Part II: INTERNATIONAL LEGAL PERSONALITY
contrary to Art. 88 of the Treaty of Saint Germain.
A. legal persons
1. states
requirements for statehood
The Austro-German Customs Union Case
FACTS: There was a request for an opinion on the
meaning of “independence” from the Council of the
League of Nations of the Art. 88 of the Treaty of St.
Germain which stipulated that Germany and Austria
must remain independent except with the consent of the
League of Nations. The Protocol No. 1 of Geneva 1922
stipulated similar conditions. Austria and Germany were
attempting to establish free trade customs unions.
The Court was asked by the Council for an opinion as to
whether a regime established between Germany and
Austria on the basis and within the limits of the
principles laid down in the Protocol of Vienna of March
19th, 1931, between Germany and Austria would be
compatible with Article 88 of the Treaty of Saint-Germain
and with Protocol No. I signed at Geneva on October 4 th,
1922. In accordance with the usual practice , States
parties to any one of these instruments were informed
that the Court was prepared to receive written
statements and hear oral arguments, if they desired. The
German, Austrian, French, Italian and Czechoslovak
Governments availed themselves of this invitation.
Austria and Germany reached a preliminary agreement
on a customs union provided by a Protocol of 1931,
which publicly was seen as a disturbance in international
relations.
Austria and Germany sought to create a customs union
establishing free trade between States. Austria was a
party to the Treaty of Saint-Germain 1919 which
provided that Austria undertakes to abstain from act
which might directly or indirectly or by any means
whatever compromise her independence. Austria was
also a party to a Protocol of 1922 concerning economic
independence to the effect.
ISSUE: The question before the PCIJ was whether Austria
would be acting contrary to the provisions of Saint-
German Treaty (1919) and the Protocol No. 1 signed in
Geneva in 1922, in respect of Austrian’s economic
independence. Both agreements contained an obligation
upon Austria to abstain from any act which might
compromise her independence.
RULING: Yes. The Court advised by 8 votes to 7, that the
customs union would be incompatible with the Protocol
1922; 7 judges also agreed that the union would be
The union does not violate Austrian independence,
however it is incompatible with the Protocol
By the Treaty of Saint-Germain and by Protocol No. I of
1922, Austria agreed to conclude a treaty with a view to
establishing a customs union regime. The Court held that
such a regime would not be compatible with Protocol
No. I of 1922.
The Treaty of Saint-Germain must be understood to
mean the continued existence of Austria within her
present frontiers as a separate State with sole right of
decision in all matters economics, political, financial or
other with the result that independence is violated, as
soon as there is any violation thereof, either in the
economic, political or any other field, these different
aspect of independence being in practice is one and
indivisible.
Compared to dependent States which are subject to the
authority of the superior State’s restriction on a State’s
liberty following from International Law or contracted
engagement do not affect its independence.
Dependent States are subject to the authority of one or
more States where there is no relationship of superiority
and subordination, it is impossible to speak of
dependence within the meaning of international law. It
follows that the legal conception of independence has
nothing to do with a State’s subordination to
international law or with the numerous and constantly
increasing States of De Facto dependence which
characterize the relation of one country to other
countries.
Independence refers to the legal independence of a
State to act as sovereign within its borders.
Separate Opinion Judge Anzilotti
Judge Anzilotti believes the Austro-German Customs
Union would violate Article 88 of the Treaty of Saint-
Germain, requiring Austria to seek League of
Nations Council consent before proceeding. He
argues that while the Union wouldn't formally
eliminate Austria's independence, it could endanger
it by strengthening economic ties with Germany and
potentially pushing Austria towards political unity.
He concludes that the Union is incompatible with
Article 88 and the Geneva Protocol, requiring Austria
to seek Council approval.