Luck of the law – an interview with Wadham and Rhodes alumnus, Sir Frank Berman

I did. I was able to take advantage of the flexible arrangements you have for degree courses, which are essentially a series of credits. I actually started off with an arts degree, but my major subject was pure mathematics and then by a clever reading of the regulations, I realised I could convert that into a science degree too, afterwards, by adding on the kind of subjects that I'd done.

But I'd done a lot of science at my school – I had pure mathematics, applied mathematics, statistics, plus all kinds of other things as well, but always with the intention that I would eventually go on to read Law. I had immensely liberal and generous parents who were prepared to indulge me initially before I went on to my law studies later.

You know, I really can't answer the question, except to say that my father was a practising lawyer and two of my uncles were as well. I wouldn't say that there was really law in any kind of family tradition, and my father had always said to me, ‘The one thing you will not do, my boy, is follow me into my law firm.’ He thought that I was going to have a career at the Bar, I think. Law was just one of those things which suited me.

Funnily enough, maths is an extremely good grounding for law: it teaches you to understand abstractions, but it also teaches you to understand the application of abstractions to real situations. It was, I think, the logic of the law, plus the fact that I did like language and liked the challenge of being able to express yourself. Anyhow, law it was and I've asked myself the same question later – why did you go for international law? and I simply can't give an answer. It just happened that way.

It was a strange period because I was growing up in the immediate aftermath of the [Second World] War and, although the war didn't affect South Africa directly, it did indirectly in all kinds of ways, including one family member who served in North Africa and in Italy. The fact that there was constant traffic around the Cape of shipping as a result of war-time conditions. We were emerging from the privations – limited, but privations of war – into a world which was opening up.

It also happened to be the time when I was a child in a school and the Nationalist Party, the Afrikaner Party, won power in Parliament for the first time, and that was the party which had separation of the races, apartheid, as its policy. Previously, the government had been under the hands of General Smuts, a great figure also in wartime circles, and he's credited, for example, with having written the preamble to the UN Charter. But he was a big figure in those post-war circles. So it was a shock to everything that there was this sudden reversal of political circumstance and the government, which began quite early on after its victory in 1948 to introduce, bit by bit, slowly by slowly, elements of an apartheid regime. They posed also constitutional challenges of a really deep dyed kind, which, of course, to a budding lawyer was a real challenge.

Where I lived in the Cape was also strange because the Cape had virtually no black African people at all. Even under the previous regime, there was no movement of black people, to speak of. It had a very substantial non-white population, but there were people of different origins – there were a lot of people of Malay origin who originated, of course, from slaves brought by the East India Company to the Cape and other traders. And there were a lot of people of mixed race who called themselves coloured people, but who spoke of Afrikaans as their language, it was their natural language. So we grew up in an interesting melting pot, a very happy and harmonious place as I remember – it was a wonderful childhood. But you could begin to see by the time I got to university all of the huge storm clouds building up on the horizon.

During my four-and-a-half years at the University of Cape Town, that was the time when the government introduced formal segregation into the one or two universities, including my own, which did not have a colour bar. So it was hugely challenging. And during that period of time, there was that terrible, searing event of the massacre of protesters in Sharpeville outside Johannesburg – all of that was happening around about the time that I was coming into my adult life.

So it was an extremely happy background but with the abyss looming about the time that I came to Oxford.

Well, there's a story to tell, it's a good story too. Again, for reasons I can no longer recollect exactly, the ambition in the family was that I was going to come to Oxford. I may say I'm sandwiched in between two brothers who went to Harvard, but I was the one who was going to come to Oxford, and that's where I was going to do my law. I still don't understand how my parents thought they were going to get the means to ensure that I came to Oxford but we went ahead and I wrote off to apply on my own – this is long before there was any thought of a Rhodes Scholarship. And how do you choose? I had no Oxford connections at all, no knowledge of the university.

So I went around the University of Cape Town to see if I could find any academics who'd been to Oxford. I tracked down three and went to talk to them. I asked what college they'd been to. I ended up writing to three colleges, which were the colleges of dons in Cape Town. Fortunately, one, who was a microbiologist, had been to Wadham because I got a rather stiff and bureaucratic reply from two of them, one of which asked me when was I going to come across and sit the entrance exam, ha ha ha. But from Wadham, I had a handwritten letter from the Warden, Maurice Bowra, saying, “I'm terribly sorry, I can't give you an answer immediately. My law tutor is away on vacation.” And then some weeks later came another handwritten letter from Maurice Bowra saying, “The law tutor is back from vacation and you have a place.”

So there was no question in anyone's mind that I then took one of the best decisions I've ever taken, but in a sense it was taken for me, the path having been opened so smoothly. One of the best things I've ever done in my life. After that I applied for the Rhodes Scholarship.

Funnily enough there was another Rhodes Scholar from South Africa arriving, Murray McLoughlin, at exactly the same time as me but we didn't know one another– he came from another part of the country. I had been briefly to have a glance at Oxford during the summer when I was traveling with my family around Europe. So it wasn't a shock – well, it was a shock because I'd seen Oxford in the summer, and then I arrived in October, a typical Oxford October, and I was already captivated by Wadham. You can't come up Parks Road and look at the College frontage without being absolutely captivated. Mind you, it was black in those days, the front of the College. The colleges were dirty to an extent one can’t imagine, and it was more than dirt. I can remember once leaning up against, I think one of the window frontages in the front of the College, and finding a chunk of a stone came away in my hand because the stone was rotting away. Afterwards, the Oxford Preservation Trust was founded and did this miraculous work in restoring colleges.

But it was an exciting place to be and I found from the very beginning that it was friendly and open, and Wadham had a reputation then of being pretty liberal. There were all kinds of jokes about Wadham, which implied that people saw the college as one which was mixed, including racially mixed, in a way that would not have been true of other ones – unless you discounted the Indian aristocrats who might have gone to other colleges. It was small and because it was small, it was intimate.

Well, nobody who came to Oxford during the Peter Carter era could say that he threw himself into his studies with unremitting vigour. The iron fist, a very large iron fist too – Peter Carter was a redoubtable person physically, as well as in every other sense, so nose to the grindstone. But it had to be nose to the grindstone in any case, because I came up to read a second BA, as a fair number of Rhodes Scholars did, and I think maybe some still do, which means you did it all in two years. So those who were my degree contemporaries, as it were, had already done their prelims and had had one term after that. So there was a lot to cram into two years’ worth of study. But of course, how could you be conscious of anything else? You got there from your home country, and you got there with the vote of confidence of being elected a Rhodes Scholar, so you had to do it. But there was lots and lots of time for other things too.

I didn't row – wrong size, shape, strength – but I seem to have done all kinds of other things which I can't really remember. I really enjoyed punting. Punting was a terribly good experience and it was absolute glory. Everything being so concentrated in Oxford, so much going on, and inside College too. I look back on those years with unalloyed pleasure. College was a wonderful place to be, and I'm glad to say I'm still in touch with a number of people, not only in the UK but around the world, who were my contemporaries.

Yes, but I'm going to give you a particular answer: Rhodes House – you know, Wadham’s tenants up the road to whom we unwisely sold a chunk of our beautiful gardens whenever it was. The most important contact with Rhodes House was that it was the climbing in route to [Wadham]. For those whose memories don’t stretch that far, College gates closed at midnight and so if you were out after midnight, there was a famous climbing route which came down on the side of the Warden of Rhodes House’s residence in Rhodes House and back into our Private Fellows’ Garden, and over the ridge into the Fellows’ Gardens, and then through a particular window – some poor soul had a bedroom on the ground floor over the main Quad [through which] you had to be ‘climbed in’. Thinking about that window, it was right next to the window of the Warden's study, so if you got your windows wrong, you could find an interesting situation emerging.

In those days the Warden of Rhodes House was A T Williams, who was an interesting figure with a tremendous wartime record. He was our avuncular person; he didn't interfere with you, but he was there if you needed him. If there were any difficulties of adjustment or the need for a friend, there was somebody over the wall in Rhodes House during conventional hours of the day. And there were also interesting books, too – Rhodes House was the repository then of (I think) the American and the Commonwealth Bodleian Collections upstairs.

It's really very hard over that length of time to pick out individual things. When I went directly from Oxford to the Foreign Office, it was a stroke of good fortune that I won’t bore you with. I found the legal staff of the Foreign Office – I wouldn't call it department, it was the Foreign Office Legal Adviser and his staff – it was another very small bunch of people, close knit, in which I found very much of the same kind of atmosphere that I'd felt in Oxford – a place of collegiality, sort of distant friendship, but plenty of it and plenty of readiness to help. But I was also flung into a situation in which you were given an astonishing amount of responsibility as a young person and imbued with the sense that what you were doing was speaking for the Foreign Office, therefore for the government, and therefore for Britain. What I remember from the early years was my first big international conference when I was the most junior of the junior bag carriers. It was a conference in Geneva which adopted the first of the outer space treaties, the one which confined outer space to peaceful purposes and outlawed any notion that property could be acquired over the moon or other celestial bodies. That was a big conference, as you can imagine, at a time of enormous East-West tension. It was one of the shining examples of the time of how even in situations of tremendous East-West tension, it was possible for deals to be done, but the deals had to be done with grinding, painstaking detail and a lot of aggressive to and fro. There could be aggression out in public but nevertheless an ability to work behind the scenes. That was an extraordinary conference and I was there assisting none other than great-grandson of Charles Darwin, who was one of my colleagues in the Foreign Office. But the thing I remember about that is the importance of law as a lubricant to international relations.

I also remember being packed off to Helsinki. It must have been in my very early years in the department when I was doing a lot of work to do with nuclear energy, and we still regarded ourselves in the UK as being potential suppliers of nuclear power stations to the world. We were trying to sell one to the Finns. In order to do that, we needed to have a bilateral treaty on the peaceful uses of nuclear energy. There was a time when Finland was under the Soviet thumb so that before they could meet with us, the, the Finnish minister had been summoned to Moscow to be told presumably where the boundaries lay. And we negotiated a treaty with the Finns, which was really tough slugging. I found myself, as a junior lawyer, sitting in a private room with the most senior lawyer in the Finnish Foreign Ministry, hammering out, I mean, literally comma by comma, through this text. Years later I happened to meet the same man again in Geneva, pure chance, and he said, “Come, have a drink.” And he asked, “Have you ever wondered why we gave you such a terrible time over that treaty?” I said, “Well, yes” in a sort of a way. He said, “Well, I'll give you the answer. He gave me a reference and said, “Look this up.” I did when I got back to London: the reference was the Fenno-Soviet Treaty on the Peaceful Uses of Nuclear Energy, which was concluded at about the same time as ours. And guess what? It was almost exactly word for word with the UK-Finland Treaty on the Peaceful Use of Nuclear Energy.

If you jumped beyond that, there are so many things that were of enormous interest. I can remember some of the really tough conferences of the Red Cross movement at a time when both the issue of how should the Red Cross movement maintain its absolute neutrality in situations of war, in which there was tremendous pressure, pushing it and pulling it to stand on one side or the other of a fence; and how difficult it was to deal with the question of the Palestinians and also the question of Israel, which had some sensitivity about a Red Cross.

There was the first Gulf War, in the aftermath of that terrible Iran-Iraq war, [following] Saddam Hussein’s invasion and occupation of Kuwait, where I found myself thrown into the frontline again by accident. It was a moment at which, suddenly, those terrible East-West relations had perhaps – the Soviet Union was on the verge of collapse but hadn’t reached that point – so for once there was an opportunity [for] five-power negotiation at a very serious time. And the issue was, after the immediate aftermath of the invasion and the Security Council beginning to show it could act in a united form, could one achieve a situation in which the recovery of Kuwait was not going to be done as a self-defence operation but under the aegis of the Security Council? I was in the midst of that maelstrom, and it was extraordinary, challenging and interesting, to see once the mechanism of the Council had begun to work, how you could feed in the material which would produce worthwhile results. And they were.

Then, of course, there was the war that resulted in the early months of the following year and that was enormously punishing too. We found ourselves engaged in major armed conflict with the absolute necessity both for moral, ethical and public relations reasons to show that we were operating according to the laws of armed conflict. That was a really formative experience.

Unfortunately, although the Security Council, in the years that followed, operated on a much more active basis and became an active organ, the five-power common ground began to disappear. Now, as one can see, it’s a broken thing.

Can I talk about Berlin for a moment, going back to the ‘90s? We found ourselves unexpectedly posted to Berlin at short notice. Until the final unification of Germany, Berlin was still under occupation and Berlin, but it was a three-power base, which is the three Western sectors – British, American, French – held the whole of Berlin, including what we regarded as the Soviet sector, and which they said was part of the East German state. That was an extraordinary experience because we were friendly occupiers. I like to regard us as such and, on the whole, were regarded as benevolent occupiers, but we were operating within an occupation regime.

So I was, formally speaking, the legal adviser to the British military commandant of the British sector in Berlin and operating within inter-Allied frameworks as well. And you find yourself in the strange situation in which the powers that we exercised as occupiers were wide ranging and far ranging, and dictatorial too. I exercised powers on a sectoral basis for the British sector, which is quite substantial – ran up all the way to the Brandenburg Gate – and exercised powers together with my Western colleagues over some things.

And there were some institutions which, nominally at least, were still operating on a four-power basis, one of which was the Spandau Prison, holding its one remaining prisoner occupant, Rudolf Hess, in his later years. The Spandau Prison was a four-power institution – there were governors, the governors consisting of a governor appointed by each of the four powers and they rotated the chairmanship monthly and with the monthly rotation of the chairmanship was a rotation of the military guard who policed the prison. And there were prison warders. And it was a Higher Authority for the prison consisting of me and my legal colleagues; so for that curious period of time, I was, whatever it was, the Chief Authority of the Spandau Prison with this one remaining extraordinary, unbelievable character living in his own fantasy land as the sole prisoner in this vast, flowering, barracks-type complex.

But Berlin was fascinating too. We had to do all kinds of things and putting together a structure of British military government courts in order to try a particularly serious attempted murder of a Soviet soldier at the military memorial in the centre of Berlin. And during that time – that was the time when, after a long period of stalemate, the four powers were able to come together again to talk about Berlin questions from completely different incompatible standpoints. But again, they found a way to talk and I, as the as one of the lawyers involved, saw this at first hand, and that led to the ground-breaking Berlin agreements of 1972 and 1973. But another example of how the law can provide the lubricant to enable people to arrive at agreements which were then going to be implementable.

Lawyers have to bring it down to earth. Of course, statesmen talk in grand terms, but ultimately they've got to agree to do things – which means agree to do specific things. So it comes down to the to the hard, black and white of print.

Berlin was unforgettable and Berlin's got an extraordinary atmosphere. It's an amazing city even now because it has all kinds of echoes and resonances, some of which are, shall we say, challenging in the least. But it's a real city with a real history and is now reinventing itself – a most extraordinary place. We were integrated into the life of Berlin: as I've said, the occupying powers exercised governing power, so we had a range of contacts – it's really beyond compare with anywhere else.

I spent a lot of time in New York and UN meetings well before I was posted there in the 1980s and you see how an organisation like the UN is necessary and irreplaceable in a world like ours; but you also see how difficult it is to make it work. And during the period of time we're talking about, the membership of the UN increased from 50 to 150, to the [193] it is today. Well, an organisation in which each member correctly regards itself a having a sovereign equality is an extraordinarily difficult thing to manage – even to find and express common ground is so difficult – when those involved have vastly different interests, but also a different cultural framework.

I do think in a sort of a way that coming from South Africa with the notion of different cultural frameworks coexisting, and then coming into a Britain which was also beginning to move itself into the modern world and realised its own cultural diversity, was a benefit when it came to dealing at the UN. Hammering away at the UN is unforgettable, though many times you prefer to forget it if you possibly could.

The one thing that was particularly at a premium, with so much travelling, including especially when based in London, was the opportunity to be together as a family; what I remember with sharpest pleasure was us all being together in the country walking the hills, notably in Somerset (Exmoor and the Quantocks, courtesy of a Wadham friend!) or in my native South Africa, or Germany which we all loved.

But for me as an individual the key thing was music, especially choral music. It was through choral music that I met my wife (in Wadham!) and she continued singing in fine choirs over the years. And increasingly, as the years wore on, it’s gardening that has become my restorative therapy from the world’s troubles, and increasingly the sheer satisfaction of caring for and improving my piece of ground, and putting food on the table.

The people whom I most admired and whom I hope most influenced me in international law we're often quite quietly spoken, studious people. The thing that I realise now looking back is how they were so often talking not simply about the obvious things we were dealing with at the moment, but how their eyes were on a further horizon, reminding young people like me of the challenges ahead. The use of the oceans was one that I remember from a very early time, including fisheries and the and the growing depletion of fish stocks – something we are still living with the effects of, which are much wider ranging and more long term than just are there enough fish for people to eat at the market and the prices.

And pollution, which burst onto the scene when there was that famous stranding of an oil tanker [Torrey Canyon] off the coast of Cornwall in the 1960s. But they were also reminding us then of water as a problem. It was going to become a determining factor for not just for human existence, but for peace, too, as a consequence, from the early days, which is a problem that we're being forced to focus on more and more deeply.

And then beyond that, issues like the outer space issue, it was a real issue in those days. Was outer space going to be allowed to become militarised? If so, what could the consequences of that be? And we now see that there's always a future challenge. The regulation of the Internet. That was a question too and it was a serious question debated amongst these far-sighted international lawyers: is the way to deal with the Internet through some kind of international regulation or is the way to deal with the Internet to get those who do it, or to allow those who do, to bond themselves into a self-regulating community? That became important. It was important too for satellite communication because much of the regulation of satellite traffic above the earth is based upon self-regulation by largely commercial entities for maritime navigation, for example.

So those are a huge questions, but at the end of the day I think there are only two things you can say. One, I've already said: you cannot envisage a world which does not have the functioning existence of international organisations which come together on the basis that they're not designed to dominate or to direct, but to produce and facilitate understanding and progression – difficult as that is to achieve and even more difficult as it is to maintain. They are indispensable. But the other side of it is that there is a lot to be said for self-regulation. The striking thing about the practice of law and, certainly in this country one of the things that we can show to the rest of the world is how the importance of our professional and ethical standards runs through the entire being and framework of the profession and the benefits that that brings.

But I also have already referred to the way in which lawyers have a way of dealing with one another on the international plane in which you see those essential features writ even larger. So there is room for plenty of that. And we have been faced, have we not, with the very interesting example before our very eyes of Parliament as a self-regulation institution, as another illustration of the fact that if institutions do not have their own strong framework of conduct and acceptable and unacceptable behaviour, we’re all losers.

So I do believe that law has a vital role to play. The kind of law that I have been lucky enough to be involved in, international law, is an immensely invigorating challenge. During the period of time that I spent teaching at Wadham, to my enormous pleasure, it was a wonderful revelation to me when I took on my tutorial pupils were in their final years, and who had chosen the international law as one of their options, to see the way their imaginations lit up by discovering the different framework within which they could operate and one in which the mind could roam free. It wasn't actually bound in the iron bars or black letter rules, there was room for creative imagination. And that is the one thing that makes international law to me the most exciting thing possible field to have been in (and still be in a bit).

I referred earlier to the fact that the decision to come to Wadham was one of the best decisions I could have taken. And Wadham was a really, close-knit place in those days. The extraordinary thing about the College, partly as a result of its small size, was that you did know everybody. I experienced for the first time in my life, despite the fact that I'd done other subjects at University of Cape Town, the really free interchange of ideas and experience between people doing all kinds of different things – and not just at the undergraduate level, but also with the members of the Senior Common Room. They were around, amongst us, and we enjoyed the pleasure and interest that they took. There was room for a two-way response. So Wadham opened up all kinds of mental horizons to me and I left with an enormous sense of gratitude. I felt Oxford had given me an enormous amount, but Oxford for me meant essentially Wadham – of course there were other people who taught me and mentored me, but it was essentially Wadham.

I left with the feelings of huge gratitude, which led me and not to lose touch over the years – it seemed a natural thing to do whenever I was in England. And personal friendships too, the personal friendship with Jeffrey Hackney, that enormous, enormous benefactor of the College in so many ways, has also helped to keep me linked to Wadham. And the friendship even the austere Peter Carter showed to those of his former pupils who'd gone into the Law, who were doing well.

All of that helped to link me. But the thing that has amazed and astonished me over the years is the way the Wadham that we have today, which is so different, so much, much larger and has a different mix of undergraduate and graduate members, much, much larger, SCR, feels the same. It just feels the same. That is the most astonishing achievement.

It was striking that Walden was one of the first cohort to admit women and become a fully co-educational college at a time when that was still an avant garde thing to do, but it was happening within society. And the way Wadham has pursued that kind of ideal, and also the access arrangements, the imaginative access, and the way they have been pursued – not just talk, but results. Those are the things which can't help but inspire.

I have never walked up to the front of the College without feeling the same sense of excitement as I did in 1961 and pleasure at being inside the College. So it seems to me absolutely natural to want to give back. I sometimes worry a little when I talk to people about Oxford is the fact that what I’m really talking about it in my mind is Wadham. And I hope that the rest of Oxford is as good as Wadham is. I have every hope that that's true, but it seems to me such an obvious thing to do.

When I see – I come back to the time that I taught for some years after I'd retired from the Foreign Office – the kind of young people I found in my tutorials and those I met, invigorating, lively – [they are] obviously the kind of people who should be getting the kind of education that Wadham can offer.

So one looked always, if one had the opportunity, for ways in which you could help, either by responding to what the College was asking for, which was usually good and interesting, or by suggesting ideas of your own about things that could be done. But on the whole, the College has found its own path successfully. I happened to find a few years ago amongst my papers a letter from Maurice Bowra. It must have been written very shortly after I went down, in which he made enormous apologies to the fact the College was going to be doing that ‘unheard of thing, launching an appeal’. And he apologised for the fact the College was having to do that. The target for the appeal was something astonishing sum, maybe in the tens of thousands of pounds. But that was a ‘horrific thing to be doing, but it was necessary to do it’. Of course it's necessary to do it! I can't think of a better way to devote my intention, even if sometimes it's just cheering and applauding from the sidelines and radiating enthusiasm for what Wadham can do, does do and will do.