by Emanuele Podda, PhD Student, University of Warwick and Morten Rasmussen, PhD in History, Associate Professor, Saxo Institute, University of Copenhagen
The relationship between the League of Nations system, including the International Labour Organisation and the Permanent Court of International Justice, and international law has not yet been explored systematically by historians. It is thus not surprising that the history of the Legal Section of the Secretariat has not been given any attention despite the fact that it was the first time an international organisation included a legal service. Where the history of the Secretariat has received considerable attention among historians in recent decades, the Legal Section is largely absent from these new narratives. The main exception is work on the Permanent Court of International Justice, recently published histories of interwar criminal law as well as important new research on the mandate petition system, the registration of treaties and international criminal law. However, all these important additions to history of the League of Nations and international law only treat the Legal Section indirectly and in limited detail. There exists yet no account that focuses on the institutional, social and legal history of the Legal Section and attempts to identify and explain its agency within the Secretariat and beyond. This is consequently a topic ripe for new research efforts.
It was by no means a certainty that the Secretariat would even include a legal service. However, the Covenant not only outlined a new world court to be established; it had also imposed a number of duties on the League of Nations of a legal character, including, for example, the running of the minority treaties system, the mandate system, treaty registration and the solution of key post-war problems such as the status of the Saar and Upper-Silesia. The Secretary-General, Eric Drummond, consequently decided in May 1919 to set up a Legal Section. The future director of the Section, the Dutch Professor of Criminal Law and journalist, Joost Adrian van Hamel, applied for the position independently by contacting the South African representative at the Paris Peace Conference, General Smuts. It was the latter that recommended van Hamel to Drummond emphasising his trustworthiness and the fact that he was "entirely pro-entente". Over the next half year, Drummond and van Hamel would put together a team of four to five members of section, a personal assistant of the director and a larger group of typically female secretaries, shorthand typists, stenographers and assistants. This composition would, with different personnel, continue to the late 1930s.
The tasks of the Legal Section were defined by Drummond and van Hamel in June 1919. Most importantly, the Section was supposed to advise the Secretary-General and the Secretariat on all matters of politics, administration and law. In addition, the Legal Section would offer legal advice to both the League Council and League Assembly and any committee established by these two institutions. Special tasks included the facilitation of the establishment of the new world court and the administrative link to the court from 1922 onwards, the registration of treaties, the codification of international law in cooperation with external bodies such as the Institut International de Droit Public and the International Bureau for the Unification of Criminal Law, diplomatic immunities as well as handling the legal dimension of the Leauge’s relationship to Switzerland. Moreover, it did not exist in a vacuum, and directly contributed to the activities of other Sections of the Secretariat. For example, during 1930s its members were often ‘loaned’ to the Disarmament or Opium Sections in order to offer advice on projects of conventions. This means that the tasks of the Section were exceptionally wide, which makes it difficult to study because, as a consequence, the legal advice of the Section is scattered across the entire archive of the League and beyond.
The policies and views of the Legal Section on the different questions with which it was involved have yet to be studied. We know very little about what the views of the Legal Section on the general development of international law were. We know nothing about the role of the Legal Section in defining the functioning of the League institutions and their interrelations. And we have no coherent understanding of the nature of the legal advice the section offered the League institutions and the Secretariat sections. The Legal Section is ripe for new historical studies.
The Legal Section had three directors: Joost van Hamel (the Netherlands) from 1919 to 1926 followed by Juan Antonio Buero (Uruguay) from 1928 to 1935 and L. A. Podesta Costa (Argentina) from 1935 to 1939. Among the most central jurists working in the section was the little-known British jurist Hugh McKinnon Wood (1920-1940), who acted as de factor director from 1926 to 1928, French jurist Émile Giraud (1927-1946), who became the League’s Legal Adviser during the Second World War (1940-1946), and Belgian jurist Joseph Nisot (1922-1940), registrar of the League of Nations’ Administrative Tribunal (1931-1940). The Legal Section consisted of a personal assistant and four or five members of section. All members of section were male. Drummond and van Hamel had originally intended to hire a female lawyer from Scandinavia when establishing the section, but did not succeed in finding a suitable candidate and instead picked Åke Hammarskjöld. As a result, the section resembled most other sections in the Secretariat, employing female staff as assistants, stenographers, bilingual shorthand typists, shorthand typists, and secretaries. Of these, perhaps the most important was the British secretary to the director, Ethel Fryer Paczynski, who worked in this position from 1920 to 1940.
Nationality played a central role in the appointment of staff. In the Legal Section, it was crucial to include representatives from different legal cultures. To Drummond and van Hamel this meant including lawyers from the Anglo-Saxon countries (common law tradition) and Continental Europe (civil law tradition), while no serious effort was initially made to recruit South American or Asian candidates. This partially changed towards the end of the 1920s when Drummond, confronted by requests of increasing representation from the part of Latin American and Asian countries, suggested the Appointment Committee to nominate a Cuban, Armando Mencia (1927-1934), and an Indian, Jal Jemshid Dalal (1926-1934) and to confer the direction of the Section to a Uruguayan, the above-mentioned Buero. It remains the fact that these were not hired because of any specialized knowledge of their legal traditions, but only insofar as they possessed a sufficient knowledge of the Western juridical culture. The Chinese, which Under Secretary General Attolico considered scarcely ‘westernized’, were therefore excluded. General Secretary Joseph Avenol (1933-1940) left the direction of the Section in Latin American hands replacing Buero with the Argentinian Podesta-Costa. However, the other appointments of the Avenol era, namely those of Max Habicht (Switzerland) and Joseph Starke (Australia), confirmed a pro-Western bias. In terms of education, the members of section had all studied law at important and sometimes famous universities, most mastered at least English and French expertly, and some also spoke German. The age profile of the section was very young, which is not surprising for a brand-new organization like the Secretariat.
The most famous jurists employed in the section, belonged to the very first generation of people hired in 1919-1920, but they left the section quickly for better job opportunities and due to the leadership style of van Hamel. This generation included the later registrar and judge of the Permanent Court of International Justice, the young Swedish jurists Åke Hammarskjöld, American Professor of international law at Harvard and later judge of the world court, Manley O. Hudson, the young Dutch jurist, Eelco van Kleffens, who would later become foreign minister of the Netherlands (1939-1946) and the Belgian jurist, George Kaechenbeeck, who became President of the Arbitral Tribunal of Upper Silesia. Those who were appointed during the remaining part of the 1920s and during the 1930s tended to stay at the League, and subsequently went to work for other IGOs or as diplomats for their governments. For example, Émile Giraud and Max Habicht joined the United Nations’ Secretariat, while Joseph Nisot became the representative of Belgium at the UN. Juan Schwartz y Diaz-Flores (Spain), Benedetto Gentile (Italy), and Podesta-Costa were all employed by the foreign services of their countries.
Material from UN Archives Geneva
The archives of the Legal Section of the League of Nations are available on the UN Archives Geneva Platform.
The establishment of the Permanent Court of International Justice can be studied consulting: R1299-R1306.
The link between the Secretariat and the Permanent Court of International Justice can be followed by consulting: R1307-R1331.
The role of the Legal Section in Codification can be studied by consulting: R1274-R1279.
To access the social life of the Legal Section, the personnel files of the members is a fascinating starting point. This is done by identifying the name of the employees of the Section and finding their dossier here. The scanned documents are available upon request.
In addition to this the League of Nations registry index cards are intriguing because they offer a unique way to study the workflow of the director and members of section over time. To be able to follow the workdays of an individual member of an international organization is something which is unique for the League of Nations archives. With the entire archive digitalized, the cards can then be used as starting point for searching for precise documents.
Material from private archives
In addition to the rich League of Nations Archives there are several important private archives across Europe and the United States that contain important material on the history of the Legal Section. The four archives below are all very rich in terms of providing material from the Legal Section and cast an interesting light also on the social life of the section.
M.Donaldson, The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order, The American Society of International Law, 2017, Vol. 111: 3, 575-627.