662.6331/284

The Chargé in the Netherlands (Johnson) to the Secretary of State

No. 120

Sir: With reference to my despatch No. 101, of August 25th,25 and in confirmation of my cable No. 29, of September 5, 10 [11] a.m., I have the honor to report that on September 5th the Permanent Court of International Justice gave its opinion by eight votes to seven that 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, would not be compatible with Protocol No. I signed at Geneva on October 4th, 1922.

The majority opinion was concurred in by the following judges: Guerrero (Salvador), Rostworowski (Poland), Fromageot (France), Altamira (Spain), Urrutia (Colombia), Negulesco (Rumania), de Bustamante (Cuba), and Anzilotti (Italy).

Guerrero, Rostworowski, Fromageot, Altamira, Urrutia and Negulesco, while concurring in the above opinion, declare that, in their opinion, the regime of customs union projected by the Austro-German Protocol of March 19, 1931, since it would be calculated to threaten the independence of Austria in the economic sphere, would constitute an act capable of endangering the independence of that country and would, accordingly, be not only incompatible with Protocol No. I of Geneva of October 4, 1922, but also and in itself incompatible with Article 88 of the Treaty of Saint Germain of September 10, 1919.

Judge Anzilotti, while he concurred in the operative portion of the majority opinion, declared that he was unable to agree in regard to the grounds on which it was based and accordingly delivered a separate opinion.

What serves therefore as the majority opinion is in reality only the opinion of one man, Judge Bustamante.

A joint dissenting opinion was delivered by Adatci (Japan), Kellogg (United States), Rolin-Jaequemyns (Belgium), Cecil Hurst (Great Britain), Schücking (Germany), van Eysinga (Netherlands), and Wang Chung-Hui (China) to the effect that the proposed regime between Germany and Austria would be compatible with both Article 88 of the Treaty of Saint Germain and with Protocol No. I signed at Geneva on October 4, 1922.

A sentence worthy of note in the dissenting opinion (page 23) and probably attributable to Judge Kellogg reads as follows:

[Page 593]

“The Court is not concerned with political considerations nor with political consequences. These lie outside its competence.”26 (My despatches No. 433, December 17, 1930, and No. 498, January 31, 1931.)27

A full text of the various opinions is being forwarded in this pouch.28

. . . . . . . . . . . . . .

Respectfully,

Hallett Johnson
  1. Not printed.
  2. Permanent Court of International Justice, Series A./B., Fascicule No. 41, Customs Regime Between Germany and Austria, p. 75.
  3. Neither printed.
  4. For texts of the several opinions, see Permanent Court of International Justice, Series A./B., Fascicule No. 41, pp. 37 ff.