General List No. 50

Judgment No. 19

11 August 1932

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty Fifth Session

 

Interpretation of the Statute of the Memel Territory

 

Britain, France, Italy, Japan v. Lithuania

Judgment

 
BEFORE: Vice-President
(acting as
President)
Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Adatci, Sir Cecil Hurst, Schücking, Negulesco, Jhr. Van Eysinga, Wang
Judge(s) ad hoc: Römer'is
 
Represented By: United Kingdom : Sir William Malkin, K.C., K.C.M.G., C.B.
France: M. J. Basdevant, Legal Adviser to the Ministry for Foreign Affairs, Professor at the Faculty of Law of Paris, as Agent,  M. Chargueraud, Assistant Legal Adviser to the Ministry for Foreign Affairs, as Assistant Agent
  Italy: Massimo Pilotti, First President of a Court of Appeal, Legal Adviser to the Royal Ministry for Foreign Affairs,  Count Senni, Envoy Extraordinary and Minister Plenipotentiary of Italy at The Hague
  Japan: Matsunaga, Envoy Extraordinary and Minister Plenipotentiary of Japan at The Hague
  Lithuania: Venceslas Sidzikauskas, Envoy Extraordinary and Minister Plenipotentiary of Lithuania in London
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1932.08.11_memel.htm
  
Citation: Interpretation of Statute of Memel Territory (U.K. v. Lith.), 1932 P.C.I.J. (ser. A/B) No. 49 (Aug. 11)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 49; Collection of Judgments, Orders and Advisory Opinions. A.W. Sijthoff’s Publishing Company, Leyden, 1932
  
 

  

[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."
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***

[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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