   INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

    CASE CONCERNING
    CERTAIN PROPERTY
   (LIECHTENSTEIN v. GERMANY)

     PRELIMINARY OBJECTIONS

  JUDGMENT OF lO FEBRUARY 2005

          2005
   COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

     AFFAIRE RELATIVE
     À CERTAINS BIENS
  (LIECHTENSTEIN c. ALLEMAGNE)

    EXCEPTIONS PRÉLIMINAIRES

     ARRÊT DU lO FÉVRIER 2005

                          Official ci tation:
            Certain Property (Liechtenstein v. Germany),
     Preliminary Objections, Judgment, l. CJ. Reports 2005, p. 6

                       M ode officiel de ci ta tian:
            Certains biens (Liechtenstein c. Allemagne),
       exceptions préliminaires, arrêt, CI.J. Recueil 2005, p. 6

                                            Salcs number
ISSN 0074-4441
ISBN 92-1-071007-X
                                             N° de vente:   896

                        10 FEBRUARY 2005

                           JUDGMENT

     CERTAIN PROPERTY
(LIECHTENSTEIN v. GERMANY)

  PRELiMINARY OBJECTIONS

      CERTAINS BIENS
(LIECHTENSTEIN c. ALLEMAGNE)

 EXCEPTIONS PRÉLIMINAIRES

                           10 FÉVRIER 2005

                               ARRÊT

               6

                              INTERNATIONAL COURT OF JUSTICE

   2005                                          YEAR 2005
10 February
General List
  No. 123                                     10 Fcbruary 2005

                                    CASE CONCERNING
                                    CERTAIN PROPERTY
                                  (LIECHTENSTEIN v. GERMANY)

                                     PRELIMINARY OBJECTIONS

                  His/orical background - Confiscalion hy Czechoslovakia in 1945 under Ihe
               Bend Decrees of praperty belonging to Prince Fram: Josef li of Liechten-
               stein - SpeCial régime with regard ta German externat assels and other prop-
               erly seized in connection willl the Second World War - Article 3. paragraphs 1
               and 3, of Chapler Six of Ihe Selllcment Convemion - Final Selilemelll with
               respect 10 Germany.
                  Pieter van Laer painting confiscated Ululer the BeneS Deaees - Cfaim hy
               Prince Hans-Adam li of Liechtenstein for the relurn of Ihe painling dismissed
               by German cOllrts in /990.1' on Ihe basis of Article 3, Chapler Six; o/ille Setlle-
               ment CO/1l'elllion - Claim brought by Prùlce Hans-Adam li of Liechtenstein
               before the European Court of Human Righls dismissed.

                                                      '" '"
                 Jurisdiclion of Ihe Courl based on Article f of Ihe European Conve/1/ioll for
               the Peacejul Seulement of Disputes - Limitation ratione temporis contained in
               Arlicle 27 Ca) o/Ihat Convention.
                  Six preliminary objeclions 10 the jurisdiction of the Courl and the admissi-
               bi/ity of Ihe Application raised by Germany.
                                                        ,.
                  Germany's firsl pre/iminary ohjeclion
                  CO/1/elllion by Gemwny Iha! thtre is no dispute bellVeen the Parlies - No
               "change ofposilion" \Vith regard to Germuny's Ireatment of Liechlellslein prop-
               erty confiscaled in conneclion wilh the Second World War .)"(lid 10 lIave
               occurred - Germany has neva accepted the validity oI Ihe ReneS: confisca-
               lions - Germall courts have consistently held that Ihey are barred hy Ihe
               Seulement Convenlion }"rom adjudicaling 0/1 the Imvfulness of confiscation

               4

7                       CERTAIN PROPERTY (JUDGMENT)

measures resulting from the Second World War - According ta Germany,
 the only dispute is one between Liechtenstein and the successor States of
former Czechoslovakia.

   Contention by Liechtenstein that there is a dispute between the Parties -
Germany saül ta have al/owed, for the first time in 1995, Liechtenstein assets ta
be treated as German external assets for purposes of the Settlement Conven-
tion - Existence of a separa te dispute between Liechtenstein and the Czech
Republic does not negate the existence of a dispute between Liechtenstein and
Germany - According ta Liechtenstein, Germany has itself acknowledged the
existence of the dispute - Germany denies any such acknowledgment.

   Jurisprudence of the Court and its predecessor regarding the question of the
existence of a dispute - Complaints offact and law formulated by Liechten-
stein against Germany denied by the latter - A legal dispute exists between the
Parties - Germany's position in course of bilateral consultations has eviden-
tiary value in this regard - Subject-maller of the dispute - First preliminary
objection dismissed.

                                         *
   Germany's second preliminary objection.
   Contention by Germany that the Court lacks j/lrisdiction ratione temporis on
the basis of Article 27 (a) of the European Convention for the Peaceful Settle-
ment of Disputes - Were the Court ta find that there exists a dispute it 1V0uld,
according ta Germany, relate ta the Settlement Convention and the BeneS
Decrees, which predate the critical date, i. e. the entry into force of the European
COlll'ention for the Peaceful Settlement of Disputes as betlVeen Liechtenstein
and Germany (18 February 1980) - German courts said ta have consistently
held that they lacked jurisdiction under the Settlement COlll'ention ta evaluate
the lawfu/ness of confiscations effected in cormection with the Second Wor/d
War.

   Contention by Liechtenstein tllat the Court has jurisdiction ratione tempo-
ris - Allegation that wail the decisions in the Pieter van Laer Painting case, it
lVas understaod between the Parties that Liechtenstein property confiscated pur-
suant ta the BeneS Decrees could not be deemed ta have been covered by the
Settlement Convention - Picter van Laer Painting case and position taken by
the German Government after 1995 said ta have triggered the dispute.

  Parties' interpretation of jurisprudence of the Court and its predecessor
regarding the legal test for temporal jurisdiction.

   Need for the Court ta determine whether the dispute relates ta facts or situa-
tions that arase before or after the critical date - Phosphates in Morocco
case - Eleetrieity Company of Sofia and Bulgaria case - Right of Passage
case - Text of Article 27 (a) of the European Convention for the Peaceful
Seulement of Displlle.l' does not differ in substance from temporal jurisdiction
limitations dealt with in tl/ose cases - Test ojjinding the source or real cause of
the dispute used in previous case law equal/y applicable in current instance -
No common understanding between Liechtenstein and Germany that the Setllement
Convention did not apply ta Liechtenstein property - German courts have con-

5

8                      CERTAIN PROPERTY (JUDGMENT)

sistently he/d that the Seltlement Convention depril'ed them of jurisdiction to
address the legality of any confiscation of property treated as German property
by tlze confiscating State - German courts did not face any "new situation"
when dea/ing for the first time with a case concerning the confiscation of Liech-
tenstein property as a result of the Second World War - Inextricable link ta
the Setllement Convention and tlze Benes Decrees - The Selllement Conven-
tion and the Bend Decrees are the real cause of the dispute - ln fight of the
provisions of Article 27 (a) of the European Convention for the Peaceful Set/le-
ment of Disputes. the second preliminary objection has ta be upheld - Court
not required to consider Germany's other preliminary objections - No jurisdic-
tian ta entertain the case.

                                JUDGMENT

Present: President SHI; Vice-President RANJEVA; Judges GUILLAUME, KOROMA,
         VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK,
         AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA, TOMKA; Judges
         ad hoc FLEISCHHAUER, Sir Franklin BERMAN; Registrar COUVREUR.

    ln the case conceming certain property,
    between
the Principality of Liechtenstein,
represented by
   H.E. Mr. Alexander Goepfert, Freshfields Bruckhaus Deringer, Düsseldorf,
     Special Commissioner of the Principality of Liechtenstein,
  as Agent;
   H.E. Mr. Roland Marxer, Ambassador, Direclor of the Office for Foreign
     Affairs of the Principality of Liechtenstein,
  as Advocate;
   Mr. Dieter Blumenwitz, Professor of Public International Law, Universities
     of Würzburg and Munich,
   Mr. Thomas Bruha, Professor of Public Law, University of Hamburg,
  Mr. James Crawford, S.e., Whewell Professor of International Law, Univer-
     sity of Cambridge, member of the English and Australian Bars, Member
     of the Institute of International Law,
  Mr. Gerhard Hafner, Professor of Public International Law, University of
     Vien na, Associate Member of the Institute of International Law,
   Mr. Alain Pellet, Profcssor of International Law, University of Paris X-
     Nanterre, member and former Chairman of thc International Law Com-
     mission,
  as Counsel and Advocates;

6

9                      CERTAIN PROPERTY (JUDGMENT)

    MT. Malcolm Forster, Professor of International Law, University College,
       London, Freshfields Bruckhaus Deringer, London,
    Ms Juliane Hill', member of the Chamber of Lawyers of Germany, Fresh-
      fields Bruckhaus Deringer, Cologne,
    Ms Lucy Reed, member of the $tate Bar of New York, Freshfields Bruck-
      haus Deringer, New York,
    as Advocates;
    MT. Daniel Müller, temporary Lecturer and Research Assistant, University
      of Paris X-Nanterre,
    MT. Stephan Wittich, Assistant Professor, University of Vienna,
    as Ad visers ;
    Ms Nadine Heider, Freshfields Bruckhaus Deringer, Cologne,
    Ms Gabriele Klein, Freshfields Bruekhaus Deringer, Düsseldorf,
    as Assistants;
    MT. Thomas Dillmann, ECC Kohtes Klcwes,
    Mr. Thomas Pütz, ECC Kohtes Klewes,
    as Information Officers,
    and
the Federal Republic of Germany,
represented by
   MT. Thomas Laufer, Direetor General for Legal Affairs and Legal Adviser,
     Federal Foreign Office,
   RE. MT. Edmund Duckwitz, Ambassador of the Federal Republic of Ger-
     many to the Kingdom of the Netherlands,
  as Agents;
   MT. Jochen Frowein, Director Emeritus of the Max Planck Institutc for
     Comparative Public Law and International Law, Heidelberg, Professor of
     Public International Law, University of Heidelberg,
  MT. Christian Tomuschat, Professor of Public International Law, Humboldt
     University, Berlin,
  MT. Pierre-Marie Dupuy, Professor of Public International Law, University
     of Paris (Panthéon-Assas) and the European University Institute, Flor-
     ence,
  as Counsel;
  MT. Daniel Erasmus Khan, Privatdozent, Visiting Professor, Bayreuth Uni-
     versity,
  Mr. Andreas Paulus, University of Munich,
  Ms Karin Oellers-Frahm, Max Planck Institute for Comparative Public Law
     and International Law, Heidelberg,
   Ms Susanne Wasum-Rainer, Head of the Public International Law Division,
     Federal Foreign Office,
   MT. Reinhard Hassenpflug, Federal Foreign Office,
   MT. G6tz Reimann, Embassy of the Federal Republic of Germany in The
     Hague,
  as Advisers;
   Ms Fiona Sneddon,
  as Assistant,

7

10                        CERTAIN PROPERTY (JUDGMENT)

    THE COURT,

    composed as above,
    after deIiberation,
    delil'ers 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 "German y") 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 pur-
      poses of reparation or restitution, or as a result of the stale of war' - i.e.,
      as a consequence of World War II -, without ensuring any compensation
      for the loss of thal property to its owners, and to the detriment of Liech-
      tenstein itseIr'.
   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, ail 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 l, of
the Rulcs of Court, in their revised version applicable with eITect from 1 Feb-
ruary 2001. On 28 March 2002, within the time-Iimit thus prescribed, Liechten-
stein 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. lan
Brownlie, who resigned on 25 April 2002, and subsequently Sir Franklin Ber-
man.
   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 ascer-
tained the views of the Parties pursuant to Article 53, paragraph l, of the R ules
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, para-
graph 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 proceed-
ings 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 o.bservations and submissions on the prelimi-

8

II                       CERTAIN PROPERTY (JUDGMENT)

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 leUers 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, para-
graph 3, of the Statute and Article 37, paragraph l, of the Rules of Court, Ger-
many 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 ascer-
tained the views of the Parties, decided that copies of the pleadings and docu-
ments 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 Laufer,
                       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 B1umenwitz,
                       M r. 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, Liech-
       tenstein, 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 appro-
       priate reparation to Liechtenstein for the damage and prejudice suffered.
       Liechtenstein further requests that the nature and amount of sueh repara-
       tion should, in the absence of agreement .between the Parties, be assessed
       and determined by the Court, if necessary, in a separate phase of the pro-
       ceedings."
   II. In the written proceedings, the following submissions were presented by
the Parties:
011 behalf of the GOl'ernment 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 Prin-
       cipality of Liechtenstein requests the Court to adjudge and declare that:
       (a) by its conduct with respect to Liechtenstein and the Liechtenstein
            property, Germany has failcd to respect the sovereignty and neutral-

9

12                      CERTAIN PROPERTY (JUDGMENT)

          ity of Liechtenstein and the legal rights of Liechtenstein and its
          na tionals wi th respect ta the property;
     (h) by its failure to make compensation for losses suffered by Liechten-
          stein and its nationals, Germany is in breach of the rules of intema-
          tionallaw;
     (c) consequently Germany has incurred intemationallegal responsibility
          and is bound ta pro vide appropriate assurances and guarantees of
          non-repetition, and to make appropriate reparation ta 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
     detennined by the Court in a separate phase of the proceedings."

On behalf of Ille Government of Germany,
in the Preliminary Objections:
        "On the basis of the preceding Submissions, Gennany summarizes its
     Prdiminary Objections as follows :
     (1) The case is outside the jurisdiction of the Court since
          (a) there exists no dispute as bctween Liechtenstein and Gennany in
               the sense required by the Statule of the Court and Article 27 of
               the European Convention fOf the Peaceful Seulement of Disputes
               of 29 April 1957;
          (b) ail the relevant facts occurred before the entry into force of the
               European Con ven tion as between the Parties;
          (c:) the occurrences on which Liechtenstein bases i ts claims fall within
               the domestic jurisdiction of Germany.
     (2) Licchtenstein's Application is furthermore inadmissible since
          (a) Liechtenstein's daims have not becn sufficiently substantiated;
          (h) adjudication of L.iechtenstein'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
               a bsence and without Iheir consent;
          (c) the alleged Liechtenstein victims of the measures of con fisca tian
               carried out by Czechoslovakia have failed ta exhaust the avail-
               able local rcmedies.
        For the reasons advanced, Germany requests the Court ta adjudge and
     dec\are tha t;
         it lacks jurisdiction over the daims brought against Germany by the
         Principality of Liechtenstein, referred to it by the Application of liech-
         tenstein of 30 May 2001,
     and/or that
         the daims brought against Germany by the Principa!ity of Liechten-
         stein arc inadmissible ta the extent specified in the present Preliminary
         Objections. "
On behaff of the Governmellf of Liechtenstein,
in the Written Statement of ilS observations and submissions on the prelimi-
nary objections raiscd by Gennany:

10

13                      CERTAIN PROPERTY (JUDGMENT)

       "For ail these reasons, and reserving the right of the Principality of
     Liechtenstein to supplement them in view of any further German argu-
     ments, 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
     (h) 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 hehalf of the GOllernment 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 Liech-
        tenstein of 30 May 2001,
     and that
        the claims brought against Germany by the Principality of Liechten-
        stein are inadmissible to the extent specified in its Preliminary Objec-
        tions."
011 hehalf of the GOllernmellt of Liechtenstein,
at the hearing of 18 June 2004:
       "For the rcasons 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,
     (h) 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 "Benes Decrees"), among them Decree
No. 12 of21 June 1945, under which "agricultural property" of "ail per-
sons belonging to the German and Hungarian people, regardless of their
nationality" was confiscated. Under the terms of this Decree, "agricul-
tural property" included, inter alia, buildings, installations and movable
property pertaining thereto. The properties confiscated under Decree
No. 12 comprised sorne owned by Liechtenstein nationals, including
Prince Franz Josef II of Liechtenstein. These measures were contested by

11

14                      CERTAIN PROPERTY (JUDGMENT)

Prince Franz Josef Il 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 Conven-
tion on the Settlement of Matters Arising out of the War and the Occu-
pation, 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 Conven-
tion"). 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 shaIl in the future raise no objections
       against the measures which have been, or wiIl 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 AIIied countries, neutral countries or
       former aIlies of Germany.

          3. No claim or action shaIl be admissible against persons who
       shall have acquired or transferred titIe 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 shaIl ensure that the former owners of
       property seized pursuant to the measures referred to in Articles 2
       and 3 of this Chapter shaIl be compensated."
   15. The régime of the Settlement Convention was intended to be tem-
porary until the problem of reparation was finaIly 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 Septem-
ber 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-

12

15                   CERTAIN PROPERTY (JUDGMENT)

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,
"shalI, 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 paint-
ing had been the property of the family of the Reigning Prince of Liech-
tenstein since the eighteenth century; it was confiscated in 1945 by
Czechoslovakia under the Benes Decrees. The Administrative Court of
Bratislava in 1951 dismissed the appeal by Prince Franz Josef II of Liech-
tenstein against the measures of confiscation pursuant to which his prop-
erty, including the Pie ter van Laer painting, had been seized (see para-
graph 13 above). In 1991, Prince Hans-Adam II of Liechtenstein filed a
lawsuit in the German courts in his personal capacity to have the paint-
ing sequcstered and returned to him as his property (hereinafter referred
to as the "Pieter l'an Laer Painting case"). The c1aim 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 Septem-
ber 1997, and by the Federal Constitution al Court on 28 January 1998,
on the basis that, under Article 3, Chapter Six, of the Settlement Conven-
tion, no c1aim or action in connection with measures taken against Ger-
man external assets in the aftermath of the Second World War was
admissible in German courts.

   17. In 1998 Prince Hans-Adam TI of Liechtenstein instituted proceed-
ings 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 Protec-
tion of Human Rights and Fundamental Freedoms of the Council of
Europe, as welI as Article 1 of Protocol No. 1 to that Convention. That
Court, on 12 July 200 l, held that there had been no violation of the
Articles invoked by the Applicant.

                                  ***
   18. Tt is recalIed 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 shalI submit to the judgement of
     the International Court of Justice ail international legal disputes

13

16                   CERTAIN PROPERTY (JUDGMENT)

     which may arise between them including, in particular, those con-
     cerning:
     (a) the interpretation ofa 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 Seulement
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 ail the relevant facts occurred before the entry into force of the
European Convention for the Peaceful Settlement of Disputes as between
the Parties. Germany con tends in its third objection that the European
Convention for the Peaceful SettIement of Disputes has no application
because the acts on which Liechtenstein bases its c1aims fall within the
domestic jurisdiction of Germany. In its fourth objection, Germany sub-
mits that Liechtenstein's c1aims 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. Gemlany argues in its
fifth objection that adjudication of Liechtenstein's c1aims 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 con-
fiscation carried out by Czechoslovakia have failed to exhaust the avail-
able local remedies.

  In its written observations and final submissions during the oral pro-
ceedings, Liechtenstein requested the Court to reject Germany's prelimi-
nary objections in their entirety.

                                  * *
14

18                    CERTAIN PROPERTY (JUDGMENT)

   Liechtenstein recognizes the existence of another dispute, one between
itsclf 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 daims and a
divergence of legal opinions over these daims, both in the course of bi-
lateral 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 Govern-
ment of Liechtenstein and "[did] not see a possibility to make compen-
sation 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 construc-
tive legal basis".
   For its part, Germany denies that il acknowledged the existence of a
dispute by participating in diplomatie consultations at the request of
Liechtenstein. Il 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 Mavrommati.\· Palestine Concessions. Judgment No. 2,1924, P. CI.J.,
Series A, No. 2, p. Il; Northern Cameroons, Preliminary Objections,
Judgment, l.e.J. Reports 1963, p. 27; Applicability of the Obligation to
A rbilrate under Section 21 of the United Nations Headquarters Agree-
ment of 26 June /947, Advisory Opinion, 1. CJ. Reports 1988, p. 27,
para. 35; East Timor (Portugal v. A ustralia) , Judgment, /. CJ. Reports
/995, 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
daim of one party is positively opposed by the other" (South West
Africa, Preliminary Objections, Judgment, 1.CJ. Reports 1962, p. 328).

  25. The Court recalls that Liechtenstein has characterized its dispute
with Gernlany 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 Benes Decrees as German external assets
for the purposes of the Settlement Convention, notwithstanding Liech-
tenstein'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

16

19                   CERTAIN PROPERTY (JUDGMENT)

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 Liechten-
stein against Germany are denied by the latter. ln 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 Liech-
tenstein and Germany (East Timor (Portugal v. A ustralia) , ludgment,
J. Cl. Reports 1995, p. 100, para. 22; Application of the Convention on
the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, ludgment, I.Cl. Reports /996, 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 c1aims 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 dis-
pute before it. Upon examination of the case file, the Court finds that the
subject-matter of the dispute is whether, by applying Article 3, Chap-
ter Six, of the Settlement Convention to Liechtenstein property that had
been confiscated in Czechoslovakia un der the Benes Decrees in 1945,
Germany was in breach of the international obligations it owed to Liech-
tenstein and, if so, what is Germany's international responsibility.
   27. Having established the existence of a dispute betwccn Liechten-
stein and Germany and identified its subject-mattcr, the Court concludes
that the first preliminary objection of Germany must be dismissed.

                                   * *
   28. The Court will now examine Germany's second preliminary objec-
tion 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. ln
Germany's vicw, the Application should therefore be rejected.

17

20                    CERTAIN PROPERTY (JUDGMENT)

   30. Germany contends that the key issue for the purpose of applying
Article 27 (a) is not the date when this dispute arase, but whether the
dispute relates to facts or situations that arase before or after the critical
date. Only if these facls or situations took place after the critical date,
tha! is after 1980, would the Court have jurisdiction ratione tempo ris
under Article 27 (a). But sinee, in Germany's view, this dispute relates
to faets and situations that predate 1980, the Court lacks the requisite
jurisdiction.

   31. Germany daims that the property of Prince Franz Joseph TI of
Liechtenstein, including the painting by Pieter van Laer, as weil as prop-
erty belonging to other Liechtenstein nationals, was seized in Czechoslo-
vakia pursuant ta the Benes Decrees. The Settlement Convention required
Germany to bar any action in ils courts that sought to challenge the
legality of such confiscations. In Germany's view, the lawsuit brought by
Prince Hans-Adam Il 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 Cola gne Regional Court in 1995, acting in corn pliance
wilh the provisions of that Convention, was in conformity with earlier
decisions of German courts. According to Germany, its courts have con-
sistently held that they lacked jurisdiction to evaluate the lawfulness of
such confiscations. The dispute. which arase in the 1990s with regard to
the Pieter van Laer painting was directly related to the Seltlement Con-
vention and the BeneS Decrees; it had its real source, according to Ger-
many, in faets and situations existing prior to the 1980 eritical date.

   32. Liechtenstein contends that until the decisions of the German
courts in the Pieter )lan Laer Painting case, it was understood between
Germany and Liechtenstein that Liechtenstein property confiscated pur-
suant ta the Benes 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 decÎ-
sions of the German courts in the 1990s \Vith regard ta the painting made
clear that Germany no longer adhered to that shared view, and thus
amounted to a change of position. Tt mattered not, according to Liech-
tenstein, 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 Pie ter l'an Laer Painting case and the "positions taken by the Ger-
man Government, in the period after 1995" gave rise to the present dis-
pute. ln these decisions and positions, Germany made clear for the first

18

21                    CERTAIN PROPERTY (JUDGMENT)

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 Benes 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 interpre-
tation of Article 27 (a) of the European Convention for the Peaceful Settle-
ment of Disputes in this case. ln Liechtenstein's view, the Phosphates in
Morocco case makes c1ear 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 fa ct with regard to which the dispute arose, that is, the "fait généra-
teur" of the dispute. According to Liechtenstein, the Permanent Court of
International Justice adopted that sa me approach in the Electricity Com-
pany 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 dis-
pute; what matters is the point at which the rights are denied". Liechten-
stein further contends that, as the Right of Passage case indicates, it is
only when the "parties 'adopt c1early-defined legal positions' that the dis-
pute 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 subrrùts that, contrary to Liechtenstein's allegations,
there was "no change of position" by Germany because the judicial deci-
sions in the 1990s did not depart from prior German case law on the sub-
ject. 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 c1aimed by one of the parties and the source of the dispute,
referred to by the Permanent Court of International Justice in the Elec-
tricity 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 ta ken after 1980; rather, they

19

22                    CERTAIN PROPERTY (JUDGMENT)

relate entirely to the legal situation created in the aftermath of the Second
World War and, in particular, to "the confiscation of Liechtenstein prop-
erty by Czechoslovakia in 1945 and thereafter and possible legal conse-
q uences of these confiscations".

   37. A further difference, according to Germany, between the Elu·tri-
city Company of Sofia and Bulgaria and the Rigil! 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 Phos-
phates in Morocco case fall into the same category. Tn the Phosphates
case, "the Court could TIot look into the matter because the legal situa-
tion had been exactly the same since long before the jurisdictional clause
applied and no separable facts or legal situations were at issue". Accord-
ing ta 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 fOf Germany since 1955" by virtue of the Settlement
Convention.

   38. Liechtenstein disagrees with Gemlany's Interpretation of the juris-
prudence applicable to this case. lt 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 Settle-
ment Convention nor by the Benes Decrees because, prior to the 1990s,
that Convention had never been applied ta neutral assets and thus gave
fise 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 Euro-
pean Convention for the Peaceful Settlement of Disputes, the present dis-
pute 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

20

23                    CERTAIN PROPERTY (JUDGMENT)

International Justice's jurisdiction spoke of "disputes which may arise
after the ratification of the present declaration with regard to situations
or tacts subsequent to this ratification" (Judgment, 1938, P. Cl.J.,
Series AIB, No. 74, p. 22). While the parties in that case agreed that the
dispute arase 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 arase, that is, whether it was prior or subse-
quent to the declaration. The Court found that the subject of the dispute
was the so-called "monopolization of the Moraccan 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 criticaI date. lt was that legislation, the Court ruled, with
regard to which the dispute arose.

  41. In the Electricity Company afSofia and Bulgaria case, the wording
of the Belgian limitation ralione temporis was identical ta the relevant
language of the French dec1aration in the Phosphates in Morocco case.
Here, tao, the parties agreed that the dispute arase 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, Bulgar1a argued that the awards of the Belgo-
Bulgarian Mixed Arbitral Tribunal, which predated the critical date, had
ta be treated as the "situations" that gave rise ta the dispute. The Per-
manent 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 ta which a dispute is said ta have
     arisen must be the real cause of the dispute. In the present case it is
     the subsequent acts with which the Belgian Government reproaehes
     the Bulgarian authorities with regard ta 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 constitut-
     ing the facts with regard to which the dispute arose." (Eleclricity
     Company of Sofia and Bufgaria, Judgmenl, 1939, P. ClJ.,
     Series AIB, No. 77, p. 82.)
Since these facts all took place after the crîtieal date, the Court rejected
the Bulgarian preliminary objection to its jurisdiction.
  42. In the Righl of Passage case, this Court had ta deal with lndia's
preliminary objection ralÎone tempo ris. The objection was based on its
declaration accepting the Court's jurisdietion "over ail disputes arising
after 5 February 1930, with regard to situations or faets subsequent ta

21

24                    CERTAIN PROPERTY (JUDGMENT)

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 Tndian
territory to certain Portuguese enclaves. The Court turned next to the
question of the date of the situations or faets with regard to whieh the
dispute arose. Relying on the holding of the Permanent Court of Inter-
national Justice in the Electricity Company of Sofia and Bu/garia case,
the Court emphasized that in detcrmining the facts or situations with
regard to which a dispute has arisen, only thase 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 ta 1954 the situation of those territories may have given rise
     ta a few minor incidents, but passage had been effected without any
     eontroversy as to the title under whîch it was effected. It was only in
     1954 that such a controvers y arase and the dispute rel a tes both to
     the existence of a right of passage to go into the enclaved territories
     and ta India's failure ta comply with obligations which, aeeording to
     Portugal, werc binding upon it in this connection. lt was from all of
     this that the dispute referred ta the Court arose; it is with regard to
     ail 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." (Right of Passage over [ndian Terri/ory,
     Merils, Judgment, r. Cl. Reports 1960, p. 35.)
   43. The text of Article 27 (a) of the European Convention for the
Peaceful Settlement of Disputes (see paragraph 18 a bove) does not differ
in substance From the temporaljurisdiction limitations dealt with in those
cases. ln particular, no consequence can be drawn from the use of the
expressions "with regard to" or "re1ating to" which have been employed
indifferently in the various lexts 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 ca lied upon to interpret uni-
lateral declarations accepting the Court's jurisdiction under its Statu te,
whereas, in the present case, the Court has to interpret a multilateral
Convention. Without pronouncing in any more general sense upon the
extent to whîch such instruments are to be treated comparably, the Court
finds no reason on this ground ta interpret differently the phrase in issue.
Nor have the Parties suggested otherwise.

  Accordingly, the Court finds its previous jurisprudence on temporal
limitations of rdevance in the present case.
  44. In interpreting the latter ratione lemporis limitations, this Court
and the Permanent Court of International Justice before it emphasized
that

22

 25                     CERTAIN PROPERTY (JUDGMEl'n)

      "[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 Elec-
      tricity Company of Sofia and Bulgaria, only 'those which must be
      considered as being the source of the dispute', those which are its
      'real cause'" (RighI of Passage over Indian Territory. Merits, Judg-
      ment, 1. C. 1. Reports 1960, p. 35).

   45. Thus in the Phosphates În Morocco case, the tacts with regard to
 which the dispute arose were found ta be legislative measures that pre-
 dated the critical date. The objection ratione temporis was accordingly
 upheld. ln the Electricily Company of Sofia and Bulgaria and the Righ!
 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 si tua tions to which this dispu te relates, the foregoing test of finding the
 source or real cause of the dispute is equally applicable to this case.

    47. The Court wîll 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 decisiollS by the German courts in
 the Pieter van Laer Painting case, or whether its source or real cause is
 the Benes 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 afore-
mentioned case. This conclusion does not, however, dispose of the
question the Court is called u pon to decîde, for under Article 27 (a) of
the European Convention for the Peaceful SeWement 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, applicd that Con-
vention "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 decîsions of the German courts in the
  Pieter l'an Laer Painting case, there existed a common understanding or
  agreement between Liechtenstein and Germany that the Settlement Con-

 23

26                   CERTAIN PI{QPERTY (JUDGMENT)

vention did not apply to the Liechtenstein pro pert y 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 juris-
diction to address the legality of any confiscation of property treated as
Germa n pro pert y by the con fi scating State (see J udgment of the German
Federal Court of Justice (Bundesgerichtshof) of II April 1960, II ZR 64/
58; see also Judgment of the German Federal Court of Justice (Bundes-
gerichtshof) of 13 December 1956 (AKU case), Il ZR 86/54). In the
PÎeler van Laer Painting case, the German courts confined themselves ta
stating that the Seulement Convention was applicable in cases of confis-
cation under Decree No. 12, as with the other BeneS 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
cornmon understanding and an alleged "change of position" by Germany
cannot therefore be upheld.

  51. As ta Liechtenstein's contention that the dispute relates to the
application, for the tirst time, of pre-1990 German jurisprudence to
Liechtenstein pro pert y 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 pre-
vious ones on the confiscation of German external asscts, was inextric-
ably linked to the Settlcment Convention. The Court further finds that the
decisions of the German courts in the Pieter l'an Laer Painting case can-
nat be separated from the Settlement Convention and the BeneS Decrees,
and that these decisions cannot consequently be considered as the source
or feal cause of the dispute between Liechtenstein and Germany.

   52. The Court concludes that, although these proceedings were insti-
tuted by Liechtenstein as a result of decisions by German courts regard-
ing a painting by Pieter van Laer, these events have their source in
specifie measures taken by Czechoslovakia in 1945, which led to the
confiscation of property owned by sorne Liechtenstein nationals, includ-
ing 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 ta him were taken on the
basis of Article 3, Chapter Six, of the Settlement Convention. Whîle these
decisions triggered the dispute between Liechtenstein and Germany, the

24

27                      CERTAIN PROPERTY (JUDGMENT)

source or real cause of the dispute is to be found in the Settlement Con-
vention and the BeneS Decrees. [n 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 Courtfinds that it is not required to consider
Germany's other objections and that it cannat rule on Liechtenstein's
daims on the mcrits.

                                        *   >1<   >1<

     54. For these reasons,
     THE COURT,

     (1) (a) by tifteen votes to one,
   Rejecls the preliminary objection that there is no dispute between
Liechtenstein and Germany;
  IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
    Koroma, Vereshchetin, J-liggins, Parra-Aranguren, Kooijmans, Rezek, Al-
    Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sir
    Franklin Bem1an;
  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
rat ione tempor is to decîde the dispute;
  IN FAVOUR: President Shi; Vice-President Ranjeva; ludges Guillaume,
      Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh,
      Buergenthal, Tomka; ludge ad hoc Fleischhauer;
  AGAINST: ludges Kooijmans, Elaraby, Owada; Judge ad hoc Sir Franklin
      Berman;
     (2) by twe1ve votes to four,
  Finds that it has no jurisdiction to entertain the Application filed by
Liechtenstein on 1 June 200l.
  IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
    Koroma, Vereshchetin, J-liggins, Parra-Aranguren, Rezek, AI-Khasawneh,
    Buergenthal, Tomka; Judge .ad hoc Fleischhauer;
  AGAINST: ludges Kooijmans, Elaraby, Owada; Judge ad hoc Sir Franklin
    Serman.

25

28                    CERTAIN PROPERTY (JUDGMENT)

  Done in English and in French, the EngJish text being authoritatîve, at
the Peace Palace, The Hague, this tenth day of February, two thollsand
and five, in three copies, one ofwhic·h will be placed in the archives of the
Court and the others transmitted ta the Government of the Principalîty
of Liechtenstein and the Government of the Federal Republic of Ger-
many, respeclively.

                                              (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.

                                                       (Initial/ed) J.Y.S.
                                                       (Initialled) Ph.C.

26