Professor Sir Elihu Lauterpacht

By Lesley Dingle and Daniel Bates

  • Born 13 July 1928, London
  • Evacuated to USA 1940
  • Philips Academy, Massachusetts, 1940 - 44
  • Harrow 1946
  • Trinity College 1950
  • Whewell Scholarship 1950
  • Called to Bar (Gray's Inn) 1950
  • Cambridge University Assistant Lecturer 1953 - 58
  • Cambridge University Lecturer 1958 0 81
  • Cambridge University Reader in International Law 1981 - 88
  • Honorary Professor of International Law 1994 -
  • Founder & Director Research Centre for International Law 1983 - 95
  • Legal Adviser to Australian Government 1975 - 77
  • Ad hoc Judge, ICJ, Bosnia v Yugoslavia, 1993 - 2002
  • President World Bank Administrative Tribuanl 1996 - 1998
  • Order of Bahrain 2001
  • President Eritrea v Ethiopia Boundary Commission 2001 -
  • CBE 1989
  • Knighted 1998

When Elihu Lauterpacht was born in Cricklewood, London, on the 13th July 1928 his father, then Dr Hersch Lauterpacht, and his mother Rachel, had been in England only five years. Remarkably, in this short time Dr Lauterpacht had become thoroughly proficient in English and had completed a London School of Economics thesis (Private Law Sources and Analogies of Public International Law). This aroused much admiration, and on the strength of it he was offered an assistant lectureship at the LSE. This is even more remarkable when it is remembered that hardly a dozen years earlier he had been working his own father’s timber plant in Lemberg (now in westernmost Ukraine), which had been declared a strategic resource by the Austrian Government in the early stages of the First World War.

During the early 30s, Dr Arnold McNair, Professor at the London School of Economics was his mentor, and before Eli had reached his tenth birthday, his father had written a further tract which established his name on the international stage (1933, The Function of Law in the International Community). With this, Hersch Lauterpacht’s reputation was now such that he followed McNair to Cambridge as the Whewell Professor of International Law (when the latter moved to Liverpool in 1937). Elihu ultimately followed a similar a path to his father into the field of international law. It was at this moment, therefore, that the die was cast for the symbiotic association that was to persist between the Law Faculty at Cambridge and the two Lauterpacht legal scholars, for over sixty years, and is still ongoing.

In summarising Sir Eli’s memories, one is conscious that while in his own right he has pursued an illustrious career, combined, the father and son have bequeathed to the Faculty a legacy that is not only remarkable, but unique. Although in purely legal terms their careers followed different trajectories, if only as a result of major developments in the sphere of international law with the passage of time, I believe that the final total is greater than the sum of the parts. Because of this it is not fruitful to fully disentangle the achievements of the son from the influence of the father.

My interviews with Sir Eli spanned more than six hours, and have produced nearly one hundred pages of transcript, making them the most comprehensive series of recollections we have so far compiled for the Eminent Scholars Archive. A further aspect that sets these interviews apart from the others is the wide range of topics and legal cases with which Sir Eli has been involved, as well as the large numbers of personalities that he mentioned.

To accompany the ESA, we have compiled a cross-referenced index to personalities mentioned by each eminent scholar. Since we have interviewed only people from within the Faculty, it is not surprising that many names crop up repeatedly. The index highlights Sir Eli’s range of contacts in law, politics and diplomatic circles. In this regard, it is a reflection of two intertwined, but distinct, career paths - a conventional, academic calling within the Faculty (his progression from assistant lecturer to Honorary Professor) and a parallel involvement in legal practice in International Law at the highest level both as counsel and in a range of judicial appointments. These two strands have been brought together in a unique manner through his founding and directorship of the prestigious Lauterpacht Research Centre for International Law. This facility straddles the boundary between the academic Faculty and practical applications of the subject, and epitomises Sir Eli’s own career, while at the same time it is a living monument to his father’s ideas, ideals and achievements.

What was the staring point of this impressive journey? The Second World War began when Eli Lauterpacht was eleven years old, and when it ended he was no longer a child. It took his youth and in return gave him nearly four years in a culture far removed from what he would have experienced in an austere, introspective Britain on the front line. By sixteen, he had already acquired an accomplished, cosmopolitan outlook that he soon put to good effect and which still shines brightly in his measured, confident, urbane and conciliatory approach to both people and situations. As listeners to his interviews will soon appreciate, Sir Elihu Lauterpacht is man whose family background offered certain opportunities that circumstances, hard work and his innate good nature moulded into a scholar with an enviable international reputation and a delightful repertoire of reminiscences.

In many respects, his childhood was quintessentially English middle class. His father, Hersch Lauterpacht, despite a very heavy work load necessitated by his own efforts to establish a career from scratch at the LSE, provided a stable home life in what Eli recounts as a very happy period: Sunday afternoons with cake for tea, and pleasant holidays at the seaside with picnics on the beach. Even at this early age, the likes of Dr (later Lord) Arnold McNair had befriended him and other legal luminaries had begun to cross his path.

While the gloom of belligerency built over Europe, East Africa and the Far East, against which his father fought for international legal constraints, the family moved in 1937 to Cambridge, where Eli would eventually establish his own career. To the ten year old boy, there were more pressing priorities than war - the headmaster at Kings Choir School (currently Kings College School) had a formidable reputation with his cane, and by his own admission Eli was a somewhat talkative pupil. For a brief period, however, life in Cambridge was close to idyllic, and Cranmer Road of the pre-War era, where the family lived at number 6, was inhabited by eminent academics and professional people for all of whom, Sir Eli has fond memories over seventy years on.

With war in 1939 came the billeting of soldiers in some of the residences in Cranmer Road [1] and for Eli it heralded a turning point in his life. A year later Professor Hersch Lauterpacht, who had been invited by the Carnegie Endowment to take a visiting professorship in the USA, took his wife and Eli on a potentially hazardous journey across the North Atlantic to New England. Embarkation was from Liverpool docks - then a prime target for the Luftwaffe, but as Eli laconically recounted they were spared a “bombardment”. Professor Lauterpacht and his family set sail on the Cunard line the RMS Scythia, whose sister ship, it was announced to the hapless passengers only once they had sailed, had, the previous evening had been torpedoed by U-boats. Ten days later Eli arrived in the USA and a seminal part of his education began.

Although his father was on an academic visit, there were important political overtones to the arrangement. Prior to departure, Professor Lauterpacht had consulted Sir William Malkin [2] at the Foreign Office which was anxious for Hersch to influence certain US academics who were pro-isolationist (for example Professor Edwin Borchard at Yale), in favour of the British war effort. He also subsequently assisted the US Attorney General (Robert H. Jackson, who later was Principal US Prosecutor at the Nuremberg War Trials) to prepare justifications for the US Lend-Lease arrangements for the allies, before making the similarly hazardous return voyage across the Atlantic in early 1941.

Eli had been ensconced in a private school in the Bronx (Horace Mann School) where he remained for just over a year while his mother took a flat nearby. He later moved to the famous Phillips Academy in rural Andover Massachusetts, which he remembers with great fondness, where his schooling was intense and of high quality in an establishment boasting gyms and swimming pools. He was fortunate to fall under the wing of Louise Overacker, a noted political scientist and woman’s right activist who taught at the nearby Wellesley College, and took Eli to concerts in Boston, while giving him hospitality during his holidays. Although his mother had eventually returned to England in 1943, Eli stayed at Andover until June 1944 when he graduated, and then himself had to make the still not hazard-free sea journey home. His experiences in America, aside from the purely educational aspects, had left Eli to fend very much for himself, and had taught him self-reliance and the ability to organise his life.

Once back in England, despite rationing and the uncertainty of an ongoing conflict, wartime conditions had little effect on him he readjusted to life in Cambridge. As the war in Europe ended and the University at Cambridge began to awaken to the new world order, Eli successfully took the entrance exam to Trinity College so that he arrived to start the new year at the same time as the first returning ex-servicemen. Many men arriving at university in October 1945 were mature and worldly, having served in battle and held positions of military authority, but Eli recounted how surprisingly tolerant and kind he found them to a seventeen year old. He, of course, being well tuned to academic studying, was able to help them ease back into academic life - so it was a mutually beneficial experience during which he made many good friends.

Despite his legal background, Eli had chosen to read History, and it was two years before he realised the folly of his ways. Unable to empathise with the niceties of Charlemagne or the Dark Ages, he was guided by George Kitson Clark, his history director of studies, and rescued, for the benefit of international law, in the nick of time. At last on the right course, he completed his Law Tripos in 1949, and the stayed on for a further year to read for his LLB, at the same time taking his bar exams, which he completed in 1950.

Now he stood at a cross roads in his career, and recalled an incident during that last year at Cambridge which seems to have been seminal in the direction that he ultimately took. Essentially, he was faced with a choice of concentrating on an academic career of teaching and research, or of using his legal skills more widely, which was his inclination.

The incident which has stuck in his memory was a conversation with his father while they walked home for lunch one day between the Old Schools and Cranmer Road. Eli was expressing his dissatisfaction at the prospects of a teaching career and quoted George Bernard Shaw on the perception that it was somehow a second best option. His father conceded that there was an element of truth in this, but advised that, when all was said and done, it was “a good life”.

It must be remembered that his father held a senior chair in the Faculty (Whewell Professorship) and had recently made a major new contribution to International Law (he completed his first post-war text in 1947: Recognition in International Law [3]). He was also at that time involved with matters emanating from the newly-formed United Nations (e.g. advice on drafting the Israeli Declaration of Independence, 1948, and the International Law Commission) and in legal-technical advice to British and US prosecutors at the Nuremberg War Crimes Trials (1946). He was a man of considerable experience both at the coal-face of academia, and also at the cutting edge of international law-making. In the end, Eli followed his own nose into the world of extra-mural legal practice, but his father’s wise words touched a deep enough chord to allow himself to be drawn back into the orbit of academia, when the occasion arose a few years later.

Initially, however, Eli Lauterpacht struck out and moved to London, where in October 1950 he became a pupil in commercial chambers in Essex Court. Here he was fortunate enough to fall under the exacting care of John Megaw, for whom Sir Eli still has nothing but praise. Megaw was an “irascible” Ulsterman, who, after he took Eli under his wing, was knighted and became Lord Justice of the Appeal Court. The high standards with which he imbued his young pupil stood Eli in good stead. Work was hard but varied: Commercial Law, Insurance, Shipping Law, Banking and so on, and although earnings were low and Eli had to “eke out” an existence, he confesses to having a very agreeable bachelor life in a shared house in Albany Street. This included presenting himself at Chambers in the City almost daily in the, then, statutory pinstripe suit, bowler hat and furled umbrella.

In the meantime (summer 1950), Eli’s links with Cambridge (his father and Professor Hamson were on the committee) allowed him to establish his own foothold in the practical matters of International Law, by being drafted in as a researcher in the Foreign Office archives and compiling a large memorandum for Lord Justice Somervell’s report on diplomatic immunity.

What with the pressure of his new life and impecuniousness bearing down up him, his father’s endorsement of the rewards of academia still resonated and he took two part-time teaching positions. During week-day evenings Eli lectured at the LSE, and at weekends he took himself off to Cambridge to give Friday evening and Saturday supervisions at Trinity College. He even found time to fit in some lectures in the Law Faculty on the Law of International Organisations and the Law of War, at a time when staff numbers were still very low and the establishment top heavy with senior staff. As he put it, this was “really quite a demanding schedule”, and he was introduced to the joys of lecturing on subjects about which he knew little and where it was only by dint of furious preparation that he could keep himself five minutes ahead of his class. But hard work and application have been Lauterpacht hallmarks and Eli’s efforts did not go un-noticed. Simultaneously, the authorities at the LSE (in the form of two men for which Eli retains very high regard: Sir David Hughes Parry and Professor Jim Gower), and at Trinity College, both offered him full-time teaching positions.

He was torn, and during our conversation, it was clear, even at this distance in time Eli is not convinced he made the right decision in early 1953, when he chose to return to Cambridge on the strength of that university’s shorter teaching year - effectively 20 week in contrast to 30 in London. What made the decision so difficult was the tantalising suggestion by the LSE that a chair would have been in his grasp within five years: by the time he was 30 years old, he could have been a full professor with all the opportunities that may have entailed. But, as he reminisced, there is no point in speculating over such possibilities, and within a few months he was preparing for his first brush with the International Court of Justice - the first of over twenty in a vocation extending over fifty years and involving international litigation in a wide range of guises [4].

Sir Eli’s involvement in ICJ cases was, with one exception, as counsel or in some other capacity for one of the litigants. Eleven of these were some form of border dispute that invariably involved meticulous historical research, while others involved human rights, environmental, and various trade-related and commercial issues. The one exception was his appointment as an ad hoc judge in the Bosnia/Yugoslavia genocide case (1993) that arose out of the Balkan conflicts. Here he gave a highly significant separate opinion on the status of UN Security Council resolutions vis a vis the rule of jus cogens, that has become the basis for the notion that the ICJ may be able to rule on the legitimacy of the Council’s resolutions that appear to conflict with the rule [5].

His first practical involvement with the ICJ was in the famous Nottebohm case [6] in 1951, when he was drafted in to prepare the Memorial through his association with Mr Lowenfeld, a solicitor in Cambridge, and though he was not formally instructed to appear, he assisted in court when it sat in The Hague on 10th and 18th November 1953. This must have been something of an ordeal for the 25 year old (although his friend Arnold McNair was presiding, so there was at least one familiar face on the bench). Interestingly, when Eli was unable to continue though pressure of work, his place was taken on the case by another of our eminent scholars, Kurt Lipstein [7].

These cases were interspersed, and in many instances ran concurrently with an almost bewildering variety of negotiations, tribunals, high court cases, arbitrations, and official governmental contacts in a variety of overseas locations, so that Sir Eli’s experience became, almost literally, of world-wide compass. Talking about them clearly brought back many happy memories, and throughout his recollections there is a vein of enthusiasm that spoke of adventure and the joy of learning. A good example is of his involvement with a group of lawyers representing UK and US oil companies sent to negotiate in 1954 with the Iranian government the settlement of its nationalisation of Anglo-Iranian assets - the so called Consortium Agreement. Eli described this experience as “great fun”, and we have included a charming photograph of him clearly enjoying himself in the shady garden in which they worked in Tehran. A further example was his recollection of his amusing adventures on a Chilean naval boat while visiting Patagonia for the 1973 Beagle Channel case. There are many other examples in the interviews. In addition to the ICJ, Sir Eli had official positions/links with the Permanent Court of Arbitration, various offshoots of the World Bank, the UN Compensation Commission, NAFTA and the US/Iran Tribunal. Although life in this field may have been hectic, he seems to have enjoyed it to the full, and it is instructive that since his official retirement from the Faculty in 1995, Sir Eli’s involvement in international activities, and the ICJ in particular, increased.

One interlude which gave Sir Eli what he called “probably one of the best periods of my life” was a three year spell as legal advisor to the Australian Department of Foreign Affairs (1975-77). This resulted from his involvement, along with Professor Daniel O’Connell [8], in the ICJ Nuclear Test case brought by Australia against France. The Australian legal team had been so impressed with Eli’s performance that they persuaded the Prime Minister (Gough Whitlam [9]) to offer him a three year appointment in Canberra. Much of his time was spent outside Australia, with visits to Japan, South America, and most importantly, the United Nations where he represented the Australians in their delegation to the General Assembly and also at the Law of the Sea Conference. He described this time as a “wonderful three years”.

Clearly, the large volume of legal work undertaken by Sir Eli during his years in international fora physically dominated his life, and when I asked him at the end of our conversations for his own assessment of his achievements, he was conscious that through his ability to construct clear, logical legal arguments and to have had the opportunity to expound these on an international stage, he has made an important contribution to “British practice in International Law”. This was a sober, considered opinion - as he put it modestly, “I have been a good practitioner” and is clearly one shared by his peers - his latest honour (2006) is to have been made a member of the British group on the Permanent Court of Arbitration, of which he has also become the convener.

It is important, however, not to lose sight of his other achievements, and these lay in three main areas: teaching, research and publishing. After he became an assistant lecturer in the Faculty in 1953, he worked his way up the academic ladder, during the course of which he taught numerous students, many of whom have gone on to pursue successful careers of their own [10]. Even after retirement, he continued to teaching and gave courses in International Law at the London School of Economics (1995) and in 1996 was invited to give a course on Principles of International Litigation at the Hague Academy of International Law. Throughout the conversations it was plain that he has not only derived pleasure from his teaching activities, but saw them as of benefit to his own career in International Law - forcing the teacher to consider aspects beyond those necessary for a particular piece of litigation.

In all academic subjects, teaching and research are closely interwoven, and one of Sir Eli’s lasting legacies will be the Lauterpacht Centre for International Law, which he founded as the Research Centre for International Law in 1983. He described how, with the help of Professors Clive Parry [11], Robbie Jennings and Derek Bowett, he set it up as an umbrella under which to undertake various tasks, such as his editing of the International Law Reports. It was only in 1985 that the generosity of a private benefactor [12] and of Trinity College allowed the Centre to acquire 5 Cranmer Road (the governments of Bahrain, Malaysia and Singapore later provided further funds to expand into the premises next door - No. 7).

This facility caters for post-graduate teaching and research, and over the years has attracted an impressive succession of distinguished international legal experts as visitors and Directors, and has become a vibrant Faculty venue, including the Friday talks accompanied by the popular “free sandwich lunch”. The highlight is the annual Hersch Lauterpacht Memorial Lecture. By founding a first class research centre, Sir Eli has created a lasting tribute to his father’s immense contribution to the development of the law in this area.

However, the Centre should also be seen as a lasting tribute to Sir Eli’s own determination to build upon the heritage he was bequeathed by his father. Although he expressed a certain regret that he has not published much of the vast amount of legal material that formed the basis of either his oral or written professional contributions, and that he did not consolidate his academic lectures into a textbook, his published contributions to International Law through the editing of Sir Hersch’s papers and manuscripts (five volumes) are a major resource in their own right.

A further contribution that is a testament to the joint efforts of father and son is their editing of the International Law Reports, where they have an unbroken record of seventy-nine years. Sir Hersch did it almost unaided from 1929-60, and Eli almost unaided from 1961-79. With the growing assistance of Professor Christopher Greenwood, the continuity remains unbroken - a remarkable achievement for a publication to which there are now 134 volumes, 131 of which have passed through their hands.

Finally, one cannot talk to Sir Eli about his career without immediately being impressed by the wide range of personalities with whom he is acquainted, and with many of which he has worked closely over long periods of time. Invariably, Sir Eli speaks generously of them, and the overwhelming impression is of his ability to form long, genuinely warm relationships both at a professional and personal level with both academics and legal practitioners. Consequently, it is not difficult to understand how he has been able to maintain such an effective network over such a long period of time, and I sensed that for him, this pool of good relations is a resource that he cherishes and by which he places great store. As already mentioned, the names of over 160 “personalities” cropped up during our interviews, but such is the esteem in which he places many of them, that Sir Eli devoted the whole of the sixth interview to reiterating generous praise for nearly thirty of them (almost all of whom deceased), and to many of whom he was grateful for some crucial role in his training and general career development, as well as for their friendship.

Sir Elihu Lauterpacht has led a full life and has involved himself with a with range of activities and initiatives for which there is not space enough to refer in detail. I have been able to mention only the broadest aspects of his achievements, which have been listed as a heading to this short account. He and Lady Lauterpacht welcomed me to our interviews at their beautiful home with charm and kindness. I thank them both for their kind hospitality and for the opportunity to record some of his memories, and to copy many of his photographs for the ESA.

 

Lesley Dingle - Acquisition and Creation of Content

Daniel Bates -  Visual Presentation, Technical Enhancement and Audio Editing


Footnotes

1

Similarly recounted by Mr Micky Dias in his reminiscences of Trinity Hall, while another of our eminent scholars (then Dr Kurt Lipstein) recalled internment.

2

Who had been part of the British delegation to the 1938 Munich Conference to discuss the issue of Czechoslovakia with Hitler and Mussolini.

3

Which Koskenniemi called Sir Hersch’s last “political” work (2001 p. 638, in Jurists Uprooted), and on the basis of which Lauterpacht (1950) publically criticised the British Government’s recognition policy towards the “ Communist Government of China.”

4

Listed separately elsewhere on this website

5

For example see van de Herik 2007, LJIL, 20, 797-807

6

Liechtenstein v Guatemala

7

Who named his splendid Amstrong-Siddley Hurricane coupe “Nottebohm” in memory of his involvement. There is a photograph of it, with Professor Sir Robbie Jennings in 2001, on Professor Lipstein’s ESA site.

8

An ex-student of Sir Hersch’s who was then Chichele Professor Public International Law at Oxford.

9

Who was dismissed later in 1975 by the Governor-General during a constitutional crisis.

10

For example Professor Gillian White, the first Englishwoman to be appointed to a Law Chair in England (Manchester), and Professor Christopher Greenwood at the LSE.

11

Who died in 1982, before the centre was officially initiated.

12

The late Edward St George (1928-2004).