The World Court Settles the Question

I

THE instinctive American reaction to the news that the World Court had been asked for an advisory opinion in the matter of the proposed customs union between Austria and Germany was that the Court would do well to put the stamp of its approval on the customs union. The average American editor expressed the characteristic impression of the man in the street that the customs union was probably an excellent step, a first move toward breaking down the artificial tariff barriers from which Europe and the world are suffering. France, it was felt, as leading advocate of the idea of a United States of Europe, could not properly object to this concrete step toward economic recovery. Besides the feeling that Austria must certainly get help from some quarter, and that Germany should be permitted by the rest of the world to take any and all steps that would place her in a position to pay her debts, there also came into play the characteristically American philosophy that two sovereign states should be allowed to limit their own sovereignty in any way they chose without the prior consent of third parties or the sanction of any court.

These entirely natural feelings were freely expressed last May in complete disregard of the fact that the Court would have no opportunity whatever to pass upon the very interesting question of the desirability or undesirability of the customs union proposed by the Vienna Protocol of March 1931, or its advantages or disadvantages to the future of Austria, of Germany, of Europe or the world at large. As a matter of fact, the Court was asked to pass merely upon the compatibility of three treaties, and to decide whether Austria’s undertakings in the customs pact of 1931 were or were not compatible with the international obligations assumed by Austria in Article 88 of the Treaty of Saint-Germain and in the first Geneva Protocol of 1922, the latter made at the time of the reconstruction loans to Austria. Germany is not, of course, a signatory to either of these earlier treaties, and therefore the legal propriety of Germany’s action was not included in the question put to the Court. The neat question upon which the Court was asked to give its advisory opinion was as follows: —

Would a régime established between Austria and Germany on the basis and within the limits of the principles laid down by the protocol of March 19, 1931, be compatible with Article 88 of the Treaty of Saint-Germain and with Protocol Number 1 signed at Geneva on October 4, 1922?

In short, the Court was faced with the necessity of interpreting and comparing certain explicit agreements, not of announcing its opinion upon the policies they pressed.

It was natural enough, however, that this point should be entirely missed by the public consciousness of this country— and apparently of Europe as well, if one may judge from editorial comment there. The public had not before it the text of the question or the text of the treaties. It knew only that what seemed a desirable measure hung in the balance. And when, on September 5, the Court gave its opinion, the public felt some disappointment that this apparently desirable measure had been disapproved. The Court was assumed to have ‘declared against the customs union,’ and the protest against its opinion was immediate and voluminous. To the popular mind a blow had been struck at the cause of economic recovery, if not at the principle of the sovereignty of states — and, by the same token, at the prestige of the Court.

I shall not be so rash as to assert that the public reaction would have been different if it had, between May and September, been made clear from every rostrum in the country that the Court was passing merely upon the compatibility of certain treaties and not upon the desirability per se of the proposed customs union. In this country, perhaps in most countries, the general public is characteristically impatient of an adverse judicial determination of any problem that ramifies widely into social and economic life. The public consciousness is, often very healthfully, on the alert to detect a partial or narrowly legalistic attitude toward a question. The average citizen, moreover, jealously maintains his inalienable right to see the issue in a wider sense than that in which it could possibly come before any court. And by the practical event he is inclined to weigh not merely the Court’s wisdom, but not infrequently its judicial integrity.

In the case of the present opinion, some of those who have abstained from ascribing the Court’s finding to political motives have nevertheless deplored the Court’s narrow conception of its function. Say they, in effect, ‘The Court had an opportunity to do good and did not avail itself of the opportunity.’ Even some of the commentators whose training and experience would seem to imply capacity to understand the sharp limitations of the question before the Court and the nature of the judicial function itself have apparently felt this to be one of those cases in which, looking to the equities, the Court, in order to achieve a great right, might have ventured to do a little juridical wrong. Those who make a virtue of decrying ‘legalistic’ tendencies find it easy to believe that most documents can be construed one way as easily as another, and that therefore not to ‘choose’ the way that leads to the happiest result is at best a great pity, and at worst evidence of lack of judicial integrity.

In the Austro-German case the division of the judges, with the judge from France on the majority side and the judges of England, Germany, the United States, and Japan upon the other, has offered dramatic opportunity for voicing hasty conclusions and prejudices. Any presumption that the judges acted as judges and not as national representatives has been entirely left out of the reckoning by certain critics. That portion of the public which never had directed its gaze to the nature of the question upon which the Court was passing, or to the legal basis of the Court’s finding or to the closeness and difficulty of the question presented, has focused its attention entirely on two lists of judges assumed to be ‘representing’ their countries in the position they took rather than working out for themselves a legal conclusion based on rational grounds. This assumption that political desires rather than judicial deliberation motivated the Court leads naturally enough to such loose speculations and comment as that the decision is in the spirit of the Versailles and Saint-Germain treaties rather than in the spirit of postwar sanity; that the majority opinion was dominated by the French policy of restraining the restoration of German influence, and the minority opinion was dominated by the governments disposed to assist German restoration; that the opinion represents a triumph of French financial prestige; that it dramatizes the imperialistic attitude of France toward the great modern movement to lower customs barriers; that it subtly attacks the whole conception of a United States of Europe advanced by France herself; that the division illustrates the Latin versus Nordic cleavage, as to outlook on law and on life, and so on and so on. All of which speculations and inferences are sufficiently natural if we allow the original premise that the judges, having regard to national prejudices, voted like ordinary politicians for the folks back home.

The confusion caused by criticism of the above type is worse confounded by certain attempts at ‘defense.’ The defenders accept the probability that political motives largely affected the decision, but they become worldly and philosophical about it. They point out that no impossible standards of perfection should be set up for this international Court; that judges are not, after all, archangels; that the donning of the ermine does not automatically release its wearer from the natural tug of political influences; that in no court in the world are judges able to dissociate themselves 100 per cent from their inherited prejudices; that this Court is in its early years; and that if we followed the policy of doing away with a court because it had been accused of responding to sectional or political influence we should have abolished our own Supreme Court years ago. The more ‘philosophical’ of the defenders enunciate as doctrine that most courts in the end respond to the pressure of opinion and events, and should arouse no wonder by so doing; and the less philosophical hold that the real error probably lay in expecting any court to be able to rule on a question in which politics and law are inextricably mingled.

All of this ‘defense’ of whatever nature seems to me quite beside the point for exactly the reason that impairs the criticisms cited above. Both rest not upon a study of the case, upon analysis of the reasoning, but upon an a posteriori assumption that the Court failed. It would be a sheer waste of effort to attempt to answer a mass of speculative criticism that entirely ignores the question the Court was passing on, the history of the case, the content of the pleadings, and the complex nature of the opinions finally arrived at by groups within the Court. The comments touched upon above, if cited fully, would soon answer themselves by their contradictions. I have read comments ‘proving’ that the majority met the legal question and the minority did not; and, from apparently as competent sources, comments proving that the minority was guided by law and the majority by politics. The fantastic attempt to demonstrate a Latin-Nordic line-up shows the need to beware of the extremists on both sides. I submit that the only fair and rational ground on which to explain the line-up of the judges is the assumption that the judges acted first of all as judges, and split, as judges will and must and do, upon questions clearly susceptible of different conclusions.

I am prepared to maintain that in the present instance the Court worked out a difficult case juridically, and moreover that the majority arrived at what, in my humble judgment, is the sounder result. If the minority opinion had prevailed, I should, while not wholly agreeing with it, still be able to understand the reasoning by which it was reached. The test of soundness is certainly not unanimity. If we have come to the point where wo challenge the existence of courts because the judges differ materially, we shall have to rewrite history. It is high time that the public attention vouchsafed to this case should be led back to the essential considerations: (1) What was the question with which the Court was called to deal? (2) Was that question sufficiently difficult and close to make possible and natural a cleavage upon purely juridical lines? Those students who incline, as do I, to the conclusion that the Court’s decision is correct will not find it less sound because the French judge voted for it, however much they may approve or disapprove the French political outlook and what they may choose to consider the present French tendency to sit on the lid that covers a reviving or at least a struggling Germany and Austria.

It may be that a genuine study of this case is exactly what some of the most articulate critics of it hope to avoid — for themselves and for others. For so soon as it is understood it ceases to be available as ammunition; and the opponents of the adherence of the United States to the Court have made it clear that, to their minds, this decision has rolled a marvelous train of ammunition into their camp. Indeed, if one may judge by certain expressions in the public prints, the friends of the Court have lost by this opinion a great deal that they never had. The gifted enemies of the Court have persistently shown a flexible capacity for seizing upon attractive new reasons for old positions. But what the situation, with these, amounts to (to paraphrase the words of Mr. Dooley) is that those who have been against the Court in all circumstances are now opposed to it in any circumstances. That is all.

Those of more open mind, however, and those honest students and observers who have been puzzled or chagrined by the Court’s opinion in this case, may properly be invited to consider the case as the Court had it, and not the fancied case that some would seek to depict.

II

The majority opinion finds that the terms of the Vienna protocol of 1931 are incompatible with the First Geneva Protocol of 1922. Six of the majority conclude that the Vienna protocol is incompatible as well with Article 88 of the Treaty of Saint-Germain of 1919. Anzilotti arrives at this same conclusion, though by an independent line of reasoning, developed in a separate opinion. The minority opinion contends that the customs pact is not incompatible with either the Treaty of Saint-Germain or the First Geneva Protocol. After a study of all of these opinions and of the texts on which they are based, I not only find enough fully to justify the decision, but I find nothing whatever to warrant the conclusion that the eight judges in the majority were guided by political motives from which the seven in the minority were miraculously delivered.

It is in point to review briefly the earlier engagements of Austria, which it was claimed the customs pact would contravene, and the conditions under which they were exacted and made. Let us take as first in order the Treaty of Saint-Germain. When, at the end of the war, various nations or national elements that had been incorporated in the Austro-Hungarian Empire, like Hungary, Poland, and Czechoslovakia, were set up as independent nations, the economic situation of the remnant of Austria became very difficult, and a movement began, which, as we all know, is still continuing, for the Anschluss, or the incorporation of Austria with Germany. The Allies, then determining the conditions of peace at the Paris Conference, felt, whether rightly or wrongly is immaterial here, that it was essential to the future peace of Europe that Austria should continue as a wholly independent state. A provision to that effect was incorporated in the Treaty of Versailles (Article 80),¹ in which Germany acknowledged and agreed to respect the independence of Austria within the frontiers to be fixed for it in a treaty between Austria and the Allies, and agreed that this independence should be inalienable, except with the consent of the Council. Nevertheless the Anschluss movement continued to grow. Soon after the Versailles Treaty had been signed, but before it had gone into effect by the deposit of ratifications, a new constitution for Germany was adopted at Weimar, which contained a provision for the representation of ‘ German Austria’ in the Reichsrat ‘after its reunion with the German Empire.’ The Allies at once sent a letter of

protest to the German delegation, calling this provision a violation of Article 80; and Germany thereupon signed a formal declaration admitting that this provision was null and void. A few days later the Treaty of SaintGermain, making peace with Austria, was signed; in Article 88 it provides that

the independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently Austria undertakes in the absence of the consent of said Council to abstain from every act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power.

A few weeks thereafter, in response to an appeal from the Austrian Chancellor in connection with separatist movements, the Supreme Council of the Allies adopted a resolution showing the official interpretation they put on this article, which declared that they would oppose any step that would be calculated to violate the integrity of Austrian territory, ‘or which, contrary to the provisions of Article 88, would have the effect of compromising in any way, directly or indirectly, the political and economic independence of Austria.’ This was after the treaty had been signed, but before it had been ratified.

Note, if you please, the sweeping language employed in this Article 88. It declares not merely that the independence of Austria shall be inalienable without the consent of the Council, but that Austria shall abstain from ‘every act’ which might ‘directly or indirectly’ or ‘by any means whatever’ either alienate or even ‘compromise’ her independence. No terms more all-embracing could possibly have been found.

And here we may pause to ask, as the Court did, what is meant by this word ‘independence,’ this thing so jealously guarded under the terms of the treaty; for it is precisely in the definition of this term that the divergence between the majority and minority of the Court most clearly appears. The minority, while conceding that the word has received diversified definitions, approaches the matter from the negative angle. They define what it is by declaring what it is not. They conclude that

a state would not be independent in the legal sense if it was plaeed in a condition of dependence on another power — if it ceased itself to exercise within its own territory the summa potestas or sovereignty, i.e., if it lost the right to exercise its own judgment in coming to the decisions which the government of its territory entails. Restrictions on its liberty of action which a state may agree to do not affect its independence, provided that the state does not thereby deprive itself of its organic powers.

And so, while fully accepting the view of their colleagues that when the Treaty used the word ‘compromise’ it meant ‘involve danger to’ or ‘endanger’ or ‘imperil,’ they hold that before any act can come within the condemnation of the treaty it must imperil the continued existence of Austria as a state capable of exercising within its territory all the powers of an independent state as above defined.

Now this definition seems to me, with all due respect, not only to be too narrow in point of international law, but, when applied to the case under consideration, to beg the whole question with which the Court was called to deal. It is too narrow in point of law, for independence surely means something more than dominion over a given territory, or the inhabitants it contains. States act abroad as well as at home, and their policies are both foreign and domestic. Independence means also something more than the naked possession of those organic powers necessary to constitute a state. States may retain their powers as political organisms and yet have so ‘compromised’ or bargained away their freedom of action that, although they have kept the outward shell of independence, they have lost in fact its substance. Sir Frederick Smith (afterward Lord Birkenhead), one of the most brilliant Englishmen of our day, puts the true conception in his work on International Law: —

An independent State is entitled to live its own life in its own way, the sole judge within the law of its domestic government and its foreign policy.

Or, if I may add without becoming tiresome a quotation from a standard American authority, Hall on International Law: —

Independence is the power of giving effect to the decisions of a will that is free in so far as absence of restraint by other persons is concerned. The right of independence, therefore, in its largest extent, is a right possessed by a state to exercise its will without interference on the part of foreign states, in all matters and upon all occasions with reference to which it acts as an independent community.

I can find no fault, therefore, with the majority of the Court in their holding that the independence of Austria, within the terms of the Treaty of Saint-Germain as well as of the Geneva Protocol, means ‘the continued existence of Austria within her present frontiers as a separate State, with sole right of decision in all matters economic, political, financial or other.’ And having in view the circumstances attending the making of the treaty as well as the sweeping language employed, I find it hard to believe that the contracting parties understood the word in any more limited sense.

It does not advance the argument, but merely begs the question at issue, to say, as do the minority of the Court in the quotation I have given, that ‘restrictions on its liberty of action which a state may agree to do not affect its independence.’ Yet this sentence, with the idea it conveys, is the hinge on which the whole dissenting opinion turns. Of course an independent state can enter into such contracts or treaties as it chooses. It can limit its freedom of action in many ways without actually depriving itself of its ‘organic’ powers. It can make offensive and defensive alliances, both military and commercial; it can submit to the will of a stronger power in order to secure that power’s protection; it can grant to other states monopolies over its commerce; it can alienate parts of its territory; in many other ways short of absolute surrender it can compromise or endanger or imperil its independence — all in pursuit of its own free will. None of these things, however, can it lawfully do if it has previously agreed to the contrary. For, as Vattel puts it: ‘A sovereign who is already bound by one treaty cannot enter into others in conflict with the first.’ So if Austria definitely agreed, as surely she did in the Treaty of Saint-Germain, that she would not surrender in any way her liberty of action without the consent of the Council of the League, it is quite beside the point to consider what she or any other state might have done if no such promise had been made. To say that Austria freely consented to the customs union does not aid at all in determining whether she could remain entirely free after the union had been formed.

Coming back from this quite necessary digression to the second of the treaties under consideration, it appears that the obligations of the Treaty of Saint-Germain were repeated, and more extensively defined, in the First Geneva Protocol of 1922 when France, Italy, Czechoslovakia, and Great Britain made the so-called reconstruction loans to Austria, then in great financial difficulties. By this protocol, the four powers — with Spain and Belgium, who afterward acceded to the protocol — on their part undertake ‘for the protection of the interests of the creditors and of the guarantor States’ to

‘respect the political independence, the territorial integrity and the sovereignty of Austria’; and not to ‘seek to obtain any special or exclusive economic or financial advantage calculated directly or indirectly to compromise that independence.’ They further agree, ‘should occasion arise,’ to appeal ‘either individually or collectively to the Council of the League,’ and to conform to the decisions of the Council.

Austria, on the other hand, engages

in accordance with Article 88 of the Treaty of Saint-Germain not to alienate its independence; it will abstain from any negotiations or from any economic or financial engagement calculated directly or indirectly to compromise this independence.

This undertaking shall not prevent Austria from maintaining, subject to the provisions of the Treaty of Saint-Germain, her freedom in the matter of customs tariffs and commercial or financial agreements, and, in general, in all matters relating to her economic regime or her commercial relations, providing always that she shall not violate her economic independence by granting to any state a special regime or exclusive advantage calculated to threaten this independence.

This, then, was the situation. Germany had agreed in the Versailles Treaty that Austria’s independence was inalienable otherwise than with the consent of the Council; Austria had agreed to the same thing in the Treaty of Saint-Germain, with the further promise that, in the absence of the Council’s consent, she would abstain from any act which might directly or indirectly compromise this independence, and still later, in the Geneva Protocol, that she would abstain even from any negotiations or economic or financial engagements calculated directly or indirectly to compromise it, and moreover that she would not violate her economic independence by granting to any state a special régime or exclusive advantages calculated to threaten this independence. It was in the face of these covenants that the two nations announced last March their agreement to form a customs union on the basis of the principles contained in the Vienna Protocol of March 19, 1931. The consent of the Council was not asked. The action was protested as in violation of the treaties. On the motion of Great Britain, an advisory opinion was requested from the Court.

The customs union contemplated by this protocol is, as the mere reading of it will show, of the most thoroughgoing and finished character. In so far as it abolished all import and export duties between the parties while maintaining them against those not covered by a similar arrangement, it is confessedly a special régime of a reciprocally exclusive character. The mere fact that the parties express a willingness to negotiate in similar terms with other powers does not destroy the exclusive advantages of the arrangement in the meantime. Although it is true that each state must necessarily put the agreed tariff into force in its own territory by its own legislative and executive agencies, it is covenanted that the states shall act concurrently in doing so and that no amendments can be made to the tariff law or customs tariff without mutual consent. Internal customs duties, their rates, duration, and categories, the turn-over tax and the exchange of goods covered by monopolies or excise duties in either country, are to be the subject not of independent action but of joint agreement. The duties received in the joint area are not to belong to the state collecting them, but are to be apportioned according to an agreed quota.

When it comes to arrangements to be made with other states, Article 9 of the protocol — somewhat blandly, it would seem — reserves to each of the two governments ‘in principle’ the right to conclude commercial treaties with third states on its own behalf. Yet immediately all the vitality is sucked out of this ostensible right by the spirit, if not the exact letter, of the two succeeding paragraphs. One of these obligates each state to see that the interests of the other are not violated in any negotiations with third states. The other provides that ‘so far as it seems opportune and possible’ (and one can hardly imagine when or how it would be otherwise), ‘with a view to effecting a simple, speedy and uniform settlement of the commercial arrangements with third states,’ they will jointly negotiate and simultaneously ratify their commercial treaties with other nations. The language of treaties often stops by design somewhat short of expressing the real intent; but it requires no deep insight to penetrate the meaning here or to foresee the inevitable result that waits upon these words. They can mean nothing else but that the parties henceforth are to make commercial war and commercial peace by concerted action, together and not alone.

Finally, for those cases in which the customs treaty requires an agreement between the parties or the consent of the one or the other, a joint Arbitral Committee is to be set up which shall have power by majority vote — with a casting vote by its President in case of a tie — to effect, when consent has failed, a compromise through its own binding decision, which shall stand in place of the agreement or consent of the unwilling party; leaving, it is true, to either government the right to terminate the treaty upon six months’ notice if a decision of the Committee infringes ‘its vital economic interests.’ The minority opinion as to this point merely observes that any arrangement that provides for the friendly settlement of differences, whether justiciable or not, can hardly in these days be said to be calculated to threaten the independence of the states concerned. This may all be true, and yet this plausible general observation seems to me to take no account of the especial powers vested in this Arbitral Committee.

Such, in bare outline, is the régime which the protocol proposes to establish. The minority judges, in an attempt to point out the divergence between themselves and their colleagues of the majority, say: —

If this [the majority opinion] means that the conclusion of a customs union between two states, irrespective of the details of the arrangement, involves danger to the independence of the states concerned, it is an opinion which the undersigned are unable to accept.

This would seem to be perfectly obvious, but it is precisely the details of this proposed arrangement which come on to be judged, since by these details the régime itself is defined.

For my part, I should have no difficulty whatever in concluding that both by its express terms and by its probable consequences the régime would compromise, endanger, imperil, threaten, — to use the words on which the majority and the minority of the Court were agreed, — that economic independence, that unfettered freedom of will and of decision, which, lacking the consent of the Council, Austria had solemnly covenanted to preserve inviolate. The minority opinion takes the view that the protocol does not contemplate a ‘customs fusion,’ but merely an ‘assimilation’ of the tariff and economic policies of the two countries — ‘i.e., each of the two countries will have its own policy, but the two will coincide.’ With the greatest respect to the distinguished jurists who employed these phrases, they seem, when we view the terms of the agreement and the surrounding circumstances, to be a mere play upon words. It is far more accurate to say that neither country is to have its own policy, but both are to have the joint policy and the joint policy alone.

All the judges of whatever shade of opinion were agreed that the Court must consider the proposed customs treaty from a practical standpoint, weighing those consequences which might reasonably be foreseen. They were not dealing with mere legal subtleties and abstractions. All of them likewise agreed that they were concerned solely with the law and not with political considerations or questions of policy. Judge Anzilotti concurred with the conclusion of the majority, but struck out on a line of reasoning of his own, occupying in some respects a middle ground between the two major groups into which the Court was divided. But in the light of those facts of general and universal knowledge which courts no more than laymen are permitted to ignore, it takes no use of the imagination to conclude with him that, ’in view of the great, disproportion in the economic strengths of Germany and Austria, it must be regarded as reasonably probable that Austria’s economic life would sooner or later become dependent upon Germany’s.’ The protocol is scrupulous in using terms of equality between the parties; but in a partnership like this, Austria, with her pronounced inferiority in area, in population, in wealth, in trade, would seem to be foredoomed forever to play a minor and an increasingly subordinate rôle.

Let us put an analogy. Suppose, instead of being related to commerce and customs, this Vienna Protocol had undertaken to deal with matters of armament and defense. I choose this illustration because there is something about military contracts that makes their results easier to foretell than those that deal with commerce and finance, although the operation of the latter may be just as inexorable. An agreement is proposed between these same parties, let us say, for a common military policy; a common armament to be distributed on a quota basis; a joint negotiation of treaties of offense and defense with other powers; a covenant to protect each the other’s interest in any treaty made; and finally a joint general staff to determine without appeal the common action when the governments themselves were unable to agree. Who would be prepared to say that such a plan would not compromise or threaten the independence and free will of Austria and thus violate the pledges she had given ?

III

It is regrettable, but certainly not discouraging, that the Court was unable to reach a unanimous decision and that the division was so close as eight to seven. A counsel of perfection would suggest that judges should always be able to reach a concordant opinion. It does not turn out that way, however, in real life, not even in America. If you doubt it, ask any American lawyer, or read for yourself the long list of five-to-four decisions by which so august and respected a body as the Supreme Court of the United States has disposed of matters of the most vital consequence. Such happenings are due, in part, to the inescapable fact that men’s minds are not cast in a common mould. If they were, one judge on a court of last resort would do as well as a dozen. Commonly these things occur because the questions under consideration are close and difficult, and the arguments for and against one or the other conclusion are so nicely poised that honest minds can honestly disagree. There is ample explanation in this for the situation we are discussing.

The eight judges who gave the majority opinion in this Austro-German case, with the country of their nationality, were Fromageot (France), Anzilotti (Italy), Rostworowski (Poland), Guerrero (Salvador), Altamira (Spain), Urrutia (Colombia), Negulesco (Rumania), De Bustamante (Cuba). Those of the minority were Adatci (Japan), Kellogg (United States), RolinJaequemyns (Belgium), Hurst (Great Britain), Schücking (Germany), Van Eysinga (Netherlands), Wang (China). It would wreck the creative fancy of the most jaundiced critic to frame a theory that would explain that grouping on political or national grounds.

Is it the friends of France against the friends of Germany? Well, granted that Poland and Rumania are bound to France by military ties, how did she lose and Germany gain the vote of Belgium, who not only speaks the French language, but since the war, of which she was so great a victim, has thrown off her neutrality and made with France a military alliance offensive and defensive? Italy and Spain are not popularly supposed at the moment to be especially Francophile. While I fancy the American judge would be the first to protest that he was not moved to his conclusion by dislike of France or sympathy for Germany.

Is it national interest? Admit, if you choose, that there are countries in Europe who for commercial as well as military reasons of their own would prefer to have Germany and Austria kept apart. Yet what earthly interest has Colombia or Salvador or Cuba in their continued separation? Or, for that matter, what interest have China and Japan in putting them together? And how does it come that, although Spain and Belgium both adhered to the Geneva Protocol of 1922 and may both be supposed to desire its absolute observance, a Spanish judge voted with the majority and a Belgian judge on the other side?

Is it racial tendencies, the Latins against the Nordics? If so, whence do the Poles derive their Latin blood or China and Japan their Nordic strain? Is it a clash of legal systems — those schooled under the Roman or civil law on the one side, and those under the codes of Germany or Japan or under the common law of England on the other? Hardly, for without stopping to show how impossible it is to apply this classification to the diverse systems of the various countries in question, it is enough to say that the most microscopic analysis of these various opinions would not enable one ignorant of the personality of the author to say under which, if under either, system he was trained.

Finally, does the Court speak by sheer weight of numbers or political power? If so, it is curious to observe that the countries supposedly ‘represented’ by the dissenting judges have ten times the political and economic power of those who composed the majority.

I repeat and repeat again that there is but one tenable theory upon which the division of the Court can be explained, and that is that these men, conscious of their responsibility and the dignity of their high office, met like judges, listened like judges, deliberated and decided like judges, and — differed like judges. The only explanation that does not involve absurd contradictions and discrepancies is the simple explanation that a hard case was worked out with entire juridical integrity.

An interesting side light is thrown upon the close character of the question at issue by the results of a recent inquiry addressed to a group of American judges, professors, deans, and presidents in schools of international law, jurisprudence, and history, requesting their comment on the opinion after a study of it and the pertinent documents. Out of sixty-three answers returned by these select and competent correspondents, twenty-nine announced their sympathy with the minority in its opinion and thirty-four with the majority. It is fair to add by way of emphasis that of those who thought that the majority had reasoned correctly a number declared themselves in principle none the less in favor of the Anschluss. The proportionate division within this group is singularly like the division in the Court itself.

IV

The practical effect of the Court’s opinion, of course, was merely to return to the Council the right to decide the ultimate fate of the proposed customs union. That body had under the treaties the unquestioned power to validate the agreement by giving its consent. As a matter of fact, its consent was never invoked, for two days before the Court’s opinion appeared Austria and Germany publicly renounced the proposed customs union. What moved them to this step we do not know.

Whether their dependence upon amicable financial relations with all their neighbors had become increasingly apparent in the intervening months; whether they no longer wished to challenge the hostile opinion which the publication of the protocol had invoked; whether the difficulties of the arrangement had come to seem more apparent and its advantages less obvious; or whether they sensed the adverse trend of the Court itself — all this is matter of pure conjecture.

But although the occasion for the opinion had passed before it came, the outstanding fact remains that a judicial determination of a vexed and dangerous question was achieved in a judicial way. It was a question not only attended by difficulty, but surcharged with deep national feeling. The Treaty of Saint-Germain and the First Geneva Protocol arose out of the compulsory adjustments and the cruel needs that follow war. The Vienna Protocol of last March reflected the not unnatural impulse and desire of Austria and Germany to surmount the disabilities those treaties had imposed. Much of the argument made to the Court on Austria’s behalf was directed to depicting her difficult situation since the war. Her plight is truly tragic, and it may well be that it calls for some alteration of the treaty of peace. It may also be that, with the knowledge which the years have brought, the treaty would be written differently were it to be written to-day. But these are matters for statesmen, not for courts. The function of the latter, as the judges in the present case clearly perceived, is to declare the scope and effect of the agreements made, leaving to other agencies their alteration or repeal.

Even if the correctness of the Court’s deliverance through its majority were more doubtful than I suppose it to be, I should still think it a great advance that a question so embroiled had been referred to the Court instead of being left to the arbitrament of force as the rival alternative. It is a welcome sign of progress that great nations were willing to submit to the Court matters of such vital consequence and reason out their case before it in open argument and debate. The decision of the World Court in the Austro-German case will stand in history for what it is — a decision sound in itself and a milestone on the path to the final reign of law. Whatever criticism or protest it may have evoked to-day wall soon be of purely antiquarian interest.