New York University Law Quarterly 19(3), 1932, pp. 339-43.
At its meeting on Tuesday, May 19, 1931, the Council of the League of Nations resolved to ask the Permanent Court of International Justice for an advisory opinion on the question whether “a regime established between Germany and Austria on the basis and within the limits of the principles laid down by the Protocol of March 19th, 1931,” could “be compatible with Article 88 of the Treaty of Saint-Germain and with Protocol No. 1 signed at Geneva on October 4th, 1922.”
On the 5th of September, 1931, the Court, as a Court, answered the Council’s question in the negative.
Seven judges considered that a regime established on the lines described would be compatible with both the instruments mentioned. Seven judges considered that it would be compatible with neither. The fifteenth judge considered that it would be incompatible with one, thus tipping the scales to the side of the negative answer.
One judge, M. Anzilotti, in saying “No” gave fully his reasons. The Court, as a Court, in effect contented itself in saying “No” with observing that it was difficult to maintain that “Yes” would have been the proper answer.1
The seven dissenting judges protested that the Court’s reasons for saying “No” ought to have been given2 and explained rather fully why in their opinion the answer ought to have been “Yes.”
One of the many points of view from which it should be of interest to examine this curious result is that of the effect it may have upon the place which the Permanent Court, as an institution, occupies in civi- lized public esteem.3
In general what is expected of a judge is firstly, that he should understand his business, and secondly, that he should discharge it honestly and with perfect impartiality. He will be distrusted insofar as there is doubt concerning his skill in the technique of his highly specialized function. He will be even more deeply distrusted if doubt is felt as to his honesty in the exercise of such skill as he has.
If at a particular time the Permanent Court were perceived to be staffed for the most part with technically ill-qualified persons, the ultimate remedy would be obvious. At the next election, the nations should appoint a more suitable set of men. There is happily no dearth in the world of persons qualified for and experienced in the duties of a judge.
If, however, it appeared that the judges of the Permanent Court were not doing their work honestly, the position would be much more serious. for the inference might come to be drawn that, however high a standard of impartiality might obtain in many national courts, the nature of international adjudication was such that, while mankind re- mains as it is. no international court could be counted upon to win the confidence of thoughtful and discerning folk.
The Court had in this case to consider, on the one hand the meaning of certain legal provisions, on the other hand the nature of a regime proposed to be established. It had to consider whether that regime would be compatible with those provisions.
As to the meaning of the relevant portions of the Protocol of 1922 and of the Treaty of 1920, fourteen of the judges, if not all fifteen, seem to have been in substantial agreement. Their meaning for them was plain. The question for the Court was essentially whether or not a certain proposed regime was such as “might directly or indirectly or by any means whatever compromise” Austria’s “independence,” within that plain meaning.
As mentioned above, M. Anzilotti, of all the judges whose answer was of the general type “Yes, it might compromise … and therefore, No, it is not compatible,” was the only one who explained his opinion. “… the customs union would, beyond all dispute, assimilate the economic life of these two countries and its effect would therefore be to confirm and strengthen the movement towards the incorporation of Austria within a single big German State.” Perhaps his colleagues of the majority were influenced by similar reflections, but they did not specifically say so.
The dissenting minority, on the other hand, would appear to have seen three reasons for not paying heed to the movement mentioned by M. Anzilotti. Firstly, the materials submitted for the consideration of the Court afforded no evidence of any such movement, and the Court’s decision, they felt “must necessarily be based upon the material” 50 submitted. Secondly, the Court was “not concerned with political considerations nor with political consequences.” Those lay “outside its competence.” Thirdly, the question on which the Court’s opinion had been asked was a “legal question,” this third reason being at the bottom of reasons one and two.
It may be that on a purely legal question extra-legal considerations are necessarily irrelevant. And in some of the phrases used at the Council table in July there seemed implicit the idea that the question the Court was being asked was indeed purely legal. But was it? M. Anzilotti emphatically points out that it was a question not of law but of fact. He was not sure that the Council would really have wanted the Court’s opinon on such a question, but that was the question it had put, and such was its nature.
What the minority argued was: “The question is purely legal in the sense that it is concerned with the interpretation of treaties.” But what they surely might have noticed was that the question was concerned, not merely with the interpretation, but also and more especially with the application of treaties, their application to a specific hypothetical situation of political and economic fact, so that, if partly legal, it was not purely legal, and thus it was one on which extra-legal considerations might have a bearing, and therefore judges who felt incompetent to concern themselves with such considerations should not have presumed to answer the question at all.
It is, however, pertinent to point out in this context that accord- ing to Article XIV of the League Covenant the Court is to be competent to give an advisory opinion not merely on legal questions but on “any” question referred to it by the Council or Assembly.
No Court, of course, should concern itself, as a court, with the political consequences of the opinion or decision it is caIIed upon to render ; nor should it be deflected by political considerations from giv- ing what it conceives to be the correct opinion. But this does not mean that, when called upon to render an opinion as to the possible effect of a proposed economic regime on a specific political situation, a tribunal, with constitutional powers to give an opinion on “any” question, should exclude the political considerations germane to the matter in hand. The movement for political union was so well-known, said M. Anzilotti, that “the Court could take” it “into consideration even if it had not been advanced by the interested parties.” The fact had, however, been invoked, he said, “on several occasions” and he did not think it had been contested.
Actually what the minority did was to scrutinize, one by one, the several provisions of the Protocol of Vienna, on the theory that unless s0me single stipulation contained in it was bad the regime in which it would result must be good, the question of goodness or badness being considered in the abstract and altogether apart from that specific Austro-German situation to which the Council’s request had referred.
As well might a case of alleged negligence be decided without reference to the place where the accident happened. As well might the wisdom of a diet be judged without reference to the condition of the patient by whom it was to be eaten. And incidentally one may observe that even for ·patients in general the fact that no individual item “singled out” and “taken by itself” could be bad does not necessarily prove that the effect of taking them all together will be good.
In regard to some of the individual provisions the minority con- tend that “it is not easy to see” how any of them can be described as being calculated to threaten the independence of Austria “seeing that none of them could be carried out unless Austria continued to exjst as a separate state. … ” This, let us agree, is somewhat like saying that, since only a living man can swallow, it is physically impossible to drink oneself to death.
It might be interesting to speculate as to whether the League Council had all along been awake to the precise nature of the question it was asking. What reason is there for suspecting that it was not? Was it a question unsuitable for judicial determination? Are courts in general restricted to dealing with “purely legal” questions?
What one needs to notice is that in an ordinary court – at least in an ordinary English court – the work is not done by the judge and the barristers alone. As a rule there are witnesses, sometimes even expert witnesses, to speak, upon oath, to the facts. As a rule there is a jury, sometimes even a “special” jury, to evaluate the evidence so furnished. Only when a judge is acting himself in place of a jury does he perform the non-technical task of exercising a layman’s appreciation upon the evidence available.
The main task given in this case by the Council to the Court was analogous to the sort of job which in a municipal court would be performed by a jury, perhaps a special jury, directed no doubt by a judge, but enlightened by witnesses, perhaps even expert witnesses. The judges of the Permanent Court were called on not merely to interpret the law but to fill, in addition, the place of a jury, if not also that of the expert witness. Insofar as some of the judges made it their aim to exercise only the technical competence of lawyers and not also the political and economic appreciation of laymen, they were naturally at a certain disadvantage in handling a case of this kind. It was as if a cricketer, when invited to play tennis, were to try to do so with a cricket bat. For such a purpose it is excusable, nay, proper, for a cricketer, even a professional cricketer, to rely frankly on a tennis racquet.4
In the Customs-Union case, as in any other, it would be intolerable if the attitude of some, or all, of the judges could be shown to have been affected by national prejudice or by political interest. Accusations of this sort may always be easily made. And, though this question is essentially different from the one we have lately been considering, it is unfortunately very possible that the difference will not be generally perceived by the man in the street.
When a judge is accused of showing bias the allegation may be equally difficult either to prove or disprove. Even where his ruling is that black is black we may if we choose believe that it is political bias which in his case has determined the adoption of that inherently plausible view. On the other hand if he has ruled that what we thought of as black was white, we cannot be quite sure that it is anything other than his honest opinion. We can only assert that in this instance there seems to be some internal evidence to support a suspicion of bias.
From a study of the positions severally taken by the various judges or groups of judges in this Custom-Union case the broad conclusion to which one is led is that their difference of attitude may quite readily be accounted for by perfectly sincere differences of professional opinion.
If, however, there is any unconquerable desire to find in this case a basis however thin – for attacking the professional integrity of one group or other of the judges, it would be easier – applying the ”black and white” criterion – to point to the ethnically heterogenous5 group whose signatures support the minority argument. An ironical result indeed-seeing that their dissent was so plainly due to an anxious determination to keep within the scope of their judicial attributions.
Notes
1 “… it is difficult to maintain that the regime is not calculated to threaten economic independence and that it is, consequently, in accord with the undertakings specifically given by Austria…”
2 “What they do not find in the opinion of the Court is an explanation as to how and why that regime would threaten or imperil Austria’s independence.”
3 No unfavorable impression should necessarily be created by the mere circumstance that the judges were so evenly divided. Five-to-four decisions have been common in even the most honored of national courts.
4 As to whether it would have been more proper on the part of the court to give. like M. Anzilott1, its reasons for finding as it did on a question of fact, it is worth while to recall that no such necessity is imposed upon a jury. Without a judge giving his conclusions upon a question of law it is of course somewhat otherwise.
5 Viz., Belgian, British, Chinese, Dutch, German, Japanese, United States.
C.A.W. Manning 