DANIEL RICARDO QUIROGA-VILLAMARÍN: Perhaps the first question I would like to ask —hoping it might be particularly relevant for all the junior researchers that might read this interview—is about your personal journey towards this project. I was wondering if you could tell us more about how you came to approach the League of Nations in the first place. How did this new monograph resonate with some of the previous work you've done on domestic and comparative legal history?
OMER ALONI: Well, actually, the first question is completely relevant because, at first, I was generally interested in the League of Nations, as an interwar institution that I did not learn a lot about during my studies and exploration of modern history. I was really interested in this institution during my time both at the Law School and the History Department of Tel Aviv University, as I did a double degree in law and in general history. And yet, I remember that during my training there was no kind of class on or discussion of the League of Nations, even if I focused on the modern period—and on the 20th century in particular. Of course, we had conversations on Nazi Germany, the World Wars, and the interwar period. I don’t think this was just by accident. The League was simply not on the table and did not feature at all in the courses, exams, or seminars.
So, I was really interested in exploring the League from a historiographical perspective. I started wondering why historians and scholars—let alone legal scholars or legal historians—were not looking at the League of Nations and the interwar period in general. This spiked my interested in the institution, especially in the 1920s and 1930s. As an Israeli, I did have a good sense of this institution and, therefore, I think that this peculiar absence from our textbooks and academic discussions seemed even more surprising: the "near" history of this part of the Middle East is embedded in the vibrant history of the League—the British Mandate for Palestine, for instance, the political unit from which modern Israel emerged in 1947 and 1948, was a central legal mechanism that was created and regulated by the League and its institutions. The mandatory period was a rather short but important chapter in the history of the region, let alone our legal culture. So, it seemed to me that there was a robust literature on the mandate and the legal history of Israel in the 1950s, which was connected with the League through the mandate system (as Susan Pedersen beautifully described in her last book). But of course, the British Mandate for Palestine was a legal mechanism, and I was intrigued about why we, as lawyers and legal historians, have not really paid much attention to it and the broader interwar period.
Long story short, I came to realize there was this continuing exploring this "black hole" in the historiography of the 1920s and 1930s (which also recently has started to be filled by important works such as those of Pedersen, Patricia Clavin, Mark Mazower, Natasha Wheatley, and other leading scholars). As I looked into these kinds of questions, I noticed that there was a new group of scholars—first and foremost historians, but also economists and sociologists—that (literally) went back to Geneva, to the archives at the Palais des Nations (nowadays, the UN Office at Geneva), and were reexploring and revealing this hidden chapter of a broader history. So, I was initially interested in exploring "classic" historical issues and research themes of refugees, peacekeeping, global security, the creation of new states also in legal terms, and all of these big questions of the interwar period. But when I was looking into this, my supervisor Dr. David Schorr —to whom I have a huge debt of gratitude for guiding me in these last (intense) several years— suggested that I explore another black hole in the historiography: the evolution of international environmental law.
We learned that there is a missing link in the understanding of the evolution of environmental law, pretty much in the same manner that there used to be a missing link in the evolution of modern history. So, in our discussions, we decided it would be interesting to explore environmental issues that were tackled by the League of Nations. And at first, I must admit, I was worried that perhaps I was not going to find enough material in the archives. Indeed, in the secondary literature there was no exploration of this connection between the interwar period and environmental concerns. But I decided to look into the primary sources, and I laid my hands on documents that revealed that the League was full of debates, concerns, plans, and dilemmas related to the environment. It was all in the records! I was thrilled.
So, what became clear to me was that besides some of the political and social issues I already mentioned (such as border issues, refugees, global security, the fight against trafficking of women and children, and the role of international law per se), the League was also concerned with the protection of whales, endangered species, global diseases and plagues, sanitation, deforestation, and all sorts of environmental issues with which, unfortunately, we are (very) familiar also today in the midst of the ecological crisis of the 21st century. The tension I faced here as a legal historian was how to approach these issues with caution so that I didn’t impose a contemporary set of concerns anachronistically or make anachronistic mistakes in my own research. Indeed, I was very careful to think about which terms were used in the period. But leaving aside this issue for a second, it did become clear that many of the questions that the League faced (for instance, in terms of raw materials, pollution, exploitation of natural resources) remain very relevant today.
DRQV: How do you situate your work in relation to the traditional historiographies of international environmental law? Because something that I found very exciting is that your book questions some of the standard narratives of environmental law, which often revolve around the 1970s and not the 1920s and 1930s.
OA: So, when we talk at law school about international environmental law, we always start with 1972. That is the date we find in our textbooks or that we study in the classrooms of international environmental law. It is the common narrative. It all begins with the big celebration—and I think that is the right term— of the creation of the United Nations Environmental Programme (UNEP) and the big conference that took place that year in Stockholm. The common narrative shows how some of the main agreements and conventions started to develop under the auspices of the United Nations Environmental Programme.
However, my project showed that we might investigate a different time, or a different timeline. So, we still need to look into the 1970s and 1990s, and we cannot, of course, let go of 1972, and of the UNEP in Stockholm. But I wanted to highlight that already in the interwar period, international environmental law was discussed—although they didn't call it that. So, my case studies show that environmental problems and challenges were discussed, and there was a very robust set of concerns in relation to nature during this time, although much more pressing issues concerned the international community. Yet these interwar discussions of environmental dilemmas, as I have identified them, were entangled and concerned with other sorts of questions related to the economy, industrial interests, tourism, and so on. But when economic-oriented actors talked about issues such as whaling and the "exploitation of the treasures of the sea" (as it was described), deforestation, or pollution of the sea by oil, they also opened the floor for other points of view, other players, and other (concerned) voices. These other actors identified such discussions as instances when the demands of the economy had to be balanced with claims of nature protection—the same dilemma of our times, unfortunately. And by that, the League became a forum in which the law could mediate between these rival interests. Even if they didn’t use the same terms we use today in official, formal, and legal discussions, these debates were in substance about what we understand as international environmental law and international governance of these common environmental problems that know no borders. You see this in debates around the convention against the pollution of the sea by oil of 1935 side by side with the campaign for international whaling regulation. So, my archival research allowed me to stretch the timeline and challenge this common narrative.
DRQV: I would like to ask you if you could tell us more about what “the law” means for your monograph, because I felt this was something that was haunting the book. Now, at some point in the introduction (this is footnote 28, at page 12), you specify that you're understanding international law broadly since you're interested in transnational regulation, in what is nowadays called “Global Law.” I think that is very exciting, because you want to go beyond the traditional understanding of “formal law.” But at the same time, I felt that throughout the book, there was a sort of preference for the “hard law”—the binding treaty, the permanent formal resolution. And in some sense, I felt you were disappointed with your actors when they could only reach “soft law” or some sort of non-binding measures in some cases. So, with that in mind, I wanted to ask you, how did you engage with all of those different forms of normative regulation? And how do you see the League and the different organs around the League in terms of normative production?
OA: You are right, and that is another great (and challening) question, but of course this is a preference that is not only mine, but I think is common for our discipline and the actors I study. So, I was very interested in the interactions between informal and formal law in international law—and also in general legal theory. As such, I wanted to engage not only with treaties, conventions, and agreements, but also with other sorts of regulations, mechanisms of information sharing, interpretations, and discussions which are also “the law” broadly understood. With this I mean that we also have to look into the discussions of special committees, delegations, debates at the Assembly, because all of this is part of how international law consolidates in processes of constant movement. All of this is very relevant, and it would be problematic to only focus on formal or “hard” law, because we stay with only a couple of limited examples. Yet, when it comes to the interwar period, as you noted, I do share a sense of disappointment with my actors when it comes to the limitations of their legal arrangements. But this is not only a feature of this period—reaching international agreements is always a hard task. You can see that also in regard to the Glasgow Conference of Parties in the late autumn of 2021. It’s always a very hard task to reach an agreement, and perhaps on environmental matters it becomes even more challenging. As such, our focus should tackle these documents but also go beyond to other sorts of legal products and expressions as well, because if not we get a limited picture of international law.
DRQV: In that same vein, another issue that seemed to trouble you as a socio-legal researcher was the gap between regulation and implementation, or, as you put following an Unitedstatesean formula, the distance between the law “in the books” and the “law in action.” I noticed you were very concerned in your monograph not only with the norm, but also with the way in “trickles down.” Could you tell us more about how legal norms were implemented in your different case studies?
OA: You here touch a point of tension that is very familiar–and central–for legal scholarship! The tension between legal norms and their implementation or enforcement is something that we are concerned about, but it is not often our first priority. Lawyers and legal scholars usually have much more to say about the content of the norms or their scope. But I did want to focus on the ways in which these norms were being created, and in the different players and interests behind these processes. In the book, I try to trace how these issues (for instance, in relation to oil pollution of the sea, containing diseases in the rural peripheries of Eastern Europe and the so-called Far East) required the League to think about how to implement their legal projects in distant locations. So, I’m trying to describe that the actors behind these norms also invested a huge amount of time, resources, and efforts to give them effect. Of course, there were always huge problems of enforcement (as there are still today). To give you just a clear example, the huge convention on the prevention of oil discharge and pollution of the sea, from 1935, was actually never ratified, at least not during the interwar period. But that doesn’t take away the enormous amount of legal effort that was done to create the convention. It is just that the ratification process became increasingly complicated as each country had its own rules or interests. Then, unfortunately, we know how the story ends for the 1930s, with the rise of Hitler and the start of World War II. But in 1935, the picture was not that clear. It was blurry: the international situation was indeed deteriorating, but the League continued its work, also on environmental matters such as whaling, deforestation, and rural hygiene! It was not a period of inaction, as we are often told. In sum, I don’t want to say that the League was necessarily successfully in its environmental protection efforts, nor to deny the gap between the norm and its effects. But rather to highlight that this is a problem common to law in general—and international environmental law in particular—and that we shouldn’t forget that there were actors deeply concerned about implementation, which in the international arena is always a difficult mission. By the way, I am not so sure, unfortunately, that our own international environmental law of the 21st century is so very successful, either on the books (and most certainly in action), but that belongs to another discussion.
DRQV: Something that you highlight as promoting the implementation of regulation was the backing of scientific expertise. In fact, as you note at page 66, “science diplomacy played an essential role” insofar as scientists were often leading “norm entrepreneurs.” Moreover, as you note towards the end of the book, one of the advantages of scientific diplomacy was that it allowed international encounters even when formal diplomatic channels were closed. A telling example of this was the active participation of US scientists at a time in which this state was not technically a member state of the League (at page 327). Could you tell us more about the role of scientific expertise from a legal history perspective?
OA: Indeed, and this issue related to a broader literature—and also to your own work, I think—on the role of expertise in general and in the role of scientific work in particular in international institutions. So, to answer this question, I’ll focus on the chapter on the pollution of the seas. I don’t want to isolate it from the others, but I think it allows me to better explain the role of scientific expertise in this journey that was on the move from 1926 on. This caveat is important, because even if each chapter takes a different case study, I don’t want to compartmentalize these different normative initiatives. Because they were not in the League; they were all part of a common set of debates around human development, industrial needs, economic incentives, and the impact of human activities on the environment and so on.
But as you look into the debates, for instance, around the pollution of the sea by oil and the regulation of whaling, you see that these issues concerned so many scientists and industrial companies in countries such as Britain and Norway that relied on the whaling industry and or whose national economy depended a lot on the sea and its "treasures.” The same is true, later on, with questions of deforestation. So, what I’m trying to do is to show how in all of these different challenges we can find common concerns of an emerging general environmental regime. In each of these different stories, for example, you see the importance of the role of scientific discourses and scientists in particular. In some cases, individual scientists or disciplinary associations were the leading engines behind normative campaigns. For instance, when it comes to the pollution of the sea by oil, we see two or even three major NGOs that were composed by or engaging with scientists. Consider, for example, the (British, but there were other nature-protection societies from different countries) British Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. They start recollecting information on the agonizing death of birds that were poisoned by oil discharges at sea. And their activities intensify after World War I. So, they use scientific expertise and discourse to raise public, political, and diplomatic attention. They come to the League of Nations, write their reports, letters, petitions, and start showing that there is a truly international problem at hand after the war, and that it was rather urgent in their view.
As another example, when the League starts discussing the whaling dilemma from 1926, they quickly understand that they need science on the so-called “treasures of the sea” ongoing discussion. Because there is a tension between the needs of the economy, industrial incentives, and the protection of nature. Here, scientists from Romania, from the US, will come forward to show through pictorial representations and reports that there is a problem that should be studied by the League’s Economic Committee. Scientists arrive and say, ‘you have to pay attention to the risks of extinction.’ They realize that there is a new forum in Geneva, and they realize they need to be heard there. This is true not only for environmental questions, but also for social questions more broadly (such as fighting drugs and trafficking of women and children or "white slavery"). So, you see that social scientists—again, also from the US although the US never joined the League—will come and work together with scholars and diplomats to create new norms, new laws; and the scientists will sit in the driving seat for many initiatives here.
DRQV: This is also closely related to questions of inclusion, representation, and participation. Something that caught my attention was your reference to a speech delivered by the Brazilian legal advisor in which he argues that the “constituent elements of a new international order [… were t]he democrati[z]ation of the world [and] the equality of [s]tates” (at page 126.) Indeed, for many—but not all—peoples of the world, the League constituted the first opportunity to engage in open multilateral procedures of lawmaking that had until then been only the game of great powers. But, of course, not all countries got a seat at the table. The same is true too for non-state actors: civil society activists, industrial guilds, scientific organizations, etc. Could you tell us more about the dynamics of inclusion and exclusion that you witnessed in your case studies related to environmental protection and conservation?
OA: I was also intrigued (and even surprised) by this while I was doing my work at the archives. Because it is interesting to note that when the League was talking about issues like whaling or the pollution of the sea by oil, countries like China were also participating very actively in these conversations even if they didn’t have the same degree of interest at that time in the use of the treasures of the sea. But once the League started a debate, it then gathered a particular momentum as part of the (legal and procedural) routines of its work. So, the League would send a memorandum or a questionnaire not only to member states but to all states, and it would suddenly open the door for all sorts of participation. And in that sense, I do interpret the environmental matters as a true chance of international democratization, at least to a certain extent. This is clear in the role of the US, which unfortunately was not technically part of the League.
I think that the League made states understand that they also had stakes in international law-making negotiations. So, as I mentioned, China participated actively in the whaling debate even if this was not an industry relevant for them at the time. The same is true for landlocked Switzerland or Czechoslovakia. These countries which did not have a direct interest in whaling quickly understood that this was an environmental issue related to the survival of a species and a direct cause or reason for international society to be worried about. But also (and perhaps even more urgently) that this issue was relevant to their participation in the game of international law, which was literally under construction in the 20s and 30s and under the novel, unfamiliar auspices of the League. So, I think that these debates about the laws of the sea show that concerns for these issues were not only related to environmental considerations.
Sovereignty and economic interests also came into the mix. These actors were interested in shaping international law as an end itself.
DRQV: This reference to the Brazilian speech is also relevant for another point of our conversation. One of the strengths of your monograph lies in the archival grounding of your arguments. In that sense, it provides a promising example of how interdisciplinary work in international legal history can and should be, and it provides a refreshing counterpoint to many other monographs and articles written by legal scholars that solely revolve around secondary sources. Could you tell us more about the opportunities and limits of working with primary sources in legal historical research for legal audiences?
OA: I’m sure this also applies to you! But yes, I truly enjoyed my archival research. Now my teaching commitments do not allow me to enjoy—I think that is the right word—so many research trips. But when I was doing my PhD, I travelled back and forth to the League and the marvelous Palais des Nations and that was very important for my project. Of course, there were many challenges! I, for one, when I made my research proposal, never expected Geneva to be so expensive! But thankfully I had the generous backing of the David Berg Foundation Institute for Law and History, which supports legal history work in Israel, and which allowed me to do these research stays. There were many methodological challenges as well. So, when I started the project, I decided with my supervisor that the first issue I would tackle would be “raw materials,” as it connected deeply to environmental questions. I went into the beautiful Rockefeller reading room and looked for all the primary sources related to this question. This took me several years, which I enjoyed, but it is a very time-consuming task. I saw that there were also many debates around oil in general, but not all of them were related to oil pollution or had connections with environmental hazards and concerns, as I had first assumed.
But here, a tip for future researchers and colleagues, is always to consult the archivists and staff members. You can discuss your project with them, and they will be able to provide some hints as to where you might find some of the relevant materials. In this sense, the support of Jacques Oberson from the UN Office at Geneva was very important, as he helped me identify certain files that were related to forest, timber, and deforestation. And with his generous help I saw that there were a series of protocols and minutes from the mid 30s (and 1938 and 1939 in particular) in which environmental concerns were thoroughly woven into the picture. So, very shortly before Hitler invades Poland, you can see minutes from the French delegation on timber regulation and the importance of maintaining the stability the price of timber, and fighting deforestation as a global phenomenon. They are not naïve; they are not sure the League will be able to maintain its operations in the difficult period to come. But still, they realize that the League can still do something to tackle deforestation around the world even in such a hostile international environment. They were aware of the devastating impact of human development on the environment (and landscape as well, of course) and were convinced that they had to turn to international law and regulation to tackle these challenges.
DRQV: In relation to that, another thing that I have always found fascinating in my own archival research and in some of your references are the fact that one can find revisions of institutional documents in the archives. You note at page 128, for example, that the conclusions of the Codification Committee were tempered by an anonymous editor. Could you tell us more about what marginalia, corrections, and edits tell us about some of the struggles in interwar environmental protection?
OA: This brings us to something we talked earlier. One of the things you noted, which is true, but it is not necessary an argument against us as a field, is that sometimes we international lawyers rely too much on the secondary sources. And sometimes we forget, or we don’t pay enough attention, to the primary sources. Here is where I think that our role as legal historians joins and becomes very important. Here we can bring to the table a particular sensibility, insofar as we can capture the ways in which legal documents changed throughout the drafting process, which in some cases was really intense and complex, as in real (legal) life. It’s a living example of “law in action!” I mean, law is always a work-in-progress: the text moves from colleague to colleague and from one draft to another. It’s the same nowadays in legal practice. The strength of a legal history approach is that it allows you to trace these legal processes of creation, slicing the layers of meaning that each legal actors adds or changes. So, for instance, I’ve also traced how in certain drafts some environmental concerns were edited out by anonymous actors. This is unfortunate, but it also gives you a sense of the vividness of the discussions. Let me give you an example:
So here we can see a document from the work of the Economic Committee that is addressing what I call the whaling dilemma. They don’t call it that that, but I identify it as a dilemma because it pitted economic and environmental issues against each other due to the needs and developments of the late 19th and early 20th centuries whaling industry. In a sense it also (very) resonates a central concept of environmental (and also legal) studies, coined as "The Tragedy of the Commons" (a famous article published by Garrett Hardin in Science back in 1968). Anyhow, we have a discussion here that began in the 1930s—and which is also related to the issue of pollution of the sea by oil—in which certain players at the League are realizing that the extractive method of industrial fishing can no longer continue and must be replaced by a "rational" system based on international protective measures. But somehow the word “nature” gets a question mark by an anonymous interlocutor, and its eventually edited out—needless to say, I didn’t use the pencil!
Since the 1970s, we are all convinced that nature must have some sort of legal protection and should have standing in our legal process. There have now been many interesting and compelling arguments that make that case. But in legal thought, we think this is a fresh and genuine and "provocative" theoretical argument of the ’70s. And here, in this document, you have a pioneer proposal back in the interwar period that sadly got crossed out of the record. This is still a huge issue today. In Israel (and also in many other countries), we have cases on whether rivers and creeks should have standing in the legal system, and it’s very interesting to see that already in the 1930s some voices were suggesting this. In my view, this is also the role of legal history as a discipline bridging between different fields of studies.
DRQV: It seemed to me that one last concern haunting your monograph was related to the growing influence of postcolonial and decolonial studies in international legal history—for instance, your quip in footnote 69 on page 318 on the polarization between “bad” or “good” colonialism. This is an important point as there is an abundant literature on the connections between environmental agendas and colonial ordering. However, it was difficult for me to fully understand your concerns from the monograph alone. Could you tell us more about how you situate your intervention vis-à-vis the growing tradition of postcolonial global histories and the Third World Approaches to International Law (TWAIL) movement in international legal scholarship? How do you see these debates from the vantage point of the Israeli legal academy?
OA: Hopefully, when I have a second edition of the book, I’ll add a chapter because this is a very important issue! Thinking about your question, I realize that this is something I was not that consciously aware of. It’s always useful to have someone read the work from an external perspective to put in context your original work, and also to challenge or deepen it. But you are right. Of course, there are many tensions within postcolonial traditions, but I did want to engage with this genre. I think what I was trying to do was to go beyond the mere denunciation of the League because it was involved in colonialism and imperialism and so forth. Of course, the League is part of an imperial universe (which was changing, at least in some areas, already during the 1920s and 1930s), but the picture is more complex, especially when it comes to environmental concerns. I think we cannot limit ourselves to the normative assessment of whether the League was “bad” insofar it had a negative impact on indigenous communities. The picture is more complex; it’s not only black and white.
This is something I try to show on my chapter on rural hygiene. For all of its flaws, the League was deeply committed in working to improve the sanitary situation of rural marginalized peoples in Eastern Europe and the so-called Far East. It was working hard to introduce modern sanitation, protect water resources, and the native peoples of the colonized world. Of course, a big part of this agenda had colonial connotations, but it wasn’t all a sham. No doubt, it occurred under a colonialist framework that gave Western powers a hegemonic position over the world. But at the same time, I do think that many actors had genuine social and environmental concerns and believed they were working to protect local communities on the ground from India to China and beyond. Sometimes, the rural hygiene expertise enabled local population to gain some sort of technical and professional power over Western powers, as I suggest in this chapter. Indeed, it was a problematic model, grounded in a particular understanding of “modernization” and inflected by a long 19th century tradition of the “white man’s burden.” But this doesn’t mean that we should dismiss the efforts of experts and scientists (many of them local), who were committed to improving the situation on the ground. In sum, I am familiar with this growing TWAIL literature, and I take it into account (especially in certain chapters), but above all I want to provide a more complex picture.
DRQV: Indeed. My perspective is that seeing law as connected to empire should be the start of the conversation, not the end of it. So, the point would not be to show that certain international environmental norms are tangled with empire, but rather to understand the kinds of work empires were doing in the world.
OA: Right! And I think that is what legal scholarship—and legal history in particular—allows us to do. It is no understatement to say that the law is written, just as history, by the victors, by the powerful. But, at the same time, a legal history approach allows you track the different voices, even those that didn’t manage to make all the way to the final legal draft. We can trace both the absences and the presences in our contemporary legal documents.
Omer Aloni, Lecturer, Peres Academic Center Law School
Research Fellow, Zefat Academic College Law School