The Dual Face of the Geneva League of Nations - Carl Schmitt

First published in 1926, a short but important piece on the League of Nations and Germany’s role in the new order. The ideas here would be developed to form Schmitt’s great works on war and international law. Recent events have also shown how these ideas have been neglected, ideas essential to the world order – in particular the “endangering of law in the name of law” on the world stage.

The central question of the Geneva Covenant is whether it legitimizes the Versailles status quo, and this in turn depends on whether the union of a great number of states should be considered a true covenant. If we ask what characterizes a true covenant, with guarantees and homogeneity, as well as the concrete principles of the guarantees and the minimum degree of homogeneity, we do not receive an answer. Schücking and Wehberg's famous German commentary on the Charter of the League of Nations refers to the “Janus head” of the League of Nations in Geneva, one side of which bears the stamp of the “imperialist” era that produced the World War, while the other is dominated by the stamp of “solidarity”, from which alone salvation for the future can come. “Unless we succeed in developing and transforming it in cardinal points, it will be doomed to the same fate as the Holy Alliance.” But the League of Nations was able to learn from the Holy Alliance that no union can exist without the principle of legitimacy, and it has a “Janus face” not only in its mixture of pre-war and post-war ideas, but also in something perhaps far more dangerous, namely that it deliberately leaves doubt about the extent to which it is or is not a real union and hence to what extent the inevitable consequences of the nature of covenant apply. Thus French jurists may interpret Article 10 of the League of Nations Charter as if it provided all the basic guarantees of a real union, while Article 19, which allows for amendments, is seen as if the Geneva Group had nothing to do with a real union; German pacifists, on the other hand, seek to limit the guarantees contained in Article 10 and instead give Article 19 a wide scope of application. There is therefore a great danger that the League of Nations in Geneva will show different faces in each individual case to different states, and that it will not consciously make decisions, but instead will adopt the attitude of a real federation with all the guarantees and homogeneity and possibilities of intervention that follow, and will soon want to be seen only as an office, with opportunities for conferences and mediation, which can be used in practice. It can therefore have two faces, one to the West and one to the East. To the great Western powers it may present itself as a modest entity, ready to serve, while to a weak and unarmed state it may show the sovereign face of strict law and bring it to justice if it stands in the way of a great power’s political interests. The second danger is that in this ambiguity, the pretense of law and legal formality extends to political differences that escape formal procedures. After serious experience, all the friends of the law fear only political processes and the politicisation of justice. Not only has the political power become independent of the judiciary for practical and theoretical reasons of the separation of powers, but judges remain separate from politics precisely in the interests of justice, avoiding the serious danger that such processes would pose to the reputation of the law. However, if we were to organise the resolution of all international disputes by subjecting states to a judicial, or at least a formalised procedure, and if they all did submit to it, then international law would be tasked with the resolution of the worst conflicts in the name of law, and without clear principles or fixed rules. The Mosul question is a worrying precedent in this regard. Political justice would occupy a new territory of considerable and staggering proportions, and political trials launched that would have unjustly raised such judicial questions to the monstrous proportions of global political opposition. Who would have dared to attempt this most terrible endangering of law in the name of the law?

This is the situation in which Germany joined the Geneva League of Nations. Germany has thus joined an international organisation, from which some expect many benefits and others fear pernicious consequences. But no one should be misled by the fact that the central question of the League of Nations has so far been deliberately left open and that the federal character of this institution has not yet been established. The precarious interweaving of the various international relations, which today still looks like an ambiguous composition open to all reassuring interpretations, may tomorrow become a rigorous system and develop all the consequences of true union and solidarity. It would be good to see this, because if Germany is a member of the League of Nations it should also be able to participate on an equal footing in such fundamental changes or definitions. Otherwise, membership in the League of Nations will mean that its defeat will be perpetuated, and joining the Confederation will only complement a terrible and unprecedented surrender of arms, and the less sensible but no less momentous surrender of its rights.