COUR PERMANENTE DE JUSTICE INTERNATIONALE

SÉRIE A/B
ARRÊT S, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 49

INTERPRÉTATION DU STATUT
DU TERRITOIRE DE MEMEL

ARRÊT DU 11 AOÛT 1932
XXVme SESSION

1932

XXVth SESSION
JUDGMENT OF AUGUST 11th, 1932

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 49

INTERPRETATION OF THE STATUTE
OF THE .MEMEL TERRITORY

LEYDE LEYDEN
SOCIETE D’EDITIONS A. W. SIJTHOFF’S :
A. W. SIJTHOFF PUBLISHING COMPANY
204

PERMANENT COURT OF INTERNATIONAL JUSTICE

| 1932.
TWENTY-FIFTH SESSION. August rth.

General list:
No. 50.

August 11th, 1932.

INTERPRETATION OF THE STATUTE
OF THE MEMEL TERRITORY

Convention of May 8th, 1924, concerning Memel; Statute of
the Memel Territory annexed to the aforesaid Convention.—
Interpretation, in particular, of Articles I, 2 and x7 of the
Convention, and of Articles 2, 6, 7, ro, 12, 16 and 17 of the
Statute.— Powers of the Governor of the Tervitory in respect of:
(a) the dismissal of the President and members of the Directorate
of the Memel Territory ; (b) the constitution of a Directorate ;
{c) the dissolution of the Chamber of Representatives of the
Tervilory.— Conditions governing the exercise of these powers.

JUDGMENT.

Before: M. GUERRERO, Vice-President, acting as President ;

Baron RoLin-JAEQUEMYNS, Count ‘RosTwoROWSKI,
MM. FROMAGEOT, DE BUSTAMANTE, ALTAMIRA, ANZI-
LOTTI, URRUTIA, ADATCI, Sir  CECIL Hurst,
MM. Scutcxinc, NEGULESCO, Jhr. van EvsINGA,
M. Wane, Judges; M. RÔômEr'Is, Judge ad hoc.
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 295

In the case concerning the interpretation of the Statute
of the Memel Territory,

Between

the Government of His Britannic Majesty in the United
Kingdom of Great Britain and Northern Ireland, represented
by Sir William Malkin, K.C., K.C.M.G., C.B.;

the Government of the French Republic, represented by
M. J. Basdevant, Legal Adviser to the Ministry for Foreign
Affairs, Professor at the Faculty of Law of Paris, as Agent,
and by M. Charguéraud, Assistant Legal Adviser to the
Ministry for Foreign Affairs, as Assistant Agent ;

the Government of His Majesty the King of Italy, repre-
sented by M. Massimo Pilotti, First President of a Court of
Appeal, Legal Adviser to the Royal Ministry for Foreign
Affairs, and by Count Senni, Envoy Extraordinary and Minister
Plenipotentiary of Italy at The Hague;

the Government of His Majesty the Emperor of Japan,
represented by M. Matsunaga, Envoy Extraordinary and
: Minister Plenipotentiary of Japan at The Hague;

and

the Government of the Republic of Lithuania, represented
by M. Venceslas Sidzikauskas, Envoy Extraordinary and
Minister Plenipotentiary of Lithuania in London,

THE COURT,

composed as above,
delivers the following judgment :

By an application instituting proceedings, filed with the
Registry of the Court on April rith, 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

5
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 296

Government of the Lithuanian Republic in respect of a differ-
ence 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.

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....

(x) 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 circum-
stances are; ; :

(3) if the right to dismiss the President of the Direc-
torate 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 Direc-
torate only exists under certain conditions or in certain
circumstances, whether the dismissal of M. Bôttcher, .
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.”

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.

As the Court included, upon the Bench, judges of the
nationality of the applicant Powers but no judge of Lithua-
nian nationality, the Lithuanian Government availed itself

6
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 207

of its right, under the terms of Article 31 of the Statute, to
appoint a judge ad hoc to sit in the case.

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 Lithua-
nian 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 Presi-
dent, however, decided on the date last mentioned, under
Article 33 of the Rules of Court, that this proceeding should
be considered as valid.

By a document filed at the same time as ïts Counter-
Case, the Lithuanian Government objected that the Court
had no jurisdiction to deal with points 5 and 6 of the applica-
tion mentioned above.

In these circumstances, the Lithuanian Government, in
its Counter-Case, only presented its observations ‘‘on questions
xz to 4 of the application of the applicant Governments”.

By a judgment given on June 24th, 1932, the Court over-
ruled 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 fixmg July oth 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 and, 1932.

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 ;

(0) 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

7
© INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 298

the Directorate presided over by M. Simaitis had not received
the confidence of the Diet, was not in order’.

The first Lithuanian Counter-Case contains the following
“general submissions” :

“May the Court be pleased .... to decide:

(x) 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 Terri-
tory is entitled to dismiss the President of the Directorate
in the following cases:

(a) when the President has committed acts which compro-
. mise the sovereignty or unity of the Lithuanian State ;

(5) 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 provi-
sions 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 the
other members, who may only conduct current affairs of
their departments if specially commissioned thereto by the
Governor ;

(4) that the dismissal of M. Bôttcher by the Governor of
Memel on February 6th, 1932, was, in the circumstances in
which it was effected, quite regular.”

In the second Counter-Case it is submitted:

“That since points 5 and 6 of the application of April rzth,
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

8
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 299

political expediency of certain acts of the Lithuanian
authority at Memel which do not come under Article 17, para-
graph 2, these points cannot be entertained by the Court.

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.’

In the course of public sittings held on June 8th, r3th,
r4th, 16th and 18th and July xith, 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.

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.

Such are the circumstances in which, the submission being
in all respects regular, the Court is now called upon to give
judgment.

* * *

On May 8th, 1924, there was concluded at Paris the Con-
vention 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, admin-
istrative and financial autonomy, within the limits prescribed
by the Statute which was annexed to the Convention and

9
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 300

which, as an annex, is to be considered under Article 16 of
the Convention as constituting for all purposes part of the
Convention.

The Court is not concerned with the reasons which led
to the decision to transfer the sovereignty over Meme] to
Lithuania upon the special terms set out in the Convention
and in the Statute, viz. that Memel should enjoy a régime
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 rth, 1921, both of which documents
have been laid before the Court, show that it was the inten-
tion 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.

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 regu-
lates 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.

IO
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 301

%

The application instituting proceedings states the origin of
the dispute as follows:

“The dismissal of the President of the Memel Directorate,
M. Bôttcher, 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.”

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.

The Directorate of Memel, of which M. Bôttcher 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.

On December r7th, 1931, M. Bôttcher, accompanied by
two members of the Chamber of Representatives, made a
journey to Berlin. There is no agreement between the Par-
ties to the present préceedings 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. Bôtt-
cher’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. Bôttcher
and his travelling companions had interviews with public
officials at the German Food Ministry and also at the Ministry
for Foreign Affairs.

Such, in broad outline, are the undisputed facts. It will
be necessary to go into the facts in somewhat greater detail

2 II
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 302

in connection with point 4, relating to the dismissal of
M. Bôttcher,

When the Governor of Memel became aware of the facts,
he informed M. Bôttcher on December 27th, 1931, that he
(M. Bôttcher) no longer possessed his (the Governor’s) con-
fidence and advised him to resign. On January x6th, 1932,
M. Béttcher replied that he thought that there was a mis-
understanding about his journey to Berlin, and that the
misunderstanding could easily be cleared up by a verbal
discussion. He therefore asked for an interview.

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. Bôttcher also made a
statement. Thereupon the Chamber expressed its continued
confidence in M. Bôttcher by a vote of fifteen to four, with
six abstentions. On February 6th, the Governor dismissed
M. Béttcher from the Presidency. The text of the letter
addressed to M. Béttcher was as follows:

“1Memel, le 6 février 1932.
Monsieur le Président,

Le 17 décembre de l’année dernière, à l’insu du Gouverne-
ment de la République, vous vous étes rendu dans la capitale
d'un État étranger et vous y avez engagé des négociations
avec le Gouvernèment 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'Etat et constitue
en outre une menace — ainsi qu'il résulte d’ailleurs des évé-
nements 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 19317,
par lequel je vous nommais président du Directoire.

1 “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
12
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 303

En vous communiquant cette décision, je vous prie de
remettre les affaires de président du Directoire à M. le conseil-
ler Toli8ius, 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, Gouverneur. ”

On the same day the Governor wrote to M. Zygaudas,
who was already a member of the Directorate, a letter con-
taining the following passage: “I commission you to take over
the duties of M. Bôttcher and to act as President of the
Directorate until I have appointed the new President of
the Directorate.” M. Zygaudas declined, and consequently the
Governor instructed M. Tolifius to act as President ad interim.
The other two members of the Directorate were also relieved
of their offices. |

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.

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 Lithua-
nian representatives.

there entered into negotiations with the Government of that State, dis-
regarding 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 Presi-
dent of the Directorate.

“TI take the opportunity of this notification to request you to hand over
the duties of President of the Directorate to Councillor Tolikius, 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.”

13
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 304

- Paragraphs 2 to 7 of M. Colban’s report were as follows:

ce

2. The question submitted to the Council is a very com-
plex one.

On the one hand, there is the assertion that M. Bôttcher,
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 Direc-
torate in certain circumstances, and that in this particular
instance M. Bôttcher was quite properly relieved of his
functions because the Lithuanian Government considered that
he had usurped powers which belong to the central Govern-
ment and had thus violated the Statute of Memel.

3. In addition to this difference on fundamentals, the facts
cited in support of M. Bôttcher’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 estab-
lish 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 con-
fidence of the Chamber of Representatives is an absolute
necessity. This Directorate ought to come before the Cham-
ber 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 work-
ing of the Statute re-established throughout the Territory.

7. These immediate steps do not prejudge the question of
the lawfulness of M. Béttcher’s dismissal. No opinion can

14
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 305

be expressed on this point until the question of the Gov-
ernor’s right to dismiss the Directorate has been settled. Even
if it were admitted that the Governor is empowered to dis-
miss 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.”

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 hesi-
tated to do so because of the difficulty of obtaining una-
nimity 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.

M. Colban’s report was adopted by the Council, the
Lithuanian representative making reserves as to paragraphs 5
and 6 of that report.

On February 23rd, 1932, M. Bôttcher 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. Bôttcher 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 roth
they had informed | the Governor that they were not able
to do so.

On February 27th, the Governor appointed as President
of the Directorate M. Simaitis, a non-party man. The Gov-
ernor 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 Ter-
ritory of Memel.

The President newly appointed is carrying on con-
versations 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.”

The leaders of the majority parties appear at the time to
have been content with the appointment of M. Simaitis, and

15
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 306

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 Direc-
torate, 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 mem-
bers 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.

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:

“1 Au cas où ceux-ci refuseraient de la donner, le Gouver-
nement 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’électioris nouvelles.”

The French Minister thereupon made it clear that, in the
opinion of the Four Powers, there was no justification for a
dissolution :

“2 J'ai fait alors remarquer à M. Zaunius que cette éventua-
lité était contraire aux vues des Puissances. Mais mon insis-

1 “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.”

? “T 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

16
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 307

tance ne l’a pas fait fléchir. I] 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,
après mtire réflexion, était résolu à exercer en pareille occur-
rence 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
siège qu’auraient lieu éventuellement les élections.”

On March igth, 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. Bôttcher
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 consti-
tute a new infraction of the Memel Convention.

The Lithuanian reply to this note was sent on the same
day. Its terms were as follows:

“1 J'ai pris note de votre communication. Quant au fond,
cette communication, dont la teneur m'avait d’ailleurs été

his attitude. He told me, with emphasis, that he had made express reser-
vations 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 à 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.”

‘1T 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 2oth last: -

17
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 308

communiquée par notre ministre à Londres, appelle de ma part
quelques bréves observations préliminaires.

Ad 1. — Le Directoire actuel du Territoire de Memel avait
été formé aprés de laborieuses négociations entre le président

‘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 Bôttcher 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.—-1 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 2oth.
I am quite unable to see how the dissolution of the Chamber of Represent-
atives 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 Govern-
ment’, 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 world-wide 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.”

18
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 309

du Directoire [M. Simaitis] et les partis de la Diète. Seul
le vote de cette Diète, lorsque le Directoire se présentera
devant celle-ci, sera en mesure de nous apprendre si le Direc-
toire 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 enga-
gements 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 à 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 der-
nières 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 Ia 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 à Genève avec les
représentants des Puissances signataires avec la Lithuanie de
la Convention de Paris, qu'elle ne saurait reconnaître une
espèce 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 Béttcher et.
les mesures que les organes compétents sont appelés à prendre
sur place en vue de constituer des organes autonomes, conformé-
ment 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 Genève de la constitution d'un Directoire d’un

caractère défini.
3 1g
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 310

Dans cette éventualité, je me verrais également obligé de
retirer la déclaration que j'ai faite à Genève aux représentants
des trois Puissances et qui a été répétée à Londres au Foreign

Office, par Je 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 Terri-
toire 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 parait anticiper la solution de la question de
droit que nous avons convenu de soumettre a 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 y a quelques jours dans la presse allemande et a
été répandue dans le monde entier par l'agence officielle alle-
mande Wolff, bien que d’une maniére inexacte et tendancieuse,
ce qui m’a désagréablement surpris, je me vois obligé de don-
ner a la presse lithuanienne un résumé succinct de votre com-
munication ainsi que des observations que je me suis permis
de faire a cette occasion.

Kaunas, le 19 mars 1932.”

Of the six points set out in the application of the Four
Powers, Nos. I, 2 and 4 are intimately connected with the
legality of the dismissal of M. Bôttcher by the Governor,
the action out of which the dispute arose.

Nos. r 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

20
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 31T

specific reference to the facts connected with the dismissal of
M. Bôttcher. The Court will follow the same method and,
without reference to the particular facts of the Béttcher 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.

Before doing so, however, the Court desires to draw atten-
tion 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.

It is true that the application instituting proceedings, in one
of its earlier paragraphs, states that it is the dismissal of
M. Béttcher, the appointment of the Directorate presided over
by M. Simaitis and the dissolution of the Chamber of Repre-
sentatives 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 pro-
ceedings; 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 rith, 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.

If it was the dismissal of M. Bôttcher 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 dis-
solution of the Chamber, the convenient and appropriate method
in which to bring the difference of opinion before .the Court

2T
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 312

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.

a

Point No. x is worded as follows:

“whether the Governor of the Memel Territory has
the right to dismiss the President of the Directorate”.

The contention of the Four Powers is that the Governor
has no such right. As the jurisdiction of the Court is re-
stricted 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 pos-
sesses no such right under the Memel Statute.

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.

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.

22
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 313

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 legis-
lative, judicial, administrative and financial decentralization,
which should not disturb the unity of the Lithuanian State
and should operate within the framework of Lithuanian
sovereignty. |

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.

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.

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 Sta-
tute, which provide that Memel shall constitute an autono-
mous 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 juris-
diction of the competent organizations of the Lithuanian
Republic.”

23
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 314

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 pro-
vided 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.

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. | | |

For the purpose of its autonomy, ie. for the purpose of
managing its local affairs as it pleases, the Memel Tertitory
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.

’ 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.

. 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:

(I) that the Governor is bound under Article 10 to pro-
mulgate 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 that

24
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 315

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 Constitu-
tion) or if they are incompatible with the international obli-
gations 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.

These points show in a striking manner that the legisla-
ture 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.

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 com-
posed 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 Represent-
atives 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 Repre-
sentatives 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.”

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.”

25
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 316

‘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 organ-
izations of the Lithuanian Republic.

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.

The Court finds it impossible to believe that it was the
intention of 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.

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 non 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.

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 non avenu.

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

26
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 317

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 Presi-
dent if the Chamber accords him its confidence.

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 Direc-
torate 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 Director-
ate is absolute and persists in all cases so long as the Cham-
ber supports him, would result in a President being able to
violate the Statute and to flout the authorities of the Lithua-
nian 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. |

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 ro. If its acts as a
legislature exceed those limits, they are vetoed under Arti-
cle 16. It would be quite illogical to hold that in the executive
sphere the Chamber should be able by a vote of confidence

4 27
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 318

to extend immunity to a President whose actions exceeded
those limits.

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.

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 non avenus may be no
sufficient protection.

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.

Under the proper interpretation of the Statute, the Governor
must be regarded as entitled to watch the acts of the execu-
tive 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 stipu-
lations 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 appro-
priate steps to protect the interests of the Lithuanian Gov-
ernment.

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.

28
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 319

The dismissal of the President of the Directorate by the
Governor would constitute a legitimate and appropriate meas-
ure 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.

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.

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.

The Agent for the Lithuanian Government based his sub-
mission that the Governor was entitled to dismiss the Pre-
sident 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 ade-
quately, and that the power to dismiss followed necessarily
from the existence of this right of supervision and control.

The Court is not disposed to accept these arguments.

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

29
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 320

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.

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 Con-
vention 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 unneces-
sary to consider the extent to which the constitutions of other
countries can be used as a guide interpreting the Statute of
Memel.

The Court does not consider that any right on the part
of the Governor of supervision and control over the execu-
tive 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.

The submissions of the Parties as regards point I are
directly opposed to each other. According to that of Lithua-
nia, 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.

°

39
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 3215

*
% *

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’’.

The Court has already laid down the broad principle
governing the exercise by the Governor of the right to dis-
miss the President of the Directorate at Memel. The prin-
ciple 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 con-
ditions or circumstances were present would always depend
on the facts of the particular case.

*
* *

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”.

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. .

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.

The autonomy which the Statute confers upon the Memel
Territory covers so broad a field that the powers of govern-
ment conferred upon the Directorate must entail the constant
‘exercise of governmental acts. The Territory cannot without
inconvenience be left without a government. The Court ob-
serves that this fact was recognized by the Governor at the

31
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 322

time of the dismissal of M. Béttcher, for he took steps at
once to empower another gentleman to exercise the powers
of President until a definitive appointment was made.

The form which was given to the dismissal of M. Bôttcher
was that of the revocation of the decree by which the Gov-
ernor had appointed him to be President of the Directorate.
This is the form which presumably would be employed when-
ever 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 Presi-
dent and therefore limited, so far as the Governor is concerned,
to the President. It does not automatically entail the cessa-
tion of the functions of the other members of the Directorate.

The system followed in the Statute for bringing a Direc-
torate into being—that of the Governor appointing the Presi-
dent, 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.

The submission of the Lithuanian Government on point 3
is that the dismissal of the President by the Governor in-
volves 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. |

For the reasons explained above, the Court does not accept
this submission.

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.

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

32
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 323

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.

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.

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.

*
* %

Point 4 is worded as follows:

‘if the right to dismiss the President of the Directorate
only exists under certain conditions or in certain circum-
stances, whether the dismissal of M. Bôttcher carried out
on February 6th, 1932, was in order in the circumstances
in which it took place”.

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. Bôttcher was dismissed
bring the case within those conditions.

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 Con-
vention of May 8th, 1924, with its annexes, and calculated to pre-
judice the sovereignty of Lithuania and where no other remedy
is available; the existence or otherwise of such a situation

33
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 324

being a question for the Governor to determine, but subject
always to the responsibility of the Lithuanian Government
under Article 17 of the Convention.

The point which the Court must now decide is whether
M. Bôttcher’s actions, when viewed in the light of the above
statement of principle, justify the Governor in dismissing
him. .

The reasons given for the Governor’s action are set out in
the letter of dismissal which he sent to M. Béttcher on
February 6th, 1932. They are that M. Béttcher, without
the knowledge of the Lithuanian Government, had gone to
the capital of a foreign State and there engaged in negotia-
tions 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. Bôttcher went.

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 2oth, 1932, and on the pro-
ceedings in the Chamber of Representatives at Memel on
January 25th. The Lithuanian Agent on his part has added
certain other documents.

The facts relating to M. Béttcher’s visit to Berlin have been
stated in broad outline in the earlier part of this Judgment.

The position taken by M. Bôttcher 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 Ger-
many 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

34
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 325

when he and his colleagues learned from the German author-
ities 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.

It is none the less true, however, that M. Bôttcher’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 with-
out 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 Lithua-
nian 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..

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. Bottcher’s action exceeded the competence of the Memel
authorities and thereby violated the Statute.

The character of M. Bôttcher’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 agri-
cultural produce a matter of great importance to the people of
the Territory. But the gravity of the incident must be judged

5 35
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 326

by reference to the repercussions which such an arrangement
as M. Bôttcher hoped for might have. |

It is impossible to read the minutes of the meetings of the
Council of the League on February 13th and February 2oth,
1932, without observing that at the time of the Bétt-
cher 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.

In these circumstances, M. Bôttcher’s act was one which
Lithuania was justified in regarding as being: of a serious
nature and one which was calculated to prejudice her sover-
eign 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.

It is not apparent that any measure which left M. Béttcher
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. Bôttcher’s actions as non avenus would have afforded
no adequate protection. It would have afforded no guar-
antee against further efforts of a like kind on the part of
M. Bôttcher 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 exclu-
sive competence of the Lithuanian Government.

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. Bôttcher, 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,

36
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 327

and that if the Chamber renews its confidence in the Pre-
sident of the Directorate, the Governor can take no further
action.

The purpose with which the Governor submitted the facts
of his dispute with M. Bôttcher 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 Pre-
sident 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.

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.

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 Direc-
torate. The Lithuanian submission is that the dismissal of
M. Bôttcher was in order.

The Court decides that the dismissal of M. Bôttcher on
February 6th, 1932, was in order in the circumstances in
which it took place.

# +

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. Bôttcher handed
in his resignation and the leaders of the majority ‘parties

37
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 328

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 disso-
lution 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.

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.

The objection must be overruled in the present case.

The Court is satisfied that the Lithuanian Agent has mis-
understood 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 Simaitis Directorate and as regards
the dissolution of the Chamber was an act which the Statute
of Meme! obliged him to refrain from taking in the parti-
cular 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 differ-
ence 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.

Points 5 and 6 must therefore be dealt with on their merits.

*
* *

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”.

38
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 329

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.

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 appoint-
ment 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 appoint-
ment 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.

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 Lithua-
nian 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 juris-
diction 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.

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 cover-
ing also the appointment by the President of the other
members of the Directorate.

39
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 330

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 Direc-
torate 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 Presi-
dent. 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.

It may be taken for granted that in coming to a decision
as to whom he would appoint to be President of the Direc-
torate, 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.

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 Gov-
ernor of the Territory would feel to do his best to make the
Statute work successfully.

There certainly is no obligation upon the Governor to
secure the concurrence of the Chamber in advance by nego-
tiations 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,

40
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 331

the Governor makes the appointment on his own respons-
ibility and the Chamber gives or refuses its confidence at a
later stage. |

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 con-
fidence 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.

After the resignation of M. Bôttcher 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.

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 presum-
ably 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.

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

41
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 332

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 form-
ation 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 Gov-
ernor from appointing M. Simaitis with the hope and the inten-
tion 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 permis-
sible under the Statute.

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. Simaitis to be President of the Directorate on Febru-
ary 27th, 1932, the Governor infringed no stipulation of the
Memel Statute, and that in consequence the appointment was
not infected with any irregularity.

The submission on behalf of the Four Powers is that the
appointment of the Directorate presided over by M. Simaitis
was not in order.

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 appoint-
ment of the Directorate over which M. Simaitis presided was
therefore in order.

42
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 333

*
* *

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”.

The French text of the question shows that by the word
“Diet” in the English text is meant the ‘‘Chamber of Represent-
atives” which is set up by Articles 10 to 16 of the Statute as
the legislative authority of the Memel. Territory.

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.”

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 Direc-
torate. 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 deduc-
t'on 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 deci-
sion whether or not the Chamber should be dissolved.

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.

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

6 43
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 334

nominee for the post of President of the Directorate. There
is no guarantee that their views represent in any way what-
ever the views of the local elements at Memel. If such a
body is competent to agree.to a dissolution under Article x2,
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.

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 con-
fidence on March 22nd, 1932. Aiter 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 Gov-
ernor’s decree of dissolution.

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.

Dissensions may well arise between the Chamber and a
Directorate duly installed in office, ie. 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 régime. 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 Direc-
torate 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 Direc-
torate 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

44
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 335

Chamber without the concurrence of an element which can
be regarded as representing local views and feelings.

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.

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.

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.

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 appoint-
ment 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

45
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 336

enjoyed the confidence of the Chamber cannot proceed forth-
with to dissolve the latter, but must on the contrary con-
voke 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.

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.

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.

The answer as to point 6 must therefore be that the dissolu-
tion of the Chamber on March 22nd was not in order.

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 Couri is satisfied that that was not the

46
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 337

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 inter-
pretation of the Statute which would serve as a guide for
the future.

FOR THESE REASONS,

The Coutt,
‘by ten votes to five,
decides :

(x) 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 appoint-
ments of the other members of the Directorate ;

(3) that the dismissal of M. Bôttcher 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 appoint-
ment 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 Direc-
torate presided over by M. Simaitis had not received the
confidence of the Chamber, was not in order.

47
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 338

Done in French and English, the French text being author-
itative, 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) À. HammarskJOLp,

Registrar.

MM. de Bustamante, Altamira, Schiicking 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 Jonk-
heer 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 I in the opinion
which follows hereafter.

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.

M. Urrutia, 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

48
INTERPRETATION OF THE STATUTE OF MEMEL TERRITORY 339

his opinion, the right of the Governor to dismiss the Pre-
sident of the Directorate, while the latter possesses the con-
fidence 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 Sta-
tute, 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 autoriomy of the said Territory within the Republic
of Lithuania and the limits of the latter’s sovereignty in the
autonomous Territory. |

M. Romer’is, Judge ad hoc, while concurring in clauses I
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) À. H.

49.