10.2 ENCOUNTERS WITH THE LEAGUE AS A ‘NEW STATE OF THINGS’

The Covenant of the League of Nations was curiously oblique in its innov­ation. It did not explicitly provide for the creation of a League, but rather ‘establishe[d] the League by presuming it', referring to the existence of a new entity whose ‘action...

The Covenant text laid out only the rudiments of the institutional structure: an Assembly (of representatives of all Members), and a Council (representa­tives of the allies and four further states, the selection of which would be contentious throughout the interwar period), each meeting at least once a year. The Assembly and Council were to operate on the basis of unanimity, except in certain specified cases. The Covenant also created a permanent Secretariat, comprising a Secretary-General and ‘such... staff as may be required', appointed by the Secretary-General with the approval of the Council.

The League had an ambivalent relationship to contemporary understand­ings of the role of law in an interstate order. The creation of the League registered in some accounts as a shift from a (chaotic, conflictual) politics into a more law-governed world. But the League, with its emphasis on discussion and consultation, was at some remove from the nineteenth-century ‘peace through law' programme of compulsory judicial, or at least arbitral, dispute settlement,^[669] and the Covenant itself might be read as foreshadowing a move­ment from formalist legal text to politics, albeit of a newly institutionalised kind: what one of its drafters called a ‘new form of international political life'.^[670] However, the coupling of far-reaching responsibilities and minimalist insti­tutional prescriptions gave little real sense of how the League would work. It was not that there had been no thought about how the League would operate, nor that Covenant provisions were drafted without deliberation (although in some instances this was the case). Rather, drafters and commentators had glimpses of something, but its full contours were expected to take shape only later, as the institution began to function.

Once in existence, the League fell to be parsed in familiar vocabularies. Jurists' discussion of ‘the League' gravitated towards interlinked debates over what kind of a body the League was, and - relatedly - whether it could be conceived of as a legal person in its own right, distinct from the (somewhat arbitrary) list of its member states and empires.^[671] Aspects of the Covenant gestured at independent legal status for the League at international law, conceived derivatively as akin to that of a state,¹² but the text was not decisive. German-language scholars took up these questions with particular energy. Questions about the nature of the League were seen through the lens of long­standing debates, shaped by the shifting forms of the German polity, about the legal nature of ‘confederations of states' [Staatenverbindungen].¹³ The most systematic commentary on the Covenant, by the pacifist jurists Walter Schücking and Hans Wehberg, argued that the League satisfied Georg Jellinek's influential definition of ‘confederation': a permanent, agreement­based alliance of independent states for the purposes of protecting their territory as against external enemies, and keeping the peace between them.¹⁴ However, this scholarship on confederations was connected to larger disputes over the character of international law itself.

The jurisprudential ferment of the interwar opened up contrasting approaches, but perhaps not ones which offered any greater possibility of grasping the League's legal, political, social and bureaucratic existence in a holistic way. Kelsen and the Vienna School, liberated by their larger precepts,

see Megan Donaldson, ‘The League of Nations, Ethiopia and the Making of States', Humanity 11 (2020), 6-31.

¹² Covenant, art 2; art 7(4) (‘[representatives of the Members of the League and officials of the League when engaged on the business of the League' should enjoy ‘diplomatic privileges and immunities', as ambassadors did).

¹³ See, e.g., Kraus, Vom Wesen des Volkerbundes (Berlin: Deutsche Verlagsgesellschaft für Politik und Geschichte, 1920), 12-13.

¹⁴ Walther Schücking and Hans Wehberg, Die Satzung des Volkerbundes:Kommentiert (2nd ed.) (Berlin: Franz Vahlen, 1924), 103. Schücking had already, and somewhat eccentrically, seen in the Hague system of a standing court of arbitration the germ of a world confederation [Weltstaatenbund]: The International Union of the Hague Conferences, trans. Charles

G. Fenwick (Oxford: Clarendon Press, 1918), 86.

¹⁵ On Jellinek's views, Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen:Believing in Universal Law (Cambridge: Cambridge University Press, 2010), 55-7.

¹⁶ Schücking and Wehberg, Die Satzung des Volkerbundes, 103-19. Bernstorff suggests that this merely recasts the difficulty of reconciling the sovereign will of states with the existence of some countervailing entity: Bernstorff, Public International Law Theory of Hans Kelsen, 142. saw neither states nor the League as pre-legal persons, but rather as persona­tions of legal orders, both of which might be integrated into an overarching universal law.^[672] Schmitt, on the other hand, with his insistence on the primacy of concrete (statist) order, argued that a genuine ‘league' [Bund] required a certain political homogeneity. For Schmitt, the League of Nations lacked this homogeneity, being rather an arbitrary league of victors. Thus, there might be in Geneva a ‘political-practical purposive entity' [politisches Zweckgebilde] but not a League capable of asserting legal personality in its own right or constituting any legal order whatsoever.^[673]

Both Anglophone and French works noted the German-language discus­sions, but tended not to follow them in detailed integration of the League into existing categories. The ‘international legal personality' of entities other than states had been largely ignored, or brusquely denied, in Anglo-American international law prior to 1919,^[674] and the treatment of group personality in early-twentieth-century pluralist thought seems not to have seeped into inter­national legal discourse.^[675] Oppenheim was typical of Anglo-American approaches to the League in proceeding by way of negatives (the League was not a super-state, nor a confederation, nor a mere alliance), and conclud­ing, by a process of exhaustion, that it was of a sui generis kind.^[676] Whereas Schücking and Wehberg, concerned to place the League within a pre-existing category of ‘confederation', had seen in the Covenant various rights (of legation, of war and peace) analogous to those enjoyed by states, more literal readings of the Covenant in British scholarship emphasised that most of the stipulations in the Covenant applied to members, rather than to ‘the League'.^[677] The strongly sociological and functionalist tendencies of French scholarship also precluded a strong focus on personality,^[678] emphasising instead disparate sites of intensifying social interdependence.^[679] The French jurist Larnaude, who had served as one of France's representatives on the commis­sion drafting the Covenant, likened the League to a trade union or free association: an ‘instrument of co-operation... a standing agency facilitating common action by states animated by the co-operative spirit'.^[680]

Even where it was conceded, recognition of international legal personality as such did not answer definitively questions about the agency of the League.

Anglo-American lawyers were quick to liken the League to a biological or evolutionary phenomenon (a pattern with parallels in constitutional law).^[683] Political scientists and international relations theorists, together with supporters of the League in governmental office and public life, often took a markedly anti­formalist stance, rejecting efforts to parse the Covenant for answers and empha­sising the League's role as a locus for practical cooperation and the gradual cultivation of internationalist sensibility.^[684] The emphasis on dynamism was part of a political promise: that the League would transform itself over time, incorp­orating the defeated powers and correcting what even many strong League supporters conceded were iniquities in the peace settlement. But it was not clear what would generate the change, allowing the League or its members to achieve anything more than had been possible in previous forms of negotiation or alliance.

Whether lawyers or not, Anglo-American commentators tended to see the animating force of the League in ‘public opinion' or ‘popular will'.^[685] In 1919, Viscount Bryce, a leading advocate for the League, emphasised the need to create ‘not only the machinery of a League, but that moving and guiding power which dwells in the opinion of enlightened and liberty-loving men all the world over'.^[686] In a similar vein, but using ‘will' instead of public opinion, Alfred Zimmern, the first professor of ‘international relations' as an academic discipline in Britain, proclaimed in 1935:

By itself [the League] is nothing. Yet the peoples persistently regard it as Something. That impalpable Something is not a legend or a myth. It exists. It has even exercised authority, controlled the rulers of states and prevented war. But that Something does not reside in a tabernacle at Geneva. It is communicated to Geneva by the peoples of the Member States. It is their will and their will alone which can make the League a living reality.^[687]

This invocation of ‘public opinion' and the ‘will of peoples' did reflect features of the League's design, particularly innovative procedures for the settlement of disputes, intended to inform (presumptively peace-loving) publics in the states concerned, and thereby slow governments' recourse to force.^[688] Yet ‘public opinion' also served as a helpful deus ex machina to resolve the larger puzzle of collective agency inherent in the League. A cosmopolitan public opinion would transcend differences between governments, bringing them together and thus sustaining the League as a unitary actor rather than a mere collective of member states. Reference to ‘public opinion' could also smooth the tensions involved in claims that the League would be a site of new diplomacy, not of mere states and governments, but of peoples. The apparent inclusiveness of ‘public opinion' obscured the narrow formal membership of the League. It also masked the tensions between (self-identified) ‘peoples' and ‘nations', and the statist and imperial order which offered them only uneven and imperfect representation.^[689] Even within member states, while ‘public opinion' seemed to connote broad-based democratic engagement, it could also be limited to a much narrower elite opinion, the ‘conscience juridique du monde civilise.^[690]

Questions about whether the League was, either legally or politically, independent of member states, would persist in discussions among dele- gates.^[691] However, the task of establishing the Secretariat presented the ques­tions in a particularly acute way. Many British internationalists, in particular, had imagined only a small Secretariat, facilitating direct functional cooper­ation between national ministries and expert delegates.^[692] On this conception, the League, while perhaps enjoying formal legal personality, was not really an actor in its own right, but rather a nexus for interstate cooperation. Instead, the first Secretary-General, Sir Eric Drummond, built up a cohort of officials divided into functional areas and constituting an ‘international civil service'. This gave the League a presence in the world, and set of human agents, beyond the periodic gatherings of member-state delegates who remained representatives of their own governments. Of course, the Secretariat had been understood as purely administrative, serving the League rather than embody­ing it, so it was hardly, in Kelsen's terms, the ‘dryad behind [the] tree' of the League's formal personality. Yet the existence of a corps of Secretariat officials, charged under internal regulations with regulating their conduct with the interests of the League alone in view, and enjoying diplomatic privileges and immunities under the Covenant, represented a marked break with the statist legal order.

The extent of this innovation is registered in foreign ministries' efforts to grasp the new situation. Foreign ministry officials could, in general terms, accept that the League was an independent institution. But they were discon­certed when they realised that they might have to accord their nationals serving on the Secretariat staff diplomatic privileges and immunities against their own government. In the early months of the League's existence, when the infant Secretariat was based in London rather than Geneva, it seemed absurd to the Foreign Office to accord British nationals on the Secretariat staff diplomatic privileges on their home soil, as though they were in the service of some foreign state. Cecil Hurst, the Foreign Office legal adviser, had to spell out to colleagues that a British subject in the service of the League would ‘owe duties to a unit other than his own country': the League had created ‘a new state of things'.^[693] To explain the stakes of this new loyalty, Hurst invoked a familiar context of Anglo-French rivalry. Secretariat staff, he warned col­leagues, might be privy to ‘all the secrets' bearing on any acute political crisis. It was worth the British accepting the international allegiance of British nationals - and concomitant lack of British government access to the ‘secrets' in their possession - to ensure that the French government was equally unable to assert jurisdiction over its nationals in the Secretariat when they passed through France.^[694] Of course, it was difficult to envisage the British govern­ment seeking to extract such information from British nationals by formal legal process, so the example was hypothetical in the extreme. Yet Hurst was here prescient in linking the independence of the League with the knowledge and communications of the individuals working for the Secretariat, and in grasping that the institution would take ‘life’ not only from the workings of public opinion, but from new circulations of secret information.