Forging a Scandinavian Position: Committee Work

During the war, Scandinavia became a “clearing-house for pacific speculations,” as one interwar observer put it, insulated as it was from the worst repercussions of the conflict.¹⁰ Official coordination of planning for the post-war order between the Scandinavian states, however, proved difficult due to their diverging practices of neutrality and different geopolitical positions.¹¹ Nonetheless, there were ministerial, parliamentary, non-governmental and even royal coordination following the outbreak of the war. Important organized efforts, such as the Central Organization for Durable Peace, founded in The Hague in 1915, and including several member countries beyond Scandinavia, were significant in sparking concerted peace efforts. Here, figures like Swedish Freiherr, former Finance Minister, liberal politician and businessman Baron Theodor Adelswärd, would not only help shape a broader European peace program, but influence policy-making processes internally in Scandinavia. Another prominent presence was Norwegian liberal internationalist and Secretary-General of the Inter-Parliamentary Union (ipu), Christian L. Lange, whose proposal, Développement de L’œuvre de la Haye, particularly for its emphasis on the progressive development of international law, to the exclusion of economic and political questions, proved significant for later Commission work.¹² A particularly important early meeting ground was the Nordic branch of the Inter-Parliamentary Union (niu/ipu), which gained a prominent role during the war, as the rest of the local chapters were closed down or barred from participating, and it was Lange who moved the headquarters to Oslo. niu developed concrete proposals for a lasting peace, strengthened intra-Scandinavian political and diplomatic ties, and served as an important engine of the wider ipu, which in turn influenced several peace proposals among particularly the neutral countries during the war.¹³ The question was how such, relatively far-reaching and progressive proposals, would translate to official policy positions.

In 1917, the Swedish government – in continuation of such broader discussions – had proposed organizing a governmental conference between the most important neutral states, discussing the nature of the future peace, disarmament, arbitration, and the development of international law. However, the Danish and Norwegian governments were deeply skeptical about such an ambitious and high-profile conference, which they believed could compromise their neutrality. Instead, they preferred to keep possible discussions to a low-key Scandinavian forum and focus primarily on international law. The two countries also wanted to begin the process in the most cautious manner, by first establishing national committees that would eventually meet in a joint Scandinavian conference.¹⁴ This conference finally took place in May 1918 with the aim of developing a common proposal on how international law could contribute to a solid and peaceful post-war order. Once again, initial aspirations were curtailed by the strict Danish position of neutrality.¹⁵

However, as the war ended, a common Scandinavian proposal materialized, representing an important break with the former individual participation of each state at the two Hague conferences in 1899 and 1907. The Scandinavian proposal, ready in December 1918, unsurprisingly emphasized the legal dimension of international organization. A postwar organization was to consist of a permanent international court, a council initiating international inquiries, obligatory submission of disputes to judicial or arbitrational settlement, and a permanent institutional set-up for the development of international law.¹⁶ Despite their many internal differences on the political aspects of postwar cooperation, the committees agreed on several key points regarding the pcij, which would become the linchpin for the three governments going into the First Assembly of the League of Nations. Most importantly, the Scandinavian proposal distinguished between arbitrational procedures and a new court of international justice focused on adjudication, where the latter would be independent and devoted to the general standing of international law.¹⁷

Francis Hagerup, who had been central in the committee work, argued that one needed to distinguish between an arbitrational and a judicial system, which could then evolve side by side. The new world court of justice, with a bench of independent judges, was only to deal with purely legal questions. While the proposal refrained from proposing compulsory jurisdiction, it suggested that this could be adopted relatively swiftly. This evolutionary thinking, where the powers of the court reflected the ability of international society to accept and adhere to its rulings, followed Hagerup’s essentially conservative view of international law.¹⁸ Perhaps more surprising was the fact that the court proposed by the Scandinavian committees would not deny justice in cases that could not be decided on the basis of positive international law or custom. Here, the proposal held, the court could move towards rulings based on general principles of law and decide what “should be the rules of International Law.”¹⁹

The proposal constituted a shift in Scandinavian official thinking, informed by a broader international tendency – particularly in the United States – towards emphasizing the need for a permanent international court of justice focused on adjudication.²⁰ This was both a rupture with the pre-war belief in the potential of arbitration (now firmly relegated to second place) and a continuation of the inconclusive debates that begun with the second Hague conference.²¹ With this, and perhaps despite certain misgivings of committee members such as Hagerup, the Scandinavian countries had placed themselves on the progressive side in the battle of the pcij. Conversely, to avoid entanglements with disputes of a political nature, the three neutral states limited the court’s purview to legal matters. Perhaps most significantly, the proposal signaled that the Scandinavian countries were prepared to engage with the future League of Nations, and the seriousness of their work on the issue of international law arguably helped ensure them a greater role in the creation of the statute of an eventual world court.

The low-level, incremental, and legal-technical nature of the deliberations – the commissions as an arena – was conducive to building a relatively deep-seated common understanding of both the general direction and where the differences in opinion lay. Indeed, despite the apparent chasm between the Danish reluctance to commit and the initial Swedish maximalist approach, and despite the Norwegian delegation changing strategy along the way too, the essentially expert-driven nature of the commission work, and the fact that they were producing proposals in a context where all three countries were in search of a policy stance, brought them towards a common position. A first, important, step, therefore, was to create what could be recognized as a Scandinavian position in the first place; this position, was shaped by pre-war devotedness to a specific kind of legal internationalism, and the peculiar geo-political experience with neutrality during the war.

Paris: Hotel Crillon

As neutrals, the Scandinavian countries were not invited to the Paris Peace Conference. Nonetheless, to accommodate their genuine concerns with the postwar order, the Scandinavian governments, together with the other neutral states, were invited by the conference to Hotel Crillon on March 20–21, 1919 to comment upon the first draft of the League of Nations Covenant. The invitation came rather abruptly, allowing little time for Scandinavian coordination. On the other hand, the governments could draw on the existing commission work and the views and work of the Scandinavian interparliamentary union group, which had both preceded and run simultaneously with the commission’s work.²²

To the Scandinavians, the League was a problematic beast: The exclusion of Germany put Denmark at the frontier of future conflicts between the League and its large southern neighbor. Likewise, obligations on military and economic sanctions against violators of the Covenant flew in the face of the three countries’ neutrality.²³ The court envisioned in the first draft of the Covenant was cause for concern too: The Netherlands, Switzerland, and the Scandinavian countries insisted on sovereign equality regarding the composition of the court, i.e. no permanent positions on the bench for the great powers, and the Netherlands and Switzerland additionally supported compulsory jurisdiction.²⁴ This critique chimed well with the more important criticism by the prominent U.S. Republican politician, and former secretary of state, Elihu Root, who called for all disputes of a justiciable character being submitted to the court.²⁵

The League Committee of the Paris Peace Conference could not afford to completely ignore the critique levelled at the first draft. For one, U.S. ratification of the Treaty of Versailles depended on Republican support. Moreover, membership in the League of the European neutrals was crucial in order to dispel the image of the organization being a mere continuation of the wartime alliance. These realities had to be squared both with the British delegations’ resistance to any type of compulsory jurisdiction in referring cases to the pcij and Woodrow Wilson’s alleged general distaste for legalistic postwar visions.²⁶ The compromise reached in the League Committee introduced a certain ambiguity about whether the pcij would deal with arbitration or adjudication,²⁷ which thus opened the door for Root’s conception of the pcij, which in turn opened the door for Republican support for U.S. ratification as well. It also, of course, resonated more with the Scandinavian view. The main challenge to the establishment of the court, the demand by the smaller states for sovereign equality regarding the composition of the court, was ignored at this point, however. This was indeed what had wrecked the establishment of a world court during the second Hague conference in 1907 and it must have been clear to the negotiators that additional negotiations were required to solve this question.²⁸

The ultimate result of the work of the League Committee was thus a relatively broad and ambiguous outline of a world court, even though it was to be used in the execution of various parts of the Peace treaties. The great powers had, nonetheless, committed themselves, more firmly than ever before, to the establishment of a world court. It would be hard to abort the project as this would be seen as a defeat in the eyes of the public in the United States, Britain, and France and endanger the execution of the Peace treaties as well. In addition, the negotiators decided that the statute of the court would be developed by the League Council and proposed for acceptance of the Assembly, thereby giving the smaller states a voice in the process. To further enhance the legitimacy of the new court, the new Secretary-General of the League Secretariat, Eric Drummond, proposed in June 1919 that an advisory committee of jurists should develop a draft statute to be considered by the Council. This was supported by the great powers and offered a venue of potential influence to the Scandinavians.²⁹

With this, the Scandinavian committees reconvened in Copenhagen in August 1919 to restate their proposals considering the now finalized League Covenant. This time, it was the Norwegian committee, rather than the Danish, that was the odd one out. Having been reconstituted without the gradualist Francis Hagerup, they now pushed for a more progressive agenda, departing from the Scandinavian draft on the scope of the court’s obligatory jurisdiction. The Norwegian committee also preferred that each Scandinavian state prepared separate proposals – to make clear the differences between the national positions.³⁰ This departure was potentially detrimental to the prospect of forging a unified neutral position before the acj convened. However, an invitation to a meeting in The Hague would soon offer the Scandinavians a new opportunity to state their position.

The Hague: the Five Power Proposal

In January 1920 the Dutch government did what the Swedish government had wanted to do much earlier (though a major difference was that that the Swedes wanted to include the United States); it invited the Scandinavian and the Swiss governments to align their views. The immediate occasion was the convening of the acj, appointed by the new League Council to develop the statute of the new court. But behind the invitation was also a Dutch wish to consolidate their claim as a possible host of the new world court in the Peace Palace that already hosted the Court of Arbitration established in 1899.³¹

The meeting in The Hague was a confounding affair, however, as the five governments involved had difficulties aligning their strategies in a situation where neither the process nor the objective was clear. Denmark and Norway thus sent relatively low-profile delegates: The local chargé d’affaires Emil Huitfeld, and Professor Mikael H. Lie on the Norwegian side, and the envoy Otto Krag on the Danish side.³² In contrast, Sweden participated with two profiles: the Swedish jurist and politician, member of the Swedish Supreme Court (1903–20) and later foreign minister (1923–24) Erik Marks von Würtemberg and Swedish liberal politician and ipu-member Baron Theodor Adelswärd.³³ The Swedes hoped the meeting would discuss common conditions to be placed on League accession, something the other parties, however, had already declined before the meeting started.³⁴ Meanwhile, for the Netherlands, three prominent lawyers took seat (Bernard Loder, Joseph Limburg, and Cornelis van Vollenhoven), and Switzerland sent its ambassador Gaston Carlin as well as law professor and former politician Eugen Huber (both of whom were also members of the Permanent Court of Arbitration, pca).

The five-power proposal, as it would be named, repeated the same fundamental points about the nature of the pcij as the Scandinavian proposal of December 1918, while at the same time going further in important respects (although alternative minority views were attached). Indeed, there was almost complete agreement on core principles, such as the equality of states regarding the composition of the pcij, the absolute separation of adjudication and arbitration, the exclusion of political influences and the independence of judges from national influence. In addition, it was agreed that the court could not deny justice, if a case could not be settled on basis of positive law or customs. In such cases, the court would apply recognized rules of international law or “enter judgment according to its own opinion of what the rule of international law on the subject should be.”³⁵ In other words, the five powers recognized that the pcij could create international law through its judgments. These were principles that had matured for a long time in Scandinavian committee work, which the Netherlands and Switzerland could also readily agree to.³⁶ Among the new elements, two were of particular importance. First, a broader and more precise jurisdiction of the court was outlined (articles 20–22), which Norway and Denmark opposed because they believed article 13 of the Covenant already had defined this.³⁷ Second, and most importantly, the proposal included an explicit embrace of compulsory jurisdiction, although Denmark and Norway opposed the principle, arguing that compulsory jurisdiction would entail a prior amendment of the Covenant.³⁸

The result of the neutral conference was thus somewhat muddled. The lack of political mandate for some of the delegations turned the conference into a nitty-gritty debate about the legal details of how the court might end up looking. Although common ground could be found on several central questions, the willingness to compromise was missing, and as a result, minority positions were inserted in a number of instances.³⁹ Finally, the Dutch-Swiss attempt to develop a “project commun avec les variants inévitables” was resisted, particularly by the Swedes.⁴⁰ In the end a public declaration was attached to the proposal, stating that it merely reflected the views of the delegations present and not the five governments.⁴¹ The Norwegian delegation concluded that an important opportunity had been missed to clearly emphasize the importance of such common points as the legal equality of states that the great powers might expectantly attempt to undermine. Instead, the Norwegians and the other four states had to contend themselves with a proposal where one could fear, that the points of agreement would drown among all the minority positions.⁴² Though, as the Swiss delegation pointed out, the agreement was there to be found, and the proposal was both distributed and discussed prior to the convening of the acj.⁴³

The conference was clearly a site of diplomatic uncertainty: divergent expectations, divergent interpretations of the purpose of the conference, and divergent representation at the conference itself made effective agreement more difficult. Nonetheless, the Scandinavian countries had come a long way from the individual participation at the two Hague conferences to the establishment of close cooperation on the formulation of postwar international organization. It is also noticeable, how the Scandinavians increasingly anticipated the reality of the League, like when the Danish and Norwegian delegates saw it as futile to get the member states of the League to accept compulsory jurisdiction due to article 13 of the Covenant.⁴⁴ Thus, while working on the “outside” – in national, Scandinavian, or neutral constellations – there was both a process of forging a common stance, but also a great deal of anticipatory accommodation. This, of course, speaks to the question of Scandinavian, and thus small state, influence on international politics: while internally articulating a more or less consolidated Scandinavian position, the three states were equally absorbing and adjusting to what we could call “systemic traits” in the making.

Francis Hagerup in the Advisory Committee of Jurists (acj)

Central to the cumulative preparatory work of the Scandinavian legal commissions and the five neutrals was the support for sovereign equality, a jurisdiction that excluded questions of a political nature as well as a focus on adjudication and not arbitration, with some hesitancy regarding the question of compulsory jurisdiction. This placed them in the “soft middle” of a larger group consisting of European neutrals, Latin American countries, and parts of the U.S. political establishment. Importantly, the Scandinavians (including the Five Power Proposal) had created an “arsenal” of well-crafted, moderately progressive proposals that could be used as rhetorical leverage within the Advisory Committee of Jurists (acj) proposed by Drummond in 1919, without necessarily driving the more skeptical committee members away. It was a delicate game, and one that led Hagerup to leave his legal principles to one side, and instead be led by his diplomatic and political Fingerspitzengefühl to seize the opportunities offered by a historical moment.⁴⁵

The nomination of a Scandinavian legal expert to the acj was somewhat accidental. The League Secretariat wanted a committee with representatives of the five great powers, but at first offered seven spots for jurists from other states. Later, when a number of rejections came in, Drummond settled for a committee of ten members, in order to balance the great powers vis-à-vis the smaller states. There is no evidence that suggests a special preference for a Scandinavian candidate. Nevertheless, the former Norwegian prime minister, supreme court judge, and trusted international arbitrator Gregers Gram was invited during the first round, only to decline to join the committee due to deteriorating health. Despite the attempts of the Norwegian government to maintain a position in the committee by offering the well-known liberal internationalist Mikael Lie, Drummond rejected the idea that Norway would automatically keep a position. It was thus only later, when the Serbian politician, diplomat and soon to become third prime minister of Yugoslavia (1920–21) Milenko Vesnic had to step back, that director of the legal section Joost Adrianus van Hamel and his young Swedish member of section, Åke Hammarskjöld, facilitated the nomination Hagerup. Åke, the son of former Swedish Prime Minister Hjalmar Hammarskjöld (1914–17), and a rising star within the League of Nations Secretariat and later the first registrar of the pcij (1922–36), clearly saw the importance of a Scandinavian representative, and went through informal channels to reach Hagerup. Hagerup accepted despite his fragile health, less than two weeks before the opening of the committee at the Peace Palace of The Hague.⁴⁶

With this, one of the most conservative, but also one of the most astute legal and political minds of the various Scandinavian committees, joined these crucial deliberations. Concretely, this meant, that the acj had a Scandinavian amongst its ranks that was relatively hesitant about giving the pcij compulsory jurisdiction, believing that the nature of international politics was too immature for this.⁴⁷

Hagerup’s main concern remained the sovereign equality of states; narrowing the jurisdiction of the pcij; and – importantly – he pushed the Scandinavian proposal, which he had helped develop, to establish two parallel legal systems, one of arbitration and one of justice. The Norwegian government had side-lined Hagerup in the very last round of Scandinavian discussions, and from the committee that prepared the Norwegian ratification of the Covenant, and had preferred Mikael Lie in the committee. Now he was, despite these strategic choices, the sole Scandinavian jurist in the committee.⁴⁸ There is little doubt, moreover, that Hagerup considered himself the Scandinavian representative in the advisory committee – just like Åke Hammarskjöld did. Hagerup’s confidential report on the acj, for instance, was sent directly to all three mfa s and phrased as a summary on behalf of the Scandinavian position.⁴⁹

In appearance, the draft statute of the pcij produced by the acj seemed heavily influenced by the various neutral and Scandinavian proposals. It stressed adjudication over arbitration, the separation of legal and political conflicts and even included compulsory jurisdiction. In terms of sovereign equality and the composition of the court, the compromise solution used the League Council and Assembly to nominate the judges, balancing small and great power concerns eloquently.⁵⁰ The reason for this striking alignment was, however, not some superhuman feat by Hagerup in the committee, but rather ironically the failure of the U.S. Senate to ratify the Versailles Treaty in the autumn of 1919.

This placed the U.S. committee member Elihu Root in a very advantageous negotiating position: He could now pursue his agenda of establishing a genuine court of justice with compulsory jurisdiction that would make judicial decisions based on codified international law and accepted precedents with vigor. The British and French participants, Lord Walter Phillimore and Albert Geouffre de Lapradelle, knew full well that a favorable design of the court could attract the participation of the United States, and potentially pave the way towards membership of the League of Nations as well.⁵¹ This, in turn, allowed Hagerup and the other European neutral committee member, the Dutch jurist Bernard Loder, to lend their support to a winning coalition, by referring to their several already existing drafts.

Indeed, the draft statute went significantly beyond several of the positions Hagerup had defended until 1920, and it is difficult to assess what kind of sway he could have had if he had stuck to his previous convictions. This, however, he did not; or rather his convictions had to adapt to the emerging international terrain. For one, the Covenant, despite his misgivings, undeniably represented a major political breakthrough for the notion of a permanent international court among the great powers.⁵² This meant that – one way or the other – the acj was obliged to agree on a draft statute. Since the committee was not a diplomatic conference, a majority vote could suffice on the thorniest issues. Hagerup faced, in these circumstances, not the choice between an ideal court or no court at all, but the very real prospect of some sort of court, which perhaps could be brought towards the Scandinavian position and in any case would need the broadest possible support to succeed. Consistently, therefore, Hagerup implored his colleagues to compromise in order to strengthen the legitimacy of the proposal.⁵³

Hagerup’s most important concession concerned the constitution of the court. After having, at first, defended the principle of sovereign equality in a principled manner,⁵⁴ Hagerup was eventually swayed by an elegant proposal by Root, soon backed by the British and French committee members.⁵⁵ Firstly, Hagerup, who initially preferred that the Court of Arbitration should nominate judges to the pcij, accepted that this competence could lay with the League Assembly (a position held in the Danish and Norwegian proposals from 1919 and the five-power proposal).⁵⁶ And convinced by Root’s arguments, Hagerup went even further, and accepted that the nomination of judges would be decided by the Council and the Assembly together. To Hagerup, this was a substantial concession,⁵⁷ but as he himself reflected, the “ideal judge would be one that dropped from the skies; what they had to do was to find a practical solution.”⁵⁸

Following this, Hagerup would continue to back Root in the contentious discussions on the nature of the pcij. Reflecting the evolution that the joint Scandinavian viewpoint had undergone since the war, he sided with Root’s proposal for a court of justice, focused on adjudication of juridical questions based on codified international law, and accepted precedent in the face of a deeply split committee.⁵⁹ He also overcame his hesitation regarding compulsory jurisdiction and, as most committee members, yielded to Root’s vigorous campaign.⁶⁰

Indeed, Hagerup helped amend the concrete proposal that outlined the four categories of disputes (from article 13 of the Covenant) on which compulsory jurisdiction would apply, contributing greatly to it receiving broad support in the committee.⁶¹ On a second contentious issue, whether the court should declare itself incompetent, in cases where there was no positive law or custom to draw on, Hagerup – referring to the Scandinavian and five-power proposals – initially backed the view, that international courts just like national courts, should not deny justice in cases where no positive law existed.⁶² In the end, Hagerup and several other committee members had to give way to Phillimore’s principled view, that the court should “do justice according to the law,” not invent law itself; and Root’s more practical argument as well; that in order for the great powers to accept compulsory jurisdiction, the jurisdiction of the court had to be limited and precisely defined.⁶³

Chance brought Hagerup into the acj. But it was the cumulative work of the Scandinavians that allowed him to act in the capacity of all three countries and leverage their proposals (together with the five-power proposal) with authority. Reinforced with this clout, he understood his role as not merely legal, but as essentially diplomatic. The acj was an arena in which principles would be massaged into compromises under the weight of major geopolitical considerations (U.S. membership in the League or not). It was, as Hagerup understood it, a multilateral moment that could not be missed. In this sense, Hagerup was not transforming the statutes of the pcij, but being transformed by geopolitical circumstances. Legal scholar Cecilie Schjatvet has shown how Hagerup’s position within the acj was not, as Christian L. Lange claimed, a repudiation of his former stance on world courts. We would add that it is a telling example of how the Scandinavian position on not only the pcij, but the emerging League-centric order, was produced outside-in.⁶⁴

Francis Hagerup at the Assembly

In this final section, we shall confine ourselves to the major bone of contention at the First Assembly of the League, after the League Council had revised the draft statute delivered by the acj, namely whether the pcij should have compulsory jurisdiction. At their meeting in October 1920, to the great disappointment of the smaller states, the League Council had removed compulsory jurisdiction from the draft statute. The great powers were generally against the principle. President of the Council, Léon Bourgeois (France), believed that it outright contradicted articles 12–14 of the Covenant and thus necessitated a dangerous revision of the Covenant, which potentially threatened to unravel the Peace treaties, a prospect clearly not in the interest of France.

How did the Scandinavian governments respond to this significant step back regarding the powers of the court? The answer is complex. The first move was exceptionally aggressive. In the First Committee of the Assembly, dealing with constitutional affairs, the Swedish, Danish, and Norwegian delegates proposed a revision of article 13 of the Covenant, removing the word “generally” to strengthen the obligation of the member states to submit various questions of international law to arbitration or judicial settlement. Hagerup held, that the introduction of compulsory jurisdiction would be perfectly possible with this revision of article 13.⁶⁵ However, such an interpretation was not uncontested, as other members of the acj believed that article 14, in any case, excluded compulsory jurisdiction.⁶⁶ In addition to this common proposal, the Norwegian government proposed by itself a complete revamp of the entire system of conflict resolution of the League. A complex system of commissions of arbitration and conciliation were to be established to complement the Council and the pcij. The idea was to move a range of international disputes, that might not be solved by the pcij, away from the Council and place it in this new system of commissions.⁶⁷ Unsurprisingly, both proposals were vehemently opposed by the great powers, particularly by the French delegation, and were eventually defeated.⁶⁸

On this background, Hagerup thus commenced his work in the Third Committee, which would finalize the statute of the pcij to be placed before the Assembly in plenary. However, this time the Scandinavian governments were more cautious. Hagerup was instructed by the Norwegian government to see the negotiations to a successful outcome without further provocations of the great powers. This did not mean that Hagerup was happy with the outcome of the Scandinavian initiative in the First Committee. He openly admitted that it had been in the belief of seeing the First Committee amendments adopted, that he had originally been able to agree to the draft statutes of the advisory committee: “A vote of the first Committee of the Assembly had destroyed this hope!”⁶⁹ In the Third Committee, the challenges to the Council’s revised draft statute and the great powers did not come from the Scandinavian governments, but instead from the Latin American delegates who were displeased with the removal of compulsory jurisdiction. Eventually, it was Brazil’s delegate Raoul Fernandes – abetted by many – who led the South Americans to stand up to the great powers. It is beyond the scope of this article to delve into the details of his partially successful intervention, apart from noting that this kind of direct influence was beyond what any of the Scandinavian delegates managed to get. Once again, Hagerup would take on the role as conservative compromiser.

The deliberations of the Third Committee, which saw the return of several members of the acj and participants in the previous Council meeting, started with an overall exchange on where the thorny questions lay. Here, Hagerup associated himself with the great powers – represented among others by Bourgeois and Robert Cecil (Britain) – stating, firstly, that “only the existence of the League of Nations could explain the fact that The Hague Committee [acj] had arrived at a positive and unanimous result,” and, secondly, that even though he was not pleased with the Council’s amendments, “even in its present form, The Hague Scheme would represent valuable progress.”⁷⁰ Both Hagerup and Bourgeois held, that the proposed statute should be amended as little as possible, lest they undermine the frail process of getting the United States to potentially join the League. As things stood, the strategy of the Scandinavians, the personal compromise of Hagerup, and the wishes of the great powers aligned. Hagerup, nonetheless, regretted that the Council changed the acj’s initial proposal of compulsory jurisdiction, suggesting – as several other small states and neutral members – that “it would perhaps be possible to conclude a treaty adopting it between a certain number of members of the Assembly, but not to arrive at a general convention.” While opening the door for some partial solution, he strongly encouraged the Third Committee to observe the maxim: “Calculate the limits of the possible.”⁷¹

With these watchful words in mind, Hagerup was selected chairman of the sub-committee to the Third Committee, tasked with proposing specific solutions to the thorny issues detected in the first initial exchange.⁷² Its most important task was to square the views of the great powers and the most careful European neutrals with those of several South American representatives, supported by other European neutrals or small states (Switzerland and Belgium). Cecil and Bourgeois threatened, that major amendments might prompt their governments to not ratify the pcij.⁷³ Undaunted, Fernandes audaciously pushed for the full reintroduction of compulsory jurisdiction. Hagerup too tried to persuade Fernandes to abandon his position, but the latter stood his ground.⁷⁴ Raising the stakes, Fernandes also argued that only the League institutions had the authority to establish the court. This could happen through a simple majority vote of the Assembly and the Council.⁷⁵ This stood in stark contrast to the procedure supported by the great powers and the Secretariat, namely, to base the court on a traditional convention signed and ratified by the member states.⁷⁶ With the work of the Third Committee about to derail, Fernandes’ proposal was handed to an even smaller ad hoc committee, in which Hagerup also took part. After several rewritings, the proposal eventually reached the full Third Committee.⁷⁷

The final proposal maintained, that the states that signed and ratified the pcij convention could opt to accept compulsory jurisdiction either unconditionally or based on reciprocity, without establishing another convention.⁷⁸ In this way, the so-called optional clause niftily avoided raising the issue of amending the Covenant, while recovering part of the work of the acj.⁷⁹ The proposal would receive broad support in the General Assembly, and the Scandinavians would laud it as a constructive compromise. Indeed, the Scandinavian countries were among the first to ratify the statute and to accept the optional clause.

The convening of the first Assembly constituted a major diplomatic innovation. Institutionalized and publicly scrutinized intergovernmental multilateralism put a new kind of coordinated pressure on the great powers, which they found difficult to control. The optional clause was the result of Fernandes and the Latin American states pushing against the great powers’ fait accompli. The Scandinavians, after their failed coup in the First Committee, seemingly acquiesced to the position of the great powers.⁸⁰ Hagerup clearly found it difficult to play the role of the neutral mediator this time, complaining about the failure to maintain compulsory jurisdiction while at the same time helping the great powers to put pressure on Fernandes. If the acj constituted a diplomatic moment that Hagerup needed to seize, the Assembly was on the other hand a diplomatic moment, when he feared gains made could slip away yet again. Nonetheless, the procedural dynamics of the first Assembly as a diplomatic arena showed with clarity, how smaller states could launch multiple, more or less coordinated, strategies across several committees in pursuance of the same goal. Overall, however, Hagerup’s role and deeds shows that the Scandinavians adapted to circumstances, more than they shaped the course of events. Thus, while all the European neutrals, including the Scandinavian countries, supported the optional clause in the Assembly, and the Scandinavian countries were quick to ratify the optional clause – this was a matter of capitalizing on what were considered gains in a League-centric international order that bore few similarities to the kinds of plans they drafted in commissions just a few years earlier. A sequence of multilateral diplomatic arenas had transformed this outlook.

Conclusion

Our conclusion, following this brief tour of five diplomatic arenas, must remain tentative. Nonetheless, three things seem clear: Firstly, the question of the role of international law and a new world court brought the Scandinavian countries together through a series of national, regional, and international fora, that helped forge a relatively common position on the pcij. This can be understood in terms of the policy field, with which the Scandinavians were greatly concerned (and where there would remain significant differences of opinion). But perhaps more importantly it can be understood in terms of diplomatic praxis: The Scandinavians, and later Hagerup in particular, demonstrated a willingness to adapt their court-centric worldview, and their dearly held principles for the nature of the World Court within the context of a new and emerging international order, which would profoundly redefine the role played by the three countries in the League system. It was strategic adaptations like these that paved the way for the kind of “pragmatic” internationalism the Scandinavian states would pursue during the interwar period, and which is important to recognize in light of the realist adaptations after the Second World War.

Nonetheless, the establishment of the pcij offered the smaller states, and thus the Scandinavian countries, a chance to influence the kinds of decision-making processes usually reserved for the great powers. This space was opened up to them, both due to the crucial role of the United States (and the neutrals) in securing the legitimacy and proficiency of the League, but also due to the innate qualities of international law. International law and a potential world court being the ingredients of rule-based international relations, the smaller states invested heavily in this question. The Scandinavians thus became important producers of legal-diplomatic proposals and draft statutes, which were operationalized by legal craftsmen, such as Francis Hagerup in the various diplomatic arenas. However, even with such labors, and an astute legal mind as Hagerup inserted in crucial negotiations, the impact was limited to bending towards and trimming the edges of realities already in the making.

This brings us to the third, and final, point: The qualities and sequencing of the diplomatic arenas mattered greatly in forging a distinctly Scandinavian position with regard to the pcij in particular, and the League of Nations more generally. Our observations are neither conclusive nor exhaustive, but the technical nature of the early Scandinavian Commission work, and the seriousness by which they pursued a common position, vested Francis Hagerup with a role within the acj (though his entry was serendipitous). He understood his role as essentially diplomatic – a compromiser at a historical moment. Equally, the early labors of the Scandinavian commissions were important to forge the common, if eventually botched, strategy in the First Assembly. Eventually, the Assembly would deliver a qualified victory for the smaller states. An unpredictable diplomatic arena not easily controlled by the great powers, even when backed by the League Secretariat, it eventually crowned Fernandes’ seemingly Don Quijotean attempt at reintroducing compulsory jurisdiction with partial success: the optional clause. After the fact, the Scandinavian governments would wholeheartedly support this as a decisive step in the right direction and would become some of the most loyal users of the pcij.⁸¹ A qualified observation would be that this process shaped Scandinavian interwar internationalism, and the governments’ views on international law’s role in global politics, more than the other way around.