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[p295] THE COURT,
composed as above,
delivers the following judgment:
[1] By an application instituting proceedings, filed with the Registry of
the Court on April 11th, 1932, in accordance with Article 40 of the Statute
and Article 35 of the Rules of Court, the Governments of His Britannic
Majesty in the United Kingdom of Great Britain and Northern Ireland, of the
French Republic, of His Majesty the King of Italy and of His Majesty the
Emperor of Japan, brought before the Permanent Court of International
Justice a suit against the [p296] Government of the Lithuanian Republic in
respect of a difference of opinion as to whether certain acts of the latter
Government are in conformity with the Statute of the Memel Territory annexed
to the Convention of May 8th, 1924, concerning Memel.
[2] In the application, which relies on the jurisdictional clause in Article
17 of the said Convention, the applicant Powers state the subject of the
dispute in the following terms:
"May the Court be pleased:
To decide....
(1) whether the Governor of the Memel Territory hasthe right to dismiss the
President of the Directorate;
(2) in the case of an affirmative decision, whether this right only exists
under certain conditions or in certain circumstances, and what those
conditions or circum-stances are;
(3) if the right to dismiss the President of the Directorate is admitted,
whether such dismissal involves the termination of the appointments of the
other members of the Directorate;
(4) if the right to dismiss the President of the Directorate only exists
under certain conditions or in certain circumstances, whether the dismissal
of M. Böttcher, carried out on February 6th, 1932, is in order in the
circumstances in which it took place;
(5) whether, in the circumstances in which it took place, the appointment of
the Directorate presided over by M. Simaitis is in order;
(6) whether the dissolution of the Diet, carried out by the Governor of the
Memel Territory on March 22nd, 1932, when the Directorate presided over by
M. Simaitis had not received the confidence of the Diet, is in order."
[3] According to the terms of the letters under cover of which their
diplomatic representatives at The Hague transmitted the application to the
Court, the applicant Powers reserved the right to append their submissions
to the Case which they would subsequently have to submit.
[4] As the Court included, upon the Bench, judges of the nationality of the
applicant Powers but no judge of Lithuanian nationality, the Lithuanian
Government availed itself [p297] of its right, under the terms of Article 31
of the Statute, to appoint a judge ad hoc to sit in the case.
[5] The applicant Powers having in their application renounced their right
to present a written Reply, the President of the Court - the latter not
being in session - by an Order made on April 16th, 1932, fixed the dates for
the presentation of a Case and a Counter-Case, the last date upon which the
Lithuanian Government might present its Counter-Case being fixed as May
30th, 1932. The. Case of the applicant Powers was filed on April 30th, 1932,
within the time-limit fixed, but the Counter-Case was only filed on May
31st, 1932; the President, however, decided on the date last mentioned,
under Article 33 of the Rules of Court, that this proceeding should be
considered as valid.
[6] By a document filed at the same time as its Counter-Case, the Lithuanian
Government objected that the Court had no jurisdiction to deal with points 5
and 6 of the application mentioned above.
[7] In these circumstances, the Lithuanian Government, in its Counter-Case,
only presented its observations "on questions 1 to 4 of the application of
the applicant Governments".
[8] By a judgment given on June 24th, 1932, the Court overruled the
Lithuanian preliminary objection and reserved points 5 and 6 of the
application for judgment on the merits. The same day, it made an Order
fixing July 9th as the date of expiration of the period within which the
Lithuanian Government might file a Counter-Case on these points. This second
Counter-Case was actually filed on July 2nd, 1932.
[9] In the Case of the applicant Powers it is submitted:
“(a) that the Governor of the Memel Territory has no right to dismiss the
President of the Directorate;
(b) that the termination of the appointment of the President of the
Directorate does not ipso facto entail the termination of the appointments
of the other members of the Directorate;
(c) that the appointment of the Directorate presided over by M. Simaitis was
not in order, in the circumstances in which it took place;
(d) that the dissolution of the Memel Diet carried out by the Governor of
the Territory on March 22nd, 1932, when [p298] the Directorate presided over
by M. Simaitis had not received the confidence of the Diet, was not in
order".
[10] The first Lithuanian Counter-Case contains the following "general
submissions":
"May the Court be pleased .... to decide:
(1) that the Governor of the Memel Territory is entitled to dismiss the
President of the Directorate;
(2) that, in any event, the Governor of the Memel Territory is entitled to
dismiss the President of the Directorate in the following cases:
(a) when the President has committed acts which compromise the sovereignty
or unity of the Lithuanian State ;
(b) when the President has encroached upon the powers of the central
authority;
(c) when the President has exercised his powers in disregard of the
principles of the Lithuanian Constitution;
(d) when the President opposes the adoption by the local authorities of the
measures necessary to apply in the Memel Territory international treaties
concluded by Lithuania dealing with matters which are within the competence
of the local authorities;
(e) when the President opposes the adoption by the local authorities of the
measures necessary to execute the provisions of the Statute and of those
laws of the Republic which are applicable to the Territory;
(3) that the dismissal of the President of the Directorate by the Governor
entails the termination of the duties of theo ther members, who may only
conduct current affairs of their departments if specially commissioned
thereto by the Governor;
(4) that the dismissal of M. Böttcher by the Governor of Memel on February
6th, 1932, was, in the circumstances in which it was effected, quite
regular."
[11] In the second Counter-Case it is submitted:
"That since points 5 and 6 of the application of April 11th, 1932, by the
Governments of France, Great Britain, Italy and Japan, do not relate to
differences of opinion between the said Governments and the Government of
the Lithuanian Republic, upon questions of law or fact concerning the
provisions of the Convention of Paris of May 8th, 1924, but only to a
difference of views between the five Governments as to the [p299] political
expediency of certain acts of the Lithuanian authority at Memel which do not
come under Article 17, paragraph 2, these points cannot be entertained by
the Court.
[12] Alternatively, in the event of the Court not deciding that points 5 and
6 of the application of the four Governments are inadmissible, that:
1° the appointment of the Directorate presided over by M. Simaitis is in
order in the circumstances in which it took place;
2° the dissolution of the Diet carried out by the Governor of the Memel
Territory on March 22nd, 1932, is in order."
[13] In the course of public sittings held on June 8th, 13th, 14th, 16th and
18th and July nth, 12th and 13th, 1932, the Court heard the statements,
observations, replies and rejoinder presented by Sir William Malkin, Agent
of the Government of Great Britain, M. Charguéraud, Assistant Agent of the
French Government, M. Pilotti, Agent of the Italian Government, and M.
Matsunaga, Agent of the Japanese Government, and by M. Sidzikauskas, Agent
of the Lithuanian Government.
[14] The documents enumerated in the list in the appendix to this judgment
were filed on behalf of one or other of the Parties, either as annexes to
the documents of the written proceedings or in the course of the hearings.
[15] Such are the circumstances in which, the submission being in all
respects regular, the Court is now called upon to give judgment.
***
[16] On May 8th, 1924, there was concluded at Paris the Convention between
the British Empire, France, Italy and Japan of the one part, and Lithuania
of the other part, by which the Four Powers transferred to Lithuania the
sovereignty over the Memel Territory, subject to the conditions contained in
the Convention. Under Article 2 of this Convention, the Memel Territory was
to constitute, under the sovereignty of Lithuania, a unit enjoying
legislative, judicial, administrative and financial autonomy, within the
limits prescribed by the Statute which was annexed to the Convention and
[p300] which, as an annex, is to be considered under Article 16 of the
Convention as constituting for all purposes part of the Convention.
[17] The Court is not concerned with the reasons which led to the decision
to transfer the sovereignty over Memel to Lithuania upon the special terms
set out in the Convention and m the Statute, viz. that Memel should enjoy a
regime of autonomy. For this reason, it is not necessary to give the history
of the negotiations which preceded the conclusion of the Convention. It is
sufficient to state that the decision of the Conference of Ambassadors on
February 16th, 1923, which is mentioned in the preamble of the Convention as
having been accepted by Lithuania on March 13th of that year, and also the
resolution of the Constituent Assembly of Lithuania on November nth, 1921,
both of which documents have been laid before the Court, show that it was
the intention of all Parties to the Convention that the autonomy to be
conferred on Memel was to be real and effective, that is to say, that it was
to give the people of Memel the right and the power to manage their own
local affairs in their own way.
*
[18] Some discussion has taken place in the course of the oral, arguments as
to the character of the Statute of Memel, which forms Annex I to the
Convention of 1924 and regulates the autonomy of Memel. Lithuania drew
attention to the fact that in form it was a Lithuanian enactment, and that
it had in fact been enacted as a Lithuanian law. She therefore submitted
that it should be regarded and interpreted as such. The contention of the
Four Powers, on the other hand, is that while for internal purposes the
Statute may perhaps be considered as forming part of the law of the
Republic, it is for the Court only a part of a treaty. For the purpose of
the present proceedings, the Court feels no doubt that, according to the
very terms of Article 16 of the Convention, the Statute of Memel must be
regarded as a conventional arrangement binding upon Lithuania, and that it
must be interpreted as such. [p301]
[19] The application instituting proceedings states the origin of the
dispute as follows:
"The dismissal of the President of the Memel Directorate, M. Böttcher, the
appointment of a Directorate presided over by M. Simaitis and the
dissolution of the Diet have given rise to differences of opinion as to
whether these acts are in accordance with the Statute of the Memel Territory
which is annexed to the Convention of May 8th, 1924.
These differences of opinion have not been reconciled either by the enquiry
conducted by the Council of the League of Nations, or by negotiations
between the Powers signatories of the Convention of May 8th, 1924."
[20] In order to give a clear idea of the circumstances which gave rise to
the differences of opinion leading to the present proceedings, it is
necessary to state the facts.
[21] The Directorate of Memel, of which M. Böttcher was the President at the
time of his dismissal, is the body which, under the Memel Statute, is to
exercise the executive power in the Memel Territory.
[22] On December 17th, 1931, M. Böttcher, accompanied by two members of the
Chamber of Representatives, made a journey to Berlin. There is no agreement
between the Parties to the present proceedings as to the object with which
this journey to Berlin was undertaken, but certain facts with regard to it
are not disputed. The Lithuanian Government were unaware of it ; the facts
only became known to them at a later date. The expenses of the journey were
defrayed out of the public funds of the Territory. One of M. Böttcher's
companions had no passport, and was given a special certificate by the
German Consul-General at Memel to the effect that the bearer was going to
Berlin for negotiations with the German authorities and that these
negotiations were of considerable interest to Germany. While at Berlin, M.
Böttcher and his travelling companions had interviews with public officials
at the German Food Ministry and also at the Ministry for Foreign Affairs.
[23] Such, in broad outline, are the undisputed facts. It will be necessary
to go into the facts in somewhat greater detail [p302] in connection with
point 4, relating to the dismissal of M. Böttcher.
[24] When the Governor of Memel became aware of the facts, he informed M.
Böttcher on December 27th, 1931, that he (M. Böttcher) no longer possessed
his (the Governor's) confidence and advised him to resign. On January 16th,
1932, M. Böttcher replied that he thought that there was a misunderstanding
about his journey to Berlin, and that the misunderstanding could easily be
cleared up by a verbal discussion. He therefore asked for an interview.
[25] Whether any such interview took place is not clear. But on January
25th, 1932, the Governor reported the facts to the Memel Chamber of
Representatives in a letter which was read to the Chamber that day, and M.
Böttcher also made a statement. Thereupon the Chamber expressed its
continued confidence in M. Böttcher by a vote of fifteen to four, with six
abstentions. On February 6th, the Governor dismissed M. Böttcher from the
Presidency. The text of the letter addressed to M. Böttcher was as follows:
"[FN1] Memel, le 6 février 1932.
Monsieur le Président,
Le 17 décembre de l'аnnéе dernière, a l'insu du Gouvernement de la
République, vous vous êtes rendu dans la capitale d'un État étranger et vous
у avez engagé des négociations avec le Gouvernement de cet État, et cela au
mépris des organes légaux de votre propre État, qui sont seuls autorisés à
conduire de telles négociations. Cette façon d'agir fait apparaître votre
maintien au poste de président du Directoire comme incompatible avec les
intérêts de l'État et constitue en outre une menace - ainsi qu'il résulte
d'ailleurs des événements des derniers jours - pour l'ordre public de
l'État.
C'est pourquoi, dans ces circonstances exceptionnelles, je me vois forcé de
révoquer le décret, en date du 8 Janvier 1931, par lequel je vous nommais
président du Directoire. [p303]
En vous communiquant cette décision, je vous prie de remettre les affaires
de président du Directoire à M. le conseiller Tolišius, que j'ai chargé de
gérer les affaires de la présidence du Directoire jusqu'à ce que j'aie nommé
un nouveau président.
Veuillez agréer, etc.
(Signé) Merkys, Gouver
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[FN1] "Memel, February 6th, 1932.
"Sir,
"On December 17th of last year you proceeded, without the knowledge of the
Government of the Republic, to the capital of a foreign State, and [p303]
there entered into negotiations with the Government of that State,
disregarding in so doing the lawful authorities of your own State, who are
alone entitled to engage in such negotiations. As a result of this conduct
on your part, your continuance in the office of President of the Directorate
is felt to be inconsistent with the interests of the State and to constitute
a danger - as is indeed confirmed by the events of the last few days - to
the public order of the State.
"For these reasons, and in these exceptional circumstances, I feel compelled
to cancel the Decree of January 8th, 1931, by which I appointed you
President of the Directorate.
"I take the opportunity of this notification to request you to hand over the
duties of President of the Directorate to Councillor Tolišius, whom I have
instructed to carry on the work of the presidency of the Directorate, until
I have appointed a new President.
"I have, etc.
“(Signed) Merkys, Governor."
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[26] On the same day the Governor wrote to M. Žygaudas, who was already a
member of the Directorate, a letter containing the following passage : "I
commission you to take over the duties of M. Böttcher and to act as
President of the Directorate until I have appointed the new President of the
Directorate." M. Žygaudas declined, and consequently the Governor instructed
M. Tolišius to act as President ad interim. The other two members of the
Directorate were also relieved of their offices.
[27] On February 8th, the German Government submitted the matter to the
Council of the League of Nations in pursuance of Article 17, paragraph 1, of
the Memel Convention of 1924, and asked that, as the matter was urgent, the
Council should be summoned to meet at once.
[28] On February 13th, the Council met and heard statements from the German
and from the Lithuanian representatives; it appointed M. Colban, the
Norwegian representative, as Rapporteur.
On February 20th, the Council met to consider M. Colban's report and again
heard the German and Lithuanian representatives. [p304]
[29] Paragraphs 2 to 7 of M. Colban's report were as follows:
"2. The question submitted to the Council is a very complex one.
On the one hand, there is the assertion that M. Böttcher, President of the
Memel Directorate, was relieved of his duties by the Governor of the
Territory unconstitutionally, in that paragraph 2 of Article 17 of the
Statute of Memel specifies that the President shall remain in office so long
as he possesses the confidence of the Chamber of Representatives of the
Territory.
On the other hand, it is argued that the provisions of the Paris Convention
of May 8th, 1924, and its annexes, do not exclude the right of the Governor
to dismiss the Directorate in certain circumstances, and that in this
particular instance M. Böttcher was quite properly relieved of his functions
because the Lithuanian Government considered that he had usurped powers
which belong to the central Government and had thus violated the Statute of
Memel.
3. In addition to this difference on fundamentals, the factscited in support
of M. Böttcher's dismissal are set out by the Lithuanian Government in a way
different from that in which they are set out on the other side.
4. The Council has been able to note with satisfaction the assurance of the
Lithuanian Government that it intends scrupulously to fulfil all its
international obligations arising under the texts applicable to Memel. The
Council has also heard the Lithuanian representative's statement to the
effect that the Governor of the Territory is endeavouring to establish a
Directorate according to the conditions laid down in the Statute.
5. This notwithstanding, it is still of paramount importance that the
present abnormal situation should be dealt with as soon as possible. This
situation calls for urgent steps to prevent its aggravation.
6. The establishment of a Directorate enjoying the confidence of the Chamber
of Representatives is an absolute necessity. This Directorate ought to come
before the Chamber without delay. The situation is such that it would be
desirable not to allow the extreme time-limit specified in paragraph 2 of
Article 17 of the Statute to be reached. The Council cannot be too
solicitous to see the normal working of the Statute re-established
throughout the Territory.
7. These immediate steps do not prejudge the question of the lawfulness of
M. Böttcher's dismissal. No opinion can [p305] be expressed on this point
until the question of the Governor's right to dismiss the Directorate has
been settled. Even if it were admitted that the Governor is empowered to
dismiss the Directorate, it would be necessary to consider what exactly were
the circumstances, and whether they were such as to warrant the Governor
exercising his power."
[30] The report ended with a statement that M. Colban would have recommended
the Council to ask the Permanent Court of International Justice for an
advisory opinion, but hesitated to do so because of the difficulty of
obtaining unanimity in favour of this suggestion. All he did therefore was
to remind the Four Powers of the opportunities they enjoyed under paragraph
2 of Article 17 of the Memel Convention.
[31] M. Colban's report was adopted by the Council, the Lithuanian
representative making reserves as to paragraphs 5 and 6 of that report.
[32] On February 23rd, 1932, M. Böttcher forwarded to the Governor his
resignation from the post of President of the Directorate and, on the same
day, the leaders of the majority parties in the Memel Chamber informed the
Governor that, as M. Böttcher had now resigned, they were prepared to
suggest nominees for the post of President of the Directorate. The Governor
had invited them to do so, but on February 10th they had informed the
Governor that they were not able to do so.
[33] On February 27th, the Governor appointed as President of the
Directorate M. Simaitis, a non-party man. The Governor issued at the time
the following official announcement:
"In pursuance of Article 17 of the Statute of Memel, the Governor has
appointed Eduard Simmat, Headmaster of a school, as President of the
Directorate of the Territory of Memel.
The President newly appointed is carrying on conversations with the members
of the majority parties with a view to the formation of a Directorate on a
parliamentary basis. It is to be expected that the Directorate will be
constituted at an early date."
[34] The leaders of the majority parties appear at the time to have been
content with the appointment of M. Simaitis, and [p306] for a fortnight they
negotiated with him in order to agree upon the composition of a new
Directorate. On the 12th March, however, the negotiations broke down and the
leaders of the majority parties informed the Governor that they would no
longer accept M. Simaitis as President of the Directorate, but were willing
to negotiate as to the formation of a Directorate on a parliamentary basis.
M. Simaitis then formed his Directorate with two persons who were not
members' of the majority parties. The Directorate so formed by M. Simaitis
submitted itself to the Chamber on March 22nd. The Chamber, after hearing a
statement from the Directorate, refused its confidence by a vote of
twenty-two to five. M. Simaitis then read a decree of the Governor
dissolving the Chamber.
[35] From the time of the proceedings at Geneva before the Council of the
League of Nations, the Four Powers who were parties with Lithuania to the
Convention of 1924 had been interesting themselves in affairs at Memel and
had been endeavouring to compose the difficulties which had arisen. In the
course of the negotiations they learned, as the result of an interview
between the French Minister at Kovno and the Minister for Foreign Affairs,
M. Zaunius, on February 27th that, if the majority parties refused to
collaborate, it would lead to a dissolution. His remarks were reported by
the French Minister as follows:
"[FN1] Au cas où ceux-ci refuseraient de la donner, le Gouvernement se
verrait dans l'obligation de faire appel au parti minoritaire. Il
s'ensuivrait un vote de méfiance, suivi de la dissolution de la Diète et
d'élections nouvelles."
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[FN1] In case the latter refused it, the Government would be compelled to
address itself to the minority party. This would result in a vote of
no-confidence, which would be followed by a dissolution of the Chamber of
Representatives and the holding of fresh elections."
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[36] The French Minister thereupon made it clear that, in the opinion of the
Four Powers, there was no justification for a dissolution:
"[FN2] J'ai fait alors remarquer à M. Zaunius que cette éventualité était
contraire aux vues des Puissances. Mais mon [p307] insistance ne l'а pas
fait fléchir. II m'a déclaré avec vigueur qu'il avait fait à ce sujet les
réserves les plus expresses devant le Conseil de la Société des Nations et
que son Gouvernement, aprés mûre réflexion, était résolu à exercer en
pareille occurrence ses droits de souveraineté. Ce n'est, bien entendu, qu'à
la dernière limite qu'il aurait recours à cette mesure, et, pour éviter
toute critique, ce n'est qu'après la levée de l'état de siége qu'auraient
lieu éventuellement les élections." [FN2]
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[FN2] "I then pointed out to M. Zaunius that such a result would be contrary
to the views of the Powers. But my persistence did not lead him to modify
[307] his attitude. He told me, with emphasis, that he had made express
reservations on this point before the Council of the League of Nations and
that his Government, after carefully considering the matter, was resolved to
exercise its rights of sovereignty in such a case. It was only, of course,
as a last resort that he would have recourse to this method ; and to avoid
any criticism, the state of siege would be brought to an end before any
elections are held."
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[37] On March 19th, after the constitution of the Simaitis Directorate, but
before the dissolution of the Chamber took place, the Four Powers informed
the Lithuanian Government that, if a Directorate possessing the confidence
of the Chamber was not constituted at an early date, they would submit the
questions at issue as to the dismissal of M. Böttcher to the Permanent Court
of International Justice instead of to arbitration as had been proposed.
They added that they would regard the dissolution of the Chamber as contrary
to the recommendations of the Council of the League of Nations and would be
obliged to consider whether it did not constitute a new infraction of the
Memel Convention.
[38] The Lithuanian reply to this note was sent on the same day. Its terms
were as follows:
"[FN1] J'ai pris note de votre communication. Quant au fond, cette
communication, dont la teneur m'avait d'ailleurs été [p308] communiquée par
notre ministre à Londres, appelle de ma part quelques brèves observations
préliminaires.
Ad 1. - Le Directoire actuel du Territoire de Memel avait été formé après de
laborieuses négociations entre le président [p309] du Directoire [M.
Simaïtis] et les partis de la Diète. Seul le vote de cette Diéte, lorsque le
Directoire se présentera devant celle-ci, sera en mesure de nous apprendre
si le Directoire jouit ou non de la confiance de la Chambre.
Je me vois obligé de formuler ma plus vive protestation contre votre
assertion que la formation du Directoire actuel, présidé par M. Simaïtis,
n'est pas compatible avec les engagements que j'aurais pris devant le
Conseil de la Société des Nations.
Voici le texte exact de la déclaration que j'ai faite au Conseil à la date
du 20 février écoulé:
« Il ne peut, après les observations que je me suis permis
« de faire à la séance du Conseil du 13 février courant, subsis-
« ter aucun doute que le gouverneur de Memel fasse des efforts
« en vue de la constitution d'un Directoire dans les conditions
« prescrites par le Statut. Ce Directoire se présentera inces-
« samment devant la Chambre. étant donné l'attitude qu'ont
« prise certains éléments appartenant é la majorité actuelle de
« la Chambre, subissant des influences venant de l'étranger, un
« appel au pays, dans les conditions prescrites par le Statut,
« pourrait, le cas échéant, être nécessaire. »
C'est uniquement cette déclaration qui me lie. Quiconque connaît la marche
des négociations qui ont eu lieu ces dernières semaines à Memel ne saurait,
à mon avis, nier l'effort sérieux que le gouverneur a fait en vue de la
constitution d'un Directoire jouissant de la confiance de la majorité de la
Chambre.
Si ces négociations n'ont pas donné les résultats voulus, ce n'est pas le
Gouvernement lithuanien ou ses organes qui en portent la responsabilité.
Ad 2. - La délégation lithuanienne a formellement déclaré, au cours des
négociations qu'elle a eues a Genéve avec les représentants des Puissances
signataires avec la Lithuanie de la Convention de Paris, qu'elle ne saurait
reconnaître une espéce de jonction entre la procédure qui devait être
choisie d'un commun accord en vue de donner une solution à quelques
questions de droit se rapportant à l'incident Böttcher et les mesures que
les organes compétents sont appelés à prendre sur place en vue de constituer
des organes autonomes, conformément au Statut. Ce point de vue du
Gouvernement lithuanien a été également adopté par les représentants des
Puissances. Je suis pour le moins étonné que votre Gouvernement ait cru
devoir faire dépendre la mise en pratique de la procédure convenue à Genéve
de la constitution d'un Directoire d'un caractère défini. [p310]
Dans cette éventualité, je me verrais également obligé de retirer la
déclaration que j'ai faite é Genève aux représentants des trois Puissances
et qui a été répétée à Londres au Foreign Office, par le ministre de
Lithuanie, relative à l'abolition éventuelle de l'état de guerre en cas de
nouvelles élections.
Ad 3. - Je cherche en vain dans le rapport de M. Colban, adopté par le
Conseil, et tel que je l'avais adopté moi-même, des recommandations qui
s'opposeraient à la dissolution, dans les conditions prescrites dans le
Statut, de la Diète du Territoire de Memel. Cette éventualité avait été
expressément réservée dans ma déclaration du 20 février. Je me refuse à
comprendre comment la dissolution de la Diète du Territoire de Memel, dans
les conditions prescrites dans le Statut, pour-rait constituer une
infraction quelconque à ce Statut, et je ne peux pas passer sous silence
l'expression contenue dans votre communication, notamment « si un tel acte
ne constitue pas « de la part du Gouvernement lithuanien une nouvelle
infrac- «tion », ce qui paraît anticiper la solution de la question de droit
que nous avons convenu de soumettre à l'arbitrage.
Vu, d'autre part, que le contenu de la communication que vous avez bien
voulu me faire au nom de votre Gouvernement a paru il у a quelques jours
dans la presse allemande et a été répandue dans le monde entier par l'agence
officielle allemande Wolff, bien que d'une manière inexacte et tendancieuse,
ce qui m'a désagréablement surpris, je me vois obligé de donner à la presse
lithuanienne un résumé succinct de votre communication ainsi que des
observations que je me suis permis de faire à cette occasion.
Kaunas, le 19 mars 1932." [FN1]
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[FN1] I have taken note of your communication. As regards its substance,
this communication - the contents of which had already been conveyed to me
by our Minister in London - leads me to make some brief preliminary
comments:
Ad 1.-The present Directorate of the Memel Territory was formed after
laborious negotiations between the President of the Directorate [M.
Simaitis] and the parties in the Chamber of Representatives. It is only by
the vote of the latter body, when the Directorate appears before it, that we
shall learn whether or not the Directorate enjoys its confidence.
I protest most emphatically against your assertion that the formation of the
present Directorate under M. Simaitis is inconsistent with what I said
before the Council of the League of Nations.
Here are the exact words of my declaration at the Council meeting on
February 20th last: [308]
'After the remarks I made in the Council on February 13th, there can be no
further doubt that the Governor of Memel is making efforts to set up a
Directorate in accordance with the conditions laid down in the Statute. The
Directorate will appear very shortly before the Chamber. In view of the
attitude of certain members of the present majority in the Chamber who have
been influenced from abroad, an appeal to the country, in accordance with
the terms of the Statute, might ultimately become necessary.'
This is the only declaration by which I am bound. No one who is acquainted
with the history of the negotiations at Memel during the last few weeks can,
I feel sure, contest the genuineness of the Governor's efforts to secure the
appointment of a Directorate enjoying the confidence of the Chamber.
If these negotiations did not succeed, the blame does not rest on the
Lithuanian Government or its organs.
Ad 2. - The Lithuanian delegation expressly stated, during its negotiations
at Geneva with the representatives of the Powers, signatories together with
Lithuania of the Paris Convention, that it could not consent to a sort of
amalgamation of the procedure to be adopted by agreement for settling some
legal questions relating to the Böttcher incident, with the measures which
the competent authorities on the spot had to take, under the Statute, in
order to constitute the autonomous organs. This standpoint of the Lithuanian
Government was also accepted by the representatives of the Powers. I am
surprised, to say the least, that your Government should seek to make the
carrying out of the procedure agreed on at Geneva dependent upon the
appointment of a Directorate of a particular character.
In that case I should also have to withdraw the statement which I made at
Geneva to the Ministers of the Three Powers, and which was repeated to the
Foreign Office in London by the Lithuanian Minister, regarding the possible
raising of the state of siege, if fresh elections were to be held.
Ad 3. - I can find no recommendations in M. Colban's report, as accepted by
the Council, and as accepted also by myself, which conflict with a
dissolution of the Chamber of Representatives of the Memel Territory. I had
expressly reserved that possibility in my statement of February 20th. I am
quite unable to see how the dissolution of the Chamber of Representatives of
the Memel Territory, under the conditions laid down by the Statute, could
possibly be a violation of that Statute; nor can I remain silent regarding
the passage in your communication : 'if such an act does not constitute a
further violation on the part of the Lithuanian Government', words which
appear to anticipate the settlement of the legal issue we had agreed to
submit to arbitration.
Furthermore, I have been disagreeably surprised to learn that the contents
of the communication which you were pleased to make to me on behalf of your
Government appeared a few days ago in the German press, and has been given
worldwide publicity by the German official 'Wolff Agency' though in a
garbled and misleading form. I am compelled to give the Lithuanian press a
concise summary of your communication and of the comments I have ventured to
offer on this occasion.
Kaunas, March 19th, 1932."
---------------------------------------------------------------------------------------------------------------------
***
[39] Of the six points set out in the application of the Four Powers, Nos.
1, 2 and 4 are intimately connected with the legality of the dismissal of M.
Böttcher by the Governor, the action out of which the dispute arose.
[40] Nos. 1 and 2 put in a general way the question whether the Governor of
the Memel Territory has the right to dismiss a President of the Directorate,
and if so in what conditions. No. 4 also puts the question of the right to
dismiss, but with [p311] specific reference to the facts connected with the
dismissal of M. Böttcher. The Court will follow the same method and, without
reference to the particular facts of the Böttcher incident, will deal first
with the question whether, under the Statute of Memel, the Governor is
entitled to dismiss a President of the Directorate, and if so in what
circumstances.
*
[41] Before doing so, however, the Court desires to draw attention to the
inconvenience resulting from the fact that the first two questions mentioned
above, as well as question No. 3 concerning the possible termination of the
appointments of the other members of the Directorate in consequence of the
dismissal of the President, are formulated as questions purely in abstracto,
without any reference to the facts of the dispute which has arisen.
[42] It is true that the application instituting proceedings, in one of its
earlier paragraphs, states that it is the dismissal of M. Böttcher, the
appointment of the Directorate presided over by M. Simaïtis and the
dissolution of the Chamber of Representatives which have given rise to
differences of opinion as to whether these acts are in accordance with the
Memel Statute and which have led to the institution of these proceedings ;
but points 1, 2 and 3 are formulated in terms which go beyond the facts out
of which the dispute has arisen and, so far as the Court can judge from the
documents which have been laid before it, go beyond the questions of law or
fact on which the Parties to the dispute had differed in opinion before the
initiation of these proceedings on April nth, 1932, and might therefore
raise doubts as to the jurisdiction of the Court which, in this case,
depends on Article 17, paragraph 2, of the Convention.
[43] If it was the dismissal of M. Böttcher which was the origin of the
dispute and which led up to the other acts complained of, viz. the
appointment of a new Directorate and the dissolution of the Chamber, the
convenient and appropriate method in which to bring the difference of
opinion before ,the Court [p312] would have been by means of submissions
directed to the legality of these particular acts, leaving the Court to
enunciate in its decision the principles on which that decision was based.
The inconvenience of the procedure followed in the present case is
illustrated by point No. 2, in which the Court is asked, if it arrives at an
affirmative conclusion on the first, to state what the conditions and
circumstances are in which this right of dismissal would exist.
*
[44] Point No. 1 is worded as follows:
"whether the Governor of the Memel Territory has the right to dismiss the
President of the Directorate".
[45] The contention of the Four Powers is that the Governor has no such
right. As the jurisdiction of the Court is restricted to differences of
opinion concerning the provisions of the Convention of Paris of 1924
(including its annexes), the meaning of the Four Powers is that the Governor
possesses no such right under the Memel Statute.
[46] It is common ground between the Parties that the power to dismiss a
president of the Directorate is not given to the Governor expressis verbis,
but the Lithuanian Government maintains that the power to dismiss is implied
and that there is no provision in the Statute which either expressly or
impliedly excludes it. The Four Powers, on the other hand, maintain that no
such power can be implied and that there is one provision in the Statute
which must mean that the power to dismiss is excluded. The passage to which
the Four Powers refer is a provision in Article 17 of the Memel Statute
which says that the President shall be appointed by the Governor and shall
hold office so long as he possesses the confidence of the Chamber of
Representatives.
[47] To reply to these various arguments, the Convention of Paris of 1924
and the Statute annexed to it, must be considered as a whole in order to
understand the régime which the Four Powers and Lithuania intended to
establish for the Memel Territory. [p313]
[48] When, under the Convention of Paris, these four Powers transferred to
Lithuania all the rights and title acquired by them from Germany, under
Article 99 of the Treaty of Versailles, over the Memel Territory, and
Lithuania undertook to secure to that Territory autonomy within the limits
fixed by the Statute of Memel, it certainly was not the intention of the
Parties to the Convention that the sovereignty should be divided between two
bodies which were to exist side by side in the same territory. Their
intention was simply to ensure to the transferred territory a wide measure
of legislative, judicial, administrative and financial decentralization,
which should not disturb the unity of the Lithuanian State and should
operate within the framework of Lithuanian sovereignty.
[49] Whilst Lithuania was to enjoy full sovereignty over the ceded
territory, subject to the limitations imposed on its exercise, the autonomy
of Memel was only to operate within the limits so fixed and expressly
specified.
[50] It follows that the sovereign powers of the one and the autonomous
powers of the other are of quite a different order in that the exercise of
the latter powers necessitates the existence of a legal rule which cannot be
inferred from the silence of the instrument from which the autonomy is
derived, or from an interpretation designed to extend the autonomy by
encroaching upon the operation of the sovereign power.
[51] In the opinion of the Court, the foregoing follows more particularly
from Article 1 of the Convention of Paris of 1924, whereby the Four Powers
transferred to Lithuania all the rights and title which they held, over the
Memel Territory, from Article 2 of the same Convention and Article 1 of the
Statute, which provide that Memel shall constitute an autonomous unit "under
the sovereignty of Lithuania", and finally from Article 7 of the Statute,
which runs as follows:
"The affairs which, under the present Statute, are not within the
jurisdiction of the local authorities of the Memel Territory shall be within
the exclusive jurisdiction of the competent organizations of the Lithuanian
Republic." [p314]
[52] Given the terms of this Article, it is impossible to adduce the silence
of the Statute in regard to any matter in order to restrict the sovereignty
of Lithuania in favour of the autonomy of Memel, or to deny to the former
the exercise of certain rights simply because they are not expressly
provided for in the Statute of Memel. Moreover, the purpose of the Statute
was not to confer rights on Lithuania, but to fix the limits of the autonomy
which the Parties to the Convention of Paris of 1924 intended to establish
in favour of the Memel Territory.
[53] The Court holds that Memel's autonomy only exists within the limits
fixed by the Statute and that, in the absence of provisions to the contrary
in the Convention or its annexes, the rights ensuing from the sovereignty of
Lithuania must apply.
[54] For the purpose of its autonomy, i.e. for the purpose of managing its
local affairs as it pleases, the Memel Territory is provided under the
Statute with a legislature, an executive and a judiciary. Provision is also
made for a Governor who represents the Lithuanian Government and plays, as
Governor, a defined but important part in the local life of Memel. There are
a large number of other provisions in the Memel Statute, but they are not
relevant to the present case.
[55] There is no need to say anything about the provisions in the Statute
relating to the judiciary; but those relating to the legislature and the
executive call for comment.
[56] The legislative power is dealt with in Articles 10 to 18. The
provisions need not be set out in detail, but attention must be drawn to
three points:
(1) that the Governor is bound under Article 10 to promulgate laws passed by
the Chamber unless he imposes his veto;
(2) that the exercise of this right of veto is regulated and limited by
Article 16, which gives the Governor the right to veto in three cases, of
which the first is if the laws exceed the competence of the Memel
authorities, the other two being if the laws violate Article 6 of the
Statute (stipulating [p315] the local authorities at Memel in carrying out
their duties under the Statute are to conform, in the absence of provisions
to the contrary, to the principles of the Lithuanian Constitution) or if
they are incompatible with the international obligations of Lithuania;
(3) that the right to initiate legislation is restricted by Article 18 to
the Chamber and to the Directorate, that is to say, to two local organs.
[57] These points show in a striking manner that the legislature was
intended to be completely independent within the prescribed limits of the
autonomy, but that it was to have no legislative power outside those limits.
[58] Turning now to the provisions in the Statute relating to the executive
power, the important Article is No. 17. It vests the executive power in a
Directorate. It is desirable to set out in full the first two paragraphs of
this Article, as they contain the sentence on which the Four Powers have in
part based their argument. The text of these paragraphs is as follows:
"The Directorate shall exercise the executive power in the Memel Territory.
It shall consist of not more than five members, including the President, and
shall be composed of citizens of the Territory.
The President shall be appointed by the Governor and shall hold office so
long as he possesses the confidence of the Chamber of Representatives. The
President shall appoint the other members of the Directorate. The
Directorate must enjoy the confidence of the Chamber of Representatives and
shall resign if the Chamber refuses it its confidence. If, for any reason,
the Governor appoints a President of the Directorate when the Chamber of
Representatives is not in session, it shall be convened so as to meet within
four weeks after the appointment to hear a statement from the Directorate
and vote on the question of confidence."
[59] The first point to be noted is that the words which appear at the
beginning of Article 10 "within the limits of this Statute" are omitted.
Article 10 says: "Legislative power in the Memel Territory shall, within the
limits of this Statute, be exercised...." Article 17 simply says that: "The
Directorate shall exercise the executive power in the Memel Territory."
[p316]
[60] Nevertheless, the Court is convinced that Article 17 must be read as
restricted to executive power in respect of matters within the competence of
the Memel authorities, otherwise it would be in flagrant contradiction with
the provisions of Article 7, which says that affairs which under the Statute
are not within the jurisdiction of the local authorities are to be within
the exclusive jurisdiction of the competent organizations of the Lithuanian
Republic.
[61] What should next be noted is the absence of any provisions as to what
is to happen if acts of the executive authority at Memel exceed the
competence of the authorities of the Territory. There is nothing to
correspond to the veto on legislation exceeding the competence of those
authorities.
[62] The Court finds it impossible to believe that it was the intention ot
the Convention to leave Lithuania, the sovereign of the Memel Territory,
with no remedy whatever if the executive authorities at Memel violated the
Statute by acting in a manner beyond their powers.
[63] It has been maintained on behalf of the Four Powers that any such
provision was omitted because it was unnecessary. An executive act exceeding
the competence of the Memel authorities under the Statute can, it is said,
in cases where the Courts are unable to interfere, be ignored; it can be
treated as nul et nоn avenu. For legislation beyond the competence of the
Memel authorities, the right of veto is essential, because otherwise the
Courts would enforce the legislation, but no such considerations apply to
executive acts.
[64] The argument is not convincing, and the Court does not feel able to
accept it. It is not difficult to imagine cases in which it would be no
sufficient protection to the Lithuanian Government to treat the act
complained of as nоn avenu.
[65] It has also been argued on behalf of the Four Powers that, even if it
be assumed that the Lithuanian Government has some remedy if the executive
authorities at Memel exceed their competence, that remedy cannot be the
dismissal of the President of the Directorate, if the Chamber supports
[p317] him, because of the provision in Article 17, which says that the
President shall hold office so long as he possesses the confidence of the
Chamber. It is argued that this provision must exclude any power for the
Governor to dismiss a President if the Chamber accords him its confidence.
[66] This provision cannot, in the opinion of the Court, be isolated from
the rest of the article in which it figures. The purpose of that Article is
to make provision for the exercise of the executive power in the Memel
Territory. The executive power is the power to carry out all such executive
acts as fall within the competence of the Memel authorities. The right to
continue to hold office which this provision accords to the President of the
Directorate is accorded to him for the purpose of enabling him to carry out
those acts. To place upon these words the meaning that the right so
conferred upon the President of the Directorate is absolute and persists in
all cases so long as the Chamber supports him, would result in a President
being able to violate the Statute and to flout the authorities of the
Lithuanian Government so long as he carried the Chamber with him. Such an
interpretation would destroy the general scheme of the Convention of Paris
of 1924 and the Statute annexed to it, under which Memel was to enjoy
autonomy within defined limits, but was placed under the sovereignty of
Lithuania. Both the autonomy as defined and the sovereignty were intended to
be effective.
[67] It would follow from the argument advanced on behalf of the Four Powers
that, with the support of the Chamber, the President would be free to act in
a manner exceeding the limits of the competence of the Memel authorities. It
is not clear why the Chamber should be able, by expressing its confidence in
the President, to endorse acts on his part which exceed the competence of
the Memel authorities under the Statute. The Chamber is primarily a
legislative body. Its powers in matters of legislation do not exceed the
limits imposed by the Statute - see Article 10. If its acts as a legislature
exceed those limits, they are vetoed under Article 16. It would be quite
illogical to hold that in the executive sphere the Chamber should be able by
a vote of confidence [p318] to extend immunity to a President whose actions
exceeded those limits.
[68] For these reasons, the Court is led to the conclusion that this
provision in Article 17 of the Statute does not bear the interpretation
which has been placed upon it by the Four Powers, and that it is restricted
in its operation to cases where the President of the Directorate is acting
within the limits of the autonomy conferred upon the Memel Territory.
[69] The Court is also led to the conclusion that it was not the intention
of the Statute that the Lithuanian Government should be left with no
protection against a violation of the Statute on the part of the Memel
executive authorities and, further, that in cases where the Courts cannot
interfere, the possibility of treating such acts as поп avenus may be no
sufficient protection.
[70] The cases enumerated in Article 16 as cases in which the Governor may
impose a veto on legislative acts are all of them cases in which the
Lithuanian Government would equally require protection if the act were an
executive act and not a legislative act.
[71] Under the proper interpretation of the Statute, the Governor must be
regarded as entitled to watch the acts of the executive power in Memel in
order to see that such acts do not exceed the limits of the competence of
the local authorities as laid down by the Statute, nor run counter to the
stipulations of Article 6 of the Statute or to the international obligations
of Lithuania. If they do, the principle laid down in Article 16, under which
legislation is vetoed, must apply, that is to say that the Governor will be
entitled to take appropriate steps to protect the interests of the
Lithuanian Government.
[72] As the Court is unable to hold that the sentence in Article 17 excludes
in every case the right to dismiss a President of the Directorate who
receives the support of the Chamber, it follows that under the correct
interpretation of the Memel Statute, the right of the Governor to dismiss
the President of the Directorate is not excluded. [p319]
[73] The dismissal of the President of the Directorate by the Governor would
constitute a legitimate and appropriate measure of protection of the
interests of the State only in cases in which the acts complained of were
serious acts calculated to prejudice the sovereign rights of Lithuania and
violating the provisions of the Memel Statute, and when no other means are
available.
[74] Whether or not such a situation exists as calls for so extreme a
measure as the dismissal of the President of the Directorate is primarily a
question for the Governor to determine. But his decision would not be final.
It would not prejudice the right of any Power concerned to take such steps
as may be open to it under Article 17 of the Paris Convention.
[75] Within the limits explained above, the Convention of Paris of 1924 and
its annexes must be interpreted as giving the Governor the right to dismiss
the President of the Directorate.
*
[76] The Agent for the Lithuanian Government based his submission that the
Governor was entitled to dismiss the President of the Directorate upon the
argument that the right of the Governor to appoint the President of the
Directorate under Article 17 of the Statute implied a right of dismissal,
and also upon the argument that the intention of the Statute was to confer
upon the Governor the right to exercise a constant supervision and control
over the proceedings of the Memel authorities, not merely for the purpose of
seeing that they did not exceed the limits of their competence or violate
the stipulations of the Statute, but also for the purpose of seeing that the
Memel authorities, when acting within the limits of their competence,
discharged their functions adequately, and that the power to dismiss
followed necessarily from the existence of this right of supervision and
control.
[77] The Court is not disposed to accept these arguments.
[78] If the right to appoint implied also the right to dismiss, it would be
difficult to find in the terms of the Statute any satisfactory reason for
rendering the right to dismiss less [p320] extensive than the right to
appoint, but the Lithuanian Agent has not argued that the right to dismiss
is other than an exceptional right to be exercised only in extreme cases.
[79] The argument to support the alleged right of supervision and control
consisted almost entirely of deductions drawn from the contents of
constitutions in force in other countries, from the constitutional practice
of other countries and from the statements made in the works of authors who
have studied these constitutions. The Court finds in the Convention of Paris
and its annexes the basis for the conclusion that in certain circumstances
the Governor has the right to dismiss the President of the Directorate. It
is therefore unnecessary to consider the extent to which the constitutions
of other countries can be used as a guide interpreting the Statute of Memel.
[80] The Court does not consider that any right on the part of the Governor
of supervision and control over the executive acts of the Memel authorities
has been established over and above that expressed in an earlier part of
this Judgment, namely, the right of the Governor to watch the acts of the
executive power in Memel in order to see that these acts do not exceed the
limits of the competence of the local authorities as laid down by the
Statute, nor run counter to the stipulations of Article 6 of the Statute or
to the international obligations of Lithuania.
[81] The submissions of the Parties as regards point 1 are directly opposed
to each other. According to that of Lithuania, the Governor is entitled to
dismiss the President of the Directorate; according to that of the Four
Powers, he is not entitled to do so. Neither of these submissions can, as it
stands, be accepted by the Court. In the opinion of the Court, the Governor
has, in certain circumstances, the right to dismiss the President of the
Directorate. [p321]
***
[82] Point 2 is worded as follows:
"in the case of an affirmative decision [to question 1], whether the right
[to dismiss the President] only exists under certain conditions or in
certain circumstances, and what those conditions or circumstances are".
[83] The Court has already laid down the broad principle governing the
exercise by the Governor of the right to dismiss the President of the
Directorate at Memel. The principle so laid down is sufficient to indicate
the conditions and circumstances in which such a right would exist. The
Court is not able to go further, because whether or not such conditions or
circumstances were present would always depend on the facts of the
particular case.
***
[84] Point 3 is worded as follows:
"if the right to dismiss the President is admitted, whether such dismissal
involves the termination of the appointments of the other members of the
Directorate.
[85] This question has been regarded by both sides as a matter of somewhat
secondary importance, and it has not been very fully treated in the oral
arguments.
[86] The right of the Governor to dismiss the President of the Directorate
arises only in exceptional circumstances, and, though it results from the
Statute, it is not regulated by it. It follows that the consequences
resulting from it are not to be found regulated in detail in the Statute.
They can only be deduced from a consideration of the broad lines of the
régime which the Statute intended to introduce in Memel.
[87] The autonomy which the Statute confers upon the Memel Territory covers
so broad a field that the powers of government conferred upon the
Directorate must entail the constant exercise of governmental acts. The
Territory cannot without inconvenience be left without a government. The
Court observes that this fact was recognized by the Governor at the [p322]
time of the dismissal of M. Böttcher, for he took steps at once to empower
another gentleman to exercise the powers of President until a definitive
appointment was made.
[88] The form which was given to the dismissal of M. Böttcher was that of
the revocation of the decree by which the Governor had appointed him to be
President of the Directorate. This is the form which presumably would be
employed whenever the Governor was obliged to have recourse to the extreme
measure of dismissing the President. It is a form which necessarily renders
the act of dismissal personal to the President and therefore limited, so far
as the Governor is concerned, to the President. It does not automatically
entail the cessation of the functions of the other members of the
Directorate.
[89] The system followed in the Statute for bringing a Directorate into
being - that of the Governor appointing the President, and the President
appointing the other members - was obviously intended to result in unity of
view between all the members of the Directorate, so as to ensure harmonious
co-operation. When an appointment to the post of President is made, the new
President will be entitled to exercise the right given him by Article 17 to
appoint the other members of the Directorate, and on the making of such
appointments the previous, holders of the posts will vacate them.
[90] The submission of the Lithuanian Government on point 3 is that the
dismissal of the President by the Governor involves the cessation of their
functions by the other members of the Directorate, and that these can only
conduct the current work of their departments under a special authorization
from the Governor.
[91] For the reasons explained above, the Court does not accept this
submission.
[92] The submission by the Four Powers is that the termination of the
appointment of the President of the Directorate does not, ipso facto, entail
the termination of the appointment of the other members of the Directorate.
[93] The wording of their submission is wider than the question submitted to
the Court, as point 3 is limited to the effect of the dismissal of the
President upon the position of the other members of the Directorate. It was
explained in the course [p323] of the arguments that as the Four Powers
submitted that the Governor had no power under the Statute to dismiss the
President, the question in its narrower form could not arise. The submission
of the Four Powers therefore contemplated the only eventuality which in
their opinion was possible, viz. the effect on the other members of the
Directorate if the post of President became vacant in a legal manner.
[94] The Court is not satisfied that this broader aspect of the question has
been the subject of any difference of opinion between the Parties sufficient
to give it jurisdiction under Article 17 of the Convention. The Court thinks
it better to limit its judgment to the question on which there certainly has
been a difference of opinion and which had been dealt with in the arguments,
viz. the position which arises in the event of a dismissal of the President
by the Governor.
[95] In the opinion of the Court, the dismissal of the President of the
Directorate by the Governor does not by itself involve the termination of
the appointments of the other members of the Directorate. They will hold
their posts until they are replaced.
***
[96] Point 4 is worded as follows:
"if the right to dismiss the President of the Directorate only exists under
certain conditions or in certain circumstances, whether the dismissal of M.
Böttcher carried out on February 6th, 1932, was in order in the
circumstances in which it took place".
[97] As the Court has come to the conclusion that the right to dismiss the
President of the Directorate exists in certain conditions, the only point
for consideration under point 4 is whether the circumstances in which M.
Böttcher was dismissed bring the case within those conditions.
[98] The Court has already said that the Governor is only justified in
exercising the right of dismissing the President of the Directorate in case
of serious acts violating the Convention of May 8th, 1924, with its annexes,
and calculated to prejudice the sovereignty of Lithuania and where no other
remedy is available; the existence or otherwise of such a situation [p324]
being a question for the Governor to determine, but subject always to the
responsibility of the Lithuanian Government under Article 17 of the
Convention.
[99] The point which the Court must now decide is whether M. Böttcher's
actions, when viewed in the light of the above statement of principle,
justify the Governor in dismissing him.
[100] The reasons given for the Governor's action are set out in the letter
of dismissal which he sent to M. Böttcher on February 6th, 1932. They are
that M. Böttcher, without the knowledge of the Lithuanian Government, had
gone to the capital of a foreign State and there engaged in negotiations
with the Government of that State in disregard of the departments of the
Lithuanian Government which alone were entitled to conduct such
negotiations. It is not disputed that it was to Berlin that M. Böttcher
went.
[101] The Four Powers have not thought it necessary to prepare and submit to
the Court any detailed statement of the facts relating to this visit to
Berlin, and as to what happened there. They have thought it sufficient to
rely on the minutes of the meetings of the Council of the League of Nations
at Geneva on February 13th and 20th, 1932, and on the proceedings in the
Chamber of Representatives at Memel on January 25th. The Lithuanian Agent on
his part has added certain other documents.
[102] The facts relating to M. Böttcher's visit to Berlin have been stated
in broad outline in the earlier part of this Judgment.
[103] The position taken by M. Böttcher in his declaration before the
Chamber was that he went to Berlin in a private capacity, and not as
President of the Directorate; that no decision of the Directorate had been
taken authorizing him to make this journey as a member of the Directorate;
that as chairman of an agricultural purchasing committee and as a member of
the board of the co-operative milk organization, he felt bound to do all he
could for the benefit of Memel agriculture; that there was general agreement
in the circles to which he belonged and that an assured market in Germany
was the only remedy for the existing distresses; that the conversations he
had at Berlin were purely economic, and that he only took part in them as an
expert. Also that [p325] when he and his colleagues learned from the German
authorities that negotiations were already in progress with the Lithuanian
Government about the importation of certain agricultural produce, they
begged that the negotiations might be hastened as much as possible.
[104] It is none the less true, however, that M. Böttcher's object must have
been to try and secure some benefit for Memel agriculture as a whole, not
merely for the members of some particular agricultural organization over
which he presided or with which he was connected; otherwise he would have
had no justification for charging his expenses to the Memel public funds.
His object must have been to make, if he could, some arrangement with the
German Government without consulting the Lithuanian Government, or he would
not have secured the active assistance of the German Consul-General in
furthering the journey while leaving the Lithuanian Government in ignorance
of it. It may safely be assumed that he tried to secure better terms for the
admission into Germany of Memel agricultural produce, terms more favourable
than those enjoyed by Lithuania generally.
[105] It is not disputed on behalf of the Four Powers that the conduct of
foreign relations is not among the questions which, under Article 5 of the
Statute, are within the competence of the Memel authorities. Foreign
relations are, under Article 7, within the exclusive jurisdiction of the
Lithuanian Republic. The attempt to secure an arrangement as to the
admission of agricultural produce by negotiations with the officials of the
competent departments of the German Government falls within the sphere of
foreign relations, and consequently M. Böttcher's action exceeded the
competence of the Memel authorities and thereby violated the Statute.
[106] The character of M. Böttcher's action is not to be judged merely by
the contents of the arrangement which he tried to conclude. The economic
position at Memel may be such as to render an attempt to secure a new outlet
for agricultural produce a matter of great importance to the people of the
Territory. But the gravity of the incident must be [p326] by reference to
the repercussions which such an arrangement as M. Böttcher hoped for might
have.
[107] It is impossible to read the minutes of the meetings of the Council of
the League on February 13th and February 20th, 1932, without observing that
at the time of the Böttcher incident relations were somewhat disturbed
between Lithuania and Germany. The diplomatic correspondence exchanged
between the two Governments in January of the same year shows that various
causes of friction existed. The sudden grant to Memel of better terms than
Lithuania as a whole enjoyed for the admission of agricultural produce into
Germany might well embitter the situation at Memel and undermine the feeling
of loyalty towards the central authorities.
[108] In these circumstances, M. Böttcher's act was one which Lithuania was
justified in regarding as being - of a serious nature and one which was
calculated to prejudice her sovereign rights. As the Court has already found
that the act constituted a violation of the Statute, it was therefore an act
against which Lithuania was entitled to protect herself.
[109] It is not apparent that any measure which left M. Böttcher in
possession of his office as President of the Directorate would have afforded
adequate protection to the Lithuanian Government. It is therefore a case
where the Governor was justified in dismissing the President. For the
Governor to treat M. Böttcher’s actions as поп avenus would have afforded no
adequate protection. It would have afforded no guarantee against further
efforts of a like kind on the part of M. Böttcher and his colleagues to
intrude themselves into a sphere which was not within the limits of the
autonomy of Memel as defined by the Statute, but fell within the exclusive
competence of the Lithuanian Government.
[110] It has been contended on behalf of the Four Powers in the present case
that if a Governor acts as the Governor of Memel did in connection with M.
Böttcher, and submits to the Chamber the facts relating to the action on the
part of the President of the Directorate of which he complains, he is bound
by the conclusion at which the Chamber arrives, [p327] and that if the
Chamber renews its confidence in the President of the Directorate, the
Governor can take no further action.
[111] The purpose with which the Governor submitted the facts of his dispute
with M. Böttcher to the Chamber in his letter of January 25th, is not very
clear. He may have thought that as the Chamber was in a position to control
the President of the Directorate, a withdrawal of its confidence by the
Chamber was the simplest solution of the difficulty and the best method of
restoring amicable relations.
[112] The Court considers that in the present case the Governor's action
cannot be taken as a waiver on his part of the right to take further
measures, if necessary.
[113] The Four Powers make no submission with regard to point 4, because in
their view the Governor can have no right under the Memel Statute to dismiss
the President of the Directorate. The Lithuanian submission is that the
dismissal of M. Böttcher was in order.
[114] The Court decides that the dismissal of M. Böttcher on February 6th,
1932, was in order in the circumstances in which it took place.
***
[115] Points 5 and 6. - Basing itself on a passage in the Case of the Four
Powers, the second Lithuanian Counter-Case submits that points 5 and 6 are
"inadmissible" on the ground that the contentions of the Four Powers show no
difference of opinion on a question of law or fact within the meaning of
Article 17 of the Memel Convention. The passage in question is to the effect
that the recommendations of the Council of the League of Nations on February
20th paved the way for a return to the normal situation in the political
life of the Memel Territory by the appointment of a Directorate enjoying the
confidence of the Chamber; that at a date subsequent to these
recommendations M. Böttcher handed in his resignation and the leaders of the
majority parties [p328] informed the Governor that they would collaborate in
the formation of a new Directorate; it is therefore said that the complaints
of the Four Powers as regards the appointment of the Directorate presided
over by M. Simaitis and the dissolution of the Chamber are not founded on an
alleged violation of the Memel Statute but on a criticism of the expediency
of the political decisions of the Governor; and that as such they do not
fall within the terms of Article 17 of the Convention.
[116] This contention on the part of the Lithuanian Agent is in effect a
plea to the jurisdiction of the Court on the ground that the questions at
issue under points 5 and 6 are beyond its jurisdiction.
[117] The objection must be overruled in the present case.
[118] The Court is satisfied that the Lithuanian Agent has misunderstood the
nature of the complaints of the Four Powers with regard to points 5 and 6.
In both cases it is alleged by the Four Powers that the action of the
Governor was not in conformity with the Statute of Memel, not merely that he
took some action which he could legitimately take under the Statute but
which it was inexpedient to take. It is maintained that the act of the
Governor both as regards the appointment of the Simaïtis Directorate and as
regards the dissolution of the Chamber was an act which the Statute of Memel
obliged him to refrain from taking in the particular circumstances. As, in
each case, it is maintained on behalf of Lithuania that the act of the
Governor was in conformity with the Statute, it is clear that there is a
difference of opinion between the Parties in regard to a question of law or
fact concerning the Memel Statute sufficient to give the Court jurisdiction
under Article 17 of the Convention, if the difference of opinion is
submitted to it in due form.
[119] Points 5 and 6 must therefore be dealt with on their merits.
***
[120] The wording of point 5 is as follows:
"whether, in the circumstances in which it took place, the appointment of
the Directorate presided over by M. Simaitis is in order". [p329]
[121] The phrase used in this question "appointment of the Directorate
presided over by M. Simaitis" is not precise. It is necessary to describe
the process by which a Directorate comes into being, in order to determine
what it is that the question must be taken to refer to.
[122] Under Article 17 of the Statute, the Governor appoints the President
of the Directorate and the President appoints the other members. Thus there
are two stages. The Governor is concerned only with the first. As soon as
the appointment of the President is made, the Governor's responsibility with
regard to the creation of the Directorate comes to an end. The President
alone is responsible for the choice of the other members ; he does not have
to submit their names to the Governor or get the Governor's approval. Their
appointment depends on the will and the act of the President alone. If the
Governor were to interfere in the appointment of these other members in the
sense of endeavouring to dictate to the President whom he should appoint, he
would exceed the functions attributed to him by the Statute.
[123] A necessary consequence of the fact that the Governor is not the
deciding factor in the choice of the members of the Directorate other than
the President, is that the Lithuanian Government cannot be made responsible
in proceedings before this Court for the acts of the President in appointing
the other members of the Directorate. The obligatory jurisdiction of the
Court which Lithuania accepted in Article 17 of the Memel Convention cannot
be regarded as extending beyond acts for which she is herself responsible.
[124] When the Four Powers ask the Court in these proceedings against
Lithuania to decide whether the appointment of the Simaitis Directorate was
in order, the question must be taken to refer to the appointment of M.
Simaitis by the Governor to the post of President of the Directorate, that
being the only act in the constitution of the Directorate for which
Lithuania was responsible, or in respect 'of which the Court can give a
decision. The question cannot be taken as covering also the appointment by
the President of the other members of the Directorate. [p330]
[125] Article 17 of the Statute provides that the Directorate shall be
composed of citizens of the Territory. This is the only qualification for
membership of the Directorate which is expressly stated in the Statute. The
question has arisen whether any further element may have to be taken into
account in order to render an appointment valid. It has been maintained on
behalf of the Four Powers that a Directorate cannot remain in office unless
it enjoys the confidence of the Chamber, and therefore the views of the
Chamber constitute an element which must be taken into account by the
Governor when he makes the appointment of a President. From this it follows
that, even if citizenship of Memel is the only qualification expressly
stated, the Governor's choice is not unfettered, even among the citizens of
Memel.
[126] It may be taken for granted that in coming to a decision as to whom he
would appoint to be President of the Directorate, a prudent Governor would
not forget the provision in Article 17 of the Statute that a Directorate
must enjoy the confidence of the Chamber and must resign if the Chamber
refuses it its confidence. The question is whether the need to do this
constitutes a legal obligation upon the Governor, and whether, if it can be
shown that he has failed to do so, the appointment that he has made would
not be in order.
[127] In the opinion of the Court, the only qualification in law for
membership of the Directorate is that laid down in Article 17 : citizenship
of the Territory. The duty of the Governor to limit his choice to persons to
whom it may reasonably be expected that the Chamber will accord its
confidence is not a legal obligation. It is a matter of good sense, a
natural consequence of the desire which any Governor of the Territory would
feel to do his best to make the Statute work successfully.
[128] There certainly is no obligation upon the Governor to secure the
concurrence of the Chamber in advance by negotiations with the parties or
groups in the Chamber. The confidence of the Chamber is a matter which the
Chamber will express for itself by its vote in due course when the
Directorate submits itself to the Chamber. Under the Statute, [p331] the
Governor makes the appointment on his own responsibility and the Chamber
gives or refuses its confidence at a later stage.
[129] What the position would be if the Governor appointed as President of
the Directorate a citizen as to whom it was certain at the time that he
could not receive the confidence of the Chamber, as, for instance, if he
appointed a person bereft of intellect, is a matter which the Court need not
consider, because no such considerations arise in the present case.
[130] After the resignation of M. Böttcher on February 23rd, there can be no
doubt that the post of President of the Directorate was vacant, and that it
was the right and the duty of the Governor to proceed to the appointment of
a new President. The reasons which led him to appoint M. Simaitis, a person
who did not belong to the existing political parties at Memel, have been
explained to the Court in the course of the proceedings. They are reasons
which the Court can appreciate, but they are not matters on which it is for
the Court to express an opinion. There is no doubt that M. Simaitis was a
qualified person.
[131] After his appointment, M. Simaitis was engaged for a fort-night in
negotiations with the leaders of the majority parties in order to form a
Directorate acceptable to them. If these negotiations had been successful,
the Chamber would presumably have accorded a vote of confidence to the
Directorate in due course. It follows that even if it could be held that
there was a legal obligation upon the Governor to appoint as President of
the Directorate a man to whom, so far as could be reasonably foreseen, the
Chamber might be expected to accord its confidence, that legal obligation
was fulfilled in the present case.
[132] It has been suggested in the course of the arguments that M. Simaitis
was only appointed by the Governor in order to obtain a dissolution, and
that any such action on the part of the Governor cannot be consistent with
the Statute. The suggestion that M. Simaitis was appointed for this purpose
is not borne out by the facts. If the negotiations with the majority parties
had been successful, there would have been no dissolution. The only
substantial argument in support of this [p332] suggestion is that both at
Geneva and at Kovno, in his negotiations with the representatives of the
Four Powers, M. Zaunius, the Lithuanian Minister for Foreign Affairs,
expressed the opinion that if the majority leaders refused to co-operate in
the appointment of a Directorate, and if the Chamber refused its confidence
to the only Directorate that could be formed, there would have to be a
dissolution. These remarks by M. Zaunius do not amount to more than a
forecast of what might happen at Memel; they are not inconsistent with a
genuine desire to see the formation of a Directorate acceptable to the
Chamber and to make every effort for that purpose. Even if it is assumed
that instructions in the sense of M. Zaunius's remarks were given to the
Governor, they would not have prevented the Governor from appointing M.
Simaitis with the hope and the intention that the appointment would lead to
the constitution of a Directorate which would gain the confidence of the
Chamber, even if the. Governor also thought that, should it fail to do so, a
dissolution was the inevitable outcome and was permissible under the
Statute.
[133] The Lithuanian submission as regards point 5 is that the appointment
of the Directorate presided over by M. Simaitis is in order in the
circumstances in which it took place. In the course of the oral arguments,
the Lithuanian Agent slightly modified the above formula and submitted that
in appointing M. Simaïiis to be President of the Directorate on February
27th, 1932, the Governor infringed no stipulation of the Memel Statute, and
that in consequence the appointment was not infected with any irregularity.
[134] The submission on behalf of the Four Powers is that the appointment of
the Directorate presided over by M. Simaitis was not in order.
[135] The Court decides that the action of the Governor in appointing M.
Simaitis to be President of the Directorate involved no action which was
contrary to the Statute, and that in the circumstances in which it took
place the appointment of the Directorate over which M. Simaitis presided was
therefore in order. [p333]
***
[136] The sixth point is worded as follows:
"whether the dissolution of the Diet, carried out by the Governor of the
Memel Territory on March 22nd, 1932, when the Directorate presided over by
M. Simaitis had not received the confidence of the Diet, is in order".
[137] The French text of the question shows that by the word "Diet" in the
English text is meant the "Chamber of Representatives" which is set up by
Articles 10 to 16 of the Statute as the legislative authority of the Memel
Territory.
[138] The dissolution of the Chamber is regulated by paragraph 5 of Article
12 of the Statute, which provides as follows :
"The Chamber may be dissolved by the Governor in agreement with the
Directorate. The elections to the new Chamber shall take place within six
weeks from the dissolution."
[139] The intention of this provision is clear. The Governor is not entitled
under the Statute to dissolve the Chamber on his own authority. It requires
the concurrence of the Directorate. What is the reason for requiring the
consent of the Directorate ? Bearing in mind the importance which is
attached in Article 17 of the Statute to the Directorate possessing the
confidence of the Chamber, it is a fair deduction that the reason why a
dissolution was not to take place without the consent of the Directorate was
in order to ensure that the local elements should have some voice in the
decision whether or not the Chamber should be dissolved.
[140] It cannot be doubted that a Directorate comes legally into existence
as soon as it is constituted. From that moment it is entitled to act as the
Directorate and to transact business. It need not wait for the Chamber to
express its confidence. The work of the administration of the Territory must
be carried on.
[141] On the other hand, a Directorate which has never obtained the
confidence of the Chamber may represent no more than the individual will and
views of the Governor and of his [p334] nominee for the post of President of
the Directorate. There is no guarantee that their views represent in any way
whatever the views of the local elements at Memel. If such a body is
competent to agree to a dissolution under Article 12, paragraph 5, the
situation would approach very near to that of according a power of
dissolving the Chamber to the Governor alone, and that, as stated above, is
clearly not the intention of Article 12.
[142] The facts with regard to the dissolution of the Chamber in the present
case are that, after M. Simaitis had formed his Directorate, he made his
statement to the Chamber and submitted the Directorate to the Chamber for a
vote of confidence on March 22nd, 1932. After hearing speeches from the
leaders of some of the parties in the Chamber, the vote was taken and the
Chamber refused its confidence. Thereupon M. Simaitis produced and read to
the Chamber the Governor's decree of dissolution.
[143] If it was the intention of Article 12 that the Chamber should not be
dissolved by the Governor alone without the concurrence of a body which
could be taken as in some way representing the local elements at Memel, some
distinction must be drawn between the powers of a Directorate which has, and
the powers of a Directorate which has not, received the confidence of the
Chamber.
[144] Dissensions may well arise between the Chamber and a Directorate duly
installed in office, i.e. which had received at the outset of its career the
confidence of the Chamber. Such occurrences are common in all countries
which are subject to a parliamentary regime. It may well happen in such a
case that the Directorate would believe that the policy which it desired to
follow was the right policy and the policy which would commend itself to the
electorate. The Directorate is in such cases qualified under Article 12 to
agree to a dissolution. It would only desire a dissolution because it
expected that the electorate would support it. A Directorate so
circumstanced satisfies the requirement, which the Court feels must have
been intended when Article 12 of the Statute was drafted, that the Governor
cannot dissolve the [p335] Chamber without the concurrence of an element
which can be regarded as representing local views and feelings.
[145] The text of the Statute does not exclude this distinction, as regards
agreeing to a dissolution, between the powers of a Directorate which has in
the past secured the confidence of the Chamber and loses it on the occasion
of some subsequent vote, and those of a Directorate which has never received
the confidence of the Chamber. To give effect to what the Court considers to
have been the intention of the Statute, such a distinction must be made.
[146] It is not the formal vote of confidence in the early days of its
career which justifies the greater power in the former case; it is the right
of such a Directorate to be regarded as representing the local element.
Consequently, a Directorate with which the Chamber has in fact collaborated
effectively, even if there had never been a formal vote of confidence, would
equally be entitled to agree to a dissolution.
[147] The Court attaches no importance to the fact that the agreement by the
Directorate to the dissolution of the Chamber by the Governor was given
before the Chamber passed the vote of no-confidence which rendered the
dissolution necessary. If the Directorate was entitled to agree to a
dissolution at all, it was just as entitled to do so before as after the
vote was taken.
[148] The conclusion at which the Court has arrived, namely, that a
Directorate, which has never enjoyed the confidence of the Chamber is not
entitled to consent to dissolve the latter, also finds support in other
considerations than those given above. Article 12 of the Statute should be
read in connection with Article 17. The last sentence of paragraph 2 of
Article 17 provides as follows: "If, for any reason, the Governor appoints a
President of the Directorate when the Chamber of Representatives is not in
session, it shall be convened so as to meet within four weeks after the
appointment to hear a statement from the Directorate and vote on the
question of confidence." According to this provision, it is abundantly clear
that a newly formed Directorate which has not [p336] enjoyed the confidence
of the Chamber cannot proceed forthwith to dissolve the latter, but must on
the contrary convoke it within a certain period of time. It would be
unreasonable to suppose, and there is nothing in the Statute which can
justify the Court in supposing, that a Directorate not possessing the
confidence of the Chamber could proceed to dissolve the latter in case it
was appointed during a session, instead of during the recess of the Chamber.
[149] The submissions of the Parties with regard to point 6 are, in the case
of Lithuania that the dissolution was in order, and in the case of the Four
Powers, that it was not so.
[150] The conclusion at which the Court arrives is that, on the proper
construction of the Statute, the Governor cannot dissolve the Chamber except
with the consent of a Directorate which has functioned as a Directorate with
the consent of the Chamber. In the present case, the Directorate presided
over by M. Simaitis had never functioned as a Directorate with the consent
of the Chamber. Consequently, when the Governor proceeded to the dissolution
on March 22nd, he issued the decree with the consent of a body which was not
capable of giving the consent which paragraph 5 of Article 12 requires in
such cases.
[151] The answer as to point 6 must therefore be that the dissolution of the
Chamber on March 22nd was not in order.
[152] The Court thinks it well to add that its function in the present case
is limited to that of interpreting the Memel Statute in its treaty aspect.
It has arrived at the conclusion that on the proper construction of the
Statute the Governor ought not to have taken certain action which he did
take. It does not thereby intend to say that the action of the Governor in
dissolving the Chamber, even though it was contrary to the treaty, was of no
effect in the sphere of municipal law. This is tantamount to saying that the
dissolution is not to be regarded as void in the sense that the old Chamber
is still in existence, and that the new Chamber since elected has no legal
existence. The Court is satisfied that that was not the [p337] intention of
the Four Powers when they submitted point 6 to the Court. The Court infers
from the closing words of the speech of the Agent of one of these Powers
that the intention of the Four Powers was only to obtain an interpretation
of the Statute which would serve as a guide for the future.
[153] FOR THESE REASONS,
The Court,
by ten votes to five,
decides:
(1) that the Governor of the Memel Territory is entitled, for the protection
of the interests of the State, to dismiss the President of the Directorate
in case of serious acts which violate the Convention of Paris of May 8th,
1924, including its annexes, and are calculated to prejudice the sovereignty
of Lithuania, and if no other action can be taken;
(2) that the dismissal of the President of the Directorate does not by
itself involve the termination of the appointments of the other members of
the Directorate;
(3) that the dismissal of M. Böttcher as President of the Directorate,
carried out on February 6th, 1932, was in order in the circumstances in
which it took place;
(4) to reject the objection of the Lithuanian Government to the
admissibility of the points as to whether the appointment of the Directorate
presided over by M. Simaitis and whether the dissolution of the Chamber of
Representatives of the Memel Territory on March 22nd, 1932, were in order;
(5) that in the circumstances in which it took place, the appointment of the
Directorate presided over by M. Simaitis was in order;
(6) that the dissolution of the Chamber of Representatives of the Memel
Territory which was carried out on March 22nd, 1932, by the Governor of the
said Territory when the Directorate presided over by M. Simaitis had not
received the confidence of the Chamber, was not in order. [p338]
[154] Done in French and English, the French text being authoritative, at
the Peace Palace, The Hague, this eleventh day of August, nineteen hundred
and thirty-two, in six copies, one of which shall be placed in the archives
of the Court and the other delivered to the Agent of the Government of His
Britannic Majesty in the United Kingdom of Great Britain and Northern
Ireland, of the Government of the French Republic, of the Government of His
Majesty the King of Italy, of the Government of His Majesty the Emperor of
Japan and of the Government of the Lithuanian Republic respectively.
(Signed) J. G. Guerrero,
Acting President.
(Signed) Å. Hammarskjöld
Registrar.
[155] MM. de Bustamante, Altamira, Schucking and Jonkheer van Eysinga,
Judges, whilst concurring in points 4 and 6 of the operative part of the
judgment and in the portion of the statement of reasons relevant thereto -
except that Jonkheer van Eysinga cannot agree to the last paragraph before
the operative part - declare that they are unable to concur in the judgment
given by the Court; availing themselves of the right conferred on them by
Article 57 of the Statute, they have indicated their dissent from point 1 in
the opinion which follows hereafter.
[156] M. Anzilotti, Judge, declares he is unable to concur in the judgment
given by the Court and, availing himself of the right conferred on him by
Article 57 of the Statute, has appended to the judgment the dissenting
opinion which follows hereafter.
[157] M. Urratia, Judge, declares that he cannot concur in clauses 1 and 3
of the operative part of the judgment of the Court or in the grounds on
which they are based. In [p339] his opinion, the right of the Governor to
dismiss the President of the Directorate, while the latter possesses the
confidence of the Chamber of Representatives, cannot possibly be inferred
from the Convention of May 8th, 1924, or from the Statute annexed thereto;
on the contrary, such a right would be in conflict with the letter and
spirit of these inter-national instruments. Nor does he think that this
right can be inferred from considerations of a general character based upon
the sovereign rights of Lithuania, seeing that the Statute, on the one hand,
has laid down the conditions for the exercise of these rights in the Memel
Territory and, on the other hand, has fixed very clearly and precisely both
the limits of the autonomy of the said Territory within the Republic of
Lithuania and the limits of the latter's sovereignty in the autonomous
Territory.
[158] M. Römer'is, Judge ad hoc, while concurring in clauses 1 to 5
(inclusive) of the operative part and in the grounds relating thereto,
declares that he is unable to concur in the grounds and conclusions of the
Court's judgment upon point 6 of the application, because, in his opinion,
the Statute makes no distinction between a Directorate which has previously
enjoyed the confidence of the Chamber and a regularly appointed Directorate
which has not enjoyed such confidence. Accordingly, such a distinction being
arbitrary, there is no ground for refusing any regularly constituted
Directorate the right, under Article 12, paragraph 5, of the Statute, to
agree to the dissolution of the Chamber for the purpose of appealing to the
electorate.
(Initialled) J. G. G.
(Initialled) A. H. [p340]
Dissenting Opinion by Mm. De Bustamante, Altamira, Schücking and Jonkheer
Van Eysinga.
[Translation]
[159] The undersigned are unable to concur in the judgment of the Court in
regard to points 1 to 5 of the application instituting proceedings. They
confine themselves to attaching to the judgment this dissenting opinion in
regard to the first point.
[160] The sedes materiœ of the question whether the Governor of the Memel
Territory has the right to dismiss the President of the Directorate is to be
found in paragraph 2 of Article 17 of the Statute of the autonomous unit of
Memel, which runs as follows:
"The President shall be appointed by the Governor and shall hold office so
long as he possesses the confidence of the Chamber of Representatives. The
President shall appoint the other members of the Directorate. The
Directorate must enjoy the confidence of the Chamber of Representatives and
shall resign if the Chamber refuses it its confidence. If, for any reason,
the Governor appoints a President of the Directorate when the Chamber of
Representatives is not in session, it shall be convened so as to meet within
four weeks after the appointment to hear a statement from the Directorate
and vote on the question of confidence."
[161] The autonomy which the authors of the Convention of Paris of May 8th,
1924, intended to confer on the Memel Territory is given very definite form
in this provision. For once the President of the Directorate has been
appointed by the Governor, the continuance in office of the President and of
the other members of the Directorate is solely dependent on the confidence
of the Chamber of Representatives. So long as the President possesses this
confidence he remains in office; as soon as he loses it, the Directorate
will have to resign. If the Chamber is not in session when a new President
is appointed by the Governor, it is to meet within a short space of time to
vote on the question of confidence. [p341] The apparent intention of these
provisions is to make the continuance in office of the President of the
Directorate appointed by the Governor - to speak only of the latter, since
he alone is mentioned in point 1 -dependent solely on the confidence of the
representatives of the citizens of the autonomous unit of Memel. This holds
good when the Chamber, under Article 12 of the Statute, is dissolved by the
Governor in agreement with the Directorate, i.e. it holds good after an
appeal to the electorate; in this case the new Chamber of Representatives
decides the fate of the President and of the whole Directorate. It is not
merely a question of parliamentary control over the activities of the
President so long as the latter keeps within the limits of his
constitutional duties; it is an organic rule to the effect that no authority
other than the Chamber of Representatives can remove the President. What the
authors of the Constitution of Memel meant to introduce for the very purpose
of maintaining the autonomy of Memel, is parliamentary government in its
most pronounced form, and it is difficult to point to another constitution
in which the parliamentary character of the executive authority has been so
carefully laid down in express terms as in the Statute of the autonomous
unit of Memel, which is simply a constitution in treaty form. Of course it
is also the first duty of the President of the Directorate himself
scrupulously to observe the Statute; but in virtue of the very clear terms
of Article 17 of the Statute, the only authority which can compel him to
leave office is the Parliament in which the authors of the Statute reposed
complete confidence in this respect. The right of the Chamber of
Representatives to decide when the President of the Directorate is to leave
office is so clearly stated in the Statute that, under the terms of Article
7 of the Statute itself, any power of dismissal on the part of the Governor,
a power of which moreover no trace is to be found in the Statute, is
excluded. For the same reason it seems arbitrary to endeavour to read
Article 17 of the Statute as implying a right on the part of the Governor to
dismiss the President of the Directorate.
[162] It should be observed that the Statute is confined to indicating the
main constructive lines of the autonomous unit of Memel. In this connection
it was necessary to [p342] indicate in what manner the period of office of a
President was to be brought to an end against his will. The possibility of a
President himself placing his resignation in the hands of the Governor,
should he be compelled for reasons of health, domestic or other reasons, to
do so, is an aspect of the matter which the Statute only hints at in the
third sentence of the second paragraph of Article 17 ("for any reason");
moreover, this aspect is immaterial in the present case.
[163] It follows from the foregoing that Article 17 of the Statute, the text
of which is clear, by itself affords sufficient ground for a negative answer
to the first question, namely, whether the Governor of the Memel Territory
has the right to dismiss the President of the Directorate. By conferring on
the Chamber of Representatives the right to terminate the political career
of a President of the Directorate against his will, the Article excludes any
right of dismissal on the part of the Governor.
[164] The history of Article 17 of the Statute only tends to confirm this
view.
[165] The genesis of the Article reveals the existence of two tendencies.
The Conference of Ambassadors, and later the Council of the League of
Nations, wished to make the autonomy of the Memel Territory much greater
than the Lithuanian Government, which represented the other tendency. The
latter wished to reserve to the Governor control over the legislation of the
Diet of Memel, a control which would apparently have covered not only the
legality of such legislation - as provided in Article 16 of the Statute -
but also its expediency. Furthermore, the Lithuanian Government wished the
Governor to be the head of the executive authority of the autonomous
territory; this would have placed in the hands of the Lithuanian Government
a general control over the executive authority as well as general control
over legislation. A Directorate enjoying the confidence of the Diet and
solely responsible to it was to be chosen by the Governor, merely to assist
him in the exercise of the executive power (Lithuanian Yellow Book, I, p.
120). The foregoing are merely some points from the "Considérations énérates
lithuaniennes sur le futur Statut de Memel" of March 26th, 1923; they will
however suffice to [p343] show that Memel's autonomy, if the. views held by
the Lithuanian Government had prevailed, would have been very restricted.
[166] The Conference of Ambassadors had quite a different conception of the
autonomy of Memel. As regards more particularly the executive authority, its
intention was completely to exclude the Lithuanian Government from any part
therein. The executive authority was to be exercised by a Directorate, the
President of which was to be appointed by the Parliament and would choose
the other members; the Directorate was to be responsible to this Parliament
(Yellow Book, I, p. 123, Art. 14). Far from having any intention of placing
the executive authority in the hands of an official of the Lithuanian
Government, the Conference of Ambassadors had in view a definitely
parliamentary executive authority.
[167] The Lithuanian delegation at Paris accepted the views of the
Conference of Ambassadors save on one point. They proposed to transfer the
appointment of the President of the Directorate from the autonomous
Parliament to the President of the Republic of Lithuania (Yellow Book, I, p.
139, Art. 19); it should be observed that the Lithuanian delegation did not
add to the important right of appointing the President of the Directorate,
which would thus pass to Lithuania, the right of dismissing him.
[168] In its new draft of July 13th, 1923, the Conference of Ambassadors
acceded to the desire expressed by Lithuania with regard to the appointment
of the President of the Directorate by the President of the Republic (Yellow
Book, I, p. 213, Art. 18); but, on the other hand, it thought it essential,
in view precisely of this appointment of the President of the Directorate by
the President of the Republic, more effectively to safeguard the Memel and
parliamentary character of the Directorate. To this end, Article 18 of the
draft of the Conference of Ambassadors of July 13th, 1923, states first,
that the Directorate should consist of Memel citizens, and, secondly, this
Article replaces the words "The Directorate is responsible to the Chamber"
by the two following sentences: "The Directorate shall enjoy the confidence
of the Chamber. The members of the Directorate collectively and individually
shall resign if the Chamber refuses [p344] them its confidence." The meaning
of these two amendments is clear: they bring out the parliamentary and Memel
character of the executive authority; it in no way follows that because the
power to appoint the President of the Directorate was given, not to the
Memel Parliament, but to the Lithuanian Government, the continuance in
office of the President of the Directorate, although appointed by an act of
the Governor, should henceforward depend upon this Lithuanian official. The
parliamentary system still required that the Memel Parliament alone should
be able to terminate the appointment of a President of the Directorate. But
the formula providing for responsibility to Parliament which, combined with
the right to dissolve Parliament, has brought about parliamentary government
in many countries, has not, in other countries, had this result.
Accordingly, recourse was often had to a more definite formula when, after
the great war, new constitutions were established providing for a
parliamentary system. This was the formula, now almost common form after the
great war, which the Conference of Ambassadors substituted for the formula
expressing the idea of responsibility to Parliament.
[169] The Lithuanian delegation accepted the new Article 18 proposed by the
Conference of Ambassadors; but, since no agreement could be reached on
several other points, the Conference of Ambassadors later addressed itself
to the Council of the League of Nations under Article XI of the Covenant.
[170] By a Resolution of December 16th, 1923, the Council decided to appoint
a commission of three persons to prepare a new draft convention (Yellow
Book, II, p. 44). In its report (Yellow Book, II, pp. 86-87), the
Commission, presided over by Mr. Norman Davis, repeats a declaration made by
him at a meeting which the Commission had held with the Lithuanian
delegation. This declaration has an important bearing upon the autonomy of
the Memel Territory. The Commission there states that during its visit to
Memel it was strongly impressed by the keen desire for autonomy shown by
both the Lithuanian and the Memel elements of the Territory. It was to
satisfy this keen desire for autonomy that the Commission tried "to arrange
for the fullest possible autonomy for the district under the sovereignty of
[p345] the Lithuanian Republic". This attempt was facilitated by the fact
that the Lithuanian Government contended "that the larger part of the
population of the Memel Territory was of Lithuanian origin and sympathy and
sincerely loyal to the Lithuanian Republic". The Commission felt that this
fact further simplified the problem, as the Lithuanian Government would have
no reason to fear or distrust an autonomous régime based on universal
suffrage.
[171] This declaration, which was repeated in the report of the Norman Davis
Commission, shows that the latter certainly did not intend to formulate a
less extensive autonomy than had been provided for in the last draft of the
Conference of Ambassadors and that, perhaps, its proposals went even
farther. Indeed, a comparison between the last draft of the Conference of
Ambassadors and that of the Norman Davis Commission shows that Article 17 of
the latter, the text of which is identical with Article 17 of the final
Statute, strengthens in two other directions the parliamentary character of
the Directorate. In the first place, Article 17 provides that should the
Governor appoint a President of the Directorate when the Chamber is not in
session, the latter shall be convened so as to meet within four weeks after
the appointment of the President to pass or refuse a vote of confidence in
the new President of the Directorate. The meaning of this addition is clear:
the Chamber must be able at any moment to exercise its control over the
continuance in office of the President.
[172] In the second place, the text of the Norman Davis Commission aimed at
safeguarding the Chamber's right to determine the political fate of a
President of the Directorate from another danger which was not perhaps
altogether theoretical. Suppose the President of the Directorate appointed
by the Governor enjoyed the confidence of the Chamber; under the provision
which replaced the formula of responsibility, he would not be bound to
resign, but he might at any moment cease to please the Governor. What then ?
The Norman Davis Commission thought it worth while expressly to state that
in this case too the fate of the President of the Directorate depended
solely upon the Chamber; the President of [p346] Directorate "shall hold
office so long as he possesses the confidence of the Chamber of
Representatives". By this addition, which is very exceptional in
constitutions, the dependence of the political fate of the President of the
Directorate upon the will of Parliament and upon that will alone finds a
two-fold support in the wording of the Statute: the Directorate must resign
as soon as the Chamber refuses it its confidence; but, on the other hand, as
long as he possesses that confidence, the President is entitled to remain in
office.
[173] From the foregoing observations, it follows that the history of
Article 17 of the Statute simply confirms the truth which emerges from the
very text of that Article itself, namely, that the Governor is not entitled
to dismiss the President of the Directorate.
***
[174] The right of the Governor to dismiss the President of the Directorate
has been claimed in virtue of the sovereignty acquired by Lithuania over the
Memel Territory under Article 2 of the Convention of Paris of May 8th, 1924.
It is argued that this sovereignty includes a right of "control" over acts
of the Directorate which might be contrary, inter alia, to the Statute of
Memel, and that this "control" in turn includes the right of the Governor to
dismiss the President of the Directorate.
[175] In this connection, the undersigned make the following observations.
[176] It is true that the autonomous unit of Memel is under the sovereignty
of Lithuania, to whom the Principal Allied Powers transferred, subject to
the conditions laid down in the Convention of Paris, all the rights and
titles ceded to them by Germany as regards the Memel Territory, in virtue of
Article 99 of the Treaty of Versailles (Art. 1 and 2 of the Convention of
Paris). But what does this sovereignty of Lithuania over the autonomous unit
of Memel mean ? If we disregard non-treaty international law and treaties
binding Lithuania with the exception of the Paris Convention, this
sovereignty is simply the residue left to the exclusive jurisdiction of
[p347] Lithuania by the Convention of Paris. And as the Statute annexed to
the Convention reserves - in terms which, as stated above, are as precise as
possible - to the Memel Chamber of Representatives, and not to the Governor,
the right to dismiss the President of the Directorate, Lithuania's
sovereignty over the autonomous unit of Memel does not include the right to
dismiss the President of the Directorate. In view of the extensive character
of the Memel autonomy, Lithuania's sovereignty over this Territory implies a
very limited group of rights which, under the very terms of Articles 1 and 2
of the Convention and Article 17 of the Statute, does not include the right
to dismiss the President of the Directorate. It does not seem to us possible
to deduce from the notion of the sovereignty attributed to Lithuania a right
on the part of the Governor to dismiss the President of the Directorate - a
right which is not only not mentioned in the Statute but which, as stated
above, is ruled out by the very definite wording of the Statute.
[177] The Statute gives Lithuania, in certain very definite cases, a right
to "control" acts which exceed the competence of the authorities of the
Territory or which are incompatible with the provisions of Article 6 or with
Lithuania's international obligations. In this connection, Article 16 of the
Statute gives the Governor a right to veto laws passed by the Chamber of
Representatives, if these laws exceed the competence of the authorities of
the Territory, as laid down by the Statute, or if they are incompatible with
the provisions of Article 6, or with the international obligations of
Lithuania. It was not thought necessary that the Statute should supplement
this right to veto laws already passed, by giving Lithuania a right to
legislate in the place of the Chamber of Representatives, should the latter
fail in its duty to pass a law prescribed by a convention upon a matter
within the competence of the local authorities of the Territory (see Art. 4
of the Statute). Nor was it thought necessary that the Statute should give
Lithuania a right of "control" over the executive authorities; in this
connection, the authors of the Statute had apparently every confidence in
the control which the Chamber of Representatives was to exercise over the
Directorate under Article 17 of the Statute. [p348]
[178] As regards the Governor's right to dismiss the President of the
Directorate, considered as a means of "control" over the executive
authority, it may be wondered, apart from the fact that this right is
contrary to the Statute, why this is the only right which is claimed. In the
first place, the very grave step of dismissing the President of the
Directorate offers less guarantee of legality than that afforded by the
administrative courts usually found in subdivisions of any given country
(provinces, communes, etc.); and, secondly, the right of veto, or annulment,
may operate equally well in the executive as in the legislative sphere. If
therefore it is true, on the one hand, that there exist, besides the alleged
right of the Governor to dismiss the President of the Directorate, many
other means of realizing "control" by the Governor over the executive
authority, and that, on the other, neither this right of dismissal by the
Governor nor these other means are provided for in the Statute, it seems to
us arbitrary to single out this one means, viz. the dismissal of the
President of the Directorate by the Governor, without even showing that this
is the only way to achieve effective "control".
(Signed) Antonio S. De Bustamante.
( ,, ) Rafael Altamira.
( ,, ) Walther Schücking.
( ,, ) V. Eysinga. [p349]
Dissenting Opinion by M. Anzilotti.
[Translation.]
[179] I consider that the Court should have declared that the application
submitted to it on April nth, 1932, by the Governments of Great Britain,
France, Italy and Japan, was inadmissible; and had I to summarize in a few
words the reasons for my opinion, I should say that it is based on the fact
that this application does not embody the essential features of a claim for
legal redress and tends to force the Court to deviate from the fundamental
rules governing the activities of a judicial body.
[180] 1.- The application begins with the following statement:
"The dismissal of the President of the Memel Directorate, M. Böttcher, the
appointment of a Directorate presided over by M. Simaitis and the
dissolution of the Diet have given rise to differences of opinion as to
whether these acts are in accordance with the Statute of the Memel Territory
which is annexed to the Convention of May 8th, 1924."
[181] It would appear that this statement should logically have been
followed by a request to the Court to pass upon certain points of law or of
fact, and possibly also to indicate certain measures to which the applicant
Powers believed themselves entitled, in consequence of the facts above
mentioned and the differences of opinion to which they had led.
[182] The application however asks the Court to decide:
"(1) whether the Governor of the Memel Territory has the right to dismiss
the President of the Directorate;
(2) in the case of an affirmative decision, whether this right only exists
under certain conditions or in certain circumstances, and what those
conditions or circumstances are;
(3) if the right to dismiss the President of the Directorateis admitted,
whether such dismissal involves the termination of the appointments of the
other members of the Directorate;
(4) if the right to dismiss the President of the Directorate only exists
under certain conditions or in certain circumstances, whether the dismissal
of M. Böttcher, carried out on February 6th, 1932, is in order in the
circumstances in which it took place; [p350]
(5) whether, in the circumstances in which it took place, the appointment of
the Directorate presided over by M. Simaitis is in order;
(6) whether the dissolution of the Diet, carried out by the Governor of the
Memel Territory on March 22nd, 1932, when the Directorate presided over by
M. Simaitis had not received the confidence of the Diet, is in order".
[183] Thus the application, instead of stating what the Applicants believed
themselves entitled to claim from the Court, puts a series of questions to
which the Court is asked to reply, as though what was required was an
advisory opinion.
[184] 2. - It is nevertheless certain that the applicant Powers did not
intend to ask the Court for an advisory opinion. In formulating the above
questions, the intention of the applicant Powers was probably to indicate
"the subject of the dispute", in accordance with Article 40 of the Statute
and Article 35 of the Rules of Court. But it is just this method of
specifying "the subject of the dispute" which renders the application
inadmissible.
[185] In its judicial capacity, the Court cannot answer questions; it must
pass upon claims. The application mentioned in Article 40 of the Statute and
Article 35 of the Rules is a claim for legal redress; and in such a claim
the specification of the subject of the dispute can only be a statement of
that which the Applicant wishes to obtain from the Court and of the reasons
of law or of fact on the basis of which he feels entitled to obtain it
(petitum et causa petendi). A properly constituted action at law is only
possible if a claim is presented in this form, for an action is hardly
conceivable unless there is a person who makes against some other person a
claim upon which it is for the judge to pass according to law.
[186] 3. - The foregoing leads to the following conclusion: The Court could
not answer the questions put in the application, because by so doing, it
would be giving an advisory opinion for which the applicant Powers were not
entitled to ask and which the Court was not entitled to give.
[187] On the other hand, it may be asked whether the Court could not base
itself on the claims which the applicant Powers [p350] subsequently
presented in the form of submissions in their Memorial, in order to
supplement or amend the application. Certainly, this would have been the
only means whereby it might have been possible to overcome the flaw in the
proceedings and to enable the Court to pass upon claims instead of answering
questions.
[188] In a procedural system like that of the Court, which is elastic and
little rigid in form, and especially in a system where the application is
followed by other written documents, I am inclined to hold that the Court
may refer to documents subsequent to the application, in order to make good
omissions or overcome defects in the instrument instituting proceedings. It
would seem that this principle should be applied more especially when, as in
the present case, the Party concerned omits to adduce the conclusions which
it might have drawn from certain irregularities in the application.
[189] I am, therefore, of opinion that if the Memorial had presented to the
Court, in the form of submissions, claims corresponding to the points of the
application and capable of eliminating any doubt as to the subject of the
suit, the Court could have ignored the defects of the application and passed
upon the claims formulated in the Memorial.
[190] But, to my mind, it is very doubtful whether that is so. Since the
submissions of the Memorial do not correspond with the questions in the
application, grave doubts remain as to what the applicant Powers ask of the
Court and as to the position of the Respondent in regard to at least one of
the most important questions in the case.
[191] 4. - In this connection, the first four questions of the application,
which are reproduced above, should be compared with the corresponding
submissions (a) and (b) of the Memorial, where the Applicants ask the Court
to decide:
"(a) that the Governor of the Memel Territory has no right to dismiss the
President of the Directorate;
(b) that the termination of the appointment of the President of the
Directorate does not ipso facto entail the termination of the appointments
of the other members of the Directorate".
[192] Submission (a) corresponds to question 1 of the application and states
in the form of a claim what the application [p352] states in the form of a
question. The same applies to submission (b) in respect of question 3 of the
application; it should however be noted that the submission considerably
enlarges this question since, instead of confining itself, like the latter,
to the case of dismissal, it speaks generally of the termination of the
appointment of the President of the Directorate.
[193] But there is nothing in the submissions of the Memorial which
corresponds to questions 2 and 4 of the application.
[194] The application clearly disclosed a main plea - viz. that there is no
right on the part of the Governor to dismiss the President of the
Directorate - and an alternative plea - viz. that this right exists in
certain conditions or circumstances, which did not obtain in the case of M.
Böttcher's dismissal. The main plea had as its object the interpretation of
the Statute of Memel, irrespective of the case in point, the examination of
which it made superfluous; the alternative plea related to the case in point
and only contemplated an interpretation of the Statute of Memel in so far as
that interpretation was necessary to establish that M. Böttcher's dismissal
was not in order.
[195] In the submissions, the alternative plea has disappeared; the
Applicants now merely ask the Court to say that there is no right of
dismissal, without even mentioning the case in point; what they ask for
therefore is a decision on an abstract question of interpretation.
[196] It is of course permissible to abandon part of a plea. It should
however be observed that in reply to a question specially put to them on the
point, the Agents of the applicant Powers replied that their alternative
plea had not been abandoned, and it may be added that the question of the
legality of M. Böttcher's dismissal was discussed by them in their oral
arguments. No plea, however, was formulated, and it was even stated at the
hearings that the applicant Powers did not feel able to define the
conditions and circumstances contemplated by questions 2 and 4 of the
application: I do not therefore see upon what the Court could give a ruling.
[p353]
[197] 5. - The obscurity in which the questions of the application, the
submissions of the Memorial and the statements made at the public hearings
by the Agents of the applicant Powers have thus left an essential part of
their suit, is all the more serious in view of the respective positions of
the two Parties.
[198] A reference to the points in the application shows that the
conclusions of the Lithuanian Counter-Memorial do not go beyond a request
for the dismissal of the claims of the Applicants, so far as it was possible
to ascertain these claims from the facts adduced and the questions
formulated in the said application. Submission No. 2, which is given below,
perhaps constitutes an exception, but question No. 2 of the application, to
which this submission relates, is so vague and indefinite that it is really
very difficult to say whether, and how far, the submission may involve a
fresh claim.
[199] The situation is altogether different if reference be made to the
submissions of the Memorial. As I have just said, point 4 of the
application, taken together with point 2 - of which point 4 is an
application - do not reappear in these submissions. On the other hand, the
Respondent made the following submissions on these two points, in its
Counter-Memorial:
"(2) that, in any event, the Governor of the Memel Territory is entitled to
dismiss the President of the Directorate in the following cases:
(a) when the President has committed acts which compromise the sovereignty
or unity of the Lithuanian State;
(b) when the President has encroached upon the powers of the central
authority ;
(c) when the President has exercised his powers in disregard of the
principles of the Lithuanian Constitution;
(d) then the President opposes the adoption by the local authorities of the
measures necessary to apply in the Memel Territory international treaties
concluded by Lithuania dealing with matters which are within the competence
of the local authorities;
(e) when the President opposes the adoption by the local authorities of the
measures necessary to execute the provisions of the Statute and of those
laws of the Republic which are applicable to the Territory;
…………………………………………………
[p354]
(4) that the dismissal of M. Böttcher by the Governor of Memel on February
6th, 1932, was, in the circumstances in which it was effected, quite
regular".
[200] If it be held, according to the application and the statements of the
Agents of the applicant Powers, that the latter are asking the Court to
declare that the dismissal of M. Böttcher was not in order in the
circumstances in which it took place, the Lithuanian Government remains in
the position of Respondent.
[201] On the other hand, if regard be had to the submissions of the
Memorial, there is no claim that the Court should say that the dismissal of
M. Böttcher was not in order. In that event, it is manifest that the
Respondent could have confined itself to requesting the Court to reject
submission (a) and to declare that the Governor of the Memel Territory is
entitled to dismiss the President of the Directorate. Submissions 2 and 4 of
the Lithuanian Counter-Memorial would, in that case, extend the limits of
the suit; they would consequently appear to be in the nature of a
counter-claim, submitted with a view to obtaining an affirmation of the
Governor's right to dismiss M. Böttcher, the President of the Directorate.
[202] 6. - This point was, in my view, of fundamental - one might even say:
of decisive importance for the issue of the proceedings.
[203] Though I am unable to concur either in the recitals or the operative
clause of the present judgment in respect of question No. 1 of the
application, I nevertheless agree with the Court that there are certain
exceptional cases in which the Governor of the Memel Territory is entitled
to dismiss the President of the Directorate, either with a view to ensuring
the regular operation of the Memel constitutional system (see Art. 10, 12
and 17 of the Statute) or as a necessary means of defence against the
consequences of a given act (see ibid., Art. 16).
[204] The question whether the right of dismissal has been exercised in a
regular manner by the Governor in M. Böttcher's case depends therefore, to a
great extent, on certain circumstances of fact, in particular on the
character and subject of the conversations which had taken place at Berlin
between M. Böttcher and certain German officials. [p355]
[205] The first problem which arises - and without a solution of which it is
impossible to arrive at a conclusion by judicial methods - is, accordingly,
upon which of the Parties does the burden of proof rest.
[206] Was there a burden of proof on the applicant Powers to show that the
conversations at Berlin were purely of a private character - as was alleged
by M. Böttcher himself, and by the representative of the German Government
on the Council of the League of Nations ? Or was the onus on the Lithuanian
Government, as the counter-claimant, to prove that these conversations
possessed that political character, contrary to the interests of Lithuania,
which the Governor had regarded as justifying him in dismissing M. Böttcher
? In my view, the whole question turned on this point of procedure : I
willingly admit that the applicant Powers did not furnish satisfactory
evidence in support of their case; but it is quite impossible to find in the
documents adduced by the Lithuanian Government anything more than rather
vague indications, merely serving as material for conjecture.
[207] In these circumstances, it seems difficult to admit that the Court
could ignore the defects of the application. The truth seems to be, rather,
that the seriousness of the initial irregularity of the application
instituting proceedings has become increasingly manifest during the
subsequent proceedings. In my view, all that the Court could do was to take
note of this irregularity and declare that it would not entertain the
application.
[208] 7. - The foregoing observations apply strictly speaking to points 2
and 4 of the application. As regards points 1, 5 and 6, I hold that the
Court could have given judgment upon submissions (a), (c) and (d) of the
Memorial, which exactly correspond to the above-named points, while, at the
same time, defining in more precise terms the claim of the applicant Powers.
In regard to point 3 of the application and submission (b) of the Memorial,
I am also willing to admit that the Court could have given judgment on this
submission, confining it, however, to the case of dismissal. [p356]
[209] It must however be remembered that in actual fact, as well as in the
intention of the Applicants, the various questions in the application are
closely bound up with one another and form an indivisible whole with its
basis or starting-point in the dismissal of M. Böttcher. Once the Court had
rejected the Applicants' argument concerning the abstract interpretation of
the Statute of Memel (submission a of the Memorial), the concrete question
whether M. Böttcher's dismissal was in order became the crux of the case.
After the applicant Powers had declared that the so-called alternative claim
set out in points 2 and 4 of the application was maintained, it was hardly
possible for the Court to confine its decision to the other claims, which
had been adequately stated in the submissions of the Memorial. The Court
should therefore have declared that the application in its entirety was
inadmissible.
(Signed) D. Anzilotti. [p357]
Appendix.
Documents Submitted to the Court.
A. - By the Agents of the Applicant Powers:
I .- On June.9th, 1932.
1. - Extract from the reply of the Allied and Associated Powers to the
observations of the German delegation, June 16th, 1919.
2. - Constitution of the Lithuanian Republic, August 1st, 1922.
3. - Letter from the Conference of Ambassadors, dated December 20th, 1922.
4. - Statute of the Territory of Memel (League of Nations Doc. С 159. M. 39.
1924. VII) (March 22nd, 1924):
(f) Letter from the Conference of Ambassadors to the Secretariat-General,
September 28th, 1923.
(g) Letter from the Conference of Ambassadors to the Secretariat-General,
October 18th, 1923.
(h) Letter from the President of the Lithuanian Cabinet to the
Secretary-General, November 22nd, 1923.
(i) Letter from the President of the Lithuanian Cabinet to the
Secretary-General, November 24th, 1923.
(j) Extracts from the minutes of the 27th Session of the Council, Paris:
Minutes of 8th meeting, December 15th, 1923; brief analysis of the Memel
question prepared by the Secretariat.
Minutes of the 9th meeting, December 17th, 1923.
„ „ 10th „ , „ „ , „ .
Report by M. Guani, adopted by the Council on December 17th, 1923.
(f) Letter from M. Skirmunt to the President of the Council, with annexes,
communicated to Members of the Council, December nth, 1923.
(g) Letter from M. Galvanauskas to the Secretary-General, communicated to
Members of the Council, December nth, 1923.
(h) Note by the Secretary-General, informing Members of the Council of the
composition of the Memel Commission February 9th, 1924.
(i) Letter from the Conference of Ambassadors to the Secretary-General,
dated February 4th,1924, and a Memorial containing the observations of the
Conference of Ambassadors on M. Galvanauskas' letter of December 11th, 1923.
(j) Letter from M. Galvanauskas to the Secretary-General: comments on the
letter from the Conference of Ambassadors of February 4th, 1924.
(k) Letter from M. Skirmunt to the President of the Council, communicated to
the Council on March 10th, 1924.
(l) Extract from the minutes of the 4th meeting of the 28th Session of the
Council. Geneva, March 12th, 1924.
(m) Report of the Commission (annex to minutes of 28th Session of the
Council).
(n) Extract from the minutes of the 8th meeting of the 28th Session of the
Council. Geneva, March 14th, 1924.
(o) Draft convention and annexes (annex to minutes of 28th Session of the
Council).
(p) Transitory provision (formerly Art. 18 of the draft convention) (annex
to minutes of 28th Session of the Council).
5. - Letter from M. Böttcher (translation), January 16th, 1932.
6. - Sitting of the Diet of Memel (extract from the verbatim record -
translation), January 25th,1932. [p358]
7. - Notification by the Governor, M. Merkys, February 6th, 1932.
8. - Documents relating to the procedure before the Council of the League of
Nations, February 5th - 20th, 1932 (14 documents):
Opening of credits (expenses in connection with the experts). Report
submitted by the representative of Guatemala. Geneva, February 5th, 1932
(Doc.C. 175. 1932. X).
Minutes of the 9th meeting of the 66th Session of the Council (Feb.
6th,1932).
Communication from the German Government concerning Memel. Note by the
Secretary-General. Geneva, February 8th, 1932 (Doc. С 189. 1932. VII).
Communication from the German Government. Note by the Secretary-General.
Geneva, February 9th, 1932 (Doc. С 104. 1932. VII).
Communication from the Lithuanian Government. Note by the Secretary-General.
Geneva, February 10th, 1932 (Doc. C. 203. 1932. VII).
Communication from the Lithuanian Government. Note by the Secretary-General.
Geneva, February 10th, 1932 (Doc. C. 211. 1932. VII).
Communication from the German representative on the Council. Note by the
Secretary-General. Geneva, February 11th, 1932 (Doc. С 212. 1932. VII).
Communication from the German Government. Note by the Secretary-General.
Geneva, February nth, 1932 (Doc. С 213. 1932. VII).
Exchange of telegrams between the Lithuanian Minister for Foreign Affairs
and the Secretary-General (Feb. 11th, 1932; Doc. С 215. 1932. VII).
Statements concerning infractions of the Convention of Memel: Letter from
the Chancellor of the German Reich. Communication from the Lithuanian
Government. Note by the Secretary-General. Geneva, February 13th, 1932 (Doc.
С 224. 1932. VII).
Minutes of the nth. meeting of the 66th Session of the Council. Geneva,
February 13th, 1932.
Statements concerning infractions of the Convention of Memel: Letter from
the Chancellor of the German Reich. Note by the Secretary-General. Geneva,
February 15th, 1932 (Doc. C. 231. 1932. VII).
Report bv the Norwegian representative. Geneva, February 18th, 1932 (Doc. C.
249. 1932. VII).
Minutes of the 13th meeting of the 66th Session of the Council. Geneva,
February 20th, 1932.
9. - Letter from M. Böttcher, February 23rd, 1932.
10. - Protocol of signature of the Convention of May 8th, 1924, and four
letters from M. Galvanauskas dated May 17th, 1924, in regard to this
signature.
II. - On June 14th, 1932.
11. - Verbal note presented on March 19th, 1932, by His Britannic Majesty's
Chargé d'affaires at Kovno to the Lithuanian Minister for Foreign Affairs.
Identical notes were presented to the Lithuanian Government by the French
and Italian Ministers.
12. - Aide-mémoire presented on March 19th, 1932, by the Lithuanian Minister
for Foreign . Affairs to His Britannic Majesty's Chargé d'affaires at Kovno.
III. - On July 11th, 1932.
13. - Telegram from the French Minister at Kovno to the Minister for Foreign
Affairs at Paris, February 26th, 1932.
14. - Translation of an "Official Opinion by the Governor of the Memel
Territory", February 27th, 1932.
15. - Translation of a letter from MM. Gubba and Kraus to M. Simaitis, March
1st, 1932. [p359]
16. - Translation of a letter from MM. Gubba and Kraus to the President of
the Directorate, March 2nd, 1932.
17. - Translation of a letter from M. Simaitis to M. Gubba, leader of the
Farmers' Party group, March nth, 1932.
18. - Translation of a letter from M. Gubba to M. Simaitis, March 11th,
1932.
19. - Translation of a letter from M. Kraus to M. Simaitis, March 11th,
1932.
20. - Translation of a letter from MM. Kraus and Gubba to the Governor of
Memel, March 12th, 1932.
21. - Translation of the verbatim report of the meeting of the Diet of March
22nd, 1932.
22. - Figures showing the results of the elections which took place at Memel
on May 4th, 1932.
B. - By the Agent of the Lithuanian Government:
I. - As annexes to the first Counter-Memorial (May 30th, 1932).
1. - Convention signed at Paris on May 8th, 1924, between France, Great
Britain. Italy, Japan and Lithuania, concerning the Memel Territory.
2. - The Constitution of the Lithuanian State (Constitution of 1928).
3. - Minutes of the nth meeting (public) of the Council of the League of
Nations, held on Saturday, February 13th, 1932, at 4 p.m.
4. - Extracts from the Treasury Accounts of the Territory 1.
5. - Copy of a certificate given by M. Toepke, the German Consul-General at
Memel, to M. Baltromejus.
6. - Copy of the usual travelling permit issued by German diplomatic
representatives and consuls.
7. - Letter from the Governor of Memel, M. Merkys, to the President of the
Chamber of Representatives, dated January 25th, 1932.
8. - Statement made by M. Böttcher at the meeting of the Chamber of
Representatives on January 25th, 1932.
9. - Statement made by M. Podszus at the meeting of the Chamber of
Representatives on January 25th, 1932.
II. - On June 15th, 1932.
10. - Official Journal of the League of Nations, VIIth year, No. 10, October
1926, containing the minutes of the meeting of the Council of the League of
Nations held at Geneva on September 3rd, 1926, and the Report of the
Committee of Jurists to the Council of the League of Nations of September
16th. 1926.
11. - A certified true copy of identical notes forwarded to the Lithuanian
Minister for Foreign Affairs by the representatives of the Powers which,
together with Lithuania, signed the Convention of Paris of March 19th, 1932
(see above, A, No. 11).
III. - On July 8th, 1932.
12. - Translation of the letter written by M. Böttcher to his son on
February 6th, 1932, after his dismissal. [p360]
13. - Letter, dated February 10th, 1932, from the majority parties to the
Governor of the Territory.
14. - Minutes of the meeting of the German Reichstag. 59th Meeting. -
Thursday, February 25th, 1932. - Extract.
15. - Letter, dated March 1st, 1932, from the majority parties to the
President of the Directorate.
16. - Pro-memoria addressed on March 7th, 1932, by the Lithuanian Government
to the Powers, signatories together with Lithuania of the Convention of
Paris of May 8th, 1924.
17. - Letter, dated March 12th, 1932, from the majority parties to the
Governor of the Territory.
18. - Letter, dated March 17th, 1932, from the President of the Memel
Directorate to the Governor of the Memel Territory.
19. - Extract from the statement by M. Simaitis, President of the
Directorate, which was read to the Chamber of Representatives of the Memel
Territory on March 22nd, 1932.
IV.- On July 11th, 1932.
20. - Letter, dated February 6th, 1932, from the Governor of the Memel
Territory to M.Žygaudas, a member of the Directorate.
21. - M. Žygaudas' reply to the above letter.
22. - Letter, dated March nth, 1932, from the Directorate of the Memel
Territory to M. J. Gubba; the President of the Farmers' Party.
23. - Letter, dated February 23rd, 1932, to the Governor of the Memel
Territory from the Presidents of the People's and the Farmers' Parties.
24. - Translation of extracts from the Treasury Accounts of the Memel
Territory (see above, B, I, No. 4).
С. - The Court also had Before It:
1. - Diplomatic documents of the Ministry for Foreign Affairs of the
Lithuanian Republic. Memel Question. 2 volumes. Kovno, 1923 and 1924.
2. - Resolutions of the Council, dated:
October 22nd, 1920.
25th, „ .
June 27th, 1921
September 5th, 1923.
„ 20th, 1926.
3. - Resolutions of the Assembly, dated:
September 21st, 1922.
,, 26th, 1923.
4. - Lithuanian declaration concerning Minorities, dated May 12th, 1922.
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