What can be more fitting than that the discipline of the rule of law among nations should be taught in the city of the prophets who first proclaimed, in resounding accents, words which will stir mankind even after the Federation of the World has become a reality, expressing the ideal of international peace and brotherhood.1 This idealist and optimist was devoted to the land of Israel, as well as to the concept of a National Home and a State of Israel. It was fitting that his family and friends should have established a Chair of Public International Law in his memory at the Hebrew University. Lauterpacht died too early - at the age of 62 in i960 at the height of his mental powers. His achievements were enormous. He had used his original mind to the full as a teacher, as a writer and later as a judge. His honours were richly deserved. Among the eulogies that were delivered at the time of his death by his fellow judges at the Hague Court, one said, 'We shall remember Hersch not only for his learning but as a man who combined with his great scholarship, great qualities of gentleness, kindness and consideration'. Another talked of him as one of the greatest international lawyers of his time, perhaps of all times, and yet another called him a prophet with a Messianic vision. Lauterpacht was so deeply appreciative of the kindness, affection and opportunities he had received in England, particularly in Cambridge, that he expressed a wish to be buried there. He belonged, however, not only to Cambridge but the wider world. As Professor Jessop, an eminent American Jurist, said: 'The contribution of a great international lawyer like Hersch Lauterpacht cannot be local to the Europe in which he grew up, nor to the England in which his skills bore such rich fruit.' Had he lived at the present time I am certain that his voice would have been heard loud and clear throughout the world condemning extremism and intolerance everywhere. He would have been one of the few trying to save us from the abyss, and would have upheld the rule of law and promoted the cause of peace, as he did throughout his life.</page></plain_text>

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