Commander Daniel Patrick O'Connell
Daniel Patrick O'Connell (1924-1979), barrister and professor of law, was born on 7 July 1924 at Auckland, New Zealand, only child of Daniel Patrick O'Connell, clerk, and his wife Magdalen Alice, née Roche. Young Pat (later known as Dan) was educated at the local Sacred Heart College and at Auckland University College (LL M, NZ, 1948; BA, 1953) where he read history and law. On 28 March 1947 he was admitted to the New Zealand Bar. In 1949, with the help of a national scholarship, he entered Trinity College, Cambridge (PhD, 1951). At the suggestion of his supervisor Professor (Sir) Hersch Lauterpacht (later a judge of the International Court of Justice), he studied the law of state succession, a field especially suited to his interests in history, legal theory and diplomacy.
After a brief period in private practice with EL Thwaites at Auckland, O'Connell unsuccessfully applied for the Chair of Law at Auckland University College before being appointed (1953) Reader in Law at the University of Adelaide. The staff of the faculty consisted of only three full-time members: (Sir) Richard Blackburn, the Dean and Bonython Professor of Laws, O'Connell and GHL Fridman, a lecturer. The appointment (1958) of Professor Norval Morris as Blackburn's successor marked the beginning of a gradual increase in their numbers.
At the Church of St Michael, Berg am Laim, Munich, on 21 September 1957 O'Connell married Renate Else Agnes von Kleist. Back in Adelaide, he was promoted in 1962 to a personal Chair in International Law and served as Dean for the two-year interval between Morris' resignation and the arrival of Professor Arthur Rogerson in 1964. O'Connell was elected Chichele Professor of Public International Law at All Souls College, Oxford, in 1972, succeeding Sir Humphrey Waldock. In an unusual arrangement, the Council of the University of Adelaide gave him the option of resuming his Chair within three years of his departure. With the university's agreement, he returned to Adelaide to teach for one term a year over this period.
For the first three of his treatises on international law, as well as for a prodigious flow of articles in major legal journals, O'Connell was awarded the degree of Doctor of Laws (1972) by the University of Cambridge. He had also been elected an Associate (1967) of L'Institut de Droit International, and a Fellow of the Royal Historical Society, London, and of the Academy of the Social Sciences in Australia (1971). In the Sovereign Military Order of Malta he was appointed a Knight of Honour and Devotion. After his move to Oxford he was increasingly engaged as counsel in cases before the British courts, international arbitral tribunals and the International Court of Justice. In 1977 he took silk. He was widely credited with having persuaded the English Court of Appeal by his advocacy in the landmark case, Trendtex Trading Corporation Ltd v Central Bank of Nigeria (1977), to return to the 18th century doctrine of the automatic incorporation of customary international law into English law.
O'Connell's command of international law was both broad and authoritative. His systematic treatise, International Law (two volumes, London, 1965), soon came to be regarded as the chief rival to Lauterpacht's edition of Lassa Oppenheim's work, International Law, a Treatise, published ten years earlier. The former work alone would have served as a monument to his vision, his industry and his dexterity with sources and examples of state practice, but it came to be equalled by his two-volume treatise, The International Law of the Sea (Oxford, 1982), published posthumously. Between these two monumental works of scholarship O'Connell also managed to write an expanded and updated version of his doctoral dissertation, State Succession in Municipal Law and International Law (Cambridge, 1967), an historical study, Richelieu (London, 1968), and another monograph, The Influence of Law on Sea Power (Manchester, 1975).
In all O'Connell's publications, and in his many contributions to the periodical literature of international law, certain characteristics emerged clearly. His approach was deeply informed by history: every principle had a reason grounded in history, and was shaped by juridical, theological, political and practical considerations. He believed that international law should respond gradually to changing needs and circumstances through the classical process of customary law formation, and he regarded with misgiving the politically engineered majorities at international conferences who sought to make radical changes to the law through multilateral conventions. In his view, such proceedings threatened the integrity of the discipline. Indeed, he saw international law as increasingly falling into intellectual disarray.
As a teacher, O'Connell was regarded with considerable awe by his students in Adelaide, a response heightened by his adherence to the old custom of appearing in an academic gown. His delivery was lucid and fluent, and he illustrated topics with examples from matters in which he himself was involved, either as counsel or adviser to governments, or through the work of international committees. To some he may have seemed lofty and detached; he had no time for the uncouth or lazy, but he showed patience with the honest struggler. To his friends he was generous with his time and hospitality, and was a witty raconteur.
Despite his social conservatism and aristocratic inclinations, O'Connell was tolerant of contrary opinions and willing to concede a point. He shared with friends his knowledge of places he had visited, books he had read and people he had met. His interests were wide-music, art, architecture, history and films-and often surprising, as in his passions for bricklaying and building model ships. He took a particular interest in lawyers who emigrated from Europe to Adelaide in the 1950s, and did much to help them to establish professional and personal contacts.
O'Connell's childhood love had been the sea and he had hoped for a career in the Navy. As commander, Royal Australian Naval Volunteer Reserve (1966-73) and Royal Naval Reserve (1973-78), he advised the navies of both countries on international law. He studied navigation, tactics, weapons and strategy. In May-June 1968, aboard Australian and American warships, he observed operations off the coast of the Republic of Vietnam (South Vietnam). His book on the influence of the law on sea power has affected operating procedures adopted by Western navies. Awarded the Reserve Decoration in 1973, O'Connell was placed on the retired list in 1978.
Australia's successful action against France in the International Court of Justice in 1973 over atmospheric nuclear testing in the South Pacific was based on O'Connell's opinion. The Commonwealth Attorney General's Department had earlier advised (Sir) William McMahon's Government that there was no juridical ground on which to bring the case. O'Connell saw a way to base jurisdiction on the dormant and neglected (but not obsolete) provisions of the General Act for the Pacific Settlement of Disputes, concluded at Geneva in 1928, to which Australia and France were signatories. His opinion, commissioned by State Labor Attorneys-General in 1972, was passed on to and used by E.G. Whitlam's Federal government. O'Connell appeared as counsel in the case. He was also engaged as a legal adviser to (Sir) Joh Bjelke-Petersen's Government in Queensland.
O'Connell was a committed and practising Catholic. His religion guided his personal life and his vision of international law. In a lecture in 1975 he summed up his attitude in a passage in which he lamented the beginning of the decline of the natural-law foundations of international law from the time of the positivist Swiss lawyer Emmerich de Vattel's treatise (1758): 'From the Catholic viewpoint, international law on Vattelian premises is fundamentally flawed, because it offers an insufficient basis for obligation where a superior is not available and because it puts intolerable power in the hands of a majority, merely because it is a majority'.
Shortly after undergoing an operation for hiatus hernia, O'Connell died of a ruptured oesophagus on 8 June 1979 at his Oxford home and was buried in Onehunga cemetery, Auckland. His wife, two daughters and three sons survived him. Sir Michael Havers, Attorney General in the British Government, had recommended him for a life peerage in that year's forthcoming honours list.
IA Shearer
