INTERNATIONAL COURT OF JUSTICE
2005/1 Summary
2005 February 10
Summary of the Judgment of 10 February 2005
History of the proceedings and submissions of the Parties (paras. 1-12)
The Court begins by recalling the history of the proceedings.
On 1June2001, the Principality of Liechtenstein (hereinafter “Liechtenstein”) filed an
Application instituting proceedings against th
“Germany”) relating to a dispute concerning
“decisions of Germany, in and after 1998, to
nationals as German assets having been ‘s
restitution, or as a result of the state of war’
World War II ⎯, without ensuring any compensation fo r the loss of that property to
its owners, and to the detriment of Liechtenstein itself”.
In order to found the jurisdiction of the C
European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which entered into
force between Liechtenstein and Germany on 18 February 1980.
On 27June2002, Germany raised preliminary
Court to entertain the case and to the admissibility of the Application submitted by Liechtenstein.
In accordance with Article 79, paragraph 5, of the Rules of the Court, the proceedings on the merits
were suspended.
Liechtenstein filed a written statement of
preliminary objections within the time-limit fixed.
Public hearings were held on 14, 16, 17 and 18 June 2004. At those hearings, the following
submissions were presented by the Parties:
On behalf of the Government of Germany,
at the hearing of 17 June 2004: - 2 -
“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.”
Historical background of the case (paras. 13-17)
The Court first sets out the historical background of the case.
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 21June1945, under which cert ain property owned by Liechtenstein nationals,
including Prince Franz Josef II of Liechtenstein, was confiscated.
Following earlier allied enactments concerning a reparations régime in general and German
external assets and other property seized in conne ction with the Second World War in particular, a
special régime dealing with the latter subject was created by Chap ter 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
26May1952 (as amended by ScheduleIV to the Protocol on the Termination of the Occupation
Regime in the Federal Republic of Germany, signed at Paris on 23October1954) (hereinafter the
“Settlement Convention”). This Convention entered into force on 5 May 1955.
Article 3 of Chapter Six of the Settlement Convention reads as follows:
“1. The Federal Republic shall in the future raise no objections against the
measures which have been, or will be, carri ed out with regard to German external
assets or other property, seiz ed 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 countr ies, 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
paragraph1 and 2 of this Article, or ag ainst international organizations, foreign - 3 -
governments or persons who have acted upon instructions of such organizations or
governments.”
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” (Art icle1 of ChapterSix). 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). On
27 and 28 September 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 the Settlement Convention would terminate simultaneously with the entry into force
of the Treaty. Whereas that Exchange of No tes terminated the Settlement Convention itself,
including Article5 of ChapterSix (relating to compensation by Germany), it provided that
paragraphs 1 and 3 of Article 3, Chapter Six, “shall, however, remain in force”.
In 1991, a painting by the seventeenth century Dutch artist PietervanLaer 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.
A lawsuit filed in his personal capacity by PrinceHans-AdamIIof Liechtenstein in the
German courts in the 1990s to have the painting returned to him as his property was dismissed on
the basis that, under Article3, ChapterSix, 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 (hereinafter the “Pieter van Laer Painting” case).
A claim relating to the decisions of the German courts brought by Prince Hans-AdamII of
Liechtenstein before the European Court of Human Rights was dismissed in July 2001.
*
The Court begins its reasoning by recalling 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 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 that Convention reads as follows:
“The provisions of this Convention shall not apply to: - 4 -
(a)disputes relating to facts or situations prior to the entry into force of this
Convention as between the parties to the dispute”.
Germany raised six preliminary objections to the jurisdiction of the Court and the
admissibility of the Application.
Germany’s first preliminary objection (paras. 20-27)
The Court recalls that Germany, in its first preliminary objection, argues that there is no
dispute between the Parties. Germany in particul ar observes that even though the facts that are at
the core of the dispute lie in Czechoslovakia’s se izure 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 ne ed 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 pos ition either before or after 1995: as to the first, it has never
accepted the validity of the rele vant 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 confisca tion measures, and for the purposes of the
application of Article3 of ChapterSix of the Se ttlement 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. Germany th erefore concludes that the only dispute which
exists is one between Liechtenstein and the successor States of the former Czechoslovakia.
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, th us infringing Liechtenstein’s neutrality and
sovereignty. Liechtenstein recognizes the existe nce of another dispute, one between itself and the
Czech Republic, but observes that this does not nega te the existence of a separate dispute between
itself and Germany, based on Germany’s unlawf ul conduct in relation to Liechtenstein.
Liechtenstein contends further that Germany itself acknowledged the existence of the dispute
between them 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.
Germany for its part denies that it acknowledg ed 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”.
In examining Germany’s first preliminary obje ction the Court refers to its own consistent
jurisprudence and that of the Permanent Court of International Justice, according to which a dispute
is a disagreement on a point of law or fact, a conflic t of legal views or interests between parties. It
goes on to observe that, 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”.
The Court finds that in the present proceedings complaints of fact and law formulated by
Liechtenstein against Germany are denied by the latter, and concludes that “[b]y virtue of this
denial, there is a legal dispute” between Liechtenstein and Germany. 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 20January2000 has eviden tiary value in support of the proposition that - 5 -
Liechtenstein’s claims were positively opposed by Germany and that this was recognized by the
latter.
Turning to the determination of the subject -matter of the dispute, the Court, upon
examination of the case file, finds that the subjec t-matter of the dispute is whether, by applying
Article3, Chapter Six, of the Settlement Conven tion to Liechtenstein property that had been
confiscated in Czechoslovakia under the Beneš D ecrees in 1945, Germany was in breach of the
international obligations it owed to Liechtenstei n and, if so, what is Germany’s international
responsibility.
Having thus 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.
Germany’s second preliminary objection (paras. 28-52)
The Court then examines 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.
Germany asserts that were the Court to find th at there exists a dispute, it would nevertheless
fall outside the jurisdiction of the C ourt by virtue of Article 27 (a)f the European Convention for
the Peaceful Settlement of Disputes (see above, p. 3). In its view, such a dispute would relate to
facts or situations prior to 18February1980, the date when the European Convention for the
Peaceful Settlement of Disputes entered into fo rce as between Germany and Liechtenstein. In
Germany’s view, the Application should therefore be rejected.
Germany claims that the property of Prince FranzJosephII of Liechtenstein, including the
painting by PietervanLaer, as well as property belonging to other Liechtenstein nationals, was
seized in Czechoslovakia pursuant to the Bene š Decrees; and that 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 br ought by PrinceHans-AdamII of Liechtenstein
before the German courts 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 earlie r decisions of German courts. According to
Germany, its courts have consistently held that they lacked jurisdiction to evaluate the lawfulness
of such confiscations. In Germany’s view 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 in facts and situations existing prior to the 1980 critical date.
The Court observes that Liechtenstein contends that until the decisions of the German courts
in the PietervanLaer Painting case, it was understood between Germany and Liechtenstein that
Liechtenstein property confiscate d 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. Liechtenstein maintains, inter alia , that, in so far as there was a change of
position by Germany, the decisions of the Germ an courts in the PietervanLaer Painting case and
the “positions taken by the German Government, in the period after 1995” gave rise to the present
dispute. The facts that triggered the present dis pute were therefore not the Settlement Convention
or the Beneš Decrees, but Germany’s decision in 1995 to apply the Settlement Convention to
Liechtenstein property. - 6 -
The Court notes that in support of their arguments on the subject of the legal test for
temporal jurisdiction, both Liechtenstein and Germ any refer to the jurisprudence of the Permanent
Court of International Justice (the Phosphates in Morocco case and the Electricity Company case)
and of this Court (Right of Passage case).
The Court observes that Germany’s second preliminary objection requires it to decide
whether, applying the provisions of Article27(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.
The Court finds that the text of Article27(a) of the European Convention for the Peaceful
Settlement of Disputes does not differ in substance from the temporal jurisdiction limitations dealt
with in the Phosphates in Morocco case, the Electricity Company in Sofia and Bulgaria case and
the Right of Passage case. In particular, no consequenc e 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 those cases the Permanent Court of International
Justice and this Court were called upon to interp ret unilateral declarations accepting the Court’s
jurisdiction under its Statute, whereas, in the pr esent 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, it observes, have the Parties suggested otherwise. The Court
accordingly finds its previous jurisprudence on te mporal limitations of relevance in the present
case.
The Court considers that, in so far as it has to determine the facts or situations to which this
dispute relates, the test in the above-mentioned jurisprudence for establishing the jurisdiction of the
Court ratione temporis, which consists of finding the source or real cause of the dispute, is equally
applicable to this case.
The Court points out that it is not contested that the present dispute was triggered by the
decisions of the German courts in the PietervanLaer Painting 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.
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 pe riod, Germany either departed from a previous
common position that the Settlement Convention di d 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.
With regard to the first alternative, the Court finds that it has no basis for concluding that
prior to the decisions of the German co urts in the PietervanLaer Painting case, there existed a
common understanding or agreement between Li echtenstein and Germany that the Settlement
Convention did not apply to the Liechtenstein prope rty 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 no t previously arisen before German courts, nor
had it been dealt with prior thereto in intergovernmental talks between Germany and Liechtenstein.
The Court observes, moreover, that German courts have consiste ntly held that the Settlement
Convention deprived them of jurisdiction to ad dress the legality of any confiscation of property
treated as German property by the confiscating State. In the PietervanLaer 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,
the Convention was also applicable to the confiscatio n of the painting. In the view of the Court, - 7 -
Liechtenstein’s contention regarding the existenc e of a prior agreement or common understanding
and an alleged “change of position” by Germany cannot therefore be upheld.
As to Liechtenstein’s contention that the disput e 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. It 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.
The Court concludes therefore that, while the decisions of the German courts 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. 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.
Having dismissed the first preliminary obje ction 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.
*
The full text of the operative paragraph (para. 54) reads as follows:
“For these reasons,
T HE C OURT ,
(a()1) 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; Judgead hoc Sir Franklin Berman;
AGAINST : Judgead 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, R ezek, Al-Khasawneh, Buergenthal, Tomka;
Judge ad hoc Fleischhauer;
AGAINST : JudgesKooijmans, Elaraby, Owada; Judgead hoc Sir Franklin Berman; - 8 -
(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 : JudgesKooijmans, Elaraby, Owada; Judgead hoc Sir Franklin Berman.”
___________ Annex to Summary 2005/1
Dissenting opinion of Judge Kooijmans
JudgeKooijmans agrees with the Court’s finding on the existence of a dispute between
Liechtenstein and Germany and with its identification of the subject-matter of that dispute.
He cannot, however, subscribe to the Court’s conclusion that the dispute relates to facts or
situations prior to the entry into force of the European Convention on Dispute Settlement as
between the Parties on 18February 1980 and that th e Court is consequently without jurisdiction.
After having analysed the case law of German courts on the application of Article3, ChapterSix,
of the 1952 Settlement Convention, he concludes that German courts did not rule before the critical
date on the applicability of that Article to assetsof the nationals of a State which had remained
neutral during the Second World War. They did so for the very first time in the PietervanLaer
Painting case, submitted by the then Reigning Prince of Liechtenstein, thus establishing a “new
situation” subsequent to the critical date. The preliminary objection ratione temporis should,
therefore, not have been upheld.
Since Judge Kooijmans is of the view that the remaining preliminary objections which have
not been considered by the Court are without merit, he concludes that the Court has jurisdiction and
that Liechtenstein’s Application is admissible.
Dissenting opinion of Judge Elaraby
Judge Elaraby agreed with the Court’s conclusion that Germany’s first preliminary
objection ⎯ alleging that there was no dispute ⎯ should be rejected. He disagreed, however, with
the Court’s finding that the second preliminary objection should be upheld, and with the Court’s
consequent dismissal of the case on the ground that it lacked jurisdiction ratione temporis.
Judge Elaraby began by noting that the temporal limitation clause before the Court was
different from those which the Court, and its pr edecessor the Permanent Court of International
Justice, had interpreted in prior cases (a)because its terms were broader and (b) because it was
contained in a multilateral treaty, as opposed to a unilateral acceptance of jurisdiction. In his view,
these differences may have justified a departure from the approach adopted in prior cases ⎯
according to which the facts or situations relevant to a ratione temporis analysis are those that
constitute the “real cause” of the dispute ⎯ but he confined his opinion to an explanation of why,
in his view, the Court reached the wrong conclusion in applying the “real cause” test to the specific
facts of the case.
In Judge Elaraby’s view, the real cause of the dispute between Liechtenstein and Germany
was the German court decisions of the 1990s ⎯ well after the critical date ⎯ in the Pieter van Laer
Painting case. Because these court decisions purported for the first time to include neutral
Liechtenstein property as “German external assets” under the Se ttlement Convention,
Judge Elaraby found that any facts or situations before these court decisions (such as the Settlement
Convention, the Beneš Decrees, and prior cases deal ing with the Convention) were mere historical
background and could not be the real cause of the dispute between the Parties.
In reaching this conclusion, Judge Elaraby found it pertinent that, unlike in the three cases
relied on by the Court (Right of Passage over Indian Territory , Electricity Company of Sofia and
Bulgaria and Phosphates in Morocco ), there were no pre-critical-date acts imputable to the
Respondent that were relevant to the Applicant’s claims; the only actions attributable to Germany
that might potentially have engaged its internatio nal responsibility vis-à-vis Liechtenstein occurred
after the critical date. - 2 -
Judge Elaraby’s conclusion was that the Co urt should not have found that it was precluded
by the temporal limitation clause from exercising its jurisdiction and he pointed out that the
European Court of Human Rights reached the sa me conclusion as him when it analysed the
question of its jurisdiction ratione temporis in the case filed by the Prince of Liechtenstein under
the European Convention on Human Rights. He a dded that, in the alternative, the Court should
have joined the objection ratione temporis to the merits instead of disposing of the case in limine .
Finally, Judge Elaraby expressed regret that the Court, having recognized and defined the dispute
between the Parties, then opted to dispose of it without a hearing, as this was not, in his view, a
positive contribution to the settlement of international disputes.
Dissenting opinion of Judge Owada
Judge Owada appends his opinion dissenting from the main conclusion of the Judgment that
the Court has no jurisdiction to entertain the Application filed by the Principality of Liechtenstein.
Judge Owada concurs in the first finding of the Court (paragraph1(a) of the dispositif ) in
rejecting the preliminary objection of the Federal Republic of Germany that there is no dispute
between Liechtenstein and Germany. However, he dissents from the second finding of the Court
(paragraph 1 (b) of the dispositif ) upholding the preliminary objection of the Respondent that
Liechtenstein’s Application should be rejected on the grounds that the Court lacks jurisdiction
ratione temporis to decide the dispute.
In Judge Owada’s view, the Court has correctly identified the subject-matter of the dispute
that exists between the Parties as consisting in the treatment by Germany of Liechtenstein property
confiscated in Czechoslovakia under the Beneš De crees, in that Germany has applied Article3,
ChapterSix, of the Settlement Co nvention to the property in questio n. On this basis the critical
date for determining the scope of limitation ratione temporis upon jurisdiction of the Court under
Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes should be
determined with reference to this subject-matter of the dispute thus defined. It cannot be denied in
this respect that the alleged “change in position of Germany” in the treatment of the Liechtenstein
property in question in applying the Settlement Convention, which came through a series of
decisions of German courts and confirmed by German authorities, created a situation that gave rise
to a dispute which had not existed between the Pa rties prior to those events. Thus Judge Owada
argues that these events did in fact amount to creating a “new situation”, for the purpose of
application of the jurisdiction ratione temporis rule as established by jurisprudence of the Court,
through the treatment of Liechtenstein property by the German courts in applying Article3,
ChapterSix, of the Settlement Convention for the first time to neutral property. It goes without
saying that the question of whether this “new situation” has had the effect of bringing into
existence international responsibility attributable to Germany is a matter to be examined at the
merits stage of the proceedings. Since this new development took place only in the late 1990s, to
that extent and strictly for the purposes of determining its jurisdiction , the Court should have
concluded that this development could constitute “facts or situations giving rise to the dispute”
between the Parties for the purpose of applicat ion of the compromissory clause contained in
Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes. This question,
which may require further examination at the merits stage of the proceedings, is therefore to be
joined to the merits of the case.
As for the other preliminary objections of Ge rmany relating to the ju risdiction of the Court
(the third preliminary objection) or to the admissibility of the Liechtenstein claims before the Court
(the fourth, fifth and sixth objections), it is the vi ew of Judge Owada that they are either to be
rejected as unfounded (the third, fourth and sixth objections) or to be joined to the merits of the
case (the fifth objection) as not possessing an exclusively preliminary character. - 3 -
Declaration of Judge ad hoc Fleischhauer
Judge Fleischhauer expresses his agreement with the upholding by the Court of Germany’s
second preliminary objection. Regarding the first preliminary objection, he cannot follow the
Court with respect to Germany’s position in bilate ral consultations and in the letter of the Minister
for Foreign Affairs of 20 January 2000.
Dissenting opinion of Judge ad hoc Berman
Judge Berman explains in his dissenting opinion why, although he agrees with much of what
the Court has said, he agrees neither with the fi nding that Germany’s second preliminary objection
should be upheld nor with the Court’s handling of the preliminary phase of the case more
generally.
Having pointed out that Liechtenstein’s claim, although possibly without precedent, is
nevertheless essentially straightforward, Judge Berman draws attention to the fact that it has been
opposed by no less than six preliminary objections raised by Germany, three of which ask the
Court to decline to hear the case even if it finds th at it has the jurisdiction to do so. He is in full
agreement with the Court in rejecting Germany’s first preliminary objection (that there is no
dispute between the Parties) and would have been prepared to go further, and hold that Germany is
precluded from raising such an objection now, ha ving earlier recognized in its diplomatic contacts
with Liechtenstein that there existed differences between the two States which might have to be
settled by judicial means.
While he has no fundamental disagreement with the way in which the Court assesses its
previous jurisprudence on temporal clauses lim iting the acceptance of the Court’s jurisdiction
(Germany’s second preliminary objection), Judge Berman states that, in his view, the earlier case
law establishes that the Court po ssesses a degree of latitude or discretion in deciding what
situations or facts are indeed the “source or real cause” of a particular dispute, not least because no
two international disputes arise in exactly the sa me way. He adds that, in his opinion, this
discretion might, in appropriate circumstances, be influenced by whether the parties’ acceptance of
the jurisdiction is in an agreed general treaty on the peaceful settlement of disputes, as opposed to
unilateral declarations under the optional clause.
His main disagreement with the Court is how ever over its uncritical acceptance of an
argument that lies at the heart of the German ca se and also of the Court’s own reasoning, namely
the claim that the German courts had no optio n but to apply the Settlement Convention of
1952/1955 to neutral property when the question arose for the first time many years later. He
demonstrates that, on his reading of the German case law (not all of which had been presented to
the Court, or explained to it in detail), the Ge rman superior courts had clearly not regarded
themselves in the early days as prevented from considering whether the Settlement Convention (or
its predecessor Allied legislation) did apply, or even should be applied, in particular cases, and that
the practice of considering whether the precon ditions were met for applying the Convention
continued throughout the handling of th e case of the Pieter van Laer Painting itself in the 1990s,
including before the European Court of Human Rights.
Moreover, to interpret the Settlement Conven tion (to which Liechtenstein was not in any
case a party) as covering neutral property is contrary to the wording of the Convention, and had
never been justified before the German courts with evidence that this was in fact the intention of
the Contracting Parties. To attribute such an intention to the Three Allied Powers was,
furthermore, against all logic, and would have en tailed a breach of their own obligations towards
the States which had been neutral in the Second Wo rld War. It was not therefore to be foreseen
that Germany would in due course adopt such a pos ition in its bilateral relations, and use it as an
argument for excluding any possibility of compensation. It is, however, precisely the adoption of
this position which, according to Judge Berman, was the real source of the dispute; it gave rise to a - 4 -
new situation, and it took place well after the critical date. While it cannot be denied that the
Settlement Convention and Beneš D ecrees are connected with the disp ute, that does not in itself
make them the dispute’s “source or real cause”.
Judge Berman goes on to discuss the circumstances under which certain parts of what had
been an avowedly temporary régime under th e Settlement Convention we re made permanent,
whereas other parts (the obligation to pay comp ensation) were abrogated, on the unification of
Germany in 1990. Although the Parties had either not possessed, or at least not produced, evidence
to the Court showing why this had been done, the inference must be that it had been at Germany’s
request, and that too reinforced the view that the source of the dispute lay after the critical date.
Judge Berman concludes by stating that, if there was however any remaining doubt on any of
these points, the correct procedure would have been to join the second preliminary objection to the
merits, so as to allow the opportunity for full evidence and argument.
As to the remaining preliminary objections, Judge Berman states that he would reject them
all. He discusses briefly the fifth objection (abs ence of an indispensable third party), but finds it
clear that the dispute, as now defined in the Judgment of the Court, would not have required the
Court to have pronounced in any way on the lawfulness of the Beneš Decrees as such, or particular
confiscations undertaken pursuant to them. Once again, he concludes, any doubt on this score
would most appropriately have been managed by joining the objection to the merits.
Finally, Judge Berman points out that the Judgment of the Court declining jurisdiction does
not dispose of the dispute itself, which the Court has now formally determined to exist between the
two States, and regrets their failure to agree, if necessary ad hoc , that the dispute be settled by the
International Court in accordance with the traditions of both Parties. He comments on the propriety
of claiming protection under the Settlement Convention while disclaiming its corresponding
obligation to pay compensation, and indicates that the claims advanced by Liechtenstein, even if
unusual, deserved a hearing.
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Summary of the Judgment of 10 February 2005