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Australian Year Book of International Law |
Douglas Hassall[*]
Time diminishes, and frequently obliterates completely, the memory of historical particulars, yet the truly fundamental questions applicable to all people in all ages and epochs endure forever. Much in the law is strictly particular and localised, but it is usually informed or qualified by principles of justice which are of quite general application. These two things, the national and the universal, have traditionally competed for the jurist’s attention and in the contemporary world, they increasingly find a meeting place in the modern law of nations. International law is now taught in most of the major universities throughout the world and in all of the larger universities in Australia. Yet it was not always so. This article recalls the professional life of, and also pays tribute to the work of one of the pioneers in developing the study and teaching of that subject in Australian law schools, Archibald Hamilton Charteris MA LLB (1873–1940), Challis Professor of International Law and Jurisprudence in the University of Sydney from 1921 until 1940.
Professor Charteris was born in Scotland and educated at Edinburgh, Koblenz and Glasgow. He first worked in law offices and from 1904 to 1919, lectured in Public and Private International Law at the University of Glasgow. He held posts in the British Admiralty and British Intelligence relating to the Allied Blockade during the First World War. He spoke the French and German languages fluently and immediately after that war, he was Legal Officer assisting the Berlin agent of the clearing house for enemy debts. Whilst the incumbent of the Challis Chair at the University of Sydney, he was often a member of Australian delegations to international conferences during the inter-war years. In the 1930s, he also became very well known to the Australian general public as an informed commentator on European and international affairs, by way of his regular newspaper and journal articles, his public lectures in Sydney and particularly his frequent radio talks for the Australian Broadcasting Commission.[1]
Courses in international law were first offered at Australian universities in the late nineteenth century, that at the University of Melbourne being the first.[2] Among the best known of the early teachers of the subject in Australia were Professors Hearn at Melbourne, Pennefather and Coleman Phillipson at Adelaide, as well as Sir William Harrison Moore, who held the chair as Professor of Law at Melbourne from 1892 to 1927. However, it was Pitt Cobbett at Sydney University, who really developed the foundations for the teaching of the subject in this country. Pitt Cobbett MA DCL (Oxon) an English lawyer born at Adelaide in South Australia, was appointed Challis Professor and Dean of the Law School at the University of Sydney in 1890 and taught there until 1910. He was an authority on Public Law, and his Leading Cases and Opinions on International Law and other writings earned him a worldwide reputation as a lawyer and scholar in this field. Indeed, Pitt Cobbett’s work is today still sometimes to be found cited, both in international law studies and also in its jurisprudence.[3]
In 1940, Sir John Peden, a later distinguished Dean of the Sydney Law School, wrote of Pitt Cobbett that
throughout the whole of his term as Professor of Law, Dean of the Faculty, and Fellow of the Senate he lived up to his own high standards of industry and thoroughness in his efforts to provide for the systematic training of cultured lawyers with an outlook beyond the technicalities of their profession and for the adequate equipment for their responsibilities of those who were to be concerned in public administration or in public life. He had a vision, too, at least as early as 1909, of the time when Australia would send and receive ambassadors, and the Law School would have its part in the education required for a Commonwealth diplomatic service.[4]
Peden noted also that the Prime Minister WM Hughes KC and Sir Robert Garran had been so appreciative of Pitt Cobbett’s active and useful contributions as an international lawyer that after World War I, the “Commonwealth Government wrote to thank [Pitt Cobbett] ... and to say that his work had given more guidance than any other book dealing with the rights and obligations of the belligerents”.[5]
Pitt Cobbett resigned because of ill-health and retired to Tasmania, working on a full study of the Constitutions of the Australian Commonwealth and States which was unfinished when he died in 1919. Given the solid ground already prepared by him, the University of Sydney’s Senate was anxious to secure a worthy successor to carry on the teaching of Public Law and in particular of International Law. Peden relates the circumstances which led to the appointment of AH Charteris as Challis Professor in 1921:
[w]ith the close of the Great War, and the changes that had come in the concern of Australia with international affairs, the Senate determined on the recommendation of the Dean that his Chair should in effect be divided by the creation of a second Chair with public international law as its main subject, though the new professor would also be responsible for jurisprudence and political science … but at first no candidate fully met the requirements of the Senate, and it was then decided to offer a higher salary, to give a limited right of private practice, and to invite applications for 1921. Professor A.H. Charteris … who had been for sixteen years the lecturer on international law in the University of Glasgow, and had, in the Trade Division of the Admiralty and afterwards in the War Trade Intelligence Department, gained extensive experience of the working of the blockade of the Central Powers during the war, was appointed on the recommendation of a committee, which included Professor A. Pearce Higgins, Sir Paul Vinogradoff and Sir H. Earle Richards.[6]
It was a coup indeed for Sydney University and for its Law School.
Charteris was an international lawyer with a worldwide reputation and he remained “in close touch with the leading international lawyers of his day”[7] in Europe, such as Sir Hersch Lauterpacht at Cambridge University.[8] In 1924, Charteris was one of the three examiners for HV Evatt’s remarkable and comprehensive LLD thesis on The Royal Prerogative including its international law aspects, along with Sir John Peden and Sir William Harrison Moore.[9] A Councillor of the International Law Association and a Member of the Royal Institute for International Affairs, Charteris was closely involved with League of Nations matters concerning Australia as an active League member during the 1920s and early 1930s and published articles on international law in various learned journals. From 1933 onwards, he became a notable, early and public critic of Hitler’s National Socialist regime and he was later to write a series of useful notes in the Australian Law Journal in 1939–1940 analysing some key international law issues arising out of the war with Nazi Germany.[10] Under the auspices of Sydney University, Charteris arranged his lecture notes into a short introductory book for use by Australian students of international law, which appeared after his death in 1940.
Charteris’ background, together with his special wartime experience, his fluency in the German language and his knowledge of German history and cultural traditions, placed him in a particularly good position to understand and to interpret for his academic, press and broadcasting audiences the steady drift of Germany into Nazi totalitarianism and international aggression. Like Sir Stephen Roberts, his distinguished colleague and Challis Professor of History at Sydney University,[11] Charteris was very early upon the scene as a commentator on events in Germany. Especially after Hitler assumed the Chancellorship in January 1933, Charteris’ articles on Germany appeared frequently in the Sydney Morning Herald and, in addition to his radio talks, he gave several public lectures in Sydney about the dangerous trend of Nazi policies and the menace which Hitler posed to the international legal order and thus also to world peace.
Examination of contemporary Parliamentary debates shows that during the mid–1930s, Charteris’ legal opinions on matters of international law were often cited and relied upon in the Australian Federal Parliament, along with those of the Attorney-General RG Menzies KC and Sir Littleton Groom KC, for example in the context of the debate on sanctions to be imposed by Australia, as a member of the League of Nations, against Italy following its invasion of Abyssinia in 1935.[12] This again shows the extent of Charteris’ active engagement with current legal issues as a scholar and practising lawyer, building upon his previous experience in Britain and in international affairs to provide tangible assistance to the Australian nation in a relatively new field. Australia’s foreign service was then still fledgling, the Department of External Affairs only having been established as a separate entity in 1935 in response to Australia’s developing status as a Dominion after the Statute of Westminster and also to the international tensions then current.[13]
Charteris’ early entry to the field of criticism of Adolf Hitler and Nazism in the pages of the Sydney Morning Herald newspaper commenced with his article of 15 April 1933 discussing the German political situation, Hitler and the Nazi Party.[14] This was followed up by a critical discussion of the National Socialists’ so-called “reforms” of the German legal system, published in Sydney on 8 May 1933.[15] On 22 April 1933, Charteris gave a public address in Sydney outlining the course of the “Nazi Revolution” (the so-called Gleichschaltung or “national co-ordination”) and making the important point that racial supremacist concepts were fundamental to Hitler’s policy programme.[16] Again, on 30 May 1933 he gave a further address in Sydney indicating Hitler’s aims as a totalitarian dictator.[17] Following the Nazi consolidation of power in early 1934, and immediately after the “Night of the Long Knives” purge crushing the influence of Ernst Roehm’s Sturmabteilung (SA), Charteris wrote an analysis for the Sydney Morning Herald stating that the Nazi Government had sunken to mass murder in a desperate bid by Hitler to retain undivided power.[18]
Charteris’ actions in alerting informed Australians to the real significance and the danger of Nazism, both domestically in Germany and in its foreign policy ambitions, demonstrate responsible and genuine concern by a scholar. He was, by virtue of his personal experience of Germany, its history and political tradition and also his knowledge of international law, well equipped to interpret the significance of events there as from 1933. In this, his conduct as the incumbent of the Challis Chair of International Law stands in very stark contrast to that of another eminent jurist and international lawyer, one Carl Schmitt, then the Professor of International and Public Law in the University of Berlin, who published, for example, an article in the Deutsche Juristenzeitung of August 1934 which attempted to justify in legal terms Hitler’s mass murders and who, along with many other German legal scholars, fell in with the Nazi regime when, like truth in war, the German universities became one of the very first casualties of the Gleichschaltung.[19]
Professor Charteris was again to the fore speaking out on the Kisch litigation in the High Court of Australia, making the point that the abortive use of a dictation test in Scotch Gaelic as a method of excluding Egon Kisch from Australia threw “a cold and unpleasant light” on Australia’s immigration laws.[20] Kisch was of Jewish extraction and a prominent journalist, writer and Communist propagandist.[21] He spoke some twelve European languages, including English but not Gaelic. Born in Czechoslovakia and active amongst German Communists, he had been arrested and imprisoned by the Nazis in Spandau immediately after the Reichstag fire in late February 1933. He was brought to Australia by the Communist-backed Movement Against War and Fascism, and later alleged in his book Australian Landfall[22] that in attempting to exclude him as a prohibited immigrant, the Lyons Government was acting at the behest of the Nazi Government in Berlin through the German Consul-General in Australia, Dr Rudolf Asmis.[23] After further litigation, Kisch left Australia in March 1935 but the dictation test, which Dr Ryan QC has described as “this cumbrous and at least potentially offensive machinery” was not abolished and replaced with a “simple system of entry permits” until the 1950s.[24]
In 1938, Charteris was closely involved in the preparation of a statement by the Faculty of Law on behalf of the University of Sydney’s Senate (of which Mr Justice HV Evatt was an active member) responding with support for
a motion from the Faculty of Law at the University of Amsterdam [noting] with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so-called concentration camps innocent people are without legal procedure subjected to inhuman treatment.[25]
Such expressions of solidarity were more than symbolic. Reports of Nazi persecution of and violence against Jews and others in civil, professional and academic life had been published frequently in the Australian press almost continuously since April 1933.[26] In November 1938, the German National Socialists carried out their notorious Reichskristallnacht pogroms against Jews and following the Evian International Conference on Refugees held in July 1938, by September 1939 Australia accepted some thousands of Jewish, Catholic and other refugees from Nazism under a special refugees migration scheme.[27]
However, refugees from Europe during those years encountered various difficulties on arrival in Australia. In professional fields such as legal practice, German-Jewish and other lawyers could not always readily obtain admission to practise in Australia, and similar problems arose in connection with many refugee applicants for registration in the medical profession. One case in which it seems likely that Charteris was involved, either indirectly or possibly as advising Counsel,[28] was Kahn v Board of Examiners (Victoria). Dr Kahn, a German-Jewish refugee lawyer, was refused admission by the Victorian Supreme Court and he then appealed to the High Court of Australia, which dismissed his appeal, but with Evatt J dissenting as follows:
I think with great respect that the Supreme Court failed to pay sufficient regard to those weighty considerations. The court has no power to prevent an increase in the number of Victorian practitioners merely because it fears ‘overcrowding of the profession’. Despite his alienage, the [Australian] Federal authorities have admitted the applicant to reside in the Commonwealth. He is not only a British practitioner, but has rendered valuable service as a legal adviser to the British Embassy at Berlin. He cannot practise his profession in Germany because he is of the Jewish faith or race. So far, the [Australian] Federal Government while imposing severe restrictions upon entry, have refused to accentuate the consequences of the policy of persecuting Jews which unfortunately has been adopted by a great European nation. No doubt the Supreme Court, if it decided to allow British practitioners of alien nationality to practise in Victoria, would do so only under proper assurances as to character, learning and behaviour: but a general embargo might turn out to be dangerous even to Victorian interests, especially in cases like the present, where the claim is based upon a British qualification. England itself admits aliens to practise as barristers: should Victoria, plus royaliste que le Roi, impose an absolute embargo? In the end a liberal and humane policy is likely to turn out to be wise as well as just.[29]
Happily, an entry in the Australian Law Journal issue for April 1940 discloses that Dr Kahn was ultimately admitted as a Barrister and Solicitor by the Victorian Supreme Court, his having been by then duly naturalised.[30] However, his High Court appeal was no doubt something in the nature of a test case, which, had it been successful, may have assisted even further Jewish and other refugee lawyers in fleeing Nazi Germany for Australia.
When the Second World War broke out in 1939, Charteris wrote several topical articles on matters pertaining to the international law of armed conflict and he remained a strong critic of the National Socialist regime in his radio broadcasts and in lectures at the University of Sydney up until his death in 1940. It is clear that Charteris shared with Mr Justice HV Evatt a profound knowledge of and a deep interest in the development of international law and its study. It would appear that he and Evatt, both active in the Law School and the Senate of the University of Sydney, also shared together their grave concerns about the Nazi attack upon the rule of law in Germany and on individuals’ human rights, a conception that was then only just beginning to receive a clearer, modern expression in international law circles[31] and which Evatt later, as Minister for External Affairs, was to take up and press so strongly in the United Nations after 1945.[32]
In the Sydney University Law School’s 50th Anniversary Book, which must have appeared just about the time of Charteris’ death in late 1940, WS Sheldon provided an insightful record of him as a university teacher and legal scholar. Referring to Charteris’ general approach, Sheldon judged that
[t]he selection of A.H. Charteris for the Chair of International Law at our University was singularly happy. In his background there was a combination of practice with theory which preserved him from the prosy pabula which breed so rapidly without the sanction of responsibility. This was in addition to a constitutional incapacity for smugness.[33]
Sheldon noted the way Charteris used both his knowledge and experience to good effect in teaching:
these years of experience [in the British Admiralty and British Intelligence] are part of the secret of his delightful lecturing. The rules of visit and search have almost an entertainment value when the lecturer is able to show how their application helped to rope in von Rintelen. Being a Heaven sent raconteur, Professor Charteris takes full advantage of his inside knowledge to adorn the tale. His enthusiasm for his subject has proved contagious to nearly a generation of students. His success has been almost unbelievable, for the law student with his [sic] morbid sense of the relevant is inclined to resent his attention being diverted from the parish pump to the Pierian spring. Prima facie, how can the distant charms of article 18 of the Covenant hope to compete against the mercenary blandishments of section 43 of the Real Property Act? International Law is a digression resented by those who in the springtime of their lives have hearts already centred on the implacable pursuit of the legendary six and eightpence.[34]
Yet, Charteris clearly saw law as essentially an applied study rather than a pure one and, as Sheldon relates, his teaching methods in class went well beyond not only the merely didactic monologue but also beyond the kind of disengaged pseudo-dialectic which even today is still employed in many American Universities[35] under the misleading title “Socratic Method”:
Professor Charteris has never believed that an obligation to attend lectures carries an obligation [only] to listen and he has scorned to use the weak man’s sanction of the pale spectre of the February to come. His irrepressible sense of fun has captured all but the earthiest minds and even those unable to spare the time for a serious study of his subject have been improved by the influence of his broad and cultured outlook. Most good partnerships depend on contrast; and in the Law School the most potent, grave and reverend seigneur who rules its destinies is perfectly complemented by the incorrigible elfishness of his associate.[36]
This latter was a reference to the contrast between Charteris’ genuine dialectic in the best traditional sense as opposed to the rather cold and stern didacticism in the law teaching of Sir John Peden, who as a consequence and in the manner of a harsh Victorian schoolmaster, was irreverently known to students, including the late Chief Justice Sir Garfield Barwick, as “Jacko”.[37] Sheldon also recorded the broader side to Charteris’ activity as a lawyer and controversialist in public and international affairs, noting that:
Professor Charteris has not immured himself in the University Law School. His most important work has been giving the public a taste for international affairs. Broadcasting may be referred to, but only as an illustration, because long before the Lord delivered us to the commentators he was forming or actively participating in groups and societies to this end ... Broadcasting gave him an opportunity to widen his range. He is far and away the best broadcaster in this country. He has a natural faculty for communicating to his listeners his culture, wit and kindliness by means of a Glasgow burr which strikes the ear more pleasantly than most symphony concerts. For some reason these talks are less frequent. The air is now preserved for latter day intellectuals who too often are laboriously well informed, congenitally uninteresting, and cacophonous …[38]
Charteris was, as Sheldon indicates above, very active as the Vice-President of the League of Nations Union formed in Sydney during the 1920s and kept in close touch with its London correspondent Sir Gilbert Murray, the Australian classical scholar and Regius Professor of Greek in the University of Oxford. Murray was President of the English League of Nations Union until 1938.[39] Professor Charteris was also a leading legal member of the Australian Round Table Group, other well known Australian legal members of which included Sir John Latham, Sir Kenneth Bailey, Professor Geoffrey Sawer, and later Sir Zelman Cowen and Sir Nigel Bowen.[40] Professor Ivan Shearer’s detailed article on the teaching of international law in Australian law schools[41] lists Charteris’ main publications in learned journals devoted to international law, including for instance, one on “Australian Claims in Antarctica” (1929) and also his papers on “Territorial Bays” given at International Law Association conferences in Berlin (1907) and Paris (1912) respectively.
Charteris was also a regular contributor of articles to the Australian Quarterly, a learned journal of public and international affairs published by the Australian Institute of Political Science, and which had a key role in promoting informed discussion in Australia during the interwar period. Thus in June 1933, we find Charteris published an article on “Germany and the Disarmament Conference”[42] which dealt with issues arising from Germany’s demands for revision of the Treaty of Versailles and also anticipated the problems which arose when Germany unilaterally declared that it would re-arm as from 1934. In 1937, his Australian Quarterly article on “The German Colonial Claim: Historical Background”[43] provided a detailed legal and historical background to an issue of considerable strategic concern to Australia, which then still administered the former German territory of New Guinea under a Mandate from the League of Nations. Charteris also reviewed Egon Kisch’s Australian Landfall in the Australian Quarterly for September 1939.[44]
Charteris’ strong 1935 critique, in the light of the Kisch case, of the ludicrously transparent device of the dictation test under Australia’s then immigration legislation, has already been noted. It originally appeared in Volume 1 of the Proceedings of the Australian and New Zealand Society for International Law, another publication which reflected Charteris’ personal initiative and his efforts to provide a further solid foundation for the study and teaching of international law in this part of the Southern Hemisphere.[45] Although that Society dissolved before the war, one gets the impression that had Charteris lived beyond 1940, it would have been otherwise.[46] Such legal scholars who today enjoy what there remains of academic independence in contemporary Australian universities should spare a thought for those like Charteris who have gone before them. Much is written today about the signal effects of cases like the Tasmania Dams case,[47] the Mabo case[48] and so on. Yet it is salutary to recall that as long ago as 1935, Charteris’ Melbourne colleague and later Commonwealth Solicitor-General Sir Kenneth Bailey was reported in the Australian Quarterly review of the Society’s proceedings, as having caused “a flutter in the dove-cotes by arguing strenuously that the Commonwealth Parliament has power under the Constitution to legislate for the purpose of enforcing the treaties it concludes with other nations”.[49]
However, in addition to Charteris’ contributions to practice and scholarship in international law as a member of the Australian delegations to various international conferences in the years before 1939, his papers published overseas and his lectures on international law given at the University of Sydney,[50] he is perhaps best known to Australian legal researchers today for the informative series of “Notes on International Law” which he wrote for the Australian Law Journal in 1939–1940. He had earlier, in 1937, contributed to the Australian Legal Convention a paper on “Scotland and the Common Law System of Private International Law”, which is both scholarly and in parts amusing.[51] Even Sir John Latham, customarily a very austere individual in public, praised it as “a learned and sparkling address”.[52] Charteris’ journal contributions on the international law of armed conflict, on the Mandated Territory of New Guinea and on other topics were published at a time when it seems that his health was perhaps already failing, but they are for that no less polished, precise and concentrated in thought.
His “Notes on International Law” commenced in April 1940 with a note on the Prize Act 1939, Prize Court Rules 1939 and their Application to the Commonwealth, Germany and Reprisals and on Reprisals and Neutrals in Maritime Warfare. This dealt in some detail with matters arising from German naval action in the early phases of the war and in particular with the Submarine Rules Protocol of London 1936 as well as with Hitler’s allegation that Britain was mounting a “starvation blockade” against Germany and his threat of reprisals. Charteris referred to relevant case law including Zamora [53] and so on, both in the law reports and also in Pitt Cobbett’s Leading Cases and Opinions.[54] In May of 1940, he wrote on the Bombardment of Copenhagen countering a recent protest by the German Minister at Oslo on the “cutting-out of the Altmark in the Joesing Fjord” by recalling to mind that the British Bombardment in the Danish Incident of 1807 “was a lawful operation in a war against Denmark”.[55] He also added a note on the “first case to come before the Supreme Court of New South Wales in its Admiralty jurisdiction in Prize”[56] concerning the Danish ship Astoria which had been seized as prize in Sydney Harbour in April 1940. It is of interest to note his reference there to the Prize Bounty awarded to officers and crew in the case of Sydney,[57] arising from that Australian warship’s engagement with the German Imperial warship Emden off Cocos Island during World War I.
In the same issue,[58] Charteris included the first of a two-part discussion of the “Allied Starvation Blockade of Germany”, a topic which he illuminated by his expertise and experience as to blockade matters gained during World War I. The second part appeared in June 1940 and discussed current blockade issues and in particular, countered the thesis advanced by Dr Kriege in relation to the position at international law arising from the “starvation blockade” of Germany.[59] It was typical of Charteris’ forthright style that he should there refer at one point to Nazi Germany’s notion of “‘preventive detention’ a la Dachau”.[60] For the July 1940 issue, he contributed two notes, one on “The Treaty of Rome, 1883 and the Effect of War” and the other on “Action Taken by Dominion Governments on the Outbreak of War on 3 September, 1939”. The first dealt with matters arising under the Convention on Commerce and Navigation done at Rome in 1883, the effect of which, following various Australian colonial accessions to it, was as Charteris stated it, that
wealthy Australians bent on ‘experiencing Europe’ are entitled to land at Naples and the Commonwealth Government … is debarred from imposing a numerical limitation on Italian immigrants to the Commonwealth.[61]
Quite obviously, the current Australian vogue for Tuscan tours is nothing new.
The latter note on the Dominions’ actions at the outbreak of war between Great Britain and Germany on 3 September 1939 is of particular interest to scholars of Australian constitutional law and history, as it deals with the particular form in which Australia’s declaration of war upon Germany was made. Charteris noted that on 2 September 1939, by a Proclamation under section 4 of the Defence Act 1903–1939 (Cth) the Governor-General of the Commonwealth of Australia, Lord Gowrie, “with the advice of the Federal Executive Council, called out the Citizen Forces for war-service and pursuant to that section, by Message to the House of Representatives (read on 6th September 1939) His Excellency reported that the reason for the Proclamation was the existence of a danger of war”.[62] The following day, a notification of Outbreak of War signed by Prime Minister RG Menzies KC was published in the Commonwealth Gazette No 63, 1939.[63] Charteris also set out information relating to the various approaches taken by Canada, New Zealand, South Africa and neutral Eire.[64] Notes on “India and the Belligerent Dominions — under United States Neutrality Act, 1937” and on the “Outbreak of War with Italy, 10 June, 1940” were also included.[65]
Just prior to his death, Charteris’ notes on humanitarian law issues arising from “German Red Cross ‘Rescue Ships’” appeared in September 1940 and dealt with the Red Cross Convention on Maritime Warfare 1907 and the revised Red Cross Convention 1929, particularly in relation to hospital ships.[66] Again Charteris was able most tellingly to illustrate his points by reference to international practice from the previous war and he noted that in view of Britain’s good record of practice on parachute troops issues, Goering had ordered proper treatment for British airmen taken as prisoners of war. His last contribution, which appeared posthumously in October 1940, consisted of further notes on the use of “Parachute Troops” and on the “Mandated Territory of New Guinea”.[67] He discussed German measures to comply with The Hague Regulations 1907 but concluded in respect of threatened reprisals against British prisoners of war in German hands that “[o]nce more the [German] High Command wishes to have it both ways”.[68] Charteris’ very last note in the series supported the contention of the Federal Attorney-General WM Hughes KC that Australia’s action in declaring the Mandated Territory of New Guinea as part of the Eighth Military Defence District, which action had been denounced by Germany, was not in breach of international law. He argued that the Mandatory Power was entitled “to administer … [such a territory as ex-German New Guinea] ‘under his laws as integral portions of his’ territory, ‘subject to the safeguards abovementioned in the interest of the indigenous population’”.[69] He added that “by her withdrawal from the League of Nations, Germany would, even in time of peace, have debarred herself from recourse to the legal remedy … [under the Mandate] viz: of citing [the Mandatory Government, Australia] before the Permanent Court of Justice at The Hague”.[70]
Australia was fortunate to have had the benefit of Charteris’ expertise and experience in international law matters during the troubled years of the international crises in the 1930s and in the early part of the Second World War. His teaching at Sydney University made a strong impression upon a generation of students who made their presence felt in the development of Australian law, public policy and international diplomacy. It opened windows upon the possibilities that lay ahead for international law and, whilst the mistakes of the Western Powers during the late 1930s[71] together with the concomitant decline of the international ideal represented by the League of Nations were a temporary reversal, the outbreak of war served only to raise such matters more starkly and urgently than before, as shown by Charteris’ 1939–40 series of notes. Progress in this field, to which Charteris devoted his life, is measured in terms of centuries rather than lifetimes; but with Australia’s active role in the United Nations after 1945, Sheldon’s 1940 prediction in relation to all of Charteris’ various works was to be proved correct: “their harvest may well be expected after the war”.[72]
As a widely respected international lawyer, a persuasive broadcaster and an active commentator in learned journals, AH Charteris’ voice carried considerable weight in academic and governmental circles in Australia, throughout the then British Dominions and beyond. His contribution, at once both scholarly and practical, in exposing Nazi totalitarianism and racial hatred and showing real compassion and concern for its victims, although less well known today than Dr HV Evatt’s and Sir Stephen Roberts’ efforts in the same field, was nevertheless a very effective one. It is for that, for his teaching and scholarship and not least for his important role in developing interest in international law studies in Australian universities during the interwar period, that he deserves to be remembered. Charteris saw very clearly the ultimate connection of international law, its study and its applications in the modern world, with the rights, interests and freedoms of individuals. When he died suddenly in October 1940, the obituary notice for him in the Australian Law Journal described him as not only a “great scholar” but also, much more exceptionally and memorably, as a “very lovable man”.[73]
It is interesting to reflect that as early as 1921, the year of the Washington Conference on Disarmament at which Australia was represented, the Senate of the University of Sydney had the foresight to recognise the growing significance which international law would have in the twentieth century. That significance was underlined yet again by the events of the Second World War and the Holocaust, the International War Crimes Tribunals at Nuremberg, Tokyo and elsewhere, as well as the United Nations Declaration of Human Rights 1948 and subsequent instruments emerging in the postwar period, adding to the corpus of international law.[74] Sometimes, Sydney University Law School has been seen as one of the more “conservative” schools of law in Australia. Yet it is a curious fact that, when one looks at the history of legal studies in Australian universities in its longer perspective, Sydney University was indeed a pace-maker which, whilst certainly maintaining strength and substance in common law, equity and so forth, also laid the foundations for a broader and more inclusive approach in Australian jurisprudence.[75] It is a paradoxical lesson, for since Charteris’ time, many of the norms that are expressed in, or derived from international law have, in the contemporary world, very long since ceased to be matters remote from the rights, interests and concerns of individuals.[76]
International law now has an increasingly important role in shaping Australian law and jurisprudence, particularly in the fields of constitutional and administrative law but also in the civil and criminal law.[77] With the great geopolitical changes that have occurred since 1989, it is clear that international law, particularly in the field of human rights and freedoms, but also in matters such as trade, intellectual property and the environment, is likely to grow even more in importance. At a time when there is again vigorous debate about the scope, content and nature of law courses taught in Australian universities,[78] Professor Charteris’ achievement at the University of Sydney stands as a very good example. He was a broadly educated and cultured scholar with a sound training in the law and useful experience of its application, who was able to combine deep legal learning with practical activity as a lawyer in his field and who also had the ability to articulate his vision in the wider public and intellectual life of the developing Australian nation. In doing so, he showed genuine, scholarly and practical commitment both to the subject matter of his life’s work, the law of nations in peace and war and also to those ends which should be the ultimate objectives of every dedicated lawyer, namely justice and humanity.
CASES
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 16
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 16
Jago v District Court of New South Wales (1988) 12 NSWLR 558 17
Kahn v Board of Examiners (Victoria) [1939] HCA 26; (1939) 62 CLR 422. 7
Koowarta v Bjelke-Petersen; State of Queensland v Commonwealth [1982] HCA 27; (1982) 153 CLR 168 11
Mabo v Queensland No 2 (1992) 175 CLR 1 11, 16
Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62 8
R v Burgess; ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 5
R v Carter; ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221 6
Commonwealth of Australia v Tasmania. Tasmanian Dam case (1983) 158 CLR 1 11
Teoh v Minister for Immigration and Ethnic Affairs [1995] HCA 20; (1995) 183 CLR 273 17
R v Scott Leslie Hollingshed and James John Rodgers Supreme Court of the Australian Capital Territory 11 May 1993 (unreported) 17
Zamora (1916) AC 77 12
Cherokee Nation v State of Georgia (1829) 2
[*] BA LLB PhD (Qld) Barrister-at-Law, Senior Lecturer, Faculty of Law, ANU.
[1] Mackinolty J and J, A Century Down Town — Sydney University Law School’s First Hundred Years (1991); Nairn B and Serle G eds Australian Dictionary of Biography, Vol 7 (1979) pp 619–620 (biographical note written by Professor JG Starke QC).
[2] Shearer I “The Teaching of International Law in Australian Law Schools” (1983–[1983] AdelLawRw 10; 1985) 9 Adelaide Law Review 61; Crawford J, “Teaching and Research in International Law in Australia” [1981] AUYrBkIntLaw 5; (1987) 10 Aust YBIL 176.
[3] Cobbett P, Leading Cases and Opinions on International Law Collected and Digested from English and Foreign Reports, Official Documents, Parliamentary Papers and Other Sources with Notes and Excursus (1885). In his Preface to the first edition, Pitt Cobbett noted the
tendency on the part of English lawyers to regard that body of custom and convention which is known as International Law, as fanciful and unreal; as a collection of amiable opinions, rather than as a body of legal rules … [but went on to say] … [t]he truth is, however, that a very large portion of International Law rests on authority as trustworthy as that which commands the homage of English lawyers
ibid p v. Interestingly, the first case extract noted under the heading Peace was Cherokee Nation v State of Georgia (1829) including the dissents by Story and Thompson JJ: ibid pp 1–3. See Shearer I, n 2 above, at 67 and Crawford J, n 2 above, at 179 on Pitt Cobbett’s casebook.
[4] Peden J, “The Law School” in Bavin T ed, Jubilee Book of the University of Sydney Law School 1890–1940 (1940) p 6.
[5] Ibid, pp 6–7.
[6] Ibid, p 16.
[7] Mackinolty J and J, n 1 above, p 77.
[8] Shearer notes that Charteris was elected to the Grotius Society in 1920 and was the Australian Correspondent for the British Yearbook of International Law from 1920 to 1940: Shearer I, n 2 above, at 71.
[9] Evatt HV, The Royal Prerogative (1987).
[10] Charteris AH various Notes on International Law in the Australian Law Journal eg “Germany and Reprisals” (1939–40) 13 Australian Law Journal 549; “Allied ‘Starvation Blockade’ of Germany — The German Thesis. Part I” (1940–41) 14 Australian Law Journal 13; “‛Starvation Blockade’ of Germany — the British Controversy. Part II” (1940–41) 14 Australian Law Journal 63; “Mandated Territory of New Guinea” (1940–41) 14 Australian Law Journal 216; and see (1940–41) 14 Australian Law Journal 99, 182.
[11] Roberts’ book (Roberts SH, The House That Hitler Built (1937) based on his tour of Germany in 1935–36, was one of the most perceptive critical analyses of Nazi Germany to be published in English before the Second World War.
[12] House of Representatives, Debates, vol 147 (1935) p 1373; Senate, Debates, vol 148 (1935) p 1436.
[13] On the development of the Department of External Affairs and Australian foreign policy between the wars, see Hasluck PMC, The Government and the People 1939–1941 (1965) pp 9–108; R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, a key case on the Commonwealth external affairs power as it was understood at that time, dates from about the same period.
[14] Sydney Morning Herald (15 April 1933) p 10.
[15] Sydney Morning Herald (8 May 1933).
[16] Sydney Morning Herald (22 April 1933) p 14.
[17] Sydney Morning Herald (30 May 1933) p 8.
[18] Sydney Morning Herald (10 July 1934).
[19] Bracher KD, The German Dictatorship: The Origins, Structure & Consequences of National Socialism (1973) pp 251, 270, 326–342; see also Ringer F, The Decline of the German Mandarins: The German Academic Community 1890–1933 (1969). Bracher refers to the Nazis’ suppression of liberal and humane scholarship in favour of the “recruitment of technicians” and he instances the so-called Law for the Restoration of the Professional Civil Service of 7 April 1933, used to oust and exclude Jews and others from judicial, civil and academic posts: “[i]ts euphemistic name is typical of many National Socialist laws whose ‘positive’ designations rarely gave an inkling of the terrible practices they instituted” Bracher n 19 above, p 270. On Nazi “jurisprudence”, see Friedmann W, Legal Theory 4th ed, 1960, pp 347–355. Wolfgang Friedmann, himself a refugee from Nazism, taught Public Law, Jurisprudence, Comparative and Administrative Law in Australia: Shearer, n 2 above, at 75.
[20] Charteris AH “A Note on the Kisch Case”, Proceedings of the Australian and New Zealand Society for International Law, Vol 1 (1935) p 174. The case is reported R v Carter; ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221; (1934–35) 8 ALJR 308.
[21] Lowe C, Royal Commission of Inquiry into the Origins, Aims, Objects and Funds of the Communist Party in Victoria (1950).
[22] Kisch E, Australian Landfall (translation Fisher J and Fitzgerald, I and K) (1969) pp 52–53, 56.
[23] Asmis was a Nazi Party member and one of the early examples of Nazi infiltration into the German Auswaertiges Amt (Foreign Office): Perkins J, “Dr Rudolf Asmis and the ‘Rescue of Deutschtum’ in Australia in the 1930s” (1988) 73 (4) Journal of the Royal Australian Historical Society 296. Dr Asmis, who disappeared during World War II, is one of the 1,000 persons recently named by the Swiss Bankers Association as the holders of Swiss Bank accounts during the Holocaust period; see Swiss Bankers Notice The Australian (23 July 1997) p 6.
[24] Ryan KW, “Immigration, Aliens and Naturalization in Australia” in O’Connell DP ed, International Law in Australia (1965) p 475.
[25] Mackinolty J and J, n 1 above, p 71 (emphasis added).
[26] Hayne M, “Australian Reaction to Hitler’s Accession to Power February–June 1933” (1985) 71 (1) Journal of the Royal Australian Historical Society 59; Bracher, n 19 above; Ott H, Martin Heidegger: A Political Life Harper (1993) pp 133–235 on Heidegger’s notorious Rektoratsrede at Freiburg University.
[27] Bartrop argues that more could have been done by Australia; see Bartrop P, Australia and the Holocaust 1933–45 (1994); see also Blakeney M, Australia and the Jewish Refugees 1933–1948 (1985); Rubenstein W ed, Jews in the Sixth Continent (1987); House of Representatives, Debates, vol 158 (1938) p 2534 ff and on the postwar position, see Cowen Z, “Vision From Pisgah” (1945) 17 Australian Quarterly 52.
[28] On his University appointment, Charteris had retained a right of private practice.
[29] [1939] HCA 26; (1939) 62 CLR 422 at 449–450 (Evatt J); see also Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62 at 99–106 (Evatt J) at 111 (McTiernan J).
[30] “Personalia” (1940) 13 Australian Law Journal 548 April 1940.
[31] Although it has been argued that the notion of human rights was already present in Grotius’ De Jure Belli ac Pacis of 1625: Cox R, “Hugo Grotius” in Strauss L and Cropsey J ed, History of Political Philosophy (1972) p 362.
[32] Evatt HV, The United Nations (1948). Archbishop Dr Eris O’Brien and Bishop Ernest Burgmann joined Evatt in the Australian Delegation to Paris for the preparation and drafting of the Universal Declaration of Human Rights 1948.
[33] Sheldon WS “Professor Charteris” in Bavin T ed, Jubilee Book of the University of Sydney Law School 1890–1940 (1940) p 38 at 39. Sheldon also notes the growth in the study of International Law in various other Australian Law Schools during the years just after World War I and he comments on the similar growth in the study of Economics thus:
[i]n the same way, the Depression years gave one crowded hour of glorious life to economists languishing in the attics of Universities, to which they have since been returned, for if the occasion always finds the man, it also sometimes also finds him out.
Ibid. Economists are today again out of the attic.
[34] Ibid, p 40.
[35] Le Brun M and Johnstone R, The Quiet Revolution: Improving Student Learning in Law (1994) pp 282–86. It seems that the true nature of Socratic dialectic as indicated in the dialogues of Plato is not well understood or practised in law schools, either in the United States or in Australia. See Strauss L, “Plato” in Strauss L and Cropsey J eds, History of Political Philosophy (1972) p 7.
[36] Sheldon, n 33 above, p 40.
[37] Mackinolty J and J, n 1 above, p 77 (citing Marr D, Barwick [1980]).
[38] Ibid, p 41.
[39] Bowra C, Memories 1898–1939 (1966) pp 214–29.
[40] Foster L, High Hopes: The Men and Motives of the Australian Round Table Group (1986) pp 93, 108, 200–201, 245.
[41] Shearer I, n 2 above, at 70, n 22. Another of Charteris’ published articles was his chapter on “Australia’s Immigration Laws and Their Working” in McKenzie N ed, The Legal Status of Aliens in Pacific Countries (1937) at p 16.
[42] (1935) 5 Australian Quarterly 69.
[43] Australian Quarterly June 1937.
[44] “Review of Australian Landfall” (1939) 11 Australian Quarterly 113.
[45] See Charteris, n 20 above; Charteris AH, “Australian Immigration Laws and Their Working” in Mackenzie N ed, The Legal Status of Aliens in Pacific Countries (1937) p 16.
[46] “Grotian”, “The Australian and New Zealand Society of International Law — Proceedings No 1” (1935–36) 9 Australian Law Journal 241.
[47] Commonwealth of Australia v Tasmania. Tasmania Dam case (1983) 158 CLR 1.
[48] Mabo v Queensland No 2 (1992) 175 CLR 1.
[49] Smith E, “Australia in the Toils of International Law” (1935) 7 Australian Quarterly p 112 at 113; and see also Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 and especially 258–260 (Brennan J).
[50] Most of these were collected and published in 1940: Charteris AH Chapters on International Law with an Appendix of Documents of Interest to the Commonwealth of Australia being a portion of the Notes on Lectures delivered in the Law School of the University of Sydney (1940). One of the documents included was the Commonwealth Government Memorandum 1929 used at The Hague Conference 1930 on Codification of International Law, in respect of Territorial Waters, together with an official list of bays claimed by Australia as “Historic Bays”, ibid, p 98–99; others were the Mandate for New Guinea and certain other former German islands, the Mandate for Nauru and the Washington Quadruple Treaty relating to the Pacific 1921, ibid, p 164 ff; Chapter II on Sources of International Law provides a compendious statement of the competing views on its development, referring to the great foundational works of the Dominican Francisco de Vitoria, the Jesuit Francisco Suarez and the Netherlands jurist Hugo Grotius ibid, pp 8–16.
[51] (1937–38) 11 Australian Law Journal p 378.
[52] Ibid, at 386; On Latham, see Cowen Z, Sir John Latham & Other Papers (1965).
[53] (1916) AC 77.
[54] (1939–40) 13 Australian Law Journal 549.
[55] (1940–41) 14 Australian Law Journal 13.
[56] Ibid, p 13–14.
[57] (1916) 2 Br and Col Prize Cases 231.
[58] (1940–41) 14 Australian Law Journal 15 at 15–18.
[59] (1940–41) 14 Australian Law Journal at 63–66.
[60] Ibid, p 66.
[61] (1940–41) 14 Australian Law Journal at 99.
[62] (1940–41) 14 Australian Law Journal 100 at 101.
[63] Ibid.
[64] Ibid.
[65] (1940–41) 14 Australian Law Journal 101 at 101–02.
[66] (1940–41) 14 Australian Law Journal 182.
[67] (1940–41) 14 Australian Law Journal 216–17.
[68] Ibid at 217.
[69] Ibid.
[70] Ibid.
[71] Rowse AL, Appeasement: A Study in Political Decline (1961).
[72] Sheldon, n 33 above, p 41.
[73] (1940–41) 14 Australian Law Journal 216.
[74] Wright pointed out in 1961 that “[t]he barbarities of Nazi persecutions and massacres developed a demand to subordinate national sovereignty to human rights”, Wright Q, The Role of International Law in the Elimination of War (1961) p 27 (referring also to the UN Genocide Convention 1948).
[75] One has only to think of the work of Professor Julius Stone QC at Sydney University, of Sir Kenneth Bailey KC and Sir Zelman Cowen QC at Melbourne University and of Professor Geoffrey Sawer both there and later at the Australian National University; of Professor DP O’Connell at the University of Adelaide, of Professor Kevin Ryan QC (as he then was) at the University of Queensland, of Professor Donald Greig LLD at the Australian National University, and of Professors James Crawford and Ivan Shearer at the University of Sydney, and Professors Philip Alston and Hilary Charlesworth at the Australian National University, amongst others; Blackshield AR, Legal Change: Essays in Honour of Julius Stone (1983); Campbell R ed, History of the Melbourne Law School (1977); Zines L ed, Commentaries on the Australian Constitution: A Tribute to Geoffrey Sawer (1987); O’Connell DP, International Law in Australia (1965); Ryan KW ed, International Law in Australia (1984); Greig DW and Balkin R, International Law 3rd edn (1994); Alston P ed, Towards an Australian Bill of Rights (1994); and see generally Crawford J loc cit passim, especially pp 181–192; Shearer loc cit passim.
[76] Weisbrot D, Australian Lawyers (1990) p 123, has cited Max Weber’s observation on the tendency of some forms of law teaching in modern times towards the “emancipation [sic] of legal thinking from the everyday needs of the public”. This is indeed a very curious and disturbing development and even Weber appears to have been oblivious to the serious negative consequences of the shift of focus away from the “needs of clients”. Opinions are strongly divided on this shift, given its implications for the rule of law and for the continuity and integrity (perhaps even the survival) of the discipline of law as a learned, professional and scholarly undertaking, or yet as a coherent field of knowledge. If human law ultimately exists only by convention (as many today argue it is) then it cannot be a pure study detached from the real needs of the individual citizens who collectively sanction the law and who, in one way or another, pay for its operation and for its teaching, and who ultimately bear (and judge) its end results. Just such a tendency is one cause of the current widespread populist attack on law, both as a profession and as a learned discipline. It is interesting (and for strictly private lawyers, perhaps surprising) that international law was, at various periods, a compulsory subject for the degree of Bachelor of Laws at Melbourne University until 1918, and also at Sydney University from 1862 to 1959.
[77] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 306 Mason CJ and McHugh J, at 321 Brennan J; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 Brennan J; Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 499 Mason CJ and McHugh J; Teoh v Minister for Immigration [1995] HCA 20; (1995) 183 CLR 273; Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 Kirby P; R v Scott Leslie Hollingshed and James John Rodgers Supreme Court of the Australian Capital Territory 11 May 1993 (unreported) per Miles CJ; Shearer I, “International Legal Notes” (1994) 68 Australian Law Journal 147 at 147; and Kirby M “The Role of International Standards in Australian Courts” in Alston P and Chiam M eds, Treaty-Making in Australia: Globalization Versus Sovereignty? (1995) p 81, commenting on Australian developments of this nature. See also Kinley D, “The Implications of Executive Ratification of Treaties for Democratic Governance” in Alston P and Chiam M eds, ibid, p 52.
[78] Sir Richard Blackburn, formerly Bonython Professor of Law and Dean of the Faculty of Law in the University of Adelaide and later Chief Justice of the ACT Supreme Court and Chancellor of the Australian National University, argued for a “much greater emphasis on the essential skills of the lawyer ... [t]hese are not merely practical skills or professional tricks, but, in my view, the very essence of what an academic training in law ought to provide”, Blackburn RA, “Law School Curricula in Retrospect” (1983– 1985) 9 Adelaide Law Review 49. It is a cogent view, expressed by one very well qualified in both legal scholarship and in its application as a learned profession. Those concerned with developing and improving Law School curricula in Australia will find that article helpful, because it not only provides convincing grounds for the proper integration of legal theory and legal practice within the University law curriculum, but it also places a strong emphasis on the importance of Public Law for the competent lawyer in present-day Australia, ibid, at 48–49.
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