|
[p.6]
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 1 June 2001, the Principality of Liechtenstein (hereinafter referred
to as “Liechtenstein”) filed in the Registry of the Court an Application
instituting proceedings against the Federal Republic of Germany (hereinafter
referred to as “Germany”) relating to a dispute concerning
“decisions of Germany, in and after 1998, to treat certain property of
Liechtenstein nationals as German assets having been ‘seized for the
purposes of reparation or restitution, or as a result of the state of war’ -
i.e., as a consequence of World War II -, without ensuring any compensation
for the loss of that property to its owners, and to the detriment of
Liechtenstein itself”.
In order to found the jurisdiction of the Court, the Application relied on
Article 1 of the European Convention for the Peaceful Settlement of Disputes
of 29 April 1957, which entered into force between Liechtenstein and Germany
on 18 February 1980.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the German Government by the Registrar; and, in
accordance with paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.
3. By an Order of 28 June 2001, the Court fixed 28 March 2002 as the
time-limit for the filing of the Memorial of Liechtenstein and 27 December
2002 for the filing of the Counter-Memorial of Germany, the latter
time-limit being fixed without prejudice to the possible application of
Article 79, paragraph 1, of the Rules of Court, in their revised version
applicable with effect from 1 February 2001. On 28 March 2002, within the
time-limit thus prescribed, Liechtenstein filed in the Registry its
Memorial.
4. Since the Court included upon the Bench no judge of the nationality of
Liechtenstein, Liechtenstein exercised its right under Article 31, paragraph
2, of the Statute to choose a judge ad hoc to sit in the case. It first
chose Mr. Ian Brownlie, who resigned on 25 April 2002, and subsequently Sir
Franklin Berman.
5. By a Note Verbale of 29 April 2002, the Republic of Austria requested the
Court to furnish it with a copy of the Memorial of Liechtenstein. Having
ascertained the views of the Parties pursuant to Article 53, paragraph 1, of
the Rules of Court, the Court decided that it was not appropriate to grant
that request. The Registrar communicated that decision to Austria and to the
Parties by letters dated 18 July 2002.
6. On 27 June 2002, within the time-limit prescribed in Article 79,
paragraph 1, of the Rules of Court, Germany raised preliminary objections
relating to the jurisdiction of the Court to entertain the case and to the
admissibility of the Application submitted by Liechtenstein. The President
of the Court, noting that, by virtue of Article 79, paragraph 5, of the
Rules of Court, the proceedings on the merits were suspended, and having
ascertained the views of the Parties at a meeting held with their Agents, by
an Order dated 12 July 2002, fixed 15 November 2002 as the time-limit within
which Liechtenstein might present a written statement of its observations
and submissions on the prelimi-[p 11]nary objections raised by Germany.
Liechtenstein filed such a statement within the time-limit so fixed, and the
case thereupon became ready for hearing in respect of the preliminary
objections.
7. By letters dated 13 March 2003, the Registrar informed the Parties that
Judge Simma, of German nationality, had indicated to the Court that he would
not be able to participate in the decision of the case in view of the
provisions of Article 17, paragraph 2, of the Statute. In accordance with
Article 31, paragraph 3, of the Statute and Article 37, paragraph 1, of the
Rules of Court, Germany chose Mr. Carl-August Fleischhauer to sit as judge
ad hoc in the case.
8. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having
ascertained the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings.
9. Public hearings were held on 14, 16, 17 and 18 June 2004, during which
the Court heard the oral arguments and replies of:
For Germany: Mr. Thomas Läufer,
Mr. Jochen Frowein,
Mr. Christian Tomuschat,
Mr. Pierre-Marie Dupuy.
For Liechtenstein: H.E. Mr. Alexander Goepfert,
H.E. Mr. M. Roland Marxer,
Mr. James Crawford,
Mr. Dieter Blumenwitz,
Mr. Thomas Bruha,
Mr. Gerhard Hafner,
Mr. Alain Pellet.
10. In its Application, the following requests were made by Liechtenstein:
“For these reasons, each of which is pleaded in the alternative,
Liechtenstein, reserving the right to supplement or to amend this
Application and subject to the presentation to the Court of the relevant
evidence and legal argument, requests the Court to adjudge and declare that
Germany has incurred international legal responsibility and is bound to make
appropriate reparation to Liechtenstein for the damage and prejudice
suffered. Liechtenstein further requests that the nature and amount of such
reparation should, in the absence of agreement between the parties, be
assessed and determined by the Court, if necessary, in a separate phase of
the proceedings.”
11. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Liechtenstein,
in the Memorial:
“1. For the reasons set out above, and reserving the right to amend these
submissions in the light of further evidence and argument, the Principality
of Liechtenstein requests the Court to adjudge and declare that:
(a) by its conduct with respect to Liechtenstein and the Liechtenstein
property, Germany has failed to respect the sovereignty and neutral-[p
12]ity of Liechtenstein and the legal rights of Liechtenstein and its
nationals with respect to the property;
(b) by its failure to make compensation for losses suffered by Liechtenstein
and its nationals, Germany is in breach of the rules of international law;
(c) consequently Germany has incurred international legal responsibility and
is bound to provide appropriate assurances and guarantees of non-repetition,
and to make appropriate reparation to Liechtenstein for the damage and
prejudice suffered.
2. Liechtenstein further requests that the amount of compensation should, in
the absence of agreement between the parties, be assessed and determined by
the Court in a separate phase of the proceedings.”
On behalf of the Government of Germany,
in the Preliminary Objections:
“On the basis of the preceding Submissions, Germany summarizes its
Preliminary Objections as follows:
(1) The case is outside the jurisdiction of the Court since
(a) there exists no dispute as between Liechtenstein and Germany in the
sense required by the Statute of the Court and Article 27 of the European
Convention for the Peaceful Settlement of Disputes of 29 April 1957;
(b) all the relevant facts occurred before the entry into force of the
European Convention as between the Parties;
(c) the occurrences on which Liechtenstein bases its claims fall within the
domestic jurisdiction of Germany.
(2) Liechtenstein’s Application is furthermore inadmissible since
(a) Liechtenstein’s claims have not been sufficiently substantiated;
(b) adjudication of Liechtenstein’s claims would require the Court to pass
judgment on rights and obligations of the successor States of former
Czechoslovakia, in particular the Czech Republic, in their absence and
without their consent;
(c) the alleged Liechtenstein victims of the measures of confiscation
carried out by Czechoslovakia have failed to exhaust the available local
remedies.
For the reasons advanced, Germany requests the Court to adjudge and declare
that:
-it lacks jurisdiction over the claims brought against Germany by the
Principality of Liechtenstein, referred to it by the Application of
Liechtenstein of 30 May 2001,
and/or that
- the claims brought against Germany by the Principality of Liechtenstein
are inadmissible to the extent specified in the present Preliminary
Objections.”
On behalf of the Government of Liechtenstein,
in the Written Statement of its observations and submissions on the
preliminary objections raised by Germany: [p 13]
“For all these reasons, and reserving the right of the Principality of
Liechtenstein to supplement them in view of any further German arguments, it
is respectfully submitted:
(a) that the Court has jurisdiction over the claims presented in the
Application of the Principality of Liechtenstein, and that they are
admissible;
and correspondingly
(b) that the Preliminary Objections of Germany be rejected in their
entirety.”
12. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of Germany,
at the hearing of 17 June 2004:
“Germany requests the Court to adjudge and declare that:
-it lacks jurisdiction over the claims brought against Germany by the
Principality of Liechtenstein, referred to it by the Application of
Liechtenstein of 30 May 2001,
and that
- the claims brought against Germany by the Principality of Liechtenstein
are inadmissible to the extent specified in its Preliminary Objections.”
On behalf of the Government of Liechtenstein,
at the hearing of 18 June 2004:
“For the reasons set out in its Written Observations and during the oral
proceedings, the Principality of Liechtenstein respectfully requests the
Court:
(a) to adjudge and declare that the Court has jurisdiction over the claims
presented in its Application and that they are admissible;
and accordingly,
(b) to reject the Preliminary Objections of Germany in their entirety.”
***
13. During the Second World War Czechoslovakia was an allied country and a
belligerent in the war against Germany. In 1945, it adopted a series of
decrees (the “Beneš Decrees”), among them Decree No. 12 of 21 June 1945,
under which “agricultural property” of “all persons belonging to the German
and Hungarian people, regardless of their nationality” was confiscated.
Under the terms of this Decree, “agricultural property” included, inter
alia, buildings, installations and movable property pertaining thereto. The
properties confiscated under Decree No. 12 comprised some owned by
Liechtenstein nationals, including Prince Franz Josef II of Liechtenstein.
These measures were contested by [p 14] Prince Franz Josef II in his
personal capacity before the Administrative Court in Bratislava. On 21
November 1951, it held that the confiscations of the property of the Prince
of Liechtenstein were lawful under the law of Czechoslovakia.
14. Following earlier Allied enactments concerning a reparations régime in
general and German external assets and other property seized in connection
with the Second World War in particular, a special régime dealing with the
latter subject was created by Chapter Six of the Convention on the
Settlement of Matters Arising out of the War and the Occupation, signed by
the United States of America, the United Kingdom, France and the Federal
Republic of Germany, at Bonn on 26 May 1952 (as amended by Schedule IV to
the Protocol on the Termination of the Occupation Regime in the Federal
Republic of Germany, signed at Paris on 23 October 1954) (hereinafter
referred to as the “Settlement Convention”). This Convention entered into
force on 5 May 1955.
Article 3 of Chapter Six of the Settlement Convention read as follows:
“1. The Federal Republic shall in the future raise no objections against the
measures which have been, or will be, carried out with regard to German
external assets or other property, seized for the purpose of reparation or
restitution, or as a result of the state of war, or on the basis of
agreements concluded, or to be concluded, by the Three Powers with other
Allied countries, neutral countries or former allies of Germany.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
3. No claim or action shall be admissible against persons who shall have
acquired or transferred title to property on the basis of the measures
referred to in paragraph 1 and 2 of this Article, or against international
organizations, foreign governments or persons who have acted upon
instructions of such organizations or governments.”
Article 5 of Chapter Six of the Settlement Convention provided that:
“The Federal Republic shall ensure that the former owners of property seized
pursuant to the measures referred to in Articles 2 and 3 of this Chapter
shall be compensated.”
15. The régime of the Settlement Convention was intended to be temporary
until the problem of reparation was finally settled “by the peace treaty
between Germany and its former enemies or by earlier agreements concerning
this matter” (Article 1 of Chapter Six). A final settlement was brought
about through the conclusion in 1990 of the Treaty on the Final Settlement
with respect to Germany (signed at Moscow on 12 September 1990 and entered
into force on 15 March 1991). The parties to this Treaty were the four
former Occupying Powers, the Federal Republic of Germany and the German
Democratic Republic. On 27 and 28 Septem-[p 15]ber 1990, an Exchange of
Notes was executed between the three Western Powers and the Government of
the Federal Republic of Germany (the parties to the Settlement Convention)
under which that Convention would terminate simultaneously with the entry
into force of the Treaty. Whereas that Exchange of Notes terminated the
Settlement Convention itself, including Article 5 of Chapter Six (relating
to compensation by Germany), it provided that paragraphs 1 and 3 of Article
3, Chapter Six, “shall, however, remain in force”.
16. In 1991, a painting by the seventeenth century Dutch artist Pieter van
Laer was lent by a museum in Brno (Czechoslovakia) to a museum in Cologne
(Germany) for inclusion in an exhibition. This painting had been the
property of the family of the Reigning Prince of Liechtenstein since the
eighteenth century; it was confiscated in 1945 by Czechoslovakia under the
Beneš Decrees. The Administrative Court of Bratislava in 1951 dismissed the
appeal by Prince Franz Josef II of Liechtenstein against the measures of
confiscation pursuant to which his property, including the Pieter van Laer
painting, had been seized (see paragraph 13 above). In 1991, Prince
Hans-Adam II of Liechtenstein filed a lawsuit in the German courts in his
personal capacity to have the painting sequestered and returned to him as
his property (hereinafter referred to as the “Pieter van Laer Painting
case”). The claim was dismissed by the Cologne Regional Court on 10 October
1995, by the Cologne Court of Appeal on 9 July 1996, by the Federal Court of
Justice on 25 September 1997, and by the Federal Constitutional Court on 28
January 1998, on the basis that, under Article 3, Chapter Six, of the
Settlement Convention, no claim or action in connection with measures taken
against German external assets in the aftermath of the Second World War was
admissible in German courts.
17. In 1998 Prince Hans-Adam II of Liechtenstein instituted proceedings
before the European Court of Human Rights against Germany, claiming that the
above decisions of the German courts violated his rights under Articles 6,
paragraph 1, and 14 of the Convention for the Protection of Human Rights and
Fundamental Freedoms of the Council of Europe, as well as Article 1 of
Protocol No. 1 to that Convention. That Court, on 12 July 2001, held that
there had been no violation of the Articles invoked by the Applicant.
***
18. It is recalled that in the present proceedings, Liechtenstein based the
Court’s jurisdiction on Article 1 of the European Convention for the
Peaceful Settlement of Disputes which provides that:
“The High Contracting Parties shall submit to the judgement of the
International Court of Justice all international legal disputes [p 16] which
may arise between them including, in particular, those concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation.”
Article 27 (a) of the European Convention for the Peaceful Settlement of
Disputes reads as follows:
“The provisions of this Convention shall not apply to:
(a) disputes relating to facts or situations prior to the entry into force
of this Convention as between the parties to the dispute”.
19. Germany has raised six preliminary objections to the jurisdiction of the
Court and to the admissibility of Liechtenstein’s Application. According to
the first objection put forward by Germany, there exists no dispute between
Liechtenstein and Germany within the meaning of the
Statute of the Court and Article 27 of the European Convention for the
Peaceful Settlement of Disputes. In its second objection, Germany argues
that all the relevant facts occurred before the entry into force of the
European Convention for the Peaceful Settlement of Disputes as between the
Parties. Germany contends in its third objection that the European
Convention for the Peaceful Settlement of Disputes has no application
because the acts on which Liechtenstein bases its claims fall within the
domestic jurisdiction of Germany. In its fourth objection, Germany submits
that Liechtenstein’s claims have not been sufficiently substantiated as
required by Article 40, paragraph 1, of the Statute of the Court and Article
38, paragraph 2, of the Rules of Court. Germany argues in its fifth
objection that adjudication of Liechtenstein’s claims would require the
Court to pass judgment on rights and obligations of the successor States of
the former Czechoslovakia, in particular the Czech Republic, in their
absence and without their consent. Finally, according to Germany’s sixth
objection, the alleged Liechtenstein victims of the measures of confiscation
carried out by Czechoslovakia have failed to exhaust the available local
remedies.
In its written observations and final submissions during the oral
proceedings, Liechtenstein requested the Court to reject Germany’s
preliminary objections in their entirety.
**[p 17]
20. The Court will now consider Germany’s first objection that there is no
dispute between itself and Liechtenstein.
*
21. Germany argues that there is no dispute between the Parties. Germany in
particular observes that even though the facts that are at the core of the
dispute lie in Czechoslovakia’s seizure of certain Liechtenstein property
under the Beneš Decrees of 1945, Liechtenstein bases its claims before the
Court on an alleged “change of position” by Germany in the 1990s as to the
need to apply the Settlement Convention to that property, whilst Germany
contends that such a change has never occurred. Germany maintains that a
distinction is to be made between the issue of the lawfulness of the
Czechoslovak expropriations and that of the jurisdiction of the German
courts regarding this matter. Germany contends that on neither issue has it
changed its position either before or after 1995: as to the first, it has
never accepted the validity of the relevant Czechoslovak measures against
Liechtenstein property; as to the second, the German courts have always held
that they are barred by the Settlement Convention from adjudicating on the
lawfulness of confiscation measures, and for the purposes of the application
of Article 3 of Chapter Six of the Settlement Convention, they have always
relied on the assessment of the expropriating State.
Germany further claims that it is not German acts related to Czechoslovak
confiscations but the lawfulness of the Czechoslovak measures as such and
the resulting obligations of compensation on the part of the successor
States to the former Czechoslovakia that are in question. Even if all the
factual statements by Liechtenstein were correct, they would not justify a
claim to compensation against Germany; “[i]ssues of compensation are to be
decided between the State confiscating foreign property and the State victim
of such measures”.
Germany therefore concludes that the only dispute which exists is one
between Liechtenstein and the successor States of the former Czechoslovakia.
22. Liechtenstein maintains that its dispute with Germany concerns Germany’s
position, whereby for the first time in 1995 it began to treat Liechtenstein
assets as German external assets for purposes of the Settlement Convention,
thus infringing Liechtenstein’s neutrality and sovereignty. Liechtenstein
also asserts that on numerous occasions since 1995 it has made its legal
position known to the German Government, and on each occasion has met with
opposition. This opposition, and the opposition of views on the question of
whether or not there has been a change of position by the German Government
with regard to Liechtenstein property, itself clearly evidences a dispute.[p
18]
Liechtenstein recognizes the existence of another dispute, one between
itself and the Czech Republic, but observes that this does not negate the
existence of a separate dispute between itself and Germany, based on
Germany’s unlawful conduct in relation to Liechtenstein.
23. Liechtenstein contends further that Germany itself acknowledged the
existence of the dispute between them. Liechtenstein thus submits that
Germany recognized the existence of the Liechtenstein claims and a
divergence of legal opinions over these claims, both in the course of
bilateral consultations held in July 1998 and June 1999, and in a letter
from the German Minister for Foreign Affairs to his Liechtenstein
counterpart dated 20 January 2000. This letter stated that “[i]t [was] known
that the German Government [did] not share the legal opinion” of the
Government of Liechtenstein and “[did] not see a possibility to make
compensation payments to the Principality of Liechtenstein for losses of
property suffered as a result of post-war expropriations in former
Czechoslovakia” as those measures “[could not] be attributed to Germany on a
constructive legal basis”.
For its part, Germany denies that it acknowledged the existence of a dispute
by participating in diplomatic consultations at the request of
Liechtenstein. It argues that a discussion of divergent legal opinions
should not be considered as evidence of the existence of a dispute in the
sense of the Court’s Statute “before it reaches a certain threshold”.
*
24. According to the consistent jurisprudence of the Court and the Permanent
Court of International Justice, a dispute is a disagreement on a point of
law or fact, a conflict of legal views or interests between parties (see
Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
No. 2, p. 11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 27;
Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.
Reports 1988, p. 27, para. 35; East Timor, Judgment, I.C.J. Reports 1995,
pp. 99-100, para. 22). Moreover, for the purposes of verifying the existence
of a legal dispute it falls to the Court to determine whether “the claim of
one party is positively opposed by the other” (South West Africa,
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328).
25. The Court recalls that Liechtenstein has characterized its dispute with
Germany as involving the violation of its sovereignty and neutrality by the
Respondent, which, for the first time in 1995, treated Liechtenstein
property confiscated under the Beneš Decrees as German external assets for
the purposes of the Settlement Convention, notwithstanding Liechtenstein’s
status as a neutral State. Germany for its part denies altogether the
existence of a dispute with Liechtenstein. It asserts instead that “the
subject-matter of this case” is the confiscation by Czechoslovakia in 1945
[p 19] of Liechtenstein property without compensation; Germany considers
further that, in the case of Liechtenstein, German courts simply applied
their consistent case law to what were deemed German external assets under
the Settlement Convention. The Court thus finds that in the present
proceedings complaints of fact and law formulated by Liechtenstein against
Germany are denied by the latter. In conformity with well-established
jurisprudence (see paragraph 24 above), the Court concludes that “[b]y
virtue of this denial, there is a legal dispute” between Liechtenstein and
Germany (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100,
para. 22; Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports
1996, p. 615, para. 29). The Court further notes that Germany’s position
taken in the course of bilateral consultations and in the letter by the
Minister for Foreign Affairs of 20 January 2000 has evidentiary value in
support of the proposition that Liechtenstein’s claims were positively
opposed by Germany and that this was recognized by the latter.
26. It remains for the Court to identify the subject-matter of the dispute
before it. Upon examination of the case file, the Court finds that the
subject-matter of the dispute is whether, by applying Article 3, Chapter
Six, of the Settlement Convention to Liechtenstein property that had been
confiscated in Czechoslovakia under the Beneš Decrees in 1945, Germany was
in breach of the international obligations it owed to Liechtenstein and, if
so, what is Germany’s international responsibility.
27. Having established the existence of a dispute between Liechtenstein and
Germany and identified its subject-matter, the Court concludes that the
first preliminary objection of Germany must be dismissed.
**
28. The Court will now examine Germany’s second preliminary objection that
Liechtenstein’s Application should be rejected on the grounds that the Court
lacks jurisdiction ratione temporis to decide the present dispute.
*
29. Germany asserts that were the Court to find that there exists a dispute,
it would nevertheless fall outside the jurisdiction of the Court by virtue
of Article 27 (a) of the European Convention for the Peaceful Settlement of
Disputes (see paragraph 18 above). In its view, such a dispute would relate
to facts or situations prior to 18 February 1980, the date when the European
Convention for the Peaceful Settlement of Disputes entered into force
between Germany and Liechtenstein. In Germany’s view, the Application should
therefore be rejected. [p 20]
30. Germany contends that the key issue for the purpose of applying Article
27 (a) is not the date when this dispute arose, but whether the dispute
relates to facts or situations that arose before or after the critical date.
Only if these facts or situations took place after the critical date, that
is after 1980, would the Court have jurisdiction ratione temporis under
Article 27 (a). But since, in Germany’s view, this dispute relates to facts
and situations that predate 1980, the Court lacks the requisite
jurisdiction.
31. Germany claims that the property of Prince Franz Joseph II of
Liechtenstein, including the painting by Pieter van Laer, as well as
property belonging to other Liechtenstein nationals, was seized in
Czechoslovakia pursuant to the Beneš Decrees. The Settlement Convention
required Germany to bar any action in its courts that sought to challenge
the legality of such confiscations. In Germany’s view, the lawsuit brought
by Prince Hans-Adam II of Liechtenstein to recover the Pieter van Laer
painting was governed by the provisions of the Settlement Convention. The
dismissal of the lawsuit by various German courts, beginning with the
decision of the Cologne Regional Court in 1995, acting in compliance with
the provisions of that Convention, was in conformity with earlier decisions
of German courts. According to Germany, its courts have consistently held
that they lacked jurisdiction to evaluate the lawfulness of such
confiscations. The dispute which arose in the 1990s with regard to the
Pieter van Laer painting was directly related to the Settlement Convention
and the Beneš Decrees; it had its real source, according to Germany, in
facts and situations existing prior to the 1980 critical date.
32. Liechtenstein contends that until the decisions of the German courts in
the Pieter van Laer Painting case, it was understood between Germany and
Liechtenstein that Liechtenstein property confiscated pursuant to the Beneš
Decrees could not be deemed to have been covered by the Settlement
Convention because of Liechtenstein’s neutrality. German courts would
therefore not be barred by that Convention from passing on the lawfulness of
these confiscations. In Liechtenstein’s view, the decisions of the German
courts in the 1990s with regard to the painting made clear that Germany no
longer adhered to that shared view, and thus amounted to a change of
position. It mattered not, according to Liechtenstein, whether the decisions
in that case marked a change as such in Germany’s position or whether
Germany was now applying its earlier case law to a new situation.
33. Liechtenstein maintains, inter alia, that, in so far as there was a
change of position by Germany, the decisions of the German courts in the
Pieter van Laer Painting case and the “positions taken by the German
Government, in the period after 1995” gave rise to the present dispute. In
these decisions and positions, Germany made clear for the first [p 21] time
that it regarded Liechtenstein property as coming within the scope of the
reparations régime of the Settlement Convention (see paragraph 14 above).
These were the facts with regard to which the dispute arose. Prior thereto
there was no dispute between Liechtenstein and Germany. The facts that
triggered the present dispute were therefore not the Settlement Convention
or the Beneš Decrees, but Germany’s decision in 1995 to apply the Settlement
Convention to Liechtenstein property.
34. The foregoing conclusion, Liechtenstein argues, accords with the legal
test for temporal jurisdiction applied by the Permanent Court of
International Justice and by this Court, which is relevant to the
interpretation of Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes in this case. In Liechtenstein’s view, the Phosphates
in Morocco case makes clear that the limits of temporal jurisdiction are to
be construed not by looking at the source of the obligation said to have
been violated or at the surrounding factual situation, but by focusing on
the fact with regard to which the dispute arose, that is, the “fait
générateur” of the dispute. According to Liechtenstein, the Permanent Court
of International Justice adopted that same approach in the Electricity
Company of Sofia and Bulgaria case, where it “distinguish[ed] between the
source of the rights relied on by the Claimant and the source of the
dispute; what matters is the point at which the rights are denied”.
Liechtenstein further contends that, as the Right of Passage case indicates,
it is only when the “parties ‘adopt clearly-defined legal positions’ that
the dispute arises, and it arises in relation to the triggering event, not
the whole legal and factual matrix against the background of which the event
is to be understood”.
35. Germany submits that, contrary to Liechtenstein’s allegations, there was
“no change of position” by Germany because the judicial decisions in the
1990s did not depart from prior German case law on the subject. In Germany’s
view, there are thus no facts or legal situations that took place subsequent
to the entry into force between the parties of the European Convention for
the Peaceful Settlement of Disputes to which Liechtenstein can point to
establish the jurisdiction of the Court.
36. Germany also suggests that the distinction between the source of the
rights claimed by one of the parties and the source of the dispute, referred
to by the Permanent Court of International Justice in the Electricity
Company of Sofia and Bulgaria case and by the International Court of Justice
in the Right of Passage case, is of no relevance to the present case. This
is so, Germany submits, because none of the legal and factual situations
“which are the real cause of the alleged dispute” can be attributed to or
involve acts or decisions taken after 1980; rather, they [p 22] relate
entirely to the legal situation created in the aftermath of the Second World
War and, in particular, to “the confiscation of Liechtenstein property by
Czechoslovakia in 1945 and thereafter and possible legal consequences of
these confiscations”.
37. A further difference, according to Germany, between the Electricity
Company of Sofia and Bulgaria and the Right of Passage cases, on the one
hand, and the present case, on the other, is that in those two cases, the
legal situation existing between the parties had been fully recognized by
both sides before the act or omission by one party gave rise to the dispute.
In the present case, by contrast, there was prior to 1995 no similar
recognition of the legal situation existing between the two States. On the
contrary, Germany considers that the present case and the Phosphates in
Morocco case fall into the same category. In the Phosphates case, “the Court
could not look into the matter because the legal situation had been exactly
the same since long before the jurisdictional clause applied and no
separable facts or legal situations were at issue”. According to Germany,
that is also the situation in the present case. Here the legal régime
applied by “German courts in 1995 and later was a legal régime applicable
for Germany since 1955” by virtue of the Settlement Convention.
38. Liechtenstein disagrees with Germany’s interpretation of the
jurisprudence applicable to this case. It argues that the temporal
limitation expressed in Article 27 (a) of the European Convention for the
Peaceful Settlement of Disputes “refers to the generating fact . . . which
triggers the dispute”. In its view, the dispute was triggered neither by the
Settlement Convention nor by the Beneš Decrees because, prior to the 1990s,
that Convention had never been applied to neutral assets and thus gave rise
to no dispute with neutral Liechtenstein. In Liechtenstein’s view, Germany’s
decisions in the years from 1995 onwards were the origin and are at the
heart of the present dispute. They are the facts to which the dispute
relates.
*
39. Germany’s second preliminary objection requires the Court to decide
whether, applying the provisions of Article 27 (a) of the European
Convention for the Peaceful Settlement of Disputes, the present dispute
relates to facts or situations that arose before or after the 1980 critical
date.
40. As recalled by the Parties (see paragraphs 34 and 36 to 38 above), this
Court and the Permanent Court of International Justice have dealt with a
comparable issue in a number of cases. Thus, in the Phosphates in Morocco
case, the French declaration accepting the Permanent Court of [p 23]
International Justice’s jurisdiction spoke of “disputes which may arise
after the ratification of the present declaration with regard to situations
or facts subsequent to this ratification” (P.C.I.J., Series A/B, No. 74, p.
22). While the parties in that case agreed that the dispute arose subsequent
to the date of the French declaration, the issue that divided them concerned
the date of the “situations or facts” with regard to which the dispute
arose, that is, whether it was prior or subsequent to the declaration. The
Court found that the subject of the dispute was the so-called
“monopolization of the Moroccan phosphates” (ibid., p. 25) and the
inconsistency of that monopoly régime with earlier French treaty
obligations. This régime was established by legislation adopted before the
critical date. It was that legislation, the Court ruled, with regard to
which the dispute arose.
41. In the Electricity Company of Sofia and Bulgaria case, the wording of
the Belgian limitation ratione temporis was identical to the relevant
language of the French declaration in the Phosphates in Morocco case. Here,
too, the parties agreed that the dispute arose after the critical date, but
they disagreed as to whether the “facts or situations” with regard to which
the dispute arose were prior or subsequent to that date. In the Electricity
Company case, Bulgaria argued that the awards of the Belgo-Bulgarian Mixed
Arbitral Tribunal, which predated the critical date, had to be treated as
the “situations” that gave rise to the dispute. The Permanent Court of
International Justice rejected this argument and held that, while these
awards constituted the source of the rights claimed by Belgium, they were
not the source of the dispute because the parties had been in agreement
throughout regarding their binding character. The Court explained this
conclusion as follows:
“A situation or fact in regard to which a dispute is said to have arisen
must be the real cause of the dispute. In the present case it is the
subsequent acts with which the Belgian Government reproaches the Bulgarian
authorities with regard to a particular application of the formula - which
in itself has never been disputed - which form the centre point of the
argument and must be regarded as constituting the facts with regard to which
the dispute arose.” (P.C.I.J., Series A/B, No. 77, p. 82.)
Since these facts all took place after the critical date, the Court rejected
the Bulgarian preliminary objection to its jurisdiction.
42. In the Right of Passage case, this Court had to deal with India’s
preliminary objection ratione temporis. The objection was based on its
declaration accepting the Court’s jurisdiction “over all disputes arising
after 5 February 1930, with regard to situations or facts subsequent to [p
24] the same date”. Here the Court first found that the dispute arose in
1954, when India interfered with Portugal’s alleged right of passage over
Indian territory to certain Portuguese enclaves. The Court turned next to
the question of the date of the situations or facts with regard to which the
dispute arose. Relying on the holding of the Permanent Court of
International Justice in the Electricity Company of Sofia and Bulgaria case,
the Court emphasized that in determining the facts or situations with regard
to which a dispute has arisen, only those facts or situations are relevant
that can be considered as being the source of the dispute, that is, its real
cause. It then made the following finding:
“Up to 1954 the situation of those territories may have given rise to a few
minor incidents, but passage had been effected without any controversy as to
the title under which it was effected. It was only in 1954 that such a
controversy arose and the dispute relates both to the existence of a right
of passage to go into the enclaved territories and to India’s failure to
comply with obligations which, according to Portugal, were binding upon it
in this connection. It was from all of this that the dispute referred to the
Court arose; it is with regard to all of this that the dispute exists. This
whole, whatever may have been the earlier origin of one of its parts, came
into existence only after 5 February 1930.” (I.C.J. Reports 1960, p. 35.)
43. The text of Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes (see paragraph 18 above) does not differ in substance
from the temporal jurisdiction limitations dealt with in those cases. In
particular, no consequence can be drawn from the use of
the expressions “with regard to” or “relating to” which have been employed
indifferently in the various texts in question. The Court notes further that
in the Phosphates in Morocco case, the Electricity Company in Sofia and
Bulgaria case and the Right of Passage case, the Permanent Court of
International Justice and this Court were called upon to interpret
unilateral declarations accepting the Court’s jurisdiction under its
Statute, whereas, in the present case, the Court has to interpret a
multilateral Convention. Without pronouncing in any more general sense upon
the extent to which such instruments are to be treated comparably, the Court
finds no reason on this ground to interpret differently the phrase in issue.
Nor have the Parties suggested otherwise.
Accordingly, the Court finds its previous jurisprudence on temporal
limitations of relevance in the present case.
44. In interpreting the latter ratione temporis limitations, this Court and
the Permanent Court of International Justice before it emphasized that [p
25]
“[t]he facts or situations to which regard must be had . . . are those with
regard to which the dispute has arisen or, in other words, as was said by
the Permanent Court in the case concerning the Electricity Company of Sofia
and Bulgaria, only ‘those which must be considered as being the source of
the dispute’, those which are its ‘real cause’” (Right of Passage over
Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 35).
45. Thus in the Phosphates in Morocco case, the facts with regard to which
the dispute arose were found to be legislative measures that predated the
critical date. The objection ratione temporis was accordingly upheld. In the
Electricity Company of Sofia and Bulgaria and the Right of Passage cases,
the disputes were found to have had their source in facts or situations
subsequent to the critical date and thus the objections ratione temporis
were rejected.
46. The Court considers that, in so far as it has to determine the facts or
situations to which this dispute relates, the foregoing test of finding the
source or real cause of the dispute is equally applicable to this case.
47. The Court will now consider whether the present dispute has its source
or real cause in the facts or situations which occurred in the 1990s in
Germany and, particularly, in the decisions by the German courts in the
Pieter van Laer Painting case, or whether its source or real cause is the
Beneš Decrees under which the painting was confiscated and the Settlement
Convention which the German courts invoked as ground for declaring
themselves without jurisdiction to hear that case.
48. The Court observes that it is not contested that the present dispute was
triggered by the decisions of the German courts in the aforementioned case.
This conclusion does not, however, dispose of the question the Court is
called upon to decide, for under Article 27 (a) of the European Convention
for the Peaceful Settlement of Disputes, the critical issue is not the date
when the dispute arose, but the date of the facts or situations in relation
to which the dispute arose.
49. In the Court’s view, the present dispute could only relate to the events
that transpired in the 1990s if, as argued by Liechtenstein, in this period,
Germany either departed from a previous common position that the Settlement
Convention did not apply to Liechtenstein property, or if German courts, by
applying their earlier case law under the Settlement Convention for the
first time to Liechtenstein property, applied that Convention “to a new
situation” after the critical date.
50. With regard to the first alternative, the Court has no basis for
concluding that prior to the decisions of the German courts in the Pieter
van Laer Painting case, there existed a common understanding or agreement
between Liechtenstein and Germany that the Settlement Con-[p 26] vention did
not apply to the Liechtenstein property seized abroad as “German external
assets” for the purpose of reparation or as a result of the war. The issue
whether or not the Settlement Convention applied to Liechtenstein property
had not previously arisen before German courts, nor had it been dealt with
prior thereto in intergovernmental talks between Germany and Liechtenstein.
Moreover, German courts have consistently held that the Settlement
Convention deprived them of jurisdiction to address the legality of any
confiscation of property treated as German property by the confiscating
State (see Judgment of the German Federal Court of Justice
(Bundesgerichtshof) of 11 April 1960, II ZR 64/58; see also Judgment of the
German Federal Court of Justice (Bundesgerichtshof) of 13 December 1956 (AKU
case), II ZR 86/54). In the Pieter van Laer Painting case, the German courts
confined themselves to stating that the Settlement Convention was applicable
in cases of confiscation under Decree No. 12, as with the other Beneš
Decrees, and that, consequently, it was also applicable to the confiscation
of the painting. Liechtenstein’s contention regarding the existence of a
prior agreement or common understanding and an alleged “change of position”
by Germany cannot therefore be upheld.
51. As to Liechtenstein’s contention that the dispute relates to the
application, for the first time, of pre-1990 German jurisprudence to
Liechtenstein property in the 1990s, the Court points out that German courts
did not face any “new situation” when dealing for the first time with a case
concerning the confiscation of Liechtenstein property as a result of the
Second World War. The Court finds that this case, like previous ones on the
confiscation of German external assets, was inextricably linked to the
Settlement Convention. The Court further finds that the decisions of the
German courts in the Pieter van Laer Painting case cannot be separated from
the Settlement Convention and the Beneš Decrees, and that these decisions
cannot consequently be considered as the source or real cause of the dispute
between Liechtenstein and Germany.
52. The Court concludes that, although these proceedings were instituted by
Liechtenstein as a result of decisions by German courts regarding a painting
by Pieter van Laer, these events have their source in specific measures
taken by Czechoslovakia in 1945, which led to the confiscation of property
owned by some Liechtenstein nationals, including Prince Franz Jozef II of
Liechtenstein, as well as in the special régime created by the Settlement
Convention. The decisions of the German courts in the 1990s dismissing the
claim filed by Prince Hans-Adam II of Liechtenstein for the return of the
painting to him were taken on the basis of Article 3, Chapter Six, of the
Settlement Convention. While these decisions triggered the dispute between
Liechtenstein and Germany, the [p 27] source or real cause of the dispute is
to be found in the Settlement Convention and the Beneš Decrees. In light of
the provisions of Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes, Germany’s second preliminary objection must
therefore be upheld.
***
53. Having dismissed the first preliminary objection of Germany, but upheld
its second, the Court finds that it is not required to consider Germany’s
other objections and that it cannot rule on Liechtenstein’s claims on the
merits.
***
54. For these reasons,
The Court,
(1) (a) by fifteen votes to one,
Rejects the preliminary objection that there is no dispute between
Liechtenstein and Germany;
In favour: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sir Franklin Berman;
Against: Judge ad hoc Fleischhauer;
(b) by twelve votes to four,
Upholds the preliminary objection that Liechtenstein’s Application should be
rejected on the grounds that the Court lacks jurisdiction ratione temporis
to decide the dispute;
In favour: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Tomka; Judge ad hoc Fleischhauer;
Against: Judges Kooijmans, Elaraby, Owada; Judge ad hoc Sir Franklin Berman;
(2) by twelve votes to four,
Finds that it has no jurisdiction to entertain the Application filed by
Liechtenstein on 1 June 2001.
In favour: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Tomka; Judge ad hoc Fleischhauer;
Against: Judges Kooijmans, Elaraby, Owada; Judge ad hoc Sir Franklin Berman.
[p 28]
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this tenth day of February, two thousand and five,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Principality of
Liechtenstein and the Government of the Federal Republic of Germany,
respectively.
(Signed) Shi Jiuyong,
President.
(Signed) Philippe Couvreur,
Registrar.
Judges Kooijmans, Elaraby and Owada append dissenting opinions to the
Judgment of the Court; Judge ad hoc Fleischhauer appends a declaration to
the Judgment of the Court; Judge ad hoc Sir Franklin Berman appends a
dissenting opinion to the Judgment of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
[p 29]
DISSENTING OPINION OF JUDGE KOOIJMANS
Other preliminary objections without merit.
1. To my regret, I find myself unable to subscribe to the Court’s finding
that Germany’s second preliminary objection must be upheld, and that it thus
has no jurisdiction to entertain Liechtenstein’s Application. In the
following pages, I will state the reasons for my disagreement with the
Court’s conclusion. Since I am of the opinion that the Court has
jurisdiction and that Liechtenstein’s Application is admissible, I will
subsequently consider -- albeit briefly – the preliminary objections raised
by Germany which have not been dealt with by the Court.
2. The present case epitomizes the need to distinguish sharply between
preliminary issues and matters of substance. In their reasoning on the
preliminary objections, both Parties to this rather peculiar case have used
arguments which actually belong to the merits. That is perhaps unsurprising:
the interpretation and application of the relevant provisions of the 1952
Settlement
Convention, which are at the centre of the dispute, are also of relevance
for the consideration of preliminary questions, in particular, those
involved in the second and fifth objections. That makes it all the more
important not to confuse preliminary or mainly procedural matters and
substantive issues.
In the following, I will try to confine myself strictly to what I consider
to be the preliminary issues. Whatever my views on the validity of
Liechtenstein’s claims may be, they are not relevant to the present stage of
the proceedings. Since the case will not reach the merits phase, I will
refrain from any comments in that respect.
A. The subject-matter of the dispute
3. I share the Court’s view that Germany’s first preliminary objection,
according to which there is no dispute between the Parties to the case, [p
30] must be dismissed. Liechtenstein claims that Germany has breached
obligations owed to it under international law; Germany emphatically denies
this claim. As the Court states, Liechtenstein’s claim was positively
opposed by Germany,
and there is credible and convincing evidence that, on various occasions,
Germany recognized the existence of a dispute (Judgment, para. 25).
4. Germany has reproached Liechtenstein for artificially transforming its
long-standing dispute with Czechoslovakia and its successor State(s) about
the confiscation of Liechtenstein property under the Beneš Decrees -- the
alleged unlawfulness of this confiscation is not a matter of dispute between
Liechtenstein and Germany ¾ into a dispute with Germany. This contention
makes it all the more necessary to determine the subject-matter of the
dispute which has been brought before the Court. In the Right of Passage
case, where the parties were as much in disagreement as to what the legal
dispute before the Court was as in the present case, the Court stated, “[i]n
order to form a judgment as to the Court’s jurisdiction it is necessary to
consider what is the subject of the dispute” (Right of Passage over Indian
Territory (Portugal v. India), I.C.J.Reports 1960, p. 33); and, as in the
present case, the Court did so, before dealing with the
preliminary objection concerning a limitation ratione temporis.
5. In its Application, Liechtenstein describes the dispute as concerning
“decisions of Germany, in and after 1998, to treat certain property of
Liechtenstein nationals as German assets having been ‘seized for the
purposes of reparation or restitution, or as a result of the state of war
[this wording reproduces that used in the 1952 Convention on the Settlement
of Matters Arising out of the War and the Occupation, hereinafter,
“Settlement Convention”] . . . without ensuring any compensation for the
loss of that property to its owners, and to the detriment of Liechtenstein
itself” (Application of the Principality of Liechtenstein, para. 1).
Whereas Germany contends that its courts had no choice but to apply Article
3, Chapter Six, of the Settlement Convention in the Pieter Van Laer Painting
case (as described in paragraph 16 of the Judgment), Liechtenstein maintains
that by so doing they violated Liechtenstein’s rights under general
international law, thus engaging Germany’s international responsibility.
The subject-matter of the dispute is, therefore, not whether Germany was
under a treaty obligation to apply the relevant provisions of the Settlement
Convention to property confiscated during or after the Second World War by
Allied States, but whether Germany could lawfully apply it to confiscated
property belonging to nationals of a State which remained neutral during
that war and which, moreover, is not a party to that Convention. [p 31]
6. Likewise, the relevant question is not whether the German courts were
obliged or entitled under international law to apply a legality test to
Czechoslovak expropriations of assets of Liechtenstein nationals. Counsel
for Germany stated, “[l]eaving aside the issue of the Settlement
Convention, German courts would have applied rules of private international
law and the international law of confiscations. They would have rejected any
claim concerning movable property confiscated more than 50 years ago.” (CR
2004/24, p. 28, para. 75; see also Preliminary
Objections of the Federal Republic of Germany, pp. 56-59, paras. 91-95.)
“Leaving aside the Settlement Convention” would, however, transform the
dispute into a completely different one, which has not been submitted to the
Court. The question the Court is asked to answer is whether
the German authorities could lawfully apply the Settlement Convention to
neutral assets or – to put it differently -- whether neutral assets could be
considered as “German external assets or other property, seized for the
purpose of reparation or restitution, or as a result of the state of war”
for the purposes of applying the Settlement Convention. From this point of
view, the legality or illegality of the confiscation of Liechtenstein
property under the Beneš Decrees is irrelevant, and the Court is not asked
to consider that issue.
7. For these reasons, I agree with the Court’s identification of the
subject-matter of the dispute in paragraph 26 of the Judgment.
B. The limitation ratione temporis
8. Once the subject of the dispute has been defined, it becomes possible to
consider whether that dispute relates “to facts or situations prior to the
entry into force” of the 1957 European Convention on Dispute Settlement and
thus, by virtue of its Article 27 (a), is excluded from the jurisdiction of
the Court, as Germany maintains in its second preliminary objection. The
critical date in this respect is 18 February 1980, the date on which the
European Convention entered into force as between the two States.
9. The Parties agree that the present controversy between them has arisen
not earlier than 1995. According to Germany, however, it relates to facts or
situations dating from 1945, the year when the Beneš Decrees were
promulgated; or from 1955, the year of the entry into force of the
Settlement Convention; or from the consistent application of the latter by
the German courts – all of which predate the critical date. Liechtenstein,
for its part, contends that the temporal limitation
of Article 27 (a) of the European Convention on Dispute Settlement must be
interpreted as referring to facts or situations with regard to which the
dispute arose: [p 32] “what is . . . the ‘definitive act which would, by
itself, directly involve international responsibility’” (CR 2004/25, p. 25,
para. 29). In this respect, Liechtenstein has referred to a common position
of the Parties and a subsequent change of position by the German authorities
which allegedly occurred in the years after 1990 (Application of the
Principality of Liechtenstein, para. 9).
10. By so doing, Liechtenstein, in my view, has obscured the relevant
issues. Both Germany and Liechtenstein may have considered or still consider
the confiscation of Liechtenstein property under the Beneš Decrees as
unlawful, but this is a matter which -- I repeat -- is not relevant to the
present dispute. At no time was there a common position, or even an explicit
or implicit unilateral one on the part of Germany, on the question of
whether seized or confiscated property of nationals of neutral States was
covered by the 1952 Settlement Convention (see Memorial of the Principality
of Liechtenstein, p. 62, paras. 3.15 and 3.16). Consequently, there was no
position which, in the years after 1990, could have been changed by the
German authorities. That issue simply had not presented itself.
11. The Court, therefore, correctly observes that it
“has no basis for concluding that prior to the decisions of the German
courts in the Pieter van Laer Painting case, there existed a common
understanding or agreement between Liechtenstein and Germany that the
Settlement Conventiondid not apply to the Liechtenstein property seized
abroad as ‘German external assets’ for the purposes of reparation as a
result of the war” (Judgment, para. 50).
In the same paragraph, however, the Court, without much argument, states,
“[m]oreover, German courts have consistently held that the Settlement
Convention deprived them of jurisdiction to address the legality of any
confiscation of property treated as German property by the confiscating
State”.
It is this sentence which fails to appreciate properly the true
subject-matter of the dispute: the Court’s observation does not constitute
evidence of already existing case law with regard to seized or confiscated
neutral property, nor of an unaltered position of Germany in this regard.
12. Germany argues that it has consistently interpreted Article 3, Chapter
Six, of the Settlement Convention as barring German courts from looking into
the lawfulness of any measures against property considered German property
by the confiscating State. In this respect, Germany refers, in particular,
to the decision of the Federal Court of Justice of 11 April 1960
(Preliminary Objections of the Federal Republic of Germany, p. 18, paras.
20-21; Ann. 3, p. 46) as being pivotal since, in that decision, the Court
stated that it is the intention of the authority of the foreign country to
confiscate property as German property which is decisive for the application
of this Article of the Settlement Convention. According to Germany, this
case law has merely been confirmed by the court decisions in the Pieter van
Laer Painting case (Preliminary Objections of the Federal Republic of
Germany, p. 54, para. 87). The alleged change of position is, therefore,
said to be a fabrication by Liechtenstein.
13. However, the pivotal issue is not that the German courts in the Pieter
van Laer Painting case confirmed the previous case law, but that they
applied it -- for the first time -- to neutral assets, and thus introduced a
new element. In this respect, it is important to analyse the decision of the
German Federal Court of 11 April 1960 since, of all the decisions cited, it
is most analogous to the decisions in the Pieter van Laer Painting case. In
1960, the Court stated,
“[e]ven if the conditions of Article 3 paragraph 3 of Chapter Six Settlement
Convention are not fulfilled, German courts lack jurisdiction in a case in
which the Plaintiff is trying to raise an objection against measures
mentioned in Article 3, paragraph 1 of Chapter Six Settlement Convention . .
. For the application of this provision it is sufficient that the assets
were seized as German assets.”(Preliminary Objections of the Federal
Republic of Germany, Ann. 3, pp. 47-48.)
14. The underlying facts (as far as I have been able to ascertain them) make
clear that this decision cannot support the argument that the present
dispute before the Court relates to facts and situations prior to 1980. In
the 1960 case, the plaintiff, a non-German national, claimed that the
defendant did not have title to the assets at the time when they were seized
under a United States Vesting Order based upon the Trading with the Enemy
Act. The plaintiff claimed that these assets had belonged to her and,
therefore, that the defendant could not raise a civil claim concerning them.
The German Federal Court of Justice rejected the claim, invoking Article 3,
Chapter Six, of the Settlement Convention: “whether the assets seized . . .
were in fact German or foreign assets is to be decided exclusively by the
State which has seized the assets” (ibid., p. 48).
15. However, in the 1960 case, the assets had been seized as assets
belonging to a German national, and thus the application of the Settlement
Convention was appropriate since the seizure itself came squarely within the
definition of paragraph 1 of Article 3. In this respect, it was not relevant
that in actual fact the assets probably had not belonged to the German
defendant, who had perhaps mistakenly been considered to be the owner, but
to a non-national of Germany. [p 34]
In this decision, therefore, the Federal Court did not apply the Settlement
Convention to the confiscation or seizure of assets which at the time
undoubtedly belonged to nationals of a neutral
State.
16. I respectfully disagree with the Court when it “points out that German
courts did not face any ‘new situation’ when dealing for the first time with
a case concerning the confiscation of Liechtenstein property as a result of
the Second World War” and finds that “this case, like previous ones on the
confiscation of German external assets, was inextricably linked to the
Settlement Convention” (Judgment, para. 51).
17. In my view, this statement is beside the point, since it completely
ignores the issue of whether the Settlement Convention can in any way be
considered as intended, at the time of its conclusion, to be applicable to
assets seized by the confiscating State as “German property for the purpose
of reparation or restitution, or as a result of the state of war”, whereas
in actual fact these assets belonged to -- and had belonged during the whole
period of that state of war -- to nationals of a neutral State. An
affirmative answer to that question -- which would in any case be part of
the merits -- would seriously affect the rights of neutrals under
international law, and such a decision had not been taken by German courts
previously.
18. My conclusion, therefore, can only be that the court decisions in the
Pieter van Laer Painting case applied the Settlement Convention to neutral
assets for the very first time, and that this introduced the new element I
referred to earlier ¾ or, to use the words of the Court, that the German
courts faced a “new situation”.
19. For the present phase of the proceedings, it is also not relevant that
Germany contends that the then Reigning Prince’s claim in the Pieter van
Laer Painting case would have been rejected anyhow, even without the
application of the Settlement Convention. Germany refers in this respect to
a decision of the Federal Court of Justice of 1991, where the claim of the
plaintiffs was rejected on the basis of, inter alia, international
expropriation law (Preliminary Objections of the Federal Republic of
Germany, pp. 56-57, paras. 91-92; Ann. 4, p. 62; in that case, the
Settlement Convention was not applicable since it concerned expropriations
carried out in the former Soviet Zone of Occupation (East Germany) and thus
not German external assets).
20. As I stated previously, the question of whether Liechtenstein is
entitled to compensation by Germany, and, if so, on what basis, is a matter
for the merits and has no relation to the question of whether the facts or
situations to which the dispute about the application of the Settlement
Convention relates are prior to the critical date. [p 35]
21. It is undoubtedly true that, as the Court states, the decisions of the
German courts in the Pieter van Laer Painting case cannot be separated from
the Beneš Decrees and the Settlement Convention, which all predate the 1980
critical date, but I have serious doubts as to whether this justifies the
conclusion that “these decisions cannot consequently be considered as the
source or real cause of the dispute” (Judgment, para. 51). The Court, before
coming to this conclusion, has
analysed its case law and that of its predecessor, the Permanent Court of
International Justice, concerning similar temporal limitations in
declarations made under Article 36, paragraph 2, of the Statute (Judgment,
paras. 40-42). I consider this analysis useful, even if it has to be
admitted that the various Court decisions are focused on the specific case
at hand and, therefore, do not reflect a transparent general policy. I
cannot, however, subscribe to the conclusion the Court draws from this
analysis.
22. The Court evidently sees an analogy between the present case and the
Phosphates in
Morocco case (Italy v. France). In that case, the Permanent Court of
International Justice noted that “situations or facts subsequent to [the
critical date in 1931] could serve to found the Court’s
compulsory jurisdiction only if it was with regard to them that the dispute
arose” (P.C.I.J., Series
A/B, No. 74, 1938, p. 24). It then found that a number of dahirs
(legislative acts), adopted in 1920 and which allegedly were unlawful,
constituted the essential facts which really gave rise to the dispute. Such
“facts”, by reason of their date, fell outside the Court’s jurisdiction
(ibid., p. 26).
Italy further relied on an alleged denial of justice to its nationals which
was said to have become definitive as a result of certain acts subsequent to
the critical date. The Court, however, observed that that part of the claim
could not be separated from a decision of the Department of Mines, based on
the 1920 dahirs and taken in 1925; an examination of that complaint,
therefore, could not be undertaken either without extending the Court’s
jurisdiction to a fact which, by reason of its date, was not subject thereto
(ibid., p. 29).
23. I interpret this latter part of the Judgment as implying that, if the
decision of the Department of Mines had been taken after the critical date,
the Court would not have considered the temporal limitation applicable to
that part of the Italian claim, in spite of the fact that that decision had
been based on the 1920 dahirs. While there are undoubtedly differences
between an administrative act and a court decision, that situation is
comparable to the present dispute, where the Settlement Convention, which
came into force prior to the critical date, was applied for the first time
to neutral assets after the critical date.
24. This reading would also bring the present dispute into line with that of
the Electricity Company of Sofia and Bulgaria case (Belgium v. Bulgaria). In
that case, the Permanent Court of
International Justice stated,
“[i]t is true that a dispute may presuppose the existence of some prior
situation or fact, but it does not follow that the dispute arises in regard
to that situation or fact. A situation or fact in regard to which a dispute
is said to have arisen must be the real cause of the dispute.” (P.C.I.J.
Series A/B, No. 77, 1939, p. 82.)
In the present case, the “real cause of the dispute” (“le fait générateur du
différend”) is the application by the German authorities of the Settlement
Convention to the assets of nationals of a State which was neutral during
the Second World War.
25. For all the above-mentioned reasons, I cannot but conclude that
Germany’s second preliminary objection cannot be upheld. In particular, I
dissociate myself from the Court’s finding that “[w]hile these decisions
triggered the dispute between Liechtenstein and Germany, the source or real
cause of the dispute is to be found in the Settlement Convention and the
Beneš Decrees” (Judgment, para. 52). That conclusion, in my view, ignores
the “new situation” established by these Court decisions.
26. Of course, the Court could have concluded, as it did in the Right of
Passage case, that it is not, at this stage, in a position to determine what
the relevant facts or situations are, since that requires a further
consideration of the 1952 Settlement Convention and its interpretation or
application, which could “entail the risk of prejudging some of the issues
closely connected with the merits” (I.C.J. Reports 1957, p. 152). If the
Court’s finding had consequently been that the objection does not have an
exclusively preliminary character, I certainly would not have cast a
negative vote. Regrettably, the present decision of the Court leaves me no
choice.
C. The other preliminary objections
27. I will now deal -- in a rather summary fashion -- with the remaining
preliminary objections. I do so pour acquis de conscience and as a logical
consequence of my disagreement with the Court’s decision on the second
objection.
28. In its third objection, Germany claims that the dispute concerns
questions which, under international law, are solely within the domestic
jurisdiction of States, and that the Application is thus excluded from the
Court’s jurisdiction by Article 27 (b) of the European Convention on Dispute
Settlement, which provides that the Convention shall not apply to “disputes
concerning questions which by international law are solely within the
domestic jurisdiction of States”.
29. Both Parties have relied extensively in their arguments on rules and
principles of international law. The Respondent itself has consistently
invoked its obligations under international agreements and arrangements. The
dispute can, therefore, only be resolved by having recourse to [p 37]
international law, which takes the matter out of the ambit of domestic
jurisdiction. As the Permanent Court of International Justice observed in
its Advisory Opinion in the case concerning the Tunis and Morocco
Nationality Decrees:
“once it appears that the legal grounds relied on are such as to justify the
provisional conclusion that they are of judicial importance for the dispute
submitted . . . the matter, ceasing to be one solely within the domestic
jurisdiction of the State, enters the domain governed by international law”
(1923, P.C.I.J., Series B, No. 4, p. 26;emphasis added).
The third objection thus fails.
30. Just as unfounded, in my view, is Germany’s fourth objection, namely,
that Liechtenstein’s claims are not sufficiently substantiated. Germany
appears to be perfectly aware of the object and scope of Liechtenstein’s
claims, and this is shown by its arguments. In the second round of the oral
hearings, counsel for Liechtenstein took great pains in elucidating what was
to be understood by the claim, even if, in so doing, he went deep into the
merits.
31. The final sentence of Article 38, paragraph 2, of the Rules of Court
provides that the application shall “specify the precise nature of the
claim, together with a succinct statement of the facts and grounds on which
the claim is based”. This provision is based on a formula adopted by the
Consultative Committee of Jurists in 1920:
“Des conclusions ne sont pas encore prises sous leur forme définitive dans
la requête, celle-ci ne devant donner qu’une indication d’ordre general
suffisante pour préciser le litige et permettre à l’instance de s’ouvrir.”
(G. Guyomar, Commentaire du Règlement de la Cour internationale de Justice,
1983, p. 236.)
In my view, Liechtenstein’s Application, as elaborated in its Memorial,
meets this requirement in a satisfactory way, even if its claims are not
fully substantiated with regard to the legal position of each and every
Liechtenstein national mentioned.
32. In its fifth preliminary objection, Germany submits that the Court, if
it found that it has jurisdiction, should have refrained from exercising it,
since Liechtenstein’s claim would have made it necessary for the Court to
decide on the legality or illegality of acts of a third State which has not
given its consent to the present proceedings (the Czech Republic as the
successor state of Czechoslovakia).
In the present case, the Court should, therefore, apply its ruling in the
Monetary Gold case, where it stated that the legal interests of a third
State (Albania) would “not only be affected by a decision, but would form
the very subject-matter of the decision” (Monetary Gold Removed from
Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32), thus establishing the
so-called “indispensable third party” principle. [p 38]
33. Liechtenstein denies that the alleged unlawfulness of the Beneš Decrees
is “the very subject-matter of the dispute”. In its view, the subject-matter
of the dispute is that Germany has brought Liechtenstein assets under the
reparations régime of Article 3, Chapter Six, of the Settlement Convention.
The only question Liechtenstein asks the Court to answer is to determine
whether Germany was entitled to do so. That answer can be given without
considering the question of whether the Beneš Decrees were in conformity
with international law (CR 2004/25, pp. 54-55, para. 15).
34. As I stated previously, the claim as brought by Liechtenstein asks the
Court to determine whether Germany acted wrongfully by treating
Liechtenstein assets, for the first time in 1995, as
German external assets for the purposes of the Settlement Convention,
thereby infringing Liechtenstein’s neutrality and sovereignty. With respect
to this claim, the Beneš Decrees are mere facts, the legality or illegality
of which are not the subject-matter of the dispute. The Court could
therefore, in my view, have given a declaratory judgment on Liechtenstein’s
claim.
Of course, the Czech Republic could have asked permission to intervene in
accordance with Article 62 of the Statute. But, as the Court has stated,
“the absence of such a request in no way precludes the Court from
adjudicating upon the claims submitted to it, provided that the legal
interests of a third State which may possibly be affected do not form the
very subject-matter of the decision that is applied for” (Phosphate Lands in
Nauru (Nauru v. Australia), I.C.J. Reports 1992, p. 261, para. 54).
35. Likewise, the other parties to the 1952 Settlement Convention and to the
Exchange of Notes of 27 and 28 September 1990, which kept in force the
provisions of the Convention relevant to the present case, could have
intervened under Article 63 of the Statute if the case had come to the
merits. That issue would, however, have provided no reason for upholding the
fifth preliminary
objection.
36. However, Liechtenstein asked not only for a declaratory judgment but
also for compensation. That part of the claim is rather complicated, and it
cannot be excluded that, in dealing with this question, the lawfulness of
the Beneš Decrees could not have been left unconsidered. That, however, is
part of the merits. Nevertheless, it would have been prudent to observe, as
was done in the Nauru case, that the Court’s ruling in the present stage of
the proceedings “does not in any way prejudge the merits” (ibid., p. 262,
para. 56), or to have joined the objection to the merits as not possessing
an exclusively preliminary character.
37. Finally, Germany contends that Liechtenstein’s application is not
admissible since the Liechtenstein nationals have not exhausted the
available local remedies. [p 39]
38. Liechtenstein’s Application contains a “mixed” claim, combining claims
in its own right and also in the exercise of diplomatic protection of some
of its citizens. In so far as this claim refers to the infringement of its
sovereignty and neutral status, there is no requirement of the exhaustion of
local remedies since that part of the claim is brought by the Applicant in
its own right (Avena and Other Mexican Nationals (Mexico v. United States of
America), I.C.J. Reports 2004, p. 36, para. 40).
39. In so far as Liechtenstein’s claim is a claim in the exercise of
diplomatic protection of its nationals, it can safely be maintained that the
then Reigning Prince has exhausted all available local remedies, including
an appeal to the European Court of Human Rights. Liechtenstein’s claim on
his behalf is thus also admissible. With regard to the other Liechtenstein
nationals, Liechtenstein submits that in their cases exhaustion of local
remedies is not necessary, as these have already been shown to be futile in
the case of the then Reigning Prince. That argument may sound persuasive,
but it does not answer the underlying questions of why and on what ground
the other Liechtenstein nationals could have been expected to seek redress
from a German court. Unlike the Prince, whose former property -- the Van
Laer painting -- was present on German territory, these other Liechtenstein
nationals have no cause for action in the German courts, since their
property never found itself within German national jurisdiction; and there
is no decision against which they could have appealed.
40. That issue, however, is not an issue with regard to which the
requirement of the exhaustion of local remedies is relevant. The question is
simply whether Liechtenstein’s contention of a breach by Germany of its
obligations vis-à-vis those other Liechtenstein nationals can pass legal
scrutiny, but that is a matter for the merits, viz. whether Germany as a
result of the decisions of its courts has breached an international
obligation towards them.
41. Since Liechtenstein claims in its own right and also in the exercise of
diplomatic protection on behalf of one of its citizens -- the then Reigning
Prince -- who has exhausted all local remedies, Germany’s sixth preliminary
objection has no merit.
42. In conclusion, I repeat my view that the Court has jurisdiction to
entertain the case and that Liechtenstein’s Application is admissible.
(Signed) Pieter H. KOOIJMANS.
[p 40]
DISSENTING OPINION OF JUDGE ELARABY
Preliminary objection to jurisdiction of Court ratione temporis -- Context
and wording of limitation ratione temporis may have justified departure from
“real cause” test adopted in prior cases -- Court’s conclusion that real
cause of dispute was in facts or situations prior to critical date wrong on
the facts --Court should have joined objection to its jurisdiction ratione
temporis to merits -- Court’s disposal of case in limine, after it had
recognized that there was a dispute between the Parties, not a positive
contribution to settlement of international disputes.
1. The Court’s finding that it lacks jurisdiction ratione temporis and
consequently that it has no jurisdiction to entertain Liechtenstein’s
Application prompts me to append this dissenting opinion in order to clarify
the reasons for which I cast a dissenting vote.
2. The Court based its conclusion that it has no jurisdiction ratione
temporis on two premises:
(i) under Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes,
the Court does not have jurisdiction over “disputes relating to facts or
situations prior to
the entry into force of this Convention as between the parties to the
dispute [i.e. 1980]”;
(ii) the case law of this Court and of its predecessor have established that
the facts or situations that are relevant to a ratione temporis analysis are
those that constitute the “source or real cause” of the dispute (Judgment,
para. 46);
3. In applying the exclusion of jurisdiction ratione temporis, the Court
rightly recognized that “the critical issue is not the date when the dispute
arose, but the date of the facts or situations in relation to which the
dispute arose” (ibid., para. 48; emphasis added). It went on to decide which
facts or situations were the “source or real cause” of the dispute. It
concluded that “it is not contested that the present dispute was triggered
by the decisions of the German courts” (ibid.; emphasis added) in the Pieter
van Laer Painting case, but that this “conclusion does not . . .
dispose of the question the Court is called upon to decide” (ibid.) because
even though the German courts’ decisions came after the critical date, they
were not the dispute’s “source or real cause”. The “source or real cause”,
according to the Court, was instead the situation created by the Settlement
Convention and the Beneš Decrees, both of which predated the critical date
(ibid.,
para. 52). [p 41]
4. In applying the “real cause” test, the Court adopted an analysis
originally applied in two cases that came before the Court’s predecessor,
the Permanent Court of International Justice, and reapplied in the Right of
Passage case before this Court in 1960. At this juncture, it is appropriate
to point out that in each of the cases cited by the Court:
(a) the exclusion clause was inserted into an optional clause declaration,
not a treaty; and
(b) the clauses at issue contained identical language that limited the
jurisdiction of the Court to disputes which “aris[e] . . . with regard to
situations or facts” occurring after the critical date, whereas in the
instant case the temporal limitation in the European Convention conferred
jurisdiction over disputes which “relat[e] to facts or situations” occurring
after the critical date.
5. Clearly, the language in the European Convention in this case is broader
than the language at issue in the previous cases. In my view, this fact may
have required a different interpretation of the “real cause” test than that
which was previously applied in prior cases, or indeed a different test.
Moreover, it would appear that by acknowledging -- as it did several times
in its Judgment (ibid., paras. 48 and 52) -- that the German courts’
decisions of the 1990s “triggered” the dispute, the Court also acknowledged
that these decisions “relate” to facts or situations that occurred well
after the critical date; but the Court saw no contradiction in this.
6. For the purposes of this dissenting opinion, however, I will assume that,
notwithstanding the broader language in the exclusion ratione temporis in
this case, the “real cause” test is the correct test and I will confine my
remarks to an explanation of why I believe the Court reached the wrong
conclusion in its application of this test to the specific circumstances of
this case.
7. The basis of the Court’s finding that the real cause of the dispute is
not the German courts’ decisions of the 1990s, but facts and situations that
occurred before the 1980s, is that the German
court decisions “cannot be separated from the Settlement Convention and the
Beneš Decrees” (Judgment, para. 51). This is because, according to the
Court, the German courts’ decisions simply represented the latest in a long
line of cases in which the German courts had consistently held that they
lacked competence under the Settlement Convention to rule on the legality of
property confiscated abroad (ibid., para. 50). This misses the central
point, however, which is that the German courts had never before applied the
Settlement Convention to property belonging to a neutral State, so there is
no long line of cases to be taken into account. Moreover, the Settlement
Convention is a treaty dealing only with “German external assets”.
Liechtenstein is a third party and is not bound by its provisions. Whether
the Beneš Decrees were based on citizenship or ethnicity (that is, [p 42]
the wider concept of persons belonging to the German people regardless of
nationality), is irrelevant in the case instituted by Liechtenstein against
Germany because Germany, the Respondent, was in no sense connected to the
promulgation of the Beneš Decrees. It did not issue or apply the Beneš
Decrees to confiscate Liechtenstein property. Indeed, its relationship to
the Decrees is identical to the Applicant’s: both sustained damage as a
result of confiscations that took place under them. Thus, all the facts and
situations that predate the critical date under the European Convention
serve only as historical background to the dispute between the parties to
this case.
8. Some of these facts would be relevant if the Respondent were
Czechoslovakia and the purpose of the proceedings was to challenge some
aspect of the lawfulness of the Beneš Decrees. But this is not the case
here. Moreover, as I seek to clarify, the factual circumstances of this case
are not identical to those underlying the three cases relied upon by the
Court. One difference is fundamental: in each of the three previous cases,
certain acts attributable to the Respondent and complained of by the
Applicant took place both before the critical date and after the critical
date, and the Court, in deciding the scope of its jurisdiction ratione
temporis, had to decide which of these acts constituted the facts and
situations that were the “source or real cause” of the dispute.
9. Thus, in Phosphates in Morocco, Italy complained that French legislation
monopolizing the Moroccan phosphate industry to the detriment of an Italian
company occurred before the critical date, whereas a final denial of the
company’s rights by the French Ministry of Foreign Affairs occurred after
it. In the Electricity Company of Sofia and Bulgaria case, Belgium
complained that a Bulgarian municipality confiscated property of a Belgian
company and that a mixed Belgo-Bulgarian tribunal established a formula for
the price of coal to be sold by the company before the critical date,
whereas the Bulgarian courts applied this formula in a way that caused the
Belgian company to suffer a loss after it. And finally in Right of Passage
over Indian Territory, Portugal complained that certain “minor incidents”
between it and India regarding Portugal’s passage over Indian territory
occurred before the critical date, whereas a full-scale obstruction of its
right of passage occurred after it. Although the Court in each case weighed
the facts or situations differently -- finding in only one of the cases that
the facts or situations that constituted the “source or real cause” of the
dispute occurred before the critical date -- the point is that in each of
these cases there were acts attributable to the Respondent and complained of
by the Applicant that occurred before the critical date. There are no such
acts here. To neglect recognizing this fact and the [p 43] legal
consequences that flow from it is to deviate from the prior jurisprudence of
the Court.
10. It should, in my view, be manifestly clear that the German courts’
decisions purporting to include neutral Liechtenstein property under the
umbrella of German external assets ¾ in the 1990s, a decade after the
critical date ¾ should be considered the “real cause” of the dispute.
Liechtenstein requested the Court to adjudge and declare that “Germany has
failed to respect the
sovereignty and neutrality of Liechtenstein” (Memorial of the Principality
of Liechtenstein, p. 187, para. 1 (a)) because it treated Liechtenstein
property as German assets. Thus, its claim relates exclusively to the
propriety under international law of the German courts’ decisions. The
lawfulness of the confiscation of Liechtenstein property in Czechoslovakia
represents a separate issue which could constitute a dispute between
Liechtenstein and Czechoslovakia but not Liechtenstein and Germany. Here
then, the German courts’ decisions have the same character and nature as the
events that took place after the critical date in the Electricity Company
and Right of Passage cases. In the latter case, the Court held that:
“It was only in 1954 that . . . a controversy arose and the dispute relates
both to the existence of a right of passage to go into the enclaved
territories and to India’s failure to comply with obligations which,
according to Portugal, were binding upon it in this connection. It was from
all of this that the dispute referred to the Court arose; it is with regard
to all of this that the dispute exists. This whole, whatever may have been
the earlier origin of one of its parts, came into existence only after [the
critical date].” (I.C.J. Reports 1960, p. 35; emphasis added.)
11. It is difficult to grasp how in the instant case the “whole” could have
materialized before 1980 since no pre-1980 conduct attributable to Germany
was raised in the proceedings. Indeed the Court, by confirming that the
“issue whether or not the Settlement Convention applied to Liechtenstein
property had not previously arisen before German courts” (Judgment, para.
50) admitted as much. The Court has demonstrated that a “new situation”,
namely the application of
earlier case law under the Settlement Convention for the “first time” to
neutral and non-German property, existed, and it is this situation that for
the first time caused a dispute between Liechtenstein and Germany. [p 44]
12. My line of reasoning is as follows: if we proceed from the established
fact that the Respondent is not responsible for the Beneš Decrees, the
question should be legitimately asked: did the Respondent undertake any post
critical date act that potentially engaged its international responsibility?
13. An examination of the case file suggests that two such acts were adopted
by Germany. The first is the Exchange of Notes which
“was executed between the three Western Powers and the Government of the
Federal Republic of Germany (the parties to the Settlement Convention) under
which that Convention would terminate simultaneously with the entry into
force of the Treaty. Whereas that Exchange of Notes terminated the
Settlement Convention itself, including Article 5 of Chapter Six (relating
to compensation by Germany), it provided that paragraphs 1 and 3 of Article
3, Chapter Six, ‘shall, however, remain in force’” (Judgment, para. 15).
Thus, Germany retained the clause in Article 3, Chapter Six, of the
Settlement Convention requiring Germany to “raise no objections” to measures
taken against “German external assets”, but terminated the obligation to pay
compensation provided for in Article 5 of Chapter Six of the
Settlement Convention, which stipulates that “[t]he Federal Republic shall
ensure that the former
owners of property seized pursuant to the measures referred to in Articles 2
and 3 of this Chapter
shall be compensated”. The second act attributable to Germany is the
decision of the German courts to apply the Settlement Convention to property
belonging to nationals of a neutral country. Both these acts occurred well
after the critical date.
14. It is relevant to recall, in this context, that the European Court of
Human Rights (“ECHR”) reached a conclusion similar to the one I am espousing
when it analysed its jurisdiction ratione temporis in the case brought by
the Prince of Liechtenstein. In that case, Germany made two separate claims,
only one of which it duplicates here. In regard to the first claim -- that
the Czech Decrees were unlawful -- the ECHR found that it did not have
temporal jurisdictionFN1. But the Court drew an important distinction
between this claim and the Prince’s second and entirely separate claim. The
Court, with respect to this second claim, noted:
---------------------------------------------------------------------------------------------------------------------
FN1Prince
Hans-Adam II of Liechtenstein v. Germany, European Court of Human Rights,
Application No. 42527/98, Judgment, 12 July 2001 (Preliminary Objections of
Germany, Vol. II, Ann. 1, pp. 27-28, paras. 84-85).
---------------------------------------------------------------------------------------------------------------------
“that the applicant’s complaint . . . does not concern the original
confiscation of the painting which had been carried out by authori-[p
45]ties of former Czechoslovakia in 1946. In the present proceedings, the
applicant complains that, as in the German court proceedings instituted in
1992 he could not obtain a decision on the merits of his claim for ownership
of the painting, it was eventually returned to the Czech Republic. The
Court’s competence to deal with this aspect of the application is therefore
not excluded ratione temporis.”FN2
----------------------------------------------------------------------------------------------------------- FN2
Ibid., p. 27, para. 81.
------------------------------------------------------------------------------------------------------------
15. Thus, the European Court found that any claim regarding the Pieter van
Laer court decisions -- Liechtenstein’s second claim before the European
Court -- was “not excluded ratione temporis”FN3 because the relevant facts
occurred in the 1990s, after the critical date. Liechtenstein raised only
this second claim before this Court and in my view this Court should, like
the ECHR, have found that it was not precluded from exercising jurisdiction
over Liechtenstein’s claim.
-------------------------------------------------------------------------------------------------------------------- FN3 Ibid.;
emphasis added. The ECHR was careful to point out that it did not consider
Germany’s conduct to be a continuation of the former Czechoslovakia’s:
“The Court would add that in these circumstances there is no question of a
continuing violation of the Convention which could be imputable to the
Federal Republic of Germany and which could have effects as to the temporal
limitations of the competence of the Court.” (Ibid., para. 85.)
---------------------------------------------------------------------------------------------------------------------
16. In sum, I am of the opinion that the temporal limitation in the European
Convention was not a proper basis for a finding of no-jurisdiction. In the
alternative, I believe that the various dimensions of the case could have
been better clarified had the Court opted to explore the case further by
joining the German second objection to the merits in conformity with Article
79, paragraph 9, of the Rules of Court instead of disposing of the case in
limine.
17. I cannot conclude without expressing my concern regarding the final
outcome. The Court has found that a legal dispute does exist between the
Parties and made the finding that the real subject-matter of the dispute is:
“whether, by applying Article 3, Chapter Six, of the Settlement Convention
to Liechtenstein property that had been confiscated in Czechoslovakia under
the Beneš Decrees in 1945, Germany was in breach of the international
obligations it owed to Liechtenstein and, if so, what is Germany’s
international responsibility” (Judgment, para. 26).
Declining jurisdiction while a dispute persists does not represent a
positive contribution to the settlement of international disputes, which is
the central function of the Court.[p 46]
18. In the light of the foregoing, I voted for paragraph 1 (a) of the
dispositif but was compelled to vote against paragraphs 1 (b) and 2 of the
dispositif.
(Signed) Nabil ELARABY.
[p 47]
DISSENTING OPINION OF JUDGE OWADA
To my regret, I cannot associate myself with the conclusion of the Judgment
that the Court has no jurisdiction to entertain the present case, especially
as it relates to the finding that the second preliminary objection of
Germany to the Court’s jurisdiction is to be upheld. I wish to set out
hereunder my own views on some of the salient issues involved with a view to
clarifying the bases for my dissent.
I. The essential nature of the dispute
1. This case is unique in the sense that the Applicant and the Respondent
are arguing their case at cross purposes. They base their respective
arguments on different understanding of what the dispute between the Parties
is about and what precisely the cause of action of the Applicant is.
2. Clearly it is this difference in approach to the case between the Parties
in defining the essential nature of the dispute that forms a crucial element
in this case at the present stage of the preliminary proceedings on
objections raised by the Respondent. One critical question that the ourt has
to decide on in the present preliminary proceedings therefore is the
question of “what is the subject-matter of the dispute?” This question has
its relevance to most, if not all, of the preliminary objections raised by
Germany in the present proceedings; more specifically the Court is to define
its position on this point in dealing with the first preliminary objection
relating to the existence vel non of a dispute between the Parties and [p
48] the second preliminary objection relating to the limitation ratione
temporis on the jurisdiction of the Court, on both of which the present
Judgment has chosen to pronounce itself.
3. Liechtenstein in its Application to institute proceedings before the
Court claims that:
“(a) by its conduct with respect to the Liechtenstein property [which had
been confiscated in Czechoslovakia under the “Beneš Decrees” of 1945], in
and since 1998, Germany failed to respect the rights of Liechtenstein with
respect to that property;
(b) by its failure to make compensation for losses suffered by Liechtenstein
and/or its nationals, Germany is in breach of the rules of international
law.” (Application of Liechtenstein, para. 25.)
4. In support of this claim, the Applicant contends, inter alia, as follows:
“Under international law, having regard to Liechtenstein’s neutrality and
the absence of whatsoever links between Liechtenstein and the conduct of the
war by Germany, any Liechtenstein property that may have been affected by
measures of an Allied power could not be considered as ‘seized for the
purpose of reparation or restitution, or as a result of the state of war’”
(Application of Liechtenstein, para. 9);
“Subsequent to the conclusion of the Settlement Convention [of 1952], it was
accordingly understood, as between Germany and Liechtenstein, that the
Liechtenstein property did not fall within the régime of the Convention”
(ibid., para 10);
“In 1998 the position of the Federal Republic of Germany changed, as a
result of the decision of the Federal Constitutional Court of 28 January
1998 [in a case concerning a painting which was among the Liechtenstein
property seized in 1945 under the ‘Beneš Decrees’]” (ibid., para. 17);
“Liechtenstein . . . protested to Germany that the latter was treating as
German assets which belonged to nationals of Liechtenstein . . . Germany
rejected this protest and in subsequent consultations it became clear that
Germany now adheres to the position that the Liechtenstein assets as a whole
were ‘seized for the purpose of reparation or restitution, or as a result of
the state of war’ within the meaning of the Convention” (ibid., para. 19).
5. Thus Liechtenstein submits that “[t]here is accordingly a legal dispute
between Liechtenstein and Germany as to the obligations of the latter with
respect to Liechtenstein property” and that “[i]t is this dispute which is
the subject of the present Application” (ibid., para. 20). [p 49]
6. In support of its first preliminary objection that there is no legal
dispute between Germany and Liechtenstein, the Respondent contends that the
“change of position [as alleged by Liechtenstein], which supposedly led to a
disagreement on a point of law, never occurred” and that “it is impossible
to discern any disagreement on a point of law or fact between Germany and
Liechtenstein” (CR 2004/24, p. 21, para. 42). Referring to the confiscation
of certain Liechtenstein property by Czechoslovakia under the “Beneš
Decrees”, the Respondent claims that
“[b]etween Liechtenstein and Germany there exists no dispute concerning the
lawfulness of the Czechoslovak seizures. Rather, the dispute is one between
Liechtenstein and the successor(s) of former Czechoslovakia.” (Preliminary
Objections of Germany, Vol. I, Part III, Chap. I, Section I, D., p. 42,
para. 60.)
It argues that “it is impossible to formulate the alleged dispute between
Liechtenstein and Germany in a way which effectively distinguishes it from
the real dispute between Liechtenstein and the Czech Republic” (CR 2004/24,
p. 21, para. 43).
7. Liechtenstein on the contrary claims that “Germany address[es] a case
that is not the case before [the Court]”. According to Liechtenstein, its
case is that
“Germany bears international responsibility for infringing Liechtenstein’s
neutrality and sovereignty by allowing Liechtenstein assets to be treated,
for the first time in 1995, as German external assets for purposes of the
Settlement ConventionFN1.”
----------------------------------------------------------------------------------------------------------- FN1
Convention on the Settlement of Matters arising out of the War and the
Occupation, signed by the United States of America, the United Kingdom,
France and the Federal Republic of Germany, at Bonn on 26 May 1952 (as
amended by Schedule IV to the Protocol on the Termination of the Occupation
Régime in the Federal Republic of Germany, signed at Paris on 23 October
1954) (hereinafter referred to as the “Settlement Convention”).
------------------------------------------------------------------------------------------------------------
It categorically states that “[t]his case is not about the legality of the
Beneš Decrees”, and that “[it] is not about Liechtenstein’s dispute with
Czechoslovakia . . . over property belonging to Liechtenstein and its
nationals” (CR 2004/25, p. 12; emphasis in the original).
8. It is clear that here the Parties are presenting their respective
different positions on the “subject-matter of the dispute” in the present
case, not only by employing different formulations but also by addressing
different substances. Needless to say, the question of what constitutes the
dispute in a case before this Court in the final analysis has to be decided
by the Court. Nevertheless, it stands to reason that since the case has been
brought before the Court by Liechtenstein as Applicant against [p 50]
Germany as Respondent, it is in the Submissions of the Applicant that the
formulation of the claims on which the Court must adjudicate is to be sought
(cf. Right of Passage over Indian Territory, Merits, Judgment, I.C.J.
Reports 1960, p. 27).
9. More specifically, the Court in the case concerning Fisheries
Jurisdiction (Spain v. Canada), in which the parties, while accepting that
there existed a dispute between them, characterized the dispute differently,
stated as follows:
“In order to identify its task in any proceedings instituted by one State
against another, the Court must begin by examining the Application (see
Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 21;
Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports
1960, p. 27; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 260, para. 24). However, it may happen that uncertainties or
disagreements arise with regard to the real subject of the dispute with
which the Court has been seised, or to the exact nature of the claims
submitted to it. In such cases the Court cannot be restricted to a
consideration of the terms of the Application alone nor, more generally, can
it regard itself as bound by the claims of the Applicant.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
It is for the Court itself, while giving particular attention to the
formulation of the dispute chosen by the Applicant, to determine on an
objective basis the dispute dividing the parties, by examining the position
of both parties” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of
the Court, Judgment, I.C.J. Reports 1998, p. 448, paras. 29 and 30; emphasis
added).
10. When the divergent characterization of the subject-matter of the dispute
given by the Applicant and the Respondent in the present case is closely
examined in accordance with the principle enunciated by this jurisprudence
of the Court, it seems clear that the subject-matter of the dispute in the
present case is the question of international responsibility of Germany in
its treatment of Liechtenstein property as “German external assets or other
property, seized for the purpose of reparation or restitution, or as a
result of the state of war” (hereinafter referred to as “German external
assets or other property”) for purposes of the Settlement Convention. On
this point, therefore, I concur with the Judgment in its conclusion that
“the subject-matter of the dispute is whether, by applying Article 3,
Chapter Six, of the Settlement Convention to Liechtenstein property that had
been confiscated in Czechoslovakia under the Beneš Decrees in 1945, Germany
was in breach of the international obligations it owed to Liechtenstein and,
if so, what is Germany’s international responsibility” (Judgment, para. 26).
11. Naturally the question of whether or not the allegation of Liechtenstein
as quoted in paragraph 4 above, and especially the allegation that [p 51]
there has been a change in this respect in the position of Germany, can be
established is a question that obviously belongs to the merits of the case.
In holding that there exists a situation in which “complaints of fact and
law formulated by Liechtenstein against Germany are denied by the latter”
and that “[b]y virtue of this denial, there is a legal dispute” (Judgment,
para. 25) between the Parties, the Court is not prejudging the validity of
such “complaints of fact and law formulated by Liechtenstein”. All that the
Court should pronounce upon at this stage of the proceedings, where it is
addressing strictly the preliminary objections raised by the Respondent
only, is whether there does exist a legal dispute between the Parties on
this point for the purposes of the jurisdiction of the Court.
II. The issue of “disputes relating to facts or situations”
12. Having come to its conclusion as stated above on the question of whether
there exists a legal dispute between the Parties in the present case and
what constitutes the subject-matter of this dispute, the Court has to adhere
to this characterization of the subject-matter of the dispute in examining
the question raised in the second preliminary objection of the Respondent,
i.e., the question of whether the dispute thus formulated will fall within
the jurisdiction of the Court, ratione temporis, under Article 27 (a) of the
European Convention for the Peaceful Settlement of
Disputes of 29 April 1957.
13. Preliminary to proceeding to the examination of the facts of the case in
this respect, however, the first issue to be analysed is the meaning of the
provision in Article 27 (a) of the Convention which excludes “disputes
relating to facts or situations prior to the entry into force of this
Convention as between the parties to the dispute” (emphasis added) from the
scope of jurisdiction conferred upon the Court under this Article.
14. In every case before the Court, the basis of jurisdiction of the Court
is the legal instrument that confers jurisdiction on the Court, be it a
unilateral declaration accepting the compulsory jurisdiction of the Court or
a compromissory provision in a bilateral or multilateral treaty to refer a
dispute under the treaty to the Court. Each case has to be assessed on its
own by interpreting the legal instrument in question that serves as the
basis for jurisdiction.
15. From this point of view the question could arise as to whether the
language employed in Article 27 (a) of the European Convention for the
Peaceful Settlement of Disputes should be interpreted differently from the
more usual expression employed in some other cases that have come before
this Court. By way of illustrations, in the Phosphates in Morocco case
before the Permanent Court of International Justice, the legal instrument in
question, the French declaration of 1930 accepting the compulsory
jurisdiction of the Court, employed the expression “any disputes which may
arise after the ratification of the present declaration with regard to
situations or facts subsequent to this ratification” (Phosphates [p 52] in
Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 22; emphasis
added). In the Electricity Company of Sofia and Bulgaria case, also before
the Permanent Court, the legal instrument in question was the Belgian
declaration of adherence to the optional clause of the Court’s Statute. That
also used the formula “any disputes arising after the ratification of the
present declaration with regard to situations or facts subsequent to this
ratification” (Electricity Company of Sofia and Bulgaria, Judgment, 1939,
P.C.I.J., Series A/B, No. 77, p. 82; emphasis added). In yet another case in
which the same issue of the scope of limitation ratione temporis on
jurisdiction of the Court came before the present Court, i.e., Right of
Passage case, the legal instrument in question was also the Indian
declaration of acceptance of the jurisdiction of the Permanent Court of
International Justice of 28 February 1940. Here again the declaration used
the same formula of limiting the scope of acceptance to “‘disputes arising
after February 5th, 1930, with regard to situations or facts subsequent to
the same date’” (Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, p. 151; emphasis added).
16. By contrast, the formula used in Article 27 (a) of the European
Convention for the Peaceful Settlement of Disputes is different. Formulated
as a compromissory clause in a multilateral instrument, Article 27 (a) of
the Convention limits the scope of jurisdiction of the International Court
of Justice ratione temporis as follows:
“The provisions of this Convention shall not apply to:
(a) disputes relating to facts or situations prior to the entry into force
of this Convention as between the parties to the dispute” (emphasis added).
17. It therefore seems to be in order to engage in an examination of the
legislative history of Article 27 (a) of the Convention within the Council
of Europe where it was finally adopted, with a view to ascertaining whether
this divergence from the more usual formulation employed in the other
instruments was an intended one with the express purpose of producing a
different legal effect on the part of the drafters of the instrument. At the
drafting stage of the Convention, “Proposals of the Committee on Legal and
Administrative Questions for a European Act for the Peaceful Settlement of
Disputes”FN2 included the following provision relating to the limitation
ratione temporis to be incorporated in the European Act (which grew into the
European Convention for the Peaceful Settlement of Disputes of 1957):
-------------------------------------------------------------------------------------------------------------------- FN2
Contained in Appendix, Part B, to Recommendation 36 (1952) on the
establishment of a European Court of Justice and of a European Act for the
Peaceful Settlement of Disputes.
---------------------------------------------------------------------------------------------------------------------
“It shall be deemed not to apply to disputes arising out of facts which
occurred prior to the accession to the Act of Members parties to such
disputes . . .” (emphasis added).
However, when these proposals were submitted to a Committee of Experts who
then produced a draft “Final Report of the Committee of Experts on the
Peaceful Settlement of Disputes and the Creation of a European Court of
Justice” of 18 May 1953FN3, some change in the wording of this part took
place. Thus in the Final Report adopted of 22 May 1953, the then Article 1
(2) (which later became Article 27 (a) of the draft Convention) came to
include the following formula in relation to the limitation ratione temporis
on the jurisdiction of the Court:
-------------------------------------------------------------------------------------------------------------------- FN3
Council of Europe doc. EXP/RPD/JU (53); A.12.379; TL.794/WM/Unrevised.
---------------------------------------------------------------------------------------------------------------------
“This undertaking shall not apply to disputes relating to facts or
situations prior to the entry into force of this Convention as between the
parties to the dispute.” (Council of Europe doc. CM (53) 58; A.12.822;
TL.794/WM; Appendix II, p. 20; emphasis added.)
There is nothing in the relevant records available that can shed light on
the background for this
change. On the contrary, the “Comments on the Articles of the Preliminary
Draft Convention”
contained in the Final Report states by way of a commentary on Article 1 (2)
(i.e., present
Article 27 (a)) that:
“This paragraph sets a time-limit to the facts giving rise to a dispute
which may be submitted to the Court. It lays down that the starting point
shall be the date of the entry into force of the Convention.” (Council of
Europe doc. CM (53) 58; A.12.822; TL.794/WM, p. 6; emphasis added.)
18. In the absence of any further documentary evidence to clarify this
point, it would seem reasonable to presume that the final change in wording
on this crucial part of the formulation in Article 27 (a) of the Convention
from “disputes arising out of facts” to “disputes relating to facts or
situations” did not signify any intentional modification on the scope of the
limitation ratione temporis, both being treated indiscriminately as
referring to “the facts giving rise to a dispute”.
19. Based on this analysis of the travaux préparatoires on the legislative
history of the compromissory provisions of the Convention, it would [p 54]
seem safe to conclude, as the Judgment seems to assume without going through
a detailed analysis on this point, that the formulation of the limitation
ratione temporis employed in the compromissory provisions of the European
Convention for the Peaceful Settlement of Disputes should be interpreted as
being no different from the comparable formulations employed in the other
legal instruments which were the subject of scrutiny in the previous three
judgments of the Court, which now form the case law on this issue.
III. The relevant “facts or situations” in relation to the dispute
20. Having thus disposed of the issue of a possible distinction in law
between different formulations on the question of limitation ratione
temporis employed in different legal instruments, the next question that the
Court is to examine is what are such “facts or situations giving rise to the
dispute” in the present case.
21. In determining the issue of which facts or situations are to be regarded
as “facts or situations giving rise to the dispute” in the context of the
present case, it is of cardinal importance that we base ourselves on the
characterization of the subject-matter of the dispute in the present case as
the Court has identified it. I have already stated in Part I of this opinion
that the proper way of looking at the present case, especially taking
account of the claims of the Applicant as presented
in its Application, is to define the subject-matter of the present dispute
as consisting in the alleged change in the position of Germany in the 1990s,
through a series of German court decisions, on the question of treatment of
Liechtenstein property as “German external assets and other property” for
the purposes of Article 3, paragraph 1, of Chapter Six of the Settlement
Convention.
22. It is true that this allegation has not been fully elaborated by the
Applicant at this stage of the proceedings, while the Respondent flatly
denies that there has been any such change of position by Germany. In fact
this question can only be determined definitively when the Court enters into
a thorough examination of the facts of the case at the merits stage of the
case. Nevertheless, on the basis of the relevant documents and the oral
presentations both of the Applicant and of the Respondent submitted to the
Court, it is difficult to deny that this Liechtenstein claim is something
more than a sheer allegation which patently is not sustainable even on a
prima facie basis of the facts made available to the Court. Germany claims
that there has been no change of position in the jurisprudence of the German
courts; and that its courts have consistently held that they are barredby
the Settlement Convention from adjudicating on the lawfulness of any
confiscation measures for the purposes named by the Settlement Convention
(CR 2004/24, p. 15, para. 17). However, a glance at the jurisprudence of the
German courts (cf. cases listed in Observations of Liechtenstein, Appendix
I) seems to reveal that this [p 55] latter statement does not seem to be
entirely accurate. It may be true that in those cases where the application
of the Settlement Convention was involved, the German courts have
consistently held that they lacked the competence to penetrate the legal
veil of the provisions of Article 3, paragraph 1, of Chapter Six of the
Settlement Convention and refrained from evaluating the lawfulness of the
measures that had been applied to what were unquestionably “German external
assets”. As the Respondent itself concedes (CR 2004/24, p. 13, para. 11),
however, no concrete case had arisen, until the Pieter van Laer Painting
case was brought before the court in Cologne in which the applicability
itself of the Settlement Convention to Liechtenstein property as “German
external assets or other property” was considered for the first time.
23. The AKU FN4 case cited in this context by the Respondent as evidence of
the German position quoted above (CR 2004/24, p. 15, para. 17) might appear
to serve as a precedent for holding that “[Article 3, Chapter Six, of the
Settlement Convention as amended by Schedule IV of the Paris Protocol of 23
October 1954] does not confer [upon German courts] a right to examine this
question [of applicability of the Convention] in accordance with German law”
(International Law Reports, Vol. 23 (1956), p. 23). However, it is preceded
by one important condition by way of a proviso, which states as follows:
-------------------------------------------------------------------------------------------------------------------- FN4
See AKU case, Judgment of the German Federal Court of Justice
(Bundesgerichtshof) of 13 December 1956 (II ZR 86/54); see also
International Law Reports, Vol. 23 (1956), pp. 21-24; Neue Juristische
Wochenschrift, Vol. 10, Issue 6 (1957), p. 217.
---------------------------------------------------------------------------------------------------------------------
“The sole condition . . . which must now be satisfied in order that the
jurisdiction of the German Courts shall be excluded is that the claim is
concerned with an asset seized for the purpose of reparation or one of the
other purposes referred to in paragraph 1 [of Article 3].” (Ibid., p. 22.)
It would seem therefore that this decision, with this expressly stated
proviso, could not be an authority on the point at issue here, i.e., that
the German courts have consistently held that they were barred under the
Settlement Convention from examining the applicability itself of the
Settlement Convention to neutral assets.
24. To this extent at any rate, it thus seems undeniable that the position
of the German courts in the Pieter van Laer Painting case, culminating in
the decision of the court of the final instance in civil matters, i.e., the
Bundesgerichtshof, followed by the decision of the Federal Constitutional
Court of 14 January 1998 on a constitutional complaint which held that
Liechtenstein property fell within the scope of the Settlement Convention,
has had the effect of creating a new case law in applying the principle -- a
principle that may well have been consolidated in relation to uncontestably
“German external assets” that had been subject to war-[p 56]time or post-war
reparation régime by allied or other powers -- to a new situation involving
a neutral property of
Liechtenstein.
25. Whether this contention of Liechtenstein concerning the alleged change
in the position of Germany in the 1990s can stand the test of scrutiny in
terms of facts and law surrounding the situation involving the painting of
Pieter van Laer is of course an entirely different matter. This is an issue
which has to be scrupulously examined when the Court comes to the merits
stage of the case. Suffice it to say at this preliminary stage on
jurisdiction that there is at least sufficient basis for holding that the
subject-matter of the dispute is real and not just artificially constructed.
In fact, this alleged “change of position of Germany”, or more precisely,
the treatment by Germany of Liechtenstein property as falling within the
scope of Article 3 of Chapter Six of the Settlement Convention embodied in
the decision of the highest German court in the 1990s, which can only be
examined in detail at the merits stage of the case, is the key to
definitively determining whether this situation amounted to the “facts or
situations which have given rise to the dispute”, thus satisfying the
conditions ratione temporis prescribed by the compromissory provisions of
the European Convention for the Peaceful Settlement of Disputes.
IV. Jurisprudence of the Court on “facts or situations” giving rise to the
dispute
26. As the existence of a dispute between Liechtenstein and Germany has been
established in the Judgment itself, the next step for the Court is to
ascertain whether this dispute falls within or outside the scope of the
jurisdiction conferred upon the Court by the compromissory provisions of
Article 27 (a) of the European Convention for the Peaceful Settlement of
Disputes. On the basis of the interpretation given above on the formula
“disputes relating to facts or situations” (Part II of this opinion), the
question for the Court to address is whether this dispute is one “relating
to facts or situations prior to the entry into force of [the] Convention as
between the parties” as interpreted above.
27. In my view, an analysis of the past three cases before the Permanent
Court of International Justice and the International Court of Justice, in
which the issue of what are the “facts or situations giving rise to the
dispute” was addressed by the Court and its predecessor, reveals that
there appear to be two lines of approach in the case law of the Permanent
Court and this Court:
(1) the approach to look to those facts or situations which are the real
source of the dispute, but not the source of the rights which underlie the
dispute; and
(2) the approach to take the dispute as “the whole” of a chain of events [p
57] and looking to those facts or situations which crystallize the dispute
by completing the cycle of its constituent elements.
The first approach places emphasis on the substantive problem of determining
the real cause of the dispute, while the second approach looks to a formal
aspect of the process of crystallization of the dispute by identifying the
point in time at which a fact or a situation comes to constitute the
critical factor which gives rise to a dispute in a concrete form.
28. These two lines of approach, however, represent different angles from
which to look at the same situation, and therefore are not mutually
exclusive. Indeed, it is the importance of a nexus of close and direct link
between the dispute and the facts or situations which give rise to that
dispute that is emphasized in both of the two approaches. This nexus of
close and direct link connecting the dispute and the facts and situations
which give rise to it is so essential that an authority on this subject was
prompted to state that:
“It is believed . . . that in the long run there is little practical
significance in this distinction [between the date on which the dispute
arose and the date of the facts and situations which gave rise to it], at
least in so far as concerns what occurs in the process of reaching the
decision: a distinction between the date of a dispute, and the date of the
facts and situations regarding which that dispute exists, may be one of form
only.” (Shabtai Rosenne, The Time Factor and the Jurisprudence of the
International Court of Justice, p. 40.)
29. It is thus incumbent upon me to analyse how the case law in each of the
three precedents works out this nexus in a concrete context and see how the
case law is to be applied to the facts of the present situation. In the
Phosphates in Morocco case, Italy brought claims against France, alleging
that by a series of decrees the French had denied certain rights of Italian
nationals in the
Moroccan phosphates industry. The decrees preceded the critical date in the
French optional clause declaration, but Italy argued that there was a
continuing illegality, which had only been completed by certain acts
subsequent to the date. After stating that “[s]ituations or facts subsequent
to the ratification [of the optional clause declaration] could serve to
found the Court’s compulsory jurisdiction only if it was with regard to them
that the dispute arose” (emphasis added), the Permanent Court of
International Justice made the point that
“it would be impossible to admit the existence of such a relationship
between a dispute and subsequent factors which either presume the existence
or are merely the confirmation or development of earlier situations or facts
constituting the real causes of the dispute” (Phosphates in Morocco,
Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 24; emphasis added). [p 58]
30. Relying on this dictum, Germany in the present case contends that the
acts after 1980, including the decision of the German courts, were merely a
confirmation or development of facts or situations that took place in the
1940s and the 1950s, i.e., the Beneš Decrees of 1945 and the
Settlement Convention of 1952.
31. It is a fact, however, that the Settlement Convention as such, with its
reference to “German external assets”, created no dispute with neutral
Liechtenstein. It is also a fact that the Settlement Convention had never
before been applied to Liechtenstein assets by the German courts until the
decision in the Pieter van Laer Painting case. Thus it was in the context of
this new development of the 1990s which allegedly constituted a “new legal
situation” and not just a “confirmation or development of earlier situations
or facts” (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No.
74, p. 24) that a concrete dispute arose between Germany and Liechtenstein.
32. In the Electricity Company of Sofia and Bulgaria case before the
Permanent Court of International Justice, the Respondent, Bulgaria, relied
on the so-called “double exclusion clause”
(or the “Belgian formula”) in the Belgian optional clause declaration. The
Respondent argued that the situation underlying the dispute was created by
the awards of the Belgo-Bulgarian Mixed
Arbitral Tribunal, and in particular by the formula established by the
awards for the fixing of the price, both of which antedated the critical
date of the declaration. The complaints made by the Applicant, Belgium,
concerning the application of this formula by the Bulgarian authorities
related to the working of that formula and made it the centre point of the
dispute.
33. In rejecting the argument of the Respondent on this point, the Court
recalled what it said in the Phosphates in Morocco case, and stated that
“[t]he only situations or facts which must be taken into account from the
standpoint of compulsory jurisdiction accepted in the terms of the Belgian
declaration are those which must be considered as being the source of the
dispute” (Electricity Company of Sofia and Bulgaria, Judgment, 1939,
P.C.I.J., Series A/B, No. 77, p. 82; emphasis added),
and concluded as follows:
“It is true that a dispute may presuppose the existence of some prior
situation or fact, but it does not follow that the dispute arises in regard
to that situation or fact. A situation or fact in regard to which a dispute
is said to have arisen must be the real cause of the dispute.” (Ibid.;
emphasis added.)
Thus the Court found that it was the subsequent acts with which the Belgian
Government reproaches the Bulgarian authorities with regard to a [p 59]
particular application of the formula – which in itself had never been
disputed --i.e., the decision of the Bulgarian Administration of Mines of
1934 and the judgments of the Bulgarian courts of 1936 and 1937 ¾ which
formed the centre point of the argument and must be regarded as constituting
the facts with regard to which the dispute arose (cf. Electricity Company of
Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77).
34. It seems clear that the present case has a close resemblance to the
Electricity Company of Sofia and Bulgaria case in terms of how we define and
apply the test of what constitutes le fait générateur in the context of the
facts of the present situation. In the present case, the Beneš Decrees and
the Settlement Convention are no doubt underlying factors of the dispute,
and they relate to this dispute in the factual sense; it could thus be said
that the dispute presupposes their existence. It does not follow, however,
that the dispute therefore arose in regard to those situations or facts. It
was not until the subsequent alleged position taken by Germany -- the German
court decisions applying the Settlement Convention to Liechtenstein property
-- that the
dispute came into being in the eyes of Liechtenstein as against Germany.
35. In the Right of Passage case before this Court, the Applicant, Portugal,
in its Application indicated that the subject of the dispute was the
conflict of views which arose between Portugal and India when, in 1954,
India opposed the exercise of Portugal’s right of passage to certain
Portuguese enclaves in the Indian territory. The Respondent, India, argued
on the other hand that the Court was without jurisdiction under India’s own
optional clause declaration with limitation ratione temporis, because the
dispute was the continuation of a conflict of views on this alleged right of
passage, going back as far as 1818. There were also questions of treaty
interpretation and practice dating back to 1779. Against the background of
these complex historical factors, the Court came out with the conclusion
that the critical factor that gave rise to the dispute occurred in 1954,
when India opposed the exercise of Portugal’s right of passage. After noting
that the dispute submitted to the Court had a threefold subject -- i.e., (1)
the disputed existence of a right of passage in favour of Portugal; (2) the
alleged failure of India in 1954 to comply with its obligations concerning
that right of passage; and (3) the redress of the illegal situation flowing
from that failure -- the Court stated that “[t]he dispute before the Court,
having this three-fold subject, could not arise until all its constituent
elements had come into existence”, in particular, the obstacles which India
was alleged to have placed in the way of exercise of passage by Portugal in
1954 (Right of Passage over Indian Territory, Merits, Judgment, I.C.J.
Reports 1960, p. 34; emphasis added). On that basis the Court concluded that
“[t]he dispute therefore as submitted to the Court could not have originated
until 1954” (ibid., p. 34).
36. The conclusion that the Court arrived at as the real source of the [p
60] dispute in that case, applying the principle of looking for the origin
of a dispute through the process of formation of the dispute as “the whole”,
is the following:
“It was only in 1954 that such a controversy [as to the title under which
passage was effected] arose and the dispute relates both to the existence of
a right of passage . . . and to India’s failure to comply with obligations
which, according to Portugal, were binding upon it in this connection. It
was from all of this that the dispute referred to the Court arose; it is
with regard to all of this that the dispute exists. This whole, whatever may
have been the earlier origin of one of its parts, came into existence only
after [the critical date as specified in the optional clause declaration as
the limitation ratione temporis on jurisdiction]” (ibid., p. 35; emphasis
added).
37. When the criterion enunciated by the Court in the Right of Passage case
is applied to the present case, it seems clear that the decisive conclusive
event that gave rise to the “difference in the legal positions” between
Germany and Liechtenstein concerning the treatment of the Liechtenstein
property, giving a concrete shape to the dispute as “the whole”, whatever
may have been the earlier origin of the factors that affected the destiny of
Liechtenstein property, was the alleged decision by the German courts which
held that the Settlement Convention was applicable to the Liechtenstein
property in question as “German external assets and other property” for the
purposes of the Settlement Convention and that therefore the German courts
were barred from passing a judgment on the legality of the measures referred
to in Article 3 of Part Six of the Settlement Convention. While the validity
of this allegation has to be tested in light of the facts of the case, the
jurisprudence of the Right of Passage case definitely tilts towards a
conclusion that it is this development which, if proved, constitutes le fait
générateur du différend which arose.
38. The present Judgment, in addressing the issue of jurisdiction ratione
temporis contained in the second preliminary objection of Germany, comes out
with the conclusion that
“the Court has no basis for concluding that prior to the decisions of the
German courts in the Pieter van Laer Painting case, there existed a common
understanding or agreement between Liechtenstein and Germany that the
Settlement Convention did not apply to the Liechtenstein property seized
abroad as ‘German external assets’ for the purpose of reparation or as a
result of the war” (Judgment, para. 50).
While the Applicant in its Application stated that “[s]ubsequent to the
conclusion of the Settlement Convention, it was accordingly understood, as
between Germany and Liechtenstein, that the Liechtenstein property did not
fall within the régime of the Convention” (Application of Liechtenstein, p.
8, para. 10), it has not substantiated in the present proceed-[p 61]ings
such common understanding between Liechtenstein and Germany. However, since
the dispute at issue before the Court is whether Germany was in breach of
its international obligations by its treatment of Liechtenstein property by
applying the Settlement Convention to the property in question, this finding
of the Court on the alleged change of position in itself does not seem to be
decisive in determining whether the dispute has arisen with regard to this
alleged new development. Of course whether such a “change of position”, in
the sense that Germany departed from a previously held position concerning
the applicability of the Settlement Convention, thus incurring an
international responsibility of Germany, has indeed taken place or not is an
issue that has to be closely examined as the central issue of the merits of
the case in subsequent proceedings.
39. On this last point, however, the Judgment, ex cathedra and without
giving much substantive reasoning, declares as follows:
“the Court points out that German courts did not face any ‘new situation’
when dealing for the first time with a case concerning the confiscation of
Liechtenstein property as a result of the Second World War. The Court finds
that this case, like previous ones on the confiscation of German external
assets, was inextricably linked to the Settlement Convention. The Court
further finds that the decisions of the German courts in the Pieter van Laer
Painting case cannot be separated from the Settlement Convention and the
Beneš Decrees, and that these decisions cannot consequently be considered as
the source or real cause of the dispute between Liechtenstein and Germany”
(Judgment, para. 51; emphasis added).
40. It is difficult to understand the logic of this conclusion, since the
point at issue in the context of determining what constituted le fait
générateur of this dispute is precisely the issue of whether a legal
distinction can be made between the applicability of the Settlement
Convention to what is undisputably to be regarded as “German external
assets” (a thesis not contested by the Applicant) and the applicability of
the Settlement Convention to neutral Liechtenstein property as “German
external assets or other property” (a thesis fiercely contested by the
Applicant, thus forming the fons et origo of the present dispute).
41. It is indisputable, as the Judgment states correctly, that the decisions
of the German courts in the Pieter van Laer Painting case cannot be
separated from the Settlement Convention and the Beneš Decrees. It does not
follow, however, that “these decisions cannot consequently be considered as
the source or real cause of the dispute between Liechtenstein and Germany”
as the Judgment suggests (Judgment, para. 51; emphasis added). The fact that
the Beneš Decrees and the Settlement Convention are even non-negligible
factors that underlie, and thus constitute an [p 62] important background
of, the colourful destiny of the Pieter van Laer painting is undeniable. In
this sense it may be said that the decisions of the German courts on the
Pieter van Laer Painting case cannot be separated from the Settlement
Convention and, further, from the Beneš Decrees. However, this historical
fact in itself cannot turn such “facts and situations” into les faits
générateurs du différend (Phosphates in Morocco, Judgment, 1938, P.C.I.J.,
Series A/B, No. 74, p. 23), i.e., something which generates the dispute,
constituting “the real source of the dispute”, unless it is shown that
indeed these facts and situations, directly and without further intervening
events, gave rise to the dispute. It seems evident that such was not the
case with either the Beneš Decrees or the Settlement Convention
42. Based on the definition of the subject-matter of the dispute as
identified earlier, and in light of the analysis offered above on the
jurisprudence of the Court concerning the question of the limitation ratione
temporis upon the Court’s jurisdiction, the conclusion seems inescapable
that, at any rate as far as this preliminary stage of the case is concerned,
where the task of the Court is to be strictly confined to the examination of
the question of whether the Court has jurisdiction to hear the case on the
merits, it is difficult to agree with the conclusion of the Court, when it
declares that
“[w]hile these decisions [of the German courts in the Pieter van Laer
Painting case] triggered the dispute between Liechtenstein and Germany, the
source or real cause of the dispute is to be found in the Settlement
Convention and the Beneš Decrees” (Judgment, para. 52).
43. For these reasons, I come to the conclusion that the second preliminary
objection of Germany has either to be rejected together with the first
preliminary objection of Germany which has been rejected by the Judgment, or
to be joined to the merits for further investigation, in accordance with
Article 73, paragraph 7, of the Rules of Court.
44. It might be added that as can be seen from what has been stated above, I
am not entirely in disagreement with the Judgment of the Court, as far as
its general legal analysis of the case law of the Court is concerned, on the
issue of what constitutes “facts or situations giving rise to the dispute”
as represented by the three cases referred to in the Judgment. What I
question is the manner in which this jurisprudence is applied to the facts
of the present case.
V. Other preliminary objections
45. It would follow from this conclusion of mine that the Court would have
to proceed further to the examination of four other preliminary [p 63]
objections of Germany relating to the jurisdiction of the Court and to the
admissibility of the claims of the Applicant, in order to determine whether
it should go to the merits stage of the case. The present Judgment, however,
has arrived at the conclusion that “[h]aving dismissed the first preliminary
objection of Germany, but upheld its second, the Court finds that it is not
required to consider Germany’s other objections and that it cannot rule on
Liechtenstein’s claims on the merits” (Judgment, para. 53). Given my
position as stated above, nevertheless, it is incumbent upon me to examine
each and all of the remaining objections of Germany, in order to determine
whether the Court has the competence to proceed to hear the case on the
merits. Thus in the following paragraphs I shall state my views on the other
preliminary objections raised by the Respondent; but I shall do so only in a
somewhat summary fashion. This is due to the obvious point that there is no
practical significance in such an exercise, seeing that the Judgment by
majority has effectively terminated the present case for all purposes.
The third preliminary objection relating to domestic jurisdiction
46. Germany contends that “the outcome of the German court proceedings would
have been exactly the same even if the Settlement Convention did not exist”,
since according to the applicable rules of private international law and
confiscation law as applied and recognized in Germany, as in so many other
countries in the world,
“[t]he painting found on German territory for the exhibition would have been
returned to the owner according to Czech law, the museum, because
Czechoslovakian law and now Czech law have governed the law of property for
that painting for the last 50 years” (CR 2004/24, p. 33, para. 94). On this
basis Germany argues that “the decisions of the German courts, as to their
results, were not a matter of international law” and that “as far as
Liechtenstein is concerned, the matter was solely within the domestic
jurisdiction of Germany” (ibid., para. 95).
47. To this argument, Liechtenstein counter-argues that such an assertion is
clearly a matter for the merits. It claims that in diplomatic consultation
on the present dispute Germany at no time argued that this was a matter
within its domestic jurisdiction, and further argues that
“[t]he issue [then] was not whether this was a matter for Germany alone, but
whether neutral property seized as a result of a war could be treated by
German courts as ‘German external assets’ which were ‘seized for the purpose
of reparation or restitution’ as a result of the Second World War” (CR
2004/25,p. 35, para. 12). [p 64]
48. A careful examination of the arguments of the two Parties on this issue
of domestic jurisdiction leads me to the following conclusions. First, the
German argument that the German courts were simply applying a rule of
private international law, accepted by the practice of States and the
doctrine of international law, that the title to property is governed by lex
loci sitae rei seems to be misdirected, inasmuch as the Liechtenstein cause
of action in the present case is not based on the alleged violation of
international law by the German courts in recognizing the validity of the
Czechoslovak confiscation measures of 1945, but on their alleged violation
in treating the neutral Liechtenstein property as “German external assets
and other property” for the purposes of the Settlement Convention. On this
basis, the dispute cannot be said to lie solely with the domestic
jurisdiction of Germany. Also Germany, as the second line of defence on this
objection has brought into its pleadings the argument that the Settlement
Convention in effect disposed of the question and that Germany had no choice
but to accept the terms of the Settlement Convention in the circumstances of
the situation. Whatever the validity and the legal relevance of this
argument, such a contention defeats the very legal basis of the third
preliminary objection of Germany by bringing in the element of an
international convention as relevant.
The fourth preliminary objection relating to Article 40 of the Statute
49. On the admissibility of the Liechtenstein claims before the Court,
Germany raises as its fourth objection the point that the Application is
tainted by such profound flaws that the minimal requirement set out in
Article 40, paragraph 1, of the Statute and in more detail in Article 38,
paragraph 2, of the Rules of Court cannot be deemed to have been met. More
specifically, it claims that “the Applicant has failed sufficiently to
substantiate its contention that Germany has incurred responsibility on
account of an internationally wrongful act” (CR 2004/24, p. 35. para. 101).
50. Liechtenstein counters this argument by stressing that Germany reshaped
the Liechtenstein case into one entirely different from the one actually
before the Court. Liechtenstein’s point is that what is at issue in this
case is “Germany’s treatment of Liechtenstein property as German external
assets under the Settlement Convention . . . which is the cornerstone of the
present dispute” (CR 2004/25, p. 38; emphasis added). Liechtenstein further
argues that “Article 40 (1) of the Statute and Article 38 (2) of the Rules
of Court do not require an exhaustive statement of facts and grounds on
which the claim is based in the application, but only a ‘succinct’ one”
(ibid., p. 37) and that the Applicant has done precisely that.
51. As has been stated earlier, some more substantiation may be needed for
establishing this
point both in terms of facts surrounding the [p 65] Liechtenstein
allegation, as well as in terms of law that can legally link the German
courts’ judgments to an internationally wrongful act that is attributable to
Germany. This does not lead us to the conclusion, however, that therefore
the Liechtenstein Application does not satisfy the minimal conditions set
out in Article 40, paragraph 1, of the Statute. The question of whether this
claim of the Applicant, supported by the legal grounds offered by the
Applicant, will meet the test of rigorous scrutiny by this Court is an
entirely different matter. But this is a matter to be closely examined when
the Court comes to the merits stage of the proceedings.
The fifth preliminary objection relating to the absence of the third party
52. In the fifth preliminary objection relating to the admissibility of the
Liechtenstein claim, Germany raises the issue of the absence of a “necessary
third party” and contends that the core of the Application of Liechtenstein
is “the legality or illegality of the Beneš Decrees, that is to say decrees
adopted by a State whose successor State is today visibly absent from these
proceedings before [the] Court -- not because it could not be present, but
because it did not wish to be” (CR 2004/24, p. 48, para. 130; emphasis in
the original).
53. Relying as authority on the jurisprudence of this Court in the Monetary
Gold Removed from Rome in 1943 case of 1954 (hereinafter referred to as the
“Monetary Gold” case), Germany argues that in order to determine whether
Liechtenstein is entitled to reparation on account of the damage it has
suffered, it is necessary first to determine whether Czechoslovakia has
committed an international wrong against it. To do that, according to
Germany, it would be necessary to decide whether the Beneš Decrees were
contrary to international law. On the basis of this so-called “necessary
party” rule as established by the jurisprudence in the Monetary Gold case,
Germany concludes that “the review of the lawfulness of the expropriations
effected by Czechoslovakia constitutes a prerequisite for an examination of
the unlawful acts attributed by Liechtenstein to Germany” (CR 2004/24, p.
52, para. 144). Under the circumstances of the present case, however, the
Court cannot entertain Liechtenstein’s claims which would oblige the Court
to rule on the rights and obligations of the Czech Republic in its absence
and without its consent.
54. Liechtenstein accepts that there is no disagreement on the analysis of
jurisprudence of the Court offered by Germany that “[i]f . . . the legal
interests of a third State constitute the ‘very subject-matter’ of a dispute
brought to the Court and this third State is absent from the proceedings,
the Court cannot exercise jurisdiction on the matter” and that “[l]egal [p
66] interests of a third State do constitute the very subject-matter of a
dispute if . . . the Court cannot decide on the claims before it without
prior determination as to the rights or obligations of the third State” (CR
2004/25, p. 51, para. 5).
55. In applying this principle to the concrete situation of the present
case, however, Liechtenstein argues a contrario that:
“it equally follows that the Court not only has the right, but also the
duty, to adjudicate on the application where the rights of a third State do
not constitute ‘the very subject-matter’ of the judgment sought, even if
that State’s interests might be ‘affectedFN5’, or [if] it has an ‘interest
of a legal nature’ which might ‘be affectedFN6’ or [if], as in the Nauru
case, the Court’s decision might ‘have implications for the legal situation
of the [third] States concernedFN7’” (CR 2004/25, p. 51).
----------------------------------------------------------------------------------------------------------- FN5
Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p.
32.
FN6 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.
104, para. 34.
FN7 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, I.C.J. Reports 1992, p. 261, para. 55.
------------------------------------------------------------------------------------------------------------
According to Liechtenstein, the present case falls in this category, where
neither the illegality of the Beneš Decrees nor Czechoslovakia’s right to
war reparation are in any sense the “very subject-matter” of the present
proceedings. While Liechtenstein considers that it has been the victim of
the Beneš Decrees of 1945, which resulted in the unjust confiscation of
Liechtenstein assets wrongly equated with German property, it nevertheless
claims that the dispute between Liechtenstein and the successor States of
Czechoslovakia is completely separate from the one which is the subject of
the present proceedings.
56. In light of the nature of the subject-matter of the dispute as
characterized above (cf. Judgment, para. 26), i.e., the one consisting in
the question of whether, by applying Article 3, Chapter Six, of the
Settlement Convention to Liechtenstein property that has been confiscated in
Czechoslovakia under the Beneš Decrees in 1945, Germany was in breach of its
obligations it owed to Liechtenstein, it would seem difficult to argue that
the Application in question relates to a case in which the legal interests
of a third State constitutes the “very subject-matter” of this dispute. If
there should be any question on this point in view of the complex nature of
the facts surrounding the case, this question could also be joined to the
merits in accordance with Article 79, paragraph 7, of the Rules of Court.
The sixth preliminary objection relating to the exhaustion of local remedies
57. In the sixth and final objection relating to the admissibility of
Liechtenstein claim, Germany raises the issue of non-exhaustion of local [p
67] remedies. Specifically, it contends that “the Liechtenstein nationals
who had been victims of Czechoslovak confiscations had not exhausted all the
local remedies with a view to recovering the property of which they had been
dispossessed or to claiming compensation” (CR 2004/24, p. 57). Against this
contention, Liechtenstein argues that “[i]n its Application [it] raises
claims against Germany primarily on its own account, as Germany’s conduct
directly violated Liechtenstein’s own rights as a sovereign State and as a
State which was neutral during the Second World War” (CR 2004/25, p. 43;
emphasis added), and “additionally on account of its citizens” (ibid., p.
42).
58. Liechtenstein argues that the local remedies rule is restricted to cases
of diplomatic protection, but is not applicable to cases where a State is
directly injured in its State-to-State rights. This distinction, endorsed by
the Court in the Interhandel and Elettronica Sicula S.p.A. (ELSI) cases, is
accepted by Germany as a matter of general principle; at the same time
Germany, denying its application to the present case, asserts that “it is
impossible to find that there has been any infringement whatsoever of the
sovereign rights of Liechtenstein as a State” (CR 2004/26, p. 24). As far as
the Liechtenstein claim that it has suffered a direct injury as a State from
Germany by its conduct is concerned, it is clear that the requirement of
exhausting local remedies cannot be a procedural bar to this part of the
claims presented by Liechtenstein.
59. As for injuries suffered by nationals of Liechtenstein, Germany argues
that “the Liechtenstein nationals concerned did not defend their rights
before the Czechoslovak courts when the confiscation strategy was
implemented” (CR 2004/24, p. 59, para. 151). Germany claims that it is
entitled to invoke this inaction of the Liechtenstein nationals concerned as
a defence in the application of the rule of exhaustion of local remedies,
“because the Czechoslovak measures were the decisive acts, depriving the
owners of the enjoyment of their property” (CR 2004/24, p. 60, para. 152).
60. This is indeed a bizarre defence by the Respondent on the question of
non-exhaustion of local remedies in relation to a claim whose cause of
action lies, not in the illegal confiscation of assets of Liechtenstein
nationals carried out by Czechoslovak authorities, but in the alleged
illegal action by German authorities of treating these assets of neutral
nationals as “German external assets and other property” for reparation
purposes of Germany. Given this nature of the Liechtenstein claims, the
principle of exhaustion of local remedies should be examined in relation to
whatever local remedies available in Germany in relation to this point, and
not in Czechoslovakia in relation to the confiscation measures.
61. In this respect, the final character in the German judicial system of
the judgment of the Federal Constitutional Court of Germany in the [p 68]
matter of the Pieter van Laer Painting case would seem to be conclusive.
Given the nature of this pronouncement by the highest court in Germany, this
decision should serve as the conclusive evidence to establish the point that
the possibility for the Liechtenstein citizens concerned to exhaust local
remedies for pursuing their cases in relation to their property before
German courts is effectively foreclosed to them. Thus this case would seem
to fall within the category to which the maxim “no need to exhaust local
remedies where no remedies exist to exhaust” is applicable.
62. For all these reasons, I come to my final conclusion that the Court has
jurisdiction to entertain the Application filed by the Principality of
Liechtenstein on 1 June 2001. That is why I respectfully voted against the
conclusions of the present Judgment, as contained in paragraphs (1) (b) and
(2) of the dispositif.
(Signed) Hisashi OWADA.
[p 69]
DECLARATION OF JUDGE AD HOC FLEISCHHAUER
I agree with the Court’s decision to uphold the second preliminary objection
of Germany and with the Court’s reasoning that led to this decision, as
expressed in paragraphs 28 to 52 of the Judgment. Having upheld Germany’s
second preliminary objection, it follows logically that the Court is not
required to consider Germany’s third, fourth, fifth and sixth preliminary
objections “and that it cannot rule on Liechtenstein’s claims on the merits”
(Judgment, para. 53).
I have, however, some remarks to make on the considerations which brought
the Court to the conclusion that “there is a legal dispute” between
Liechtenstein and Germany (Judgment, para. 25). Here I would like to state
that the finding of the Court that there is a legal dispute between
Liechtenstein and Germany does not of course imply that Liechtenstein’s
position in this dispute is in any way better than Germany’s position. This
does not follow from the text of the decision and was not a point to be
decided at the present stage of the proceedings.
Moreover, I cannot follow the Court where it says that it
“further notes that Germany’s position taken in the course of bilateral
consultations and in the letter by the Minister for Foreign Affairs of 20
January 2000 has evidentiary value in support of the proposition that
Liechtenstein’s claims were positively opposed by Germany and that this was
recognized by the latter” (ibid.).
I think that these words would reveal themselves as introducing too low a
standard into the determination of the existence of a dispute and therefore
have negative effects on the readiness of States to engage in attempts at
peaceful settlements of disputes.
(Signed) Carl-August FLEISCHHAUER.
[p 70]
DISSENTING OPINION OF JUDGE AD HOC BERMAN
1. While there is much in the Court’s decision, and in its reasoning, with
which I agree, I find myself in substantial disagreement over certain [p 71]
issues. That would not in itself be grounds for a dissenting opinion, since
I do not take the view that it is virtually incumbent on a judge ad hoc to
tell the waiting world where and how his conclusions differ from those of
the majority on the Court. My views as to the duties and functions of a
judge ad hoc are very much the same as those expressed by Judges ad hoc
Lauterpacht and Franck respectively at the provisional measures (further
request) phase of the case concerning the Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 1993,
pp. 408-409), and the merits phase of the case concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan (I.C.J. Reports 2002,pp. 693-695).
2. Since, however (or therefore), I believe that the Court has gone
seriously astray in deciding how this case should be handled at this
preliminary objections phase, I must explain why.
3. In this case, the Federal Republic of Germany, the respondent State, has
lodged with the Court no less than six preliminary objections to the
Application brought against it by the Principality of Liechtenstein, as
applicant State. Three of these objections are stated to go to the
jurisdiction of the Court to hear Liechtenstein’s Application, and the
second set of three are claimed to be reasons why the Court, assuming it
holds itself to have jurisdiction, should nevertheless declare
Liechtenstein’s claims inadmissible. No doubt this is not in itself a matter
for judicial comment. Litigating States are free to argue their case before
the Court as they think best; that is regarded as one of their sovereign
attributes, in which the Court should not in normal circumstances interfere.
4. It remains true all the same that Liechtenstein’s claim against Germany,
though undoubtedly an unusual one, a claim without obvious precedent, a
claim which depends upon creative legal reasoning, is nonetheless in its
essence a simple claim, without multifarious strands or complexities.
Liechtenstein asserts that the present-day German State has, throughout its
lifetime, owed certain duties to Liechtenstein, as a recognized neutral in
the Second World War, that those duties have been breached by certain
specified conduct in recent years, and that the breach gives rise
accordingly to the consequences provided for in the law of State
responsibility.
Even allowing for an understandable degree of forensic reinsurance, the
interposition of a barricade of three jurisdictional plus three
“admissibility” objections against so simple a claim creates the impression
of indignation, not to say outrage, that the claim should have been brought
in the first place. As indicated, however, this may not be fit matter for
judicial comment ¾ except (in the context of the present opinion) to the
extent that the phenomenon unites with certain features of the case to which
I will return below. [p 72]
5. It is not necessary for me to say anything of my own about the first
preliminary objection, the so-called absence of a dispute between the
Parties. On it, I am in complete agreement with the Court. The objection has
little merit. Germany had itself recognized, in a formal bilateral context,
that there was a dispute between the two States which might have to be
settled by judicial means.
Indeed, given this recognition (I would be disinclined to call it an
admission, as it amounted to nothing more than a reflection of the objective
facts), I would be prepared to go further than the Court, and to hold that
Germany was precluded, by ordinary considerations of good faith, from now
raising an objection of “no dispute”.
6. The issues on which I part company substantially from the Court relate
rather to the second preliminary objection, that under which Germany claims
that the dispute between the Parties falls outside Germany’s acceptance of
the jurisdiction of the Court by virtue of the exception ratione temporis
contained in Article 27 (a) of the European Convention for the Peaceful
Settlement of Disputes. There is no need for me to repeat the opposing
contentions of the Parties on this question, or the prior jurisprudence of
the Court on questions of this kind; on both aspects, I have no quarrel with
the summary given in the Court’s Judgment. I need only remark that, in my
view, the prior jurisprudence of this Court and its predecessor, difficult
as some aspects of it are to reconcile, at least establishes that, in
interpreting clauses of this kind, the Court enjoys a certain latitude or
discretion in determining what facts or situations should be regarded as
what the Court now refers to as the “source or real cause” of a dispute
before it ¾ if only because no one international dispute exactly resembles
another in the way in which it comes into existence. The Court discusses (in
paragraph 43 of the Judgment) the fact that the limitation ratione temporis
relied upon in the present case is contained in an agreed treaty instrument
on the peaceful settlement of disputes, not in a unilateral acceptance under
the optional clause, and decides that nothing material turns on that fact.
With that conclusion I have no great difficulty, at least in the particular
circumstances of this case, though I would not exclude the possibility of a
different answer being appropriate in other circumstances. In the present
case, at all events, each Party, in its pleadings, has half-expressly,
half-implicitly accepted the relevance of the three cases primarily in
question (Phosphates in Morocco, Electricity Company of Sofia and Bulgaria,
and Right of Passage), and the Court is entitled to treat that as an agreed
understanding between these two Contracting States as to the extent of their
treaty obligation towards one another, and give weight to it accordingly
under normal Vienna Convention principles.
7. More to the purpose is however the fact that the Court, in reaching its
conclusion (a somewhat discretionary conclusion, as I indicate above) that
the essential facts or situations to which the present dispute “relates” are
anterior to the critical date of 1980 under the European Convention, bases
itself on the argument that the German courts, in their decision not [p 73]
to hear the Pieter van Laer Painting case, were doing no more than
continuing their consistent line of jurisprudence. I say, “bases itself on
the argument”, but I could equally well have said “concludes”, because the
point at issue, it will readily be apparent, is a critical element, perhaps
even the crucial element, in the chain of reasoning that leads the Court, in
paragraphs 50-52 of the Judgment, to uphold Germany’s second preliminary
objection, and on that basis to dismiss Liechtenstein’s Application.
8. The argument in question is, of course, one that was vigorously advanced
by Germany in both the written and the oral pleadings. My disappointment
lies in the uncritical way in which the Court has adopted this argument as
its own. The Court has failed, on the one hand, properly to distinguish the
argument into its component parts, and compounded the lapse by then failing
to subject these component parts ¾ crucial as they are to its chain of
reasoning -- to adequate scrutiny.
9. As I see it, the argument that there was nothing new in the position
taken by Germany in respect of the Pieter van Laer painting resolves itself
logically into these three propositions: first, that there has been
consistency in the jurisprudence of the German courts in respect of issues
relating to the confiscation of German external property (at least since the
entry into force of the Settlement Convention in 1955); second, that the
tenor of these decisions has been compelled by the terms of the Settlement
Convention (in other words, that the German courts have had no option but to
decide as they did); and third, that it is simply these decisions of the
German courts on their own that has served to generate the present dispute.
10. In my considered view, each one of those three propositions is open to
serious question. As to the first issue (consistency of jurisprudence), the
argument advanced by Germany before the Court has been more a matter of
assertion than of demonstration. Germany says that its courts have
consistently held, since well before the critical date, that they lacked the
competence to hear claims in respect of property confiscated under the Beneš
Decrees and similar foreign measures. Liechtenstein has contested this
assertion, notably in Appendix I to the Liechtenstein Written Observations,
which contains a schedule listing the key court cases heard in Germany in
the period 1953-1991FN1. One could have wished, indeed one would have been
entitled to expect, that Liechtenstein had been at greater pains to show the
Court in detail what issues the German courts had actually been confronted
with, and how exactly those issues had been dealt with. An attempt of my own
to follow through the court decisions listed in Appendix I, including those
which neither Party has [p 74] thought fit to translate into the Court’s
official languages, suggests strongly that in fact it took some years before
the German courts settled into the totally non possumus stance they now
maintain, which in itself implies that there was nothing inevitable about
it. There are clear indications in early decisions by the highest courts
(e.g., the AKU case of 1956, extracts from which are contained in Annex 2 to
the Respondent’s Preliminary Objections) that room was consciously being
left open for the argument to be made in appropriate future cases that the
Settlement Convention did not apply, or even that it should not be
appliedFN2. In other cases dating from the same period, there are clear
indications of the highest courts recognizing that they were perfectly
entitled to distinguish between different items of property in order to
determine whether the régime of the Settlement Convention (or, as the case
may be, its predecessor, Allied High Commission Law No. 63) did or did not
come into play (e.g., the decisions of three separate supreme courts of
1955, 1957 and 1958 listed as serials 2, 4 and 5 in the table in the
Appendix referred to above). Even in the proceedings in the Pieter van Laer
Painting case itself in the 1990s, there is repeated discussion in the lower
courts about the preconditions that need to be met before the Settlement
ConventionFN3 is applied (e.g., Landgericht Köln, Annex 28 to the Memorial,
esp. pp. A 260 et seq. and A 264 et seq. and Oberlandesgericht Köln, Annex
29, ibid., esp. pp. A 303 et seq.). Even the rejection of the Reigning
Prince’s appeal by the Federal Constitutional Court is on the basis that the
lower courts had decided that the expropriation of his property was a
measure effected against German external assets within the meaning of the
Settlement Convention (Annex 32, ibid., p. A 356). And in the pleading by
Germany before the European Court of Human Rights one encounters once again
a discussion of the requirements, aims and purposes of Chapter Six that
belies the bald proposition that the hands of the German courts were simply
tied in advance (Annex 36, ibid., pp. A 423 et seq.).
-------------------------------------------------------------------------------------------------------------------- FN1
The Appendix also contains an account of the views expressed in the German
scientific literature which (if the account given is an accurate one)
reveals anything but a settled view among the leading commentators that the
question of the application of the Settlement Convention to neutral property
had been settled by the earlier court decisions; quite the contrary.
FN2 In a pair of judgments handed down in July 1957 (which were not cited to
the Court by either Party) the Federal Supreme Court (Bundesgerichtshof)
decided not to apply Article 3 of Chapter Six of the Convention to certain
elements of confiscations carried out, respectively, by the Netherlands and
under the Beneš Decrees, specifically as German property, notwithstanding
that Article 3 was recognized as applying to German assets in Germany. In
the second of these decisions, the court expressly based itself on its own
assessment of the intentions of the Allied Occupying Powers, i.e., that
their intention was not to cover the particular confiscation in question.
Both decisions are readily accessible in the International Law Reports, Vol.
24, pp. 31 and 35 respectively.
FN3 Which had by then been made permanent by the arrangements reached in
1990 on a Final Settlement over Germany, of which more below.
---------------------------------------------------------------------------------------------------------------------
[p 75]
11. As to the second issue (the constraining force of the Settlement
Convention), one appreciates of course that under the German Constitution,
as under those of many other States, treaties duly concluded are
self-executing and fall to be applied directly by the courts. This is, to
all appearances, how the German courts have treated Chapter Six of the
Settlement Convention, or at least how they have treated its Articles 2 and
3, since the obligation in Article 5 (to compensate the owners of
confiscated property) seems not to have been regarded as self-executing, but
to have depended on parliamentary legislation; and, as the Court heard in
argument, the corresponding legislation excluded the payment of compensation
to non-German owners. All that said, however, and granted the proposition
that Articles 2 and 3 of Chapter Six of the Settlement Convention were
intended to be self-executing, it remains hard for any sophisticated jurist
to understand why a treaty provision requiring respect for “measures . . .
carried out with regard to German external assets or other property, seized
for the purpose of reparation or restitution” compels the conclusion that it
applies equally to non-German propertyFN4; or (to put the proposition in its
more developed form) why it requires the German courts to follow, without
enquiry of any kind, the qualification placed on a confiscation by the
confiscating State. Or, even if one accepts the proposition in that more
developed form, why it requires the German courts to do what they do without
any demonstration of the qualification placed on the property by the
confiscating State, because any such demonstration (even if one had been
available in the Pieter van Laer Painting case, which on the evidence it was
not: cf. Annex 28 to the Memorial, pp. A 265 et seq.) would have been
outside the competence of the German courts to receive.
-------------------------------------------------------------------------------------------------------------------- FN4
With the consequence that it cannot therefore have been lawfully seized for
the purposes of reparation or restitution.
---------------------------------------------------------------------------------------------------------------------
12. The justification for what I have called above this totally non possumus
stance is stated over and over again to be that this was the intention
behind the Settlement Convention (or, as the German argument has it, of the
Three Western Powers in imposing the Settlement Convention), namely to
prevent any German court or authority from enquiring into any confiscation
in any manner whatsoever. That brings me however to the first of the two
Great Silences in the case, both of which I regard as highly significant for
its proper disposal.
13. If it was the intention of the Three Powers to impose a universal
preclusion, against all comers, of the kind described above, it can surely
be a presumed intention only. No evidence was offered to this Court to show
that that was indeed the actual intention behind Chapter Six of the
Settlement Convention. But would it not be strange in the extreme to [p 76]
suppose that the Three Powers could have intended to protect from all
scrutiny confiscations that clearly went outside the scope of the
reparations régime laid down by them jointly with their wartime Allies,
especially confiscations carried out at the expense of neutral States,
towards whom they themselves owed the legal obligations arising out of
neutrality, and with whom they maintained friendly relations after the War?
And, if one looks at the reported decisions of the German courts themselves,
can one discern the slightest sign of a detailed enquiry having been made
into what the actual intentions behind the Settlement Convention were? I,
for my part, find no indication whatever of a prise de position being sought
from, or given by, the German Government on that question in any of these
domestic legal proceedings. Nor a fortiori has this Court been given even a
hint that the German Government had sought (and received), at any point in
time, confirmation from their Allies and co-Contracting Parties of the
interpretation Germany was giving to their common treaty, and specifically
not when the issue of neutral property arose four-square in respect of the
Pieter van Laer painting. Nor, by the same token, is there any sign of any
such evidence as to the intentions (common intentions) of the Contracting
Parties to the Settlement Convention having been presented by the German
authorities to their own courts at the time when the jurisprudence of the
latter was taking shape.
14. In other words, this Court is now being asked to proceed on the basis of
the proposition that the victorious Allies, in their eagerness to ensure
that their former enemy should not be in a position to question measures
taken by them against enemy property, were completely indifferent to any
risk that this régime might be applied to the detriment of neutral (i.e.,
non-enemy) property; and that, a full ten years later, the three Western
Allies, for their part, forced such a conclusion on a reluctant Germany (by
then “Federal Republic of Germany”). The proposition is, to put it mildly,
counter-intuitive, and yet it is offered up in a formal judicial context
without the slightest element of positive proof to sustain it! Surely it
must be the case that, if the question had been put (in either its negative
or its positive form), say to the Three Powers during the negotiation of the
Settlement Convention, the answer would have been obvious. Anything else
would carry with it the supposition that the Three Powers consciously
intended to breach their own obligations towards States whose neutrality
they had recognized during the War.
15. In brief, no sooner does one proceed to probe beneath the surface of
some of the propositions advanced in this case, than one encounters the
uneasy feeling that what has been presented to the Court as the inevitable
and inescapable consequences of a régime imposed on Germany in fact seems
more than likely to have contained along the way some elements of conscious
choice by organs of the German State. This is not -- of course -- to say
that the choices
made were bad or ignoble ones, or that [p 77] there was any element of
deliberate intention to damage the interests of third States. But that is
not the issue. The issue, as it presents itself in this case, is what steps
ought to have followed once it became clear that this was going to be the
result of the positions that had been taken by Germany. And that, on all the
evidence in the case, including that marshalled by the Court in support of
the Respondent’s second preliminary objection, did not become clear until
the 1990s, well after the critical date under the European Convention for
the Peaceful Settlement of Disputes.
16. It is that which brings me to the last of my three issues ¾ and at the
same time to the second of the Great Silences in this case.
17. The third issue I identify in paragraph 9 above goes to the question
whether it is simply the decisions by the German courts over the years that
were the real cause of the dispute which has been brought before this Court.
Let us assume for a moment, for the purposes of argument, that (contrary to
what I have shown above) the German courts did in fact have no other option
open to them when the Pieter van Laer Painting case came before them. The
question is: does the matter stop there? And the answer to that question
appears plainly from the fact that the complaint by Liechtenstein is
directed at the adoption of that position by the German Government in its
international relations, and its interposition as a bar to any possibility
of paying compensation to Liechtenstein or its citizens as a result (cf.
paragraphs 19 and 20 of the Application instituting these proceedings). That
is something which the Court, quite correctly in my view, recognizes by
implication in paragraphs 25 and 26 of the Judgment. But, having recognized
it, the Court fails to follow through. For, if what triggered this dispute
was the realization that Germany, against all expectation, was going to take
the position that its treaty obligations to the Three Allies precluded,
absolutely and permanently, compensation for the confiscation of
Liechtenstein property, then that was a state of affairs (I deliberately
avoid the problematical phrase “fact or situation”) that -- so it seems to
me -- falls exactly within the framework of the Right of Passage Judgment,
and ought at the least to have warned the Court off what I regard as the
facile conclusion that the present dispute “relates to” the Beneš Decrees,
for the purposes of applying Article 27 (a) of the European Convention for
the Peaceful Settlement of Disputes. It will be recalled that, in the Right
of Passage case, the Court found that it was not in a position to pronounce
on what were the “situations or facts” to which the dispute related until it
had heard full argument on the substance, and accordingly joined the
preliminary objection to the merits (Judgment, I.C.J. Reports 1957, p. 125).
The Court’s reasoning for so doing (ibid., pp. 151-152) bears a strong
resemblance to the circumstances of the present case.
18. I pause at this point to observe that the conclusions I draw in the
preceding paragraph are ones that, in my view, impose themselves simply [p
78] on the contours of the case. They do not in any sense depend either on
there having been a prior understanding between Liechtenstein and Germany
(with regard to neutral property) or on a supposed “change of position” by
Germany. Both of these propositions I regard as red herrings, and the fact
that they were introduced by the Applicant itself into its argument does not
make them any the less so. The Court is quite right to dispose of them -- on
the facts. But the Court, once again, stops short there, without going on to
look carefully enough at whether the logic of the Applicant’s case really
does require it to establish one or both of these propositions. To be sure,
the Court does admit, in paragraph 49 of the Judgment, that Liechtenstein
might be able to establish its case ratione temporis by showing that (I
quote in full) “German courts, by applying their earlier case law under the
Settlement Convention for the first time to Liechtenstein property, applied
that Convention ‘to a new situation’ after the critical date”. But I regret
to say that the purport of that Delphic utterance remains closed to me.
19. To my mind it is perfectly clear that the main conclusion which
Liechtenstein asks the Court to draw does not depend on either the “prior
understanding” or the “change of position” as a precondition. Indeed, one
might almost say that there was something of the perverse in insisting that,
in order to show that the essential facts generating the dispute are dated
after 1980, you must first establish their link to things dating before
1980. In my view it suffices entirely to show that Germany first took an
explicit position over neutral assets in relation to the post-war
confiscations after 1980, in order to bring the case squarely within the
view taken by the Court in the Right of Passage case. To say, as the Court
does in paragraph 51 of the Judgment, that the issue addressed by the German
courts in the Pieter van Laer Painting case “cannot be separated from the
Settlement Convention and the Beneš Decrees” is no doubt true ¾ so far as it
goes ¾ but it is not the question that arises for the purpose of deciding
whether the facts of the present case fit this Court’s prior jurisprudence.
20. What, then, of the second Great Silence? If the German answer to the
Liechtenstein claim, i.e. that it was the powerless agent of an obligation
imposed upon it by the Three Powers, is to be subjected to critical
examination -- as in my opinion it manifestly must be -- it has first to be
broken down into its two component parts. To do so requires some further
creative interpretation
of my own, in the absence of any proper argument on either point by either
Party before the Court. But I believe I do no more than tease out the inner
logic when I say that this argument depends upon the following: (a) that
Germany was entitled (i.e. legally entitled) to oppose its obligations (i.e.
its claimed obligations) under the Settlement Convention to Liechtenstein,
which was not a party to that treaty; (b) that there was no novus actus
interveniens in the arrange-[p 79]ments in 1990 which brought about the
Final Settlement with respect to Germany.
21. These constituent propositions have only to be stated in order to see
how open to question both of them are.
22. Proposition (a) stands in obvious conflict with the pacta tertiis rules
in Articles 34 and 35 of the Vienna Convention on the Law of Treaties, which
certainly reflect the customary international law on the subject. Yet the
German argument before the Court simply parrots that Germany had to follow
its obligations (sc. towards the Three Powers) under the Settlement
Convention, as if it was obvious (including, presumably, to all third
States) that Germany would
oppose this Convention to non-parties, to the detriment of the latter, and
without regard to the elementary proposition that a State cannot, by
contracting with a second State, absolve itself of its obligations towards a
third State (for the application of which rule in the treaties field, cf.
Article 30 of the Vienna Convention). And if the contradiction is glaring
enough as it stands, how much more glaring still must it be when what is
sought to be imposed on the third State is not even what the treaty, on its
natural meaning, seems to say!
23. It is however proposition (b) that raises the more profound questions --
at least in the context of the present Judgment. The relevant treaty
provisions, Chapter Six of the Settlement Convention, were self-evidently
the subject of conscious attention, if not in the Four-plus-Two negotiations
themselves, then certainly when Germany and the Three Powers negotiated the
Exchange of Notes of 27/28 September 1990, since they formed the explicit
subject-matter of part of its paragraph 3. Of utmost significance is the
fact that those parts of Article 3 of Chapter Six that preclude claims were
prolonged, and in effect made permanent, whereas the obligation in Article 5
to pay compensation was extinguished; this notwithstanding the inescapable
conclusion that the Allies, in negotiating the Settlement Convention at the
time, must have regarded the obligation to pay compensation in Article 5 as
the necessary counterpart to Article 3. No evidence has been offered to the
Court -- by either Party -- as to how or why the Settlement Convention was
dealt with in this particular way; presumably evidence of that kind was not
accessible to the Applicant (other than the shreds in paragraphs 3.54 and
5.56 of the Memorial), but the evidence must most certainly be in the
possession of the Respondent. Be that as it may, it is hard to imagine any
possible reason why this carefully calibrated metamorphosis of Chapter Six
can have been at the insistence of the Three Powers. If per contra there are
grounds for the assumption that the perpetuation of the one obligation and
the extinction of the other was procured by Germany, for its own benefit,
then that must surely have a substantial effect on one’s view of the case.
On the one hand, because the Allies had specifically intended the régime of
the Settlement Convention to be a temporary expedient only, [p 80] pending a
final regulation of the reparations question, as Article 1 of Chapter Six
recites. On the other hand, because it can certainly not be asserted that
Germany was in the powerless position it claims to have been in in
1952/1955, and thus to have had to accept through gritted teeth in 1990
whatever its Western partners chose to impose upon it. But, in the very
specific context of the present Judgment, the events of 1990 may be more
than “substantial” in their effects; they may be decisive. Why? Because they
may suggest a wholly different analysis of what represents “the source or
real cause” of this dispute, and one which, without any doubt, does not fall
within Article 27 (a) of the European Convention for the Peaceful Settlement
of Disputes, on which the Court has chosen to rest its decision.
24. At all events, much of what I say in the preceding paragraph remains,
for the moment, at the level of inference or supposition, in the absence of
proper evidence or argument about what did happen in 1990. That in turn
suggests, yet again, that the Court was not in a position adequately to
assess, on the material available to it at the present stage of the case,
whether the second preliminary objection was, or was not, well founded. If
so, the accepted way to deal with the situation would be to join the
objection to the merits, as foreseen in paragraph 9 of Article 79 of the
Rules.
25. Since I would not therefore have upheld the second preliminary objection
as denying the Court in limine the jurisdiction to hear the case, it is
incumbent on me to say something about the
remaining four preliminary objections. This I can do very briefly. I do not
propose to say anything about the third, fourth and sixth objections; they
seem to me devoid of any substantial merit. The fifth objection, however,
relating to the absence before the Court of an indispensable third party, is
a serious one, and would have required the Court’s serious attention, as a
matter going to the admissibility of the case, had the Court upheld its
jurisdiction to hear it.
26. This is not the place for a lengthy excursus on a question which, in the
event, does not figure in the Judgment of the Court at all. For my part, I
am in the company of those who experience difficulty in following the
Court’s reasoning in the case concerning Certain Phosphate Lands in Nauru.
It is however enough to say that that case, taken together with the classic
pronouncements of the Court in the Monetary Gold case, establishes that the
test is whether the determination of the rights or obligations of the absent
third State would be a “necessary precondition” to the Court disposing of
the dispute before it. This is something on which the Parties in the present
case appear to be in agreement. It goes without saying, though, that that
test
cannot be applied until it is established what the dispute is. The Court has
now made its objective
determination of the subject-matter of the dispute between the Parties (a
determination with [p 81] which I respectfully agree), and, in the light of
that determination, it seems to me clear that the settlement of that dispute
does not in any sense require the Court first to pronounce on whether the
Beneš Decrees as such, or particular confiscations undertaken pursuant to
any of those Decrees, were or were not lawful (in the particular sense of
infringing the rights of Liechtenstein under international law). To the
extent that it might, however, be felt that the final answer to that
question was not yet sufficiently clear at this stage of the argument in the
case, that would of itself suggest that the objection was not one of an
exclusively preliminary character, and ought therefore to be joined to the
merits, as with the second preliminary objection (paragraph 23 above).
27. Having reached the above conclusions, I feel it necessary to add some
final remarks.
28. The first of these is the fairly elementary observation, which harks
back to the remark in paragraph 4 above, that the decision by the Court that
it has no jurisdiction to hear this case does not of itself resolve the
dispute between the two States. To the contrary, the Court has now found
that Liechtenstein and Germany are in dispute with one another, that the
dispute is a legal dispute, and has made its own objective determination of
what the subject-matter of the dispute is. Some element of res judicata
doubtless attaches to those findings. One may assume that the matter will
not rest there. The leader of the German delegation to the bilateral
consultations in June 1999 recognized that a solution needed to be found,
whether by judicial decision or otherwise. To have had that unresolved
dispute -- whatever its merits or demerits ¾ settled by decision of this
Court, if necessary by some form of ad hoc understanding between the
disputants not to contest jurisdiction, would have been an entirely
civilized way to handle the matter, one in accordance with the honourable
traditions of both States, and, needless to say, entirely within the spirit
of the European Convention for the Peaceful Settlement of Disputes. But
other methods, of an equally civilized character, remain open to them as
well.
29. The second observation may be thought a little more pointed, so I
preface it by saying with all emphasis that it is not offered in a critical
spirit. One cannot read the papers in this case without the feeling that,
faced with the undoubtedly difficult and highly sensitive issue of the Beneš
Decrees, the German courts have taken refuge behind the Settlement
Convention (and previously Allied High Commission Law No. 63), and that then
the German Government has taken refuge behind the German courts. That
position, understandable as it may be in relation to the confiscation of
German property, is not a proper way of dealing with the question of neutral
property confiscated as if it were German. It is all too easy to portray
Chapter Six of the Settlement Convention as if it were simply a heavy burden
imposed upon an unwilling Germany. But the truth is that Chapter Six also
served to protect the newly founded German State by absolving it of
co-responsibility for the confiscations, and at the same time absolving its
courts from the invidious task of having to [p 82] sit in judgment on a
flood of complaints from its citizens about the treatment visited on their
property abroad. Yet the counterpart to this protection for Germany – the
necessary element for its completion ¾ must surely have been, quite
intentionally, the obligation to compensate laid down in Article 5 of that
same Chapter (with no apparent limitation, it may be remarked, to German
citizens at all). To lay claim to the one while disclaiming the other is
surely a position that requires re-examination. One can only hope that even
now some such re-examination may be possible.
30. My last observation of all goes back to the remark at the beginning of
this opinion that Liechtenstein’s claim in this case is a very unusual one,
requiring, shall we say, a degree of legal creativity. That is however a
question going to its merits. It is hard to resist the conclusion that the
Respondent -- and, dare one say it, in due course the Court itself -- has
allowed the difficulty it experiences in weighing the prospective legal
merits of the claim to become transmuted into an
issue in limine. However imaginative the claim, it deserved a hearing, and
the Court could with ample justification have achieved just that by joining
the second and fifth preliminary objections to the merits.
(Signed) Franklin BERMAN. |
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