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    Judgment

    244
    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, represented by H.E. M. Massimo Pilotti, First President of a Court of Appeal, Legal Adviser to the Royal Ministry for Foreign Affairs, and by H.E. Count Senni, Envoy Extraordinary and Minister Plenipotentiary of Italy at The Hague ;

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

    and

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

    The Court, composed as above, delivers the following judgment

    upon a preliminary objection filed by the Lithuanian Government :

    By an application instituting proceedings, filed with the Registry of the Court on April 11th, 1932, in accordance with Article 40 of the Statute and Article 35 of the Rules of Court, the Governments of His Britannic Majesty in the United Kingdom of Great Britain and Northern Ireland, of the French Republic, of His Majesty the King of Italy and of His Majesty the Emperor of Japan, brought before the

    245
    Permanent Court of International Justice a suit against the Government of the Lithuanian Republic in respect of a difference of opinion as to whether certain acts of the latter Government are in conformity with the Statute of the Memel Territory annexed to the Convention of May 8th, 1924, concerning Memel ;

    In the application, the Applicant Powers stated the subject of the dispute in the following terms :

    "May the Court be pleased :...

    To decide...

    (1) whether the Governor of the Memel Territory has the right to dismiss the President of the Directorate ;

    (2) in the case of an affirmative decision, whether this right only exists under certain conditions or in certain circumstances, and what those conditions or circumstances are ;

    (3) if the right to dismiss the President of the Directorate is admitted, whether such dismissal involves the termination of the appointments of the other members of the Directorate ;

    (4) if the right to dismiss the President of the Directorate only exists under certain conditions or in certain circumstances, whether the dismissal of M. Böttcher, carried out on 6 February 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."

    As the Court included, upon the Bench, judges of the nationality of the Applicant Powers but no judge of Lithuanian nationality, the Lithuanian Government availed itself of its right under the terms of Article 31 of the Statute to appoint a judge ad hoc.

    By an Order dated April 16th, 1932, the President of the Court—the latter not being then in session at the time— fixed the dates for the presentation of the documents in the written procedure ; the last date upon which the Lithuanian Government was to be allowed to present its Counter-Case was fixed as May 30th, 1932. This document was only

    246
    filed on May 31st, 1932 ; but the President, on that date, decided, under Article 33 of the Rules of Court, that it was to be considered as valid.

    By a document filed at the same time as its Counter-Case, the Lithuanian Government objected that the Court had no jurisdiction to deal with points 5 and 6 of the Application mentioned above. This document concluded by asking the Court

    "To declare that it has no jurisdiction to give a decision, at the present stage of the proceedings, upon points 5 and 6 of the application presented to the Court on April 11th, 1932, by the Representatives 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".

    By an Order dated June 1st, 1932, the President of the Court—the latter though in session not being so constituted that it could deal with the present case—, having decided that the said document fulfilled the requirements of Article 38 of the Rules of Court as to form, and acting in accordance with that Article, fixed June 13th, 1932, as the last date upon which the Applicant Powers in the case relating to the interpretation of the Statute of Memel might present a written statement of their observations and submissions upon the preliminary objection raised by the Lithuanian Government.

    This statement, which was filed on June 10th, 1932, concluded as follows :

    "The Applicant Powers therefore consider that the arguments advanced by the Lithuanian Government in support of its preliminary objection are unfounded, and they accordingly ask the Court to overrule it."

    At public hearings held on June 14th and 15th, 1932, the Court heard oral observations upon the Lithuanian Government’s objection by H.E. M. Sidzikauskas, Agent of the Lithuanian Government, and by M. Charguéraud, Assistant Agent of the French Government, speaking on behalf of all the Applicant Powers.

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

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    The Lithuanian Government has founded its preliminary objection upon Article 17 of the Convention of May 8th, 1924, concerning Memel ; this Article is worded as follows :

    "The High Contracting Parties declare that any Member of the Council of the League of Nations shall be entitled to draw the attention of the Council to any infraction of the provisions of the present Convention. >

    In the event of any difference of opinion in regard to questions of law or of fact concerning these provisions between the Lithuanian Government and any of the Principal Allied Powers members of the Council of the League of Nations, such difference shall be regarded as a dispute of an international character under the terms of Article 14 of the Covenant of the League of Nations. The Lithuanian Government agrees that all disputes of this kind shall, if the other Party so requests, be referred to the Permanent Court of International Justice. There shall be no appeal from the Permanent Court’s decision, which shall have the force and value of a decision rendered in virtue of Article 13 of the Covenant."

    The Lithuanian Government in its Counter-Case of May 26th, 1932, contends that

    "the two paragraphs of Article 17 relate to two distinct phases of one and the same procedure, and that, accordingly, all disputes, before being referred to the Court, must be submitted to the Council for examination. As this condition has not been observed by the Applicant Powers in regard to questions 5 and 6 of their application, the Lithuanian Government has felt obliged to raise a preliminary objection, in accordance with Article 38 of the Rules of Court, and to request the Court to decide that, at present, it has no jurisdiction to pass upon questions 5 and 6".

    In the preliminary objection also dated May 26th, 1932, the Lithuanian Government summarizes its standpoint as follows :

    "Thus it must be concluded that paragraph 2 of Article 17 of the Convention of Memel regards recourse to the Permanent Court of International Justice as a procedure only to be employed after a failure of the procedure before the Council

    248
    of the League of Nations, under paragraph 1 of the same Article 17."

    On the other hand, the four Applicant Powers consider that the procedure referred to in the first paragraph of Article 17, and that referred to in its second paragraph, are two separate proceedings ; and that a matter may properly be submitted to the Court under paragraph 2 even though it has not previously been brought before the Council of the League of Nations, as is the case here with regard to questions 5 and 6.

    The judgment which the Court has to deliver on the preliminary objection of the Lithuanian Government constitutes an interpretation of Article 17 of the Convention of Paris of May 8th, 1924.

    It should be noted, in the first place, that the proceedings before the Council, contemplated by paragraph 1 of Article 17, are quite different from the judicial proceedings before the Court to which the second paragraph of Article 17 relates. If proceedings before the Council are to be a condition precedent to proceedings before the Court, the intention of the contracting Parties to stipulate such a condition must be clearly established.

    But it is to be observed that there is nothing in the text of Article 17 to show that it was the intention of the Parties to make proceedings before the Council a condition precedent to proceedings before the Court.

    The actual text of Article 17 shows that the two procedures relate to different objects. The object of the procedure before the Council is the examination of an "infraction of the provisions of the Convention", which presupposes an act already committed, whereas the procedure before the Court is concerned with "any difference of opinion in regard to questions of law or fact". Such difference of opinion may arise without any infraction having been noted. It is true that one and the same situation may give rise to proceedings either before the Council under the first paragraph, or before the Court under the second ; but that will not always be the case, and this suffices to prove that the two procedures are not necessarily connected with one another.

    249
    To this distinction by reason of their objects, Article 17 of the Convention of May 8th, 1924, adds a distinction with regard to those who may initiate the proceedings. While any Member of the Council of the League of Nations may institute proceedings before the Council under paragraph 1 of Article 17, proceedings before the Court under paragraph 2 may only be initiated by one of the Principal Allied Powers, Member of the Council of the League of Nations.

    If the principle of the unity of the proceedings were to be adopted, it would follow that a case could not be proceeded with before the Court, under paragraph 2 of Article 17, if it had been brought before the Council, under paragraph 1, by a Member of the Council other than one of the Principal Allied Powers which signed the Convention.

    Moreover, the Agent for the Lithuanian Government has thought to find arguments in support of his contention in the close connection which, according to him, exists between the two paragraphs of Article 17 as the result of the use in the second paragraph of the words "these provisions", which refer to the words "provisions of the present Convention" in the first paragraph—and also in the history of the text of the Article.

    As regards the first of these arguments, the Court is unable to regard it as of sufficient weight to justify the conclusion that the contracting Parties regarded proceedings before the Council as a necessary preliminary to proceedings before the Court. In view of the context, the words "these provisions" simply indicate that the provisions of which the interpretation may give rise under the second paragraph to proceedings before the Court, are the same as those to any infraction of which the attention of the Council may be called under paragraph 1.

    As regards the arguments based on the history of the text, the Court must first of all point out that, as it has constantly held, the preparatory work cannot be adduced to interpret a text which is, in itself, sufficiently clear. The Court is, moreover, of opinion that the history of Article 17 of the Convention provides no material which conflicts with the interpretation of the terms of the Article standing by themselves.

    250
    The arguments based on the history of the text which are adduced by the Lithuanian Government may be summarized as follows :

    (1) the word "further", which appears in the jurisdictional clauses inserted in treaties for the protection of Minorities or in Minority articles in certain Peace Treaties, does not appear in paragraph 2 of Article 17 of the Memel Convention ;

    (2) following the negotiations which took place in 1923, at Paris, between the Committee of the Conference of Ambassadors and the Lithuanian delegation, a compromise is said to have been reached between the Parties, which was embodied in the present wording of Article 17 of the Memel Convention ; it is said that under this compromise recourse to the Permanent Court of International Justice is only open to the Principal Allied Powers, Members of the Council of the League of Nations, after the Council has examined the infraction of the Convention to which its attention has been drawn by one of its Members.

    In order to reply to these two arguments, the Court must briefly trace the history of Article 17.

    Article 17 was the outcome of a Lithuanian proposal, made during the negotiations at Paris between the Conference of Ambassadors and the representatives of Lithuania and of the Memel Territory in order to frame an organic statute for the said Territory, embodying the conditions under which the Principal Allied Powers by a decision dated February 16th, 1923, had declared their willingness to transfer to Lithuania the sovereignty over the Memel Territory which Germany had ceded to those Powers.

    The draft convention which the Lithuanian delegation presented to the Conference of Ambassadors on April 11th, 1923, contained an Article 49, submitted as an alternative proposal, the two paragraphs of which reproduced the wording of paragraphs 2 and 3 of the jurisdictional clause of the Treaties for the protection of Minorities, or the Minority Clauses in certain Peace Treaties, with the exception of two minor differences, purely of form, and the omission of three groups of words. The text, in which these three groups of words have been interpolated in square brackets, is as follows :

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    "Lithuania agrees. that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction [or any danger of infraction] of the articles of the present Convention [, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances].

    Lithuania further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Lithuanian Government and any one of the Principal Allied and Associated Powers, [or any other Power, a] Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Lithuanian Government hereby consents that any such dispute shall, if the other Party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant."

    On August 8th, 1923, the Conference of Ambassadors transmitted to the Prime Minister, Minister for Foreign Affairs of Lithuania, a new text which appeared as Article 62. In this Article the words "Lithuania agrees" are replaced by the words "The High Contracting Parties declare" ; the beginning of paragraph 2—reproducing thenceforward the actual wording of the beginning of the third paragraph of the declaration of May 12th, 1922, "concerning the protection of Minorities in Lithuania"—is adapted to this wording ; and, lastly, the word "dispute" in paragraph 2 of Article 62 of the draft is replaced by the word "difference". It was at this moment that the final form of the provision which subsequently became Article 17 of the Convention of May 8th, 1924, was fixed, except for the "s" in the word "members", which was added later.

    In the light of this historical account, the omission of the word "further", which no longer served any purpose, is quite naturally explained by the evolution of the text, and it is impossible to deduce from it the conclusion which the Agent of the Lithuanian Government claims to draw therefrom.

    As to the alleged compromise, the Lithuanian Government contends that this compromise was effected when the Committee of the Conference of Ambassadors accepted the Article 49 proposed as an alternative by the Lithuanian repre-

    252
    sentatives. It is said that while on the one hand the Committee of the Conference of Ambassadors wished to reserve to the Council of the League of Nations the right of final decision of disputes as to the application of the Convention concerning the Memel Territory, and while, on the other hand, Lithuania wished in such cases to make the Permanent Court of International Justice the arbitrator, Article 49 as proposed by Lithuania and eventually accepted by the Committee of the Conference of Ambassadors provided for recourse both to the Council and to the Court.

    Even supposing that this constituted the conclusion of a compromise, there is nothing in it which bears on the question whether the Court may only be resorted to after the failure of proceedings before the Council of the League of Nations. In fact, nothing in the history or in the successive wordings of the texts affords any indication in this respect ; nor has any proof of it been furnished by the Lithuanian Agent in his oral arguments.

    The Court has been unable to find any support for the Lithuanian contention in the report of the Committee of Jurists appointed by the Council of the League of Nations on September 3rd, 1926 (Official Journal of the League of Nations, 1926, p. 1424). The Lithuanian Government relies in this connection on the French text of a passage in this report, the English text of which is as follows :

    "... only in the case of a difference of opinion between the Lithuanian Government and one of the Principal Allied Powers members of the Council can such a dispute be brought before the Court of Justice. The provision, therefore, does not apply to a difference of opinion between any Members of the Council other than one of the Principal Powers and the Lithuanian Government."

    The Court, however, considers that, having regard to the circumstances in which this report was submitted, this passage relates exclusively to the question between what Parties a difference of opinion must exist in order that it may be brought before the Court under Article 17, paragraph 2, of the Convention.

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    Furthermore, it observes that both the report of July 25th, 1923, of the above-mentioned Committee of the Conference of Ambassadors (Documents diplomatiques, Question de Memel, Publication of the Lithuanian Ministry for Foreign Affairs, 1923, Vol. I, p. 222) and the Rapporteur to the Council at its meeting of February 20th, 1932 (Official Journal of the League of Nations, 1932, p. 545), are in agreement with the view maintained by the four Applicant Powers.

    The Court desires to emphasize that nothing that is said in this judgment is to be regarded as prejudging in any way the interpretation of the jurisdictional clause in treaties for the protection of Minorities, or in the Minority provisions of certain Peace Treaties ; this clause does not apply in the present case and has not been submitted to the Court.

    For these reasons,

    The Court,

    by thirteen votes to three,

    overrules the preliminary objection raised by the Lithuanian Government ;

    and reserves points 5 and 6 of the Application instituting proceedings of April 11th, 1932, for judgment on the merits.

    Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-fourth day of June, nineteen hundred and thirty-two, in six copies, one of which shall be placed in the Archives of the Court and the others delivered to the Agents of the Government of His Britannic Majesty in the United Kingdom of Great Britain and Northern Ireland, the Government of the French Republic, the Government of His Majesty the King of Italy, the Government of His Majesty the Emperor of Japan and the Government of the Republic of Lithuania.

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    Baron Rolin-Jaequemyns, Judge, declares that 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, appends to the judgment the following dissenting opinion.

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