The Pretensions of International Relations

Universities Quarterly 7(4), 1953, pp. 361-71.

THE concern of this article is with the prospect for International Relations as a teaching subject in British universities at the present time. In a sense, it might appear that there can be little to consider. It is on no great scale that this distinct branch of study has up to now been anywhere provided for at all. Even the idea of such a subject is only here and there squarely accepted. And yet this, in a way, is perhaps not really very astonishing, given the British sense of humour. In most other subjects the academic upper ten, for all their effortless humility, do presumably know about as much as men currently can. But a ‘professor’ of international relations! What would Gilbert not have made of such a role? What may Herbert not make of it yet!

Nor is it quite certain what even its salaried sponsors themselves may eventually be expected to make of it. There exists, as yet, little or nothing in the nature of an orthodoxy as to how it should be handled. In some respects it almost tends to be every teacher to his taste. It is therefore proper that any individual writer, and particularly this one, should underline in this regard the essentially personal nature of his opinions, long though he may have held them and consistently though they may have found reflection in his work. To him the question of definition has always seemed sufficiently simple. He starts from the premise that international relationships occur, that they matter, and that, if probed and pondered over, they may come to be understood better than they commonly are. From experience he knows that the desire so to understand them, and to have help in it, is not rare among the young. Of such help it is, he assumes, the task of anyone titularly a teacher of International Relations to give them all he can. And for the instructional medium which has its genesis in this activity it seems to him no more than natural to use International Relations as a name. A poor definition very possibly, but his own!

As with other disciplines, so also with this one, there are two contrasted footings on which it may occur in the curriculum for a first degree. It may constitute the kernel, or organizing centre, of a man’s pattern of academic preoccupations; or it may figure as ancillary to his specialization in one of other of the older-established lines. Even in the former event it should not, though it possibly does, need saying that International Relations is not proposed to be cultivated in the void. In either event it will stand as one of a constellation of studies: so that a degree will not be given on quality in this subject alone. D1plomat1c History, in particular, and Economics, and International Law are merely among the more obvious of the ones which, as ‘underpinning’ subjects, may well require to be taken concurrently by those for whom International Relations is the matter of staple concern.

Sometimes the question is asked whether International Relations is not, even so, a relatively advanced line of study, fit rather to be introduced at the postgraduate than at the first degree level. It cannot be enough to protest, in reply, that this would put the subject out of range for all except a minority of those who might be wishing to take 1t; not enough, for, if definitely unsuited to undergraduate uses, the subject should by all means be barred, at the undergraduate stage. But a more apposite answer, one may hope, is that Mathematics too can be taught as an advanced sort of subject; and that as much as Mathematics, International Relations admits, propitiously, of an elementary-level presentation. Indeed, it is the letting in of this subject at that earlier, more formative, level which is so notable a new development of today. Here speaks, admittedly, the one-eyed devotee. He must not reckon on any unquestioning assent to such a claim. These still are early days. Only lately has he himself been given experience of the teaching of International Relations – the groundwork of the matter – to men in their freshman year. What was for him at first no more than an expectation is now however a finding, which he hopes an· impartial investigator would confirm. He holds, in short, that the, The Structure of International Society (being first steps 1n International Relations) has already given proof enough of its possibilities, as well for those who will not, as for those who will, be proceeding to further formal studies in this field.

If a clue should now be desired to the contents of the packet from which even those of such perilously tender years are thus recommended to be fed, one at least may draw attention, by way of answer, to some axioms on the need that the teaching ought to fill. For it is assumed here as incontestable that, in a free democracy, some consciousness of things international is in principle a pre- requ1s1te for the salutary use of a vote; that the pursuit of the relevant understanding can never in a given instance be held fully to have gained its obJective; that the student should therefore be regarded as destined indefinitely to continue what at college he can barely have begun; that the teacher, himself too a student, is equally out on an endless quest; that several teachers, serving concertedly, should, at least in principle, be capable of more than one; but that if, after all, an individual teacher has reserves about the team approach, he may of course be reasoned with, but will not be expected, even in the general interest, to simulate sympathy in his teaching with methodological prepossessions other than his own. It is also assumed that simply to become internationally erudite should· not be the student’s primary ambition. A man may be copiously up-to-date with his facts and figures and yet have little understanding of the world. It seems better therefore to say that the purpose to be worked for is a truer orientation of his wonted way of conceiving things, truer, that is, in terms of the essential astronomy of the social cosmos.

Platitudes, these? One must indeed hope that they may be. Here are more. They concern that part of the teaching which the student must practise on himself. For, even should there exist any subjects at all the students of which need merely to sit, as waiting to be enlightened, International Relations is not an instance of the kind. It is, on the contrary, one of those territories of which the individual has largely to take effective possession for himself. The object of the organized teaching will not be to make a man’s attempted self-education otiose, but to render it more effectual, by creating the conditions in which it may most fruitfully proceed. Socially, the broad objective is to provide, in time to come, for the presence of a sufficient leavening of those with technically apposite ways of thinking on international affairs. For in that symbolistic ‘world’), which is the traditional theatre of diplomatic manoeuvre, there exists, so to say, an accustomed way of life and a currency of conventional ideas. Not that there need be any particular mystery, or difficulty, in this matter: only, the necessary effort of mental accommodation must needs be the student’s own. It is not enough for him merely to have heard the experts talking. As well might a proficiency in the law be hoped for without any independent first-hand study through the cases, of the functioning of the judicial mind. .

The milieu made up of that intangible company, the society of States – such is the environment in which it must be the student’s object to become, for the purposes of his thinking, progressively better at home: and what he must accordingly wish to come by is not just a larger knowledge, but a fuller comprehension, and a heightened awareness of the influences at work in any given configuration of affairs. And the subject of International Relations comes thus to be understood as less essentially a corpus of cut-and-dried textbook material than a vehicle of assisted self-development, the student plodding forward with sufficient, but preferably only just sufficient, self-assurance in search of valid new insights of his own. The thing that in this process will most profit him in the end is not the particular discoveries that he may be making at a given moment, but the habit he will so be forming of collecting for himself the full illumination from his day-to-day visualizing of the international scene. The outcome of these everyday endeavours will be, one would hope, not necessarily a disillusionment, but rather a disembarrass- ment, a putting away of loose· ideas uncritically entertained, and a limiting of expectations to such things as have at least some possibility of coming about. And the effect should be to make him, not perhaps positively unshockable, but at all events less liable to be taken altogether by surprise. It may even become apparent as a , more creative quality in the sort of criticism he will find to offer on things he sees being done.

It may be suitable here to cite the analogy of a soldier’s training for service on the Staff. A feature of that tested system is practice in an art, the art of appreciation, of situations as they shape and reshape themselves in the fluid conditions of war. Though it is definitely no part of his function to say what his General is to do, the young , officer’s task does none the less require that he specify in quietly realistic terms those alternatives amongst which it is for the great man to choose, along with the main considerations having a possible bearing on his choice. And rather similarly it may be suggested, as a touchstone of a student’s progress in the understanding of international matters, that, in presence of any uncovenanted fresh turn of world events; he is less at a loss than he otherwise might be to arrive for himself at a nice appreciation of the resulting new position of affairs. If his competence for this kind of assessment is not at first that of a veteran commentator, it should at least be no longer suggestive of the sheer novice at the game, and it should show prospect of improvement as time goes on. Improvement that is, with this growing awareness of the elements involved, the characters on the stage, the pieces on the board. A chess expert may, at a glance, take in the momentary state of things in a chess-match. But it is different with a diplomatic crisis. In particular this is because, unlike the chessmen, statesmen and peoples have pictures in their heads, hopes, fears, and it may be even hatreds, in their hearts. Such ‘pieces’ have not merely to be identified upon the chess-board. They require to be known, each one of them individually, ‘by acquaintance’. Only so will the student get a pointer to what possible moves are within the capabilities, and the propensities, of any particular piece.

Indeed, the venerable metaphor of the chess-board is probably more misleading, on the whole, than helpful in descriptions of the diplomatic process. The world’s misfortunes in the 193o’s were no doubt superficially due to Hitler’s self-dedication to a certain set of aims: but were they not more fundamentally attributable to his countrymen’s being so disposed that at a sign from him they could be content, as it were, to emulate the performance of the Gadarene swine? In essaying at that time an interpretation of the behaviour of such a people, it must have been insufficient to consider what in supposedly similar circumstances some other people might have been expected to do. Similarly, here, is a relative term. There is no true substitute for knowledge by acquaintance. And this applies just as much to knowledge of the context, regional and global, in which the comportment of a given country is offered for understanding. The concerns of any single State make dependable sense only when seen in their setting within the general framework of world events. To think to comprehend the attitude of a given people at a given juncture in the sole perspective of its traditional ‘nature’, and regardless of the overall situation to which that attitude is a response, would be like following the movements of some particular player on a football field without reference to the progress or even the principles of the game.

There is a likeness between Professor Whitehead’s advice on the training of prospective leaders for the field of commerce and the point of view, here, on the fostering of a student’s appreciation of international events. In either case what requires evoking is an inborn aptitude, the gift for judgement. That person is not, for this purpose, an ideal teacher whose constant care it is to get acceptance for the views to which, by his own sound judgement, he has been if

led. The object should be to bring to its fuller flowering the student’s capacity for coming to responsible conclusions of his own. As for the means whereby this may at all be done, more on this point may perhaps be said at some later opportunity, but it certainly will not be by the mere propounding, in a ‘current issues’ class, of questions to be canvassed in debate. Nor merely by the dishing out of endorsement and dissent. Rather will it be by a specifying, and a stressing, in reference to every concrete contingency, of the application, and the value, of all those several elements of academic expertise which the student, if diligent and well directed, will be adding to his resources day by day. For the fact that international, like parochial, problems require, if they are to be properly appreciated, an examination with the aid of implements from several sorts of scientific tool-bag, is not to be denied. Indeed, it is of the very essence of the case. ‘Parasitic’ let this study, if necessary, be pronounced – parasitic upon a whole repertory of traditional techniques. Without the methods of the historians, the political scientists, the economists, the men of law, how much would the ‘IR-analyst’ – as some now offer to call him – be qualified to accomplish? With what confidence, in matters international, would a person consult the wisdom of someone who knew, notoriously, next to nothing of either Geography, or Political Theory, or International Law, or the nature of international institutions; who had merely impressionistic ideas on the relevance of legal and ethical casuistry in diplomatic disputation; or was imperfectly awake to the ways in which economic, strategic, or sentimental considerations, not to say those of a crudely electoral nature, were wont – and inevitably – to affect the calculations of States? Not very much confidence, one would suppose. But is this then to imply that the common man, in so far as he occasionally may care, and dare, to voice on some international issue a judgement of his own – and does he not? – should be pro tanto understood as laying claim, in effect, to the skills of a geographer, a jurist, a military historian, a connoisseur of international organization, if not also of an economist, a social-psychologist and a moral philosopher – yes, especially a moral philosopher – all in one? This is hardly what the common man would claim. Or the experienced statesman either. Each would surely prefer to accept his ordinary responsibility, as a citizen, for paying such reasonable heed , from a non-professional standpoint, he intelligently can to whatever testimony and good advice he may be able to attract on every aspect of any issue regarding which it becomes incumbent on him, adult as he is, to be making up his mind. What should serve here to differentiate the man of merit from the lightweight will be the ray in which, while deriving from theoretically inadequate premises conclusions sufficient for his practical needs, he will wish to deceive neither others nor himself as to what it is he is having to do. The mores and the mannerisms of those who draw their certitudes directly from a rule of thumb, or at best from the kind of inquiry which leaves the imponderables out of the picture, will not be characteristic of him.

If no more than an undergraduate, he may not have been at the business for very long, and his best opportunities will presumably be yet to come. He may not have had the time to get on terms of intimacy with many of the ‘persons’ in the family circle. For, though there are lesser solidarities within it – the British Commonwealth, for example – the family here in question is that of all the States. If Sociology could be understood as typically concerned with tensions and interdependencies within so numerically limited a single grouping, one might refer to International Relations as the sociology of the society ofStates. But the term ‘sociology’, though doing rough justice to the pre-eminently analytical temper of the basic approach, is the less felicitous in that 1t does not more pointedly establish for the student the importance of his conceding to every State, individually, a ‘personal’ history, a private predicament, a distinctive, even idiosyncratic, outlook of its own. For it has to be confessed, if only sotto voce, that there appears to be precious little pragmatic justiification for the not unseductive pastime of sorting States and situations into ‘types’. More profitable, surely, is the acquiring of the aforesaid ‘knowledge by acquaintance’ with some at least of the outstanding figures in the family. Their names are known; and it is of course convenient to know them by their names; but the imagery in which the student does his thinking – if it is to be thinking to some purpose – must lend itself with ease to every needed complication in contexts where more is involved than a mere matter of wishing that ‘she’, France, and ‘she’, Germany, may continue to be ‘friends’. While it is scarcely to be expected that, in his not unlimited time for study, the beginner will ·seek a close-up personal impression of more than a small selection of the players in the cast, he can hardly be spared the experience of making his overtures to one or two. Recognition, country by country, of the interplay between politics at the domestic, and the international, levels must, in short, become with him the normal approach to any attempted understanding of the problems of the period. Indeed, it is probably less for their historic importance or intrinsic interest than for the insight they should give him into the subtleties of this interrelationship that the student may reasonably be required to follow with something of a personal concern the doings of the passing day.

Such then, it is suggested, should be the aim of the teaching, if any. If any. There are doubtless universities, as there are jurisdictions, where the value of this subject is not yet seen. Thus it , presumably is only in the countries of the ‘free’ world that the question of any such form of teaching is likely to arise. The idea . that it could, and should, be left to the individual student to find · his independent way to such a vision of things as would be distinctively his own, and that for the teacher it could be essentially only , a question of abetting such a personal search, would ill accord with.’ the pedagogic principles by which the teaching process in some of the other class of countries is presumably informed.

But it is perhaps this very circumstance that could be held to lend a certain urgency to the question as relating to the countries of the West. Here, traditionally, the student’s conceptualizing of his oecumenical habitat has, by and large, been left dependent upon his progress in the conventional disciplines, as developed on various lines, by various teachers, in various centres – supplemented, no doubt, by his general experience of life. It may be that the bankers, the men of business, the bureaucrats, some of the politicians, and many of the more up-and-coming of the soldiers, will as of course have been professionally concerned to give themselves, though belatedly, an overall conception of the planetary social fabric and a holistic purview of the progression of events. But is this likely to be quite so true of the average man, or even of the man with the average good degree? To this day, while the community takes jealous stock, as never before, of the methods of the individual farmer in the working of ‘his’ land, it still seems to bother scarcely at all about the grip, or lack of grip, of supranational issues, with which the citizen of tomorrow is being put into possession of the franchise. Yet, on the maturitty with which the latter had learnt to exercise his fundamental discretion as a voice in the electorate there might come ultimately to depend the kind of residual freedom with which the former, as a farmer, could remain for very much longer in lpossession of his land.

It is true, of course, that in these matters the still unconvinced have tradition on their side. Britain has stood through many changes and outridden many a storm without any very vivid understanding of her institutional environment becoming current among more than a small proportion of her folk. And this, no doubt, could form an argument for resting content with a time-hallowed set academic arrangements. For there is, one is tempted to suspect, a kind of crypto-obscurantism which, while rendering conventional lip service to the ideal of free inquiry – and applauding therefore the fighters for ‘man’s right to knowledge and the free use thereof’ – recalls with wistful veneration the formerly so familiar figure of Colonel Blimp and wonders whether, had not his thinking been so often in the wrong key, his heart could ever have been so obviously in the right place.

Whether the encouragement of adult mindedness would make as of course for a more comfortable society will not be considered here. It is possible that among a politically purblind population it would at times be the easier for an Obrigkeit to maintain morale. But of what variety? Was the poet in sober earnest, or was he leaning on this licence, when he took for text that prospect of a noble school? Folly – to be wise? Better the wise and fearful folly of the bosun’s mate than the blissful courage of the captain’s canary, as the ship goes down. ‘The man who is not alarmed’, said Mr. Truman, in one of the last of his Presidential utterances, ‘simply does not understand the situation.’ ‘Alarm’, he went on, ‘is one thing: hysteria is another.’ Old Blimp might have been neither hysterical nor alarmed; but would he have understood the situation? Western man of tomorrow may hardly be grateful to us of to-day if we seem willingly to have denied him access to the best available avenues of understanding. People should re-read Marc Bloch.

It is never, of course, possible to say precisely what difference a different sort of education would have made to this man or that in this or that moment of history: but, to anyone who has seen point in the ‘structure’ syllabus, ideas are pretty sure to occur, when he reads of a Prime Minister who, in the fateful 193o’s, would apparently have liked to forget about foreign affairs. It may be that in the legendary history of our era Mr. Baldwin will finally figure, not as the man with the pipe, or the statesman whose lips were sealed, but as the one whose lids were lowered in an hour when, with just a little more vision, the worlds peace might perhaps have been preserved. Or take even Mr. Roosevelt, who, to his eternal credit, saw so much further than some. Could anyone schooled in his youth in the elements of the matter have been so innocent as he on the dissociation of strategic from political objectives, or indeed, on the excusability of the British Empire in its twentieth-century guise?

Not that it would necessarily be enough that those in seats or office should see things whole, if their perceptions must fall unregarded, because uncomprehended, on the common ear. For a bold political lead to get its proper impact it is not enough that it should have some sense in it: it is necessary that men’s minds be so alert to the realities it relates to that they may see the sense in it, or, as we say, may be able to make sense of it. Futile to put truth before the public, if the public be unable, through a curtain of prejudgement, to see it for what it is. As well might the supply of military aircraft be speeded up without the necessary attention to what we now think of as the ‘infra-structure’.

If it be objected that a thorough understanding of the social universe is too remote an aspiration to set before the common man, it can be submitted, in reply, that a sensible lessening of rudimentary non-understanding in this regard should be so relatively easy to ensure that those who, in their framing of educational policy, allow no weight to this desideratum may plausibly be suspected of having overlooked the very presence of the opportunity. ‘Alma Mater’: the term suggests a measure of solicitude for the well-being of the young. But not every mother takes the trouble to trouble her offspring with the truths of life. And, as for the university, which is really rather an artifice than a parent, it need not even be corporately cognizant of the problem. As an abstraction, since such it is, the university has only such awareness as may, by due process, be attributed to it. On this or that issue, so strictly non-natural a being may not necessarily have had occasion to think up for itself any unitary ‘mind’ at all.

‘Ole Man River’, though he ‘don’t say nothin’ ‘, yet he must know somethin’ ‘. So, roughly, runs the song. But why? Likewise, why, should Old Lady Senate House be credited, or discredited, with imputed opinions on issues which she may never have felt called upon formally to face? All very well to represent this as being a matter of public importance; but, if that in fact is what it is, why then, let the public look to it and take the matter up! Meanwhile, trust the Old Lady to know her business. Talk not to her of what, in your uninvited view, she ‘owes’ to the public, or, for that matter, of what she may be owing to herself. At most be content deferentially to point out that no one, in any case, is asking that the university, as such, take official position on tricky contemporary themes. And one might do better perhaps to soft-pedal, or withdraw altogether, the argument about matters of public concern: for whether History, or Philosophy, or Politics, or anything else is to be favoured with an academic gown should depend before everything on its virtue as a means for the ripening of the mind. Once let it be perceived that, taken simply as an educative medium, International 1Relations has so very much to offer and so very little to hide, and the Old Lady may well be relied on to consider for herself how far she can think to square it with her institutional self-esteem simply to carry on with her inherited arrangements as they are.

Time was when crime was, but not yet Criminology. And economic life, but no Economics yet. The legal relationships obtaining in international society among its constituent States have long engaged the analytical aptitudes of a valued category of learned men. And their subject of study has long been accommodated by many a famous academy in its programme of teaching. But real-life international relationships, relations in general, that is, and not just those arising in technical contemplation of law, have only lately become identified as the subject matter of a possible discipline. One can, of course, imagine that, supposing some august foundation, after having deigned to look for itself into the pretensions and possibilities of a given discipline, were to smite it with faint praise, its votaries, fallibly inspired though they might necessarily find it, would have perforce to stomach the rebuff. Where, however, as reportedly in some continental countries, the inference is allowed that a wished-for enlargement of the scope of the universities’ active interest is precluded by the invincible rigidities of a medieval form of faculty organization, outsiders, unless frankly incredulous, can but murmur their sympathy, a sympathy such as must be felt for one a cripple from his cradle. Small wonder if, with their relatively so much wider flexibility and freedom, Britain’s ancient seats of learning may have tended to incur the gentle envy of their foreign friends.



The Permanent Court and the Customs Union

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.

An early comment

One of my interventions at the Eleventh Session of the International Studies Conference held in Prague in 1938, the record of which was published by the International Institute of Intellectual Co-operation as University Teaching of International Relations, edited by Alfred Zimmern, at pages 266 to 269.

“I propose to try keeping to the question on the agenda: the relation between the teaching of international law and the teaching of international relations. And it will perhaps be well that I should aim at being provocative rather than conciliatory, instead of saying that there are some points on which I am not wholly in agreement with previous speakers. I say that I think there are some fallacies in the air.

The first fallacy I want to challenge is the one perpetrated by Sir Alfred Zimmern at the very beginning, namely, that international law rested on the presupposition of the sovereign State, whereas international relations regarded that as a “relative” conception, and of doubtful value. I do not think that international lawyers should be saddled with the blame or the credit for the prevalence of the conception of sovereignty. It is not the views of international lawyers surely, but the prevalence of that idea in the w0rld, which should be our starting point. Sovereignty is the presupposition of statesmanship and diplomacy, and therefore of international law – and not vice versa. Any study of international relations which leaves out of account the prevalence of that presupposition must necessarily be “off the rails” from the start in its attempt to appreciate the world as it is today. We may not like this position, but Sir Alfred Zimmem himself is the enemy of wishful thinking, and, as Mr. Brooks Emeny told us this morning, we still live in a Great-Power world, a world, moreover, in which not only the Great Powers but also the small ones make a good deal of their sovereignty. I, personally, am rather glad of it, because this persistence of the superstition that there is something sacred about their sovereignty is almost the only protection the small Powers have in the world today.

It is the recognised prevalence of that idea in present-day international practice, including the practice of the League of Nations, that must be the starting point of any realistic study of international relations. I do not mean by this that we must necessarily confine international relations to the study of dealings between States if by those words I am to be understood as limiting the scope of the subject of international relations. On the contrary, I would say that, under the rubric international relations, we should study not merely the formal relations between States but also everything else under the sun which may have any relevance thereto.

Other fallacies to which I would never accuse anybody in this room of having subscribed, but which may be mentioned in passing, include, for example, the idea that international lawyers create international law. I do not .suppose there is anybody here who believes that, but there have been some, even international lawyers, who entertained the idea. They have persisted in the illusion that they had something more than a suggestive influence in the process of changing international law. Let us not fall into a confusion between the question of “technique legislative”, mentioned by Professor Guggenheim, and the question of “politique legislative” which is another thing altogether. Technique legislative, I admit, is par excellence the business of lawyers. In England it is the domain of what is called the parliamentary draftsman. He is a lawyer. He helps to settle the terms of legislation. But it is very far from being his business to say what the content of the legislation ought to be.

Neither is it easy for me to accept the opinion that the professor of international law is, by his calling, in the nature of a missionary. I hope every man of goodwill is a missionary, in the world as we have it today; but professors of international law, in their quality as exponents and leaders of a highly technical subject-matter, should proceed rather in the spirit of science. Accordingly they will present legal issues as legal issues, showing how they are distinct from, albeit related to, the true interpretation of the now famous remark of Professor Reuterskjold, which Sir Alfred Zimmern has seemed inclined to criticise.

By all means let the international lawyer take part along with others, in the discussion of possible reforms. But this should be kept sharply distinct from his teaching of international law.

I am most anxious to challenge the prevalent, but far too optimistic assumption that you will still be able to keep on the road of scientific accuracy even if you try to proceed from a basis other than the desire to see the truth. The concept of solidarite internationale is doubtless of very great value. But it is, of course, an abstraction. It is a simplification, and, in some sense, a falsification of things as they are. As well might you begin with the concept of a conflict of interests, as with the concept of international solidarity. Let us look at the world as it is and see what we find there in the world as we see it we find on the one hand plenty of interdependence but, on the other, plenty of conflict as well.

On the whole, it seems to me that the relation between the teaching of international law and the teaching of international relations must depend upon the context. It must depend upon the classes of students for whom you are primarily catering. On the one hand, in teaching international law we do incidentally need to provide for an understanding of the background, the social substratum, the reality, in relation to which their legal doctrine is attempting to make its way in the world. They must understand the functional aspect of law if they are to realise what law really is. I think that the conceptual jurisprudence, the Begriffsjurisprudenz that has been mentioned, is largely out of date now. It is like learning to drive a car without understanding the engine. Nowadays we try to teach people to understand the engine as well as to drive the car. So if you are teaching international law, it will be a great pity if you cannot provide also for the teaching of international relations .

A much more complicated question, to my mind, is this: how intensively need the student of international relations, whose programme is already overburdened with so many other subjects, study international law? I throw out for discussion the idea that he perhaps need not know over much of the detail; that if he learns law enough to be able to understand the legal aspect of a case when it is explained to him by a lawyer, he will already have won more than half his battle. He need not set out to be a jurist in the professional sense so long as he can understand what the jurist has to tell him as to the content of international law in its bearing on a particular situation. As Mr. Brooks Emeny so well put it, you are trying to help the student to judge and to visualise. You will not visualise an international situation if you cannot understand its legal aspects, including the controversial legal aspects which even a lawyer, if he is honest, will tell you are not yet settled.

One further word: there is a subject, not strictly a branch of law but closely related thereto, la philosophie du droit, or, in English, jurisprudence. This subject is not law. The study of law is the study of legal principles, rules, distinctions and conceptions of given legal systems. The study of jurisprudence examines law as an institution, asks what law essentially, is, how it functions, how it fits into the social scheme of things and so forth. This subject, I submit, must very necessarily be taught to the student of intemational relations, la philosophie du droit, with special reference to international law- in fact, if you like, la philosophie du droit international. I would however wish that this “philosophy” should be ontological and positivistic rather than tendentious or ethical ; and that is why I would prefer not to use here the word “philosophy” at all, but the word “jurisprudence”. This subject must needs be taught to anyone who would so much as begin to understand the way things happen in the world because the attitudes of States in a given situation are to some extent influenced by their reading of the legal aspect of the situation in question. I do not mean by this that they necessarily respect the law: but they do take account of it, and they argue about it. The legal aspect is ever-present in the mind of the statesman and must be present in the mind of the student if he is to understand the statesman’s behaviour, and hence the State’s behaviour. International relations is essentially a study of the behaviour of States, and it is for that reason I agree with Sir Alfred Zimmem that it should not be too narrowly limited: the understanding of the behaviour of States presupposes an understanding of a great many other things as well.”