70

        DISSENTING OPINION OF JUDGE AD HOC BERMAN

     DUI ies and funet ions of a judge ad hoc.
  FirSI preliminary objection: lack of dispute - Germany precluded, by ordi-
nary considerations of good faith, from now arguing "no dispute".

   Second preliminary objection ratione tempons - Court's margin of discre-
tioll ill identifying "source or real cause" of dispute - IlIterpretalion of limita-
tioll ratîone temporîs contained in treaty as opposed lO optional clause declara-
tioll.
   Seulement Convention - Centrati/y ofargument regarding "consistent juris-
prudence" of German courl.~ - Argument not established on the facts - Ger-
man courts relained for Ihemselyesfreedom ofmanœuvre oyer how and \Vhen ta
apply the Convention - Improbable interpretation given 10 wording of Seltle-
ment Convention - No evidence of aClual intenlions of parties /0 Seulement
Convention - Obligations of Three Power.;' lowards neutral States.

   Soürce of dispute Ilot solely in German court decisions - A clions of German
Governmenl afler Pieter van Laer Painting case - Decision 10 apply Selllement
Convention 10 neutral property and deny compensation clearfy subsequent to
crilical date.

  Case does not depend on German "change ofposition" - Sufficienl 10 show
Ihat Germany firsl lOok position regtlrding neufral asse/s after critical date -
That dispule connec/ed lVith Selflement Convention and Bend Decrees undeni-
able bu/ insuj)îdent - Seulement Convention not opposable 1O /lon-parly -
Pacta tertiis fUIes il/ Articles 34 and 35 of Ihe Vienna Convelllion on Ihe Law of
Treaties - Signifù;ance of obligation to pay compellsatioll - Modification oI
Seltlement Convemioll régime. apparent/y at German requesl, weil ajier crilù;al
date.

    Other preliminary objections equalfy to be rejected - Fijth preliminary
 objection (indispellsable third parly) - Dispute as defincd by Court clearly
 capable of adjudication without determining lawfulness of Bend Decrees or COIl-
fiscations.
    If available evidellce insufficielll, second and fifth pretiminary objections
should have been jOined /0 the merits.
    Existence oIlegal dispute nolV delermined by the Court - Content of dispute
 likewise - Judgmellt does 1101 bring dispute 10 an end - Setllement Convemion
 (minus the ohliga/ion to pay compensation) not a proper way to deal with
neutral properly.
    Unusual nature of claim 1101 an issue in limine, but for the merits.

  1. White there is much in the Court's decision, and in its reasoning,
with which l agree, l find myself in substantial disagreement over certain

68

71                CERTAIN PRQPERTY (OISS. OP. BERMAN)

issues. That would not in itself be grounds for a dissenting opinion, since
1 do not take the view that it is virtually incumbent on a judge ad hoc to
tell the waiting world where and how his conclusions differ from those of
the majority on the Court. My views as to the duties and functions of a
judge ad hoc are very much the same as those expressed by Judges ad hoc
Lauterpacht and Franck respectively at the provisional measures (further
request) phase of the case concerning the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Provisional
Measures, Order of 13 September 1993, rCl. Repons 1993, pp. 408-
409), and the merits phase of the case concerning SO)lereignty o)ler Pu/au
Ligilan and Pu/au Sipadan (lndonesia/Malaysia) (Judgment, l. Cl.
Reports 2002, pp. 693-695).
   2. Since, however (or therefore), 1 believe that the Court has gone
seriously astray in deciding how this case should be handled at this
preliminary objections phase, 1 must explain why.
   3. ln this case, the Federal Republic of Germany, the respondent
State, has lodged with the Court no less than six preliminary objections
to the Application brought against it by the Principality of Liechtenstein,
as applicant State. Three of these objections are stated to go ta the juris-
diction of the Court ta hear Liechtenstein's Application, and the second
set of three are c1aimed to be reasons why the Court, assuming it holds
itself to have jurisdiction, should nevertheless dec1are Liechtenstein's
daims inadmissible. No doubt this is not in itself a matter for judicial
comment. Litigating States are free to argue their case before the Court
as they think best; that is regarded as one of their sovereign attributes, in
which the Court should not in normal circumstances interfere.

  4. It remains truc ail the same that Lîechtenstein's daim against Ger-
many, though undoubtedly an unusual one, a daim without obvious
precedent, a daim which depends upon creative legal reasoning, is none-
theless in its essence a simple daim, without multifarious strands or com-
plexities. Liechtenstein asserts that the present-day German State has,
throughout its lifetime, owed certain duties 10 Liechtenstein, as a recog-
nized neutral in the Second World War, that those duties have been
breached by certain specified conduct in recent years, and that the breach
gives rise accordingly to the conseq uences provided for in the law of State
responsibility. Even allowing for an understandable degree of forensic
reinsurance, the interposition of a barricade of three jurisdictional plus
three "admissibility" objections against sa simple a daim creates the
impression of indignation, not to say outrage, that the c1aim should have
been brought in the first place. As indicated, however, this may not be fit
matter for judicial comment - except (in the context of the present
opinion) ta the extent that the phenomenon unites with certain features
of the case to which [ will return below.

69

72                CERTAIN PROPERTY (DiSS. OP. BERMAN)

    5. Tt is not necessary for me ta say anything of my own about the first
 preliminary objection, the so-ca!led absence of a dispute between the
 Parties. On it, l am in complete agreement with the Court. The objection
 has little merit. Germany had itself recognized, in a formai bilateral con-
text, that there was a dispute between the two States which might have ta
be settled by judicial means. Tndeed, given this recognition (1 would be
disinclined to caH it an admission, as it amounted to nothing more than
a reflection of the objective facts), 1 would be prepared ta go further than
the Court, and to hold that Gennany was precluded, by ordinary con-
siderations of good faith, from now raising an objection of" no dis pute".
    6. The issues on which 1 part company substantia!ly from the Court
relate rather ta the second preliminary objection, that under which Ger-
many claims that the dispute between the Parties falls outside Germany's
acceptance of the jurisdiction of the Court by virtue of the exception
ra/ione temporis contained in Article 27 (a) of the European Convention
 for the Peaceful Settlement of Disputes. There is no need for me ta repeat
the opposing contentions of the Parties on this question, or the prior
j uri sprudence of the Court on questions of th is ki od; on bath aspects, T
have no quarre! with the summary given in the Court's Judgment. 1 need
only remark that, in my view, the prior jurisprudence of this Court and
its predecessor, difficult as sorne aspects of it are to reconcile, at least
establishes that, in interpreting clauses of this kind, the Court enjoys a
certain latitude or discretion in determining what facts or situations
should be regarded as what the Court now refers ta as the "source or real
cause" of a dispute before it - if only because no one international dis-
pute exactly resembles another in the way in which it cornes into exist-
ence. The Court diseusses (in paragraph 43 of the Judgment) the fact that
the limitation ratione temporis re!ied upon in the present case is con-
 tained in an agrecd trcaty instrument on the peaccful settlement of dis-
putes, not in a unilateral acceptance under the optional clause, and
decides that nothing material turns on that fact. With that conclusion 1
 have no great difficulty, at least in the particular circumstances of this
case, though 1 would not exclude the possibility of a different answer
 being appropriate in other circumstances. In the present case, at ail
events, each Party, in its pleadings, has half-expressly, half-implicitly
accepted the re!evance of the three cases primarily in question (Phos-
phates in Morocco, Elec/ricity Company of Sofia and Bulgoria, and Right
of Passage), and the Court is entitled ta treat that as an agreed under-
 standing between these two Contracting States as to the extent of their
treaty obligation towards one another, and give weight ta il accordingly
 under normal Vienna Convention principles.

   7. More to the purpose is however the faet that the Court, in reaching
its conclusion (a somewhat discretionary conclusion, as 1 indicate above)
that the essential facts or situations to which the present dispute "relates"
are anterior to the critical date of 1980 under the European Convention,
bases itself on the argument that the German courts, in their decision not

70

73                    CERTAIN PROPERTY (mss. OP. BERMAN)

to hear the Pie ter van Laer Painting case, were doing no more than con-
tinuing their consistent line of jurisprudence. 1 say, "bases itself on the
argument", but 1 could equally well have said "concludes", because the
point at issue, it will readily be apparent, is a critical element, perhaps
even the crucial element, in the chain of reasoning that leads the Court, in
paragraphs 50-52 of the Judgrnent, to uphold Gerrnany's second prelimi-
nary objection, and on that basis ta dismiss Liechtenstein's Application.

   8. The argument in question is, of course, one that was vigorously
advanced by Germany in bath the written and the oral pleadings. My
disappointment lies in the uncritical way in which the Court has adopted
this argument as its own. The Court has failed, on the one hand, properly
ta distinguish the argument into its component parts, and compounded
the lapse by then failing ta subject these component parts - crucial as
they are to its chain of reasoning - to adequate scrutiny.
   9. As 1 see h, the argument that there was nothing new in the position
taken by Germany in respect of the Pie ter van Laer painting resolves
itself 10gicaHy into these three propositions: first, that there has been con-
sistency in the jurisprudence of the German courts in respect of issues
relating to the confiscation of German external pro pert y (at least since
the entry into force of the Settlement Convention in 1955); second, that
the tenor of these decisions has been compelled by the terms of the
Seulement Convention (in other words, that the German courts have had
no option but to decide as they did); and third, that it is simply these
decisions of the German courts on their own that has served to generate
the present dispute.
   10. ln my considered view, each one of those three propositions is
open to serious question. As ta the tirst issue (consistency of jurispru-
dence), the argument advanced by Germany before the Court has been
more a matter of assertion than of demonstration. Germa·ny says that its
courts have consistently held, since well before the critical date, that they
lacked the competence to hear daims in respect of property confiscated
under the Benes Decrees and similar foreign measures. Liechtenstein has
contested this assertion, notably in Appendix 1 to the Liechtenstein WrÎl-
ten Observations, which contains a schedule I1sting the key court cases
heard in Germany in the period 1953-19911. One could have wished,
indeed one would have been entitled ta expect, that Liechtenstein had
been at greater pains ta show the Court in detail what issues the German
courts had actually been confronted with, and how exactly those issues
had been dealt with. An attempt of my own to follow through the court
decisions listed in Appendix l, including those which neither Party has

    1 The Appendix also contain, an accollnl of the views expressed in the German scien-
tilic literature whicb (if tbe aocount given is an accurate one) reveals anytbing but a settled
view among the leading commentators that tbe question of tbe application of tbe Settle-
ment Convention to neutral properly bad been ,ettled by the earlier cour! decisions; quite
the contrary.

71

74                    CERTAIN PROPERTY (mss. OP. HERMAN)

thought fit ta translate into the Court's official languages, suggests
strongly that in fact it took sorne years before the German courts settled
into the totally non possumus stance they now maintain, which in itself
implies that there was nothing inevitable about it. There are clear indi-
cations in early decisions by the highest courts (e.g., the AKU case of
1956, extracts from which are contained in Annex 2 to the Respondent's
Preliminary Objections) that room was consciously being \eft open for
the argument to be made in appropriate future cases that the Settlement
Convention did not apply, or even that it should not he applied 2 . ln other
cases dating from the same peri ad , there are clear indications of the
highest courts recognizing that they were perfectly entitled to distinguish
between different items of property in order to determine whether the
régime of the Settlement Convention (or, as the case may be, its pre-
decessor, Allied High Commission Law No. 63) did or did not come ioto
play Ce.g., the decisions of three separa te supreme courts of 1955, 1957
and 1958 listed as seriais 2,4 and 5 in the table in the Appendix referred
to above). Even in the proceedings in the Pieter van Laer Painting case
itself in the 1990s, there is repeated discussion in the \ower courts about
the preconditions that need to be met before the Sett\ement Convention 3
is applied (e.g., Landgericht K6ln, Memorial, Annex 28, esp. pp. A260 et
seq. and A264 et seq., and Oberlandesgericht Kô{n, Memorial, Annex 29,
esp. pp. A303 el seq.). Even the rejection ofthe Reigning Prince's appeal
by the Federal Constitutional Court is on the basis that the lower courts
had decided that the expropriation of his property was a measurc effected
against German external assets within the meaning of the Settlcment
Convention (Memorial, Annex 32, p. A356). And in the pleading by Ger-
many before the European Court of Human Rights one encounters once
again a discussion of the requirements, aims and pur poses of Chapter Six
that belies the bald proposition that the hands orthe German courts were
simply tied in ad vance (Memorial, Annex 36, pp. A423 et seq.).

   2 ln a pair ofjudgments handed down in July 1957 (which were not cited to the Court
by either Party) the Federal Supreme Court (Rundesgeriehtshol) decided not to apply
Article 3 of Chaptcr Six of the Convention to certain clcments of confiscations carried
out, respectively, by the Netherlands and undcr the Bend Decrees, specifically as German
property, notwithstanding that Article 3 was recognized as applying to German assets in
Gennany. In the second of these dccisions, the court express!y bascd itsclf on its own
assessment of the intentions of the A llied Occupying Powers, i.c., that their intention was
not to covcr the particular confiscation in question. Both decisions are readily accessible
in Internatiollal Law Reports, Vol. 24, pp. 3\ and 35 respectively.

  3 Which had by then been made permanent by the arrangements rcached in \990 on a
Final Settlement over Germany, of which more below.

72

75                   CERTAIN PROPERTV (DTSS. OP. BERMAN)

   II. As to the second issue (the constraining force of the SeUlement
Convention), one appreciates of course that under the German Constitu-
tion, as under those of many other States, treaties duly concluded are
self-executing and l'al! to be applied directly by the courts. This is, to ail
appearances, how the German courts have treated Chapter Six of the
Sett.lement Convention, or at least how they have treated its Articles 2
and 3, since the obligation in Article 5 (to compensate the owners of confis-
cated property) seems not to have been regarded as self-executing, but ta
have depended on parliamentary legislation; and, as the Court heard in
argument, the corresponding legislation excluded the payment of compen-
sation ta non-German owners. Al! that said, however, and granted the
proposition that Articles 2 and 3 of Chapter Six of the Settlement Con-
vention were intended to be self-executing, it remains hard for any
sophisticated jurist to understand why a treaty provision requiring respect
fOf "measures ... carried out with regard to German external assets or
other property, seized for the purpose of reparation or restitution" Com-
pels the conclusion that it applies equally to non-German property4; or
(to put the proposition in its more developed fonn) why it requires the
German courts to follow, without enquiry of any kind, the qualification
placed on a confiscation by the confiscating State. Or, even if one accepts
the proposition in that more developed form, why it requires the German
courts ta do what they do without any demonstration of the qualification
placed on the pro pert y by the confiscating State, because any such
demonstration (even if one had been available in the Pieter van Laer
Painting case, which on the evidence it was not: cf. Memorial, Annex 28,
pp. A265 er seq.) would have been 0 u tside the competence of the German
courts ta receive.

    12. The justification for what 1 have caHed above this totally non pos-
sumus stance is stated over and over again to be that this was the inten-
tion behind the Settlement Convention (or, as the German argument has
it, of the Three Western Powers in imposing the Settlement Convention),
namely ta prevent any German court or authority from enquiring into
any confiscation in any manner whatsoever. That brings me however ta
the tirst of the two Great Silences in the case, bath of which 1 regard as
highly significant for its proper disposaI.

  13. If it was the intention of the Three Powers to impose a universal
preclusion, against ail corners, of the kind described above, it can surely
be a presumed intention only. No evidence was offered to this Court to
show that that was indeed the actual intention behind Chapter Six of the
Settlement Convention. But would it not be strange in the extreme ta

  4 With the consequence that il cannot therefore have been lawfully seized for the pur-
poses of repara tion or restitution.

73

76                CERTAIN PROPERlY (mss. OP. BERMAN)

suppose that the Three Powers could have intended to protect from ail
scrutiny confiscations that clearly went outside the scope of the repara-
tions régime laid down by them jointly with their wartime Allies, espe-
cially confiscations carried out at the expense of neutral States, towards
whom they themselves owed the legal obligations arising out of neutral-
ity, and with whom they maintained friendly relations after the War?
And, if one looks at the reported decisions of the German courts them-
selves, can one discern the slightest sign of a detailed enquiry having been
made into what the actual intentions behind the Settlement Convention
were? 1, for my part, find no indication whatever of a prise de position
being sought From, or given by, the German Government on that ques-
tion in any of these domestic legal proceedings. Nor a fortiori has this
Court been given even a hint that the German Government had sought
(and received), at any point in time, confinnation from their Allies and
co-Contracting Parties of the Interpretation Gennany was giving ta their
common treaty, and specifically not when the issue of neutraf property
arose four-square in respect of the Pieter van Laer painting. Nor, by the
same token, is there any sign of any such evidence as to the intentions
(common intentions) of the Contracting Parties to the Settlement Con-
vention having been presented by the German authorities to their own
courts at the time when the jurisprudence of the latter was taking shape.

   14. In other words, this Court is now being asked to proceed on the
basis of the proposition that the victorious Allies, in their eagemess to
ensure that their former enemy should not be in ·a position 10 question
measures taken by tllcm against enemy property, were completely indif-
ferent to any risk that this régime might be applied to the detriment of
neutral (i.e., non-enemy) property; and that, a full ten years later, the
thrcc Western Allies, for their part, forced such a conclusion on a reluc-
tant Germany (by then "Federal Republic of Germany"). The proposi-
tion is, to put it mildly, counter-intuitive, and yet it is offered up in a
formaI judicial context without the slightest element of positive proof to
sustain it! Surely it must be the case that, if the question had been put (in
either its negative or its positive form) , say ta the Three Powers during
the negotiation of the Settlement Convention, the answer would have
been obvious. Anything else would carry with it the supposition that the
Three Powers consciously intended ta breach their own obligations
towards States whose neutrality they had recognized during the War.

   15. In brief, no sooner does one proceed ta probe beneath the surface
of sorne of the propositions advanced in this case than one encounters the
uneasy feeling that what has been presented to the Court as the inevitable
and inescapable consequences of a régime imposed on Germany in faet
seems more than Iikely to have contained along the way sorne elements of
conseious choice by organs of the German State. This is not - of
course - to say that the choiees made were bad or ignoble ones, or that

74

77                 CERTAIN PROPERTY (mss. OP. BERMAN)

there was any element of deliberate intention ta damage the interests of
third States. But that is not the issue. The issue, as it presents itself in this
case, is what steps ought to have followed once it became clear that this
was going to be the result of the positions that had been taken by Ger-
many. And that, on ail the evidence in the case, induding that marshalled
by the Court in support of the Respondent's second preliminary objec-
tion, did not become clear until the 19908, well after the critical date
under the European Convention for the Peaceful Seulement of Disputes.

   16. It is that which brings me ta the last of my three issues - and at
the same time ta the second of the Great Silences in this case.
   17. The thi rd issue 1 identify in paragra ph 9 above goes to the g uestion
whether it is simply the decîsions by the German courts over the years
that were the real cause of the dispute which has been brought before this
Court. Let us assume for a moment, for the purposes of argument, that
(contrary ta what 1 have shown above) the German courts did in fact
have no other option open to them when the Pieter van Laer Painting
case came before them. The question is: does the matter stop there? And
the answer to that question appears plajnly from the fact that the com-
plaint by Liechtenstein i8 directed at the adoption of that position by the
German Government in its international relations, and its interposition
as a bar to any possibility of paying compensation to Liechtenstein or its
citizens as a result (cf. paragraphs 19 and 20 of the Application institut-
ing these proceedings). That 1S something which the Court, guite cor-
rectly in my view, recognizes by implication in paragraphs 25 and 26 of
the Judgment. But, having recognized it, the Court fails to follow through.
For, if what triggered this dispute was the realization that Germany,
against all expectation, was going to tuke the position that its treaty obli-
gations to the Three Allies precluded, absolutely and permanently, com-
pensation for the confiscation of Liechtenstein property, then that was a
state of affairs (1 deliberately avoid the problematical phrase "fact or
situation") that - so it seems to me - falls exactly within the framework
of the Right of Passage Judgment, and ought at the least to have warned
the Court off what 1 regard as the facile conclusion that the present
dispute "relates ta" the BeneS Decrees, for the purposes of applying
Article 27 (a) of the European Con vention for the Peaceful Set tlemen t of
Disputes. It will be recalled that, in the Right of Passage case, the Court
found that it was not in a position ta pronounce on what were the "situa-
tions or facts" to which the dispute related until it had heard full argu-
ment on the substance, and accordingly joined the preliminary objection
to the merits (Right of Passage over /ndian Territory, Preliminary Objec-
tions, Judgment. I. CJ. Reports 1957, p. 125). The Court's reasoning for
so doing (ibid., pp. 151-152) bears a strong resemblance to the circum-
stances of the present case.

  18. 1 pause at this point to observe that the conclusions 1 draw in the
preceding paragraph are ones that, in my view, impose themselves simply

75

 78                 CERTA!N PROPERTY (mss. OP. BERMAN)

 on the contours of the case. They do not in any sense depend either on
 there having been a prior understanding between Liechtenstein and Ger-
 many (with regard to neutral property) or on a supposed "change of
 position" by Germany. Bath of these propositions 1 regard as red her-
 rings, and the fact that they were Întroduced by the Applicant itself into
 its argument does not make them any the less so. The Court is quite right
 to dispose of them - on the facts. But the Court, once again, stops short
 there, without going on ta look carefully enough at whether the logic of
 the Applicant's case really does require it ta establish one or both of these
 propositions. To be sure, the Court does admit, in paragraph 49 of the
 Judgment, that Liechtenstein might be able to establish its case ralÎone
 temporis by showing that    crquote in full) "German courts, by applying
 their earlier case law under the Settlement Convention for thefirst time
 to Liechtenstein property, applied that Convention 'ta a new situation'
 after the critical date". But l regret to say that the purport of that
 Delphic utterance remains closed to me.

     19. To my mind it is perfectly clear that the main conclusion which
  Liechtenstein asks the Court to draw does not depend on either the
 "prior understanding" or the "change of position" as a precondition.
  Indeed, one might almost say that there was something of the perverse
 in insisting that, in arder ta show that the essential fads generating the
 dispute are dated afler 1980, you must first establish their link to things
 dating before 1980. ln my view it suffices entirely to show that Germany
 first took an explicit position over neutral assets in relation to the post-
  war confiscations after 1980, in order ta bring the case squarely within
  the view taken by the Court in the RighI of Passage case. To say, as
  the Court does in paragra ph 51 of the J udgmen t, lha t the issue addressed
  by the German courts in the Pie ter van Laer Painting case "cannat be
 separated from the Seulement Convention and the Benes Decrees" is
 no doubt true - sa far as it goes - but it is not the question that arises
  for the purpose of deciding whether the facts of the present case fit
  this Court's prior jurisprudence.

     20. What, then, of the second Great Silence? If the German answer to
  the Liechtenstein daim, i.e. that it was the powerless agent of an obliga-
  tion imposed upon it by the Three Powers, is to be subjected ta critical
  exarnination - as in my opinion it manifestly must be - it has first to be
  broken down into its two component parts. To do sa requires sorne
  further creative Interpretation of my own, in the absence of any proper
  argument on either point by either Party before the Court. But 1 believe
  1 do no more than tease out the inner logic when 1 say that this argument
  depends upon the following: (a) that Germany was entitled (i.e. legally
  entitled) to oppose its obligations (i.e. its c1aimed obligations) under the
. Settlement Convention to Liechtenstein, which was not a party ta that
  treaty; (h) that there was no novus actus interveniens in the arrange-

 76

79                 CERTAIN PROPERTY (DISS. OP. BERMAN)

ments in 1990 which brought about the Final Settlement with respect to
Germany.

   21. These constituent propositions have only to be stated in order to
see how open to question both of them are.
   22. Proposition (a) stands in obvious conflict with the pacta tertiis
rules in Articles 34 and 35 of the Vienna Convention on the Law of
Treaties, which certainly reflect the customary international law on the
subject. Yet the German argument before the Court simply parrots that
Germany had to follow its obligations (sc. towards the Three Powers)
under the Settlement Convention, as if it was obvious (including, presum-
ably, to ail third States) that Germany would oppose this Convention to
non-parties, to the detriment of the latter, and without regard to the
elementary proposition that aState cannot, by contracting with a second
State, absolve itself of its obligations towards a third State (for the appli-
cation of which rule in the treaties field, cf. Article 30 of the Vienna Con-
vention). And if the contradiction is glaring enough as it stands, how
much more glaring still must it be when what is sought to be imposed on
the third State is not even what the treaty, on its naturai meaning, seems
to say!

   23. 1t tS however proposition (b) tha t raises the more profound q ues-
tions - at least in the context of the present Judgment. The relevant
treaty provisions, Chapter Six of the Settlement Convention, were self-
evidently the subject of conscious attention, if not in the Four-plus-Two
ncgotiations themselves, then certainly when Germany and the Three
Powers negotiated the Exchange of Notes of 27/28 September 1990, since
they formed the explicit subject-matter of part of its paragraph 3. Of
utmost significance is the faet that those parts of Article 3 of Chapter Six
that preclude daims were prolonged, and in effect made permanent,
whereas the obligation in Article 5 to pay compensation was extin-
guished; this notwithstanding the inesca pable conclusion that the Allies,
in negotiating the Seulement Convention at the time, must have regarded
the obligation to pay compensation in Article 5 as the necessary counter-
part ta Article 3. No evidence has been offered to the Court - by either
Party - as to how or why the Settlement Convention was dealt with in
this particular way; presumably evidence of that kind was not accessible
to the Applicant (other than the shreds in paragraphs 3.54 and 5.56 of the
Memorial), but the evidence must most certainly be in the possession of
the Respondent. Be that as il may, it is hard to imagine any possible
reason why this carefully calibrated metamorphosis of Chapter Six can
have been at the insistence of the Three Powers. If per con/ra there are
grounds for the assumption that the perpetuation of the one obligation
and the extinction of the other was procured by Germany, for its own
benefit, then that must surely have a substantial effeet on one's view of
the case. On the one hand, because the Allies had specifically intended the
régime of the Seulement Convention to be a temporary expedient only,

77

80                CERTAIN PROPERTY (DISS. OP. HERMAN)

pending a final regulation of the reparations question, as Article 1 of
Chapter Six recites. On the other hand, because il. can certainly not be
asserted that Germany was in the powerless position it claims la have
been in in 1952/1955, and thus to have hadto accept through gritted
teeth in 1990 whatever its Western partners chose to impose upon it. But,
in the very specifie context of the present Judgment, the events of 1990
may be more than "substantial" in their effects; they may be decisive.
Why? Because they may suggest a wholly different analysis of what rep-
resents "the source or real cause" of this dispute, and one which, without
any doubt, does not fall within Article 27 (a) of the European Conven-
tion for the Peaceful Settlement of Disputes, on which the Court has
chosen to rest its decision.

   24. At ail events, much of what 1 say in the preceding paragraph
remains, for the moment, at the level of Inference or supposition, in the
a bsence of proper evidence or argument about wha! did ha ppen in 1990.
That in tum suggests, yet again, that the Court was not in a position
adequately to assess, on the material available ta it at the present stage of
the case, whether the second preliminary objection was, or was not, weB
founded. If sa, the accepted way ta deal with the situation would be ta
join the objection ta the merits, as foreseen in paragraph 9 of Article 79
of the Rules.
   25. Since l would not therefore have upheld the second preliminary
objection as denying the Court in {imine the jurisdiction ta hear the case,
il is incumbent on me to say something about the remaining four pre-
liminary objections. This l can do very briefly. 1 do not propose to say
anything about the third, fourth and sixth objections;. they seem ta me
devoid of any substantial merit. The firth objection, however, relating ta
the absence before the Court of an indispensable third party, is a serious
one, and would have required the Court's serious attention, as a matter
going to the admissibilily of the case, had the Court upheld its jurisdic-
tian to hear il.
   26. This is not the place for a lengthy excursus on a question which, in
the event, does not figure in the Judgment of the Court at ail. For my
part, 1 am in the company of those who experience difficulty in following
the Court's reasoning in the case concerning Certain Phosphate Lands in
 Nauru. ft is however enough ta say that that case, taken together with the
classic pronouncements of the Court in the Monetary Gold case, estab-
lishes that the test is whether the determination of the rights or obliga-
tions of the absent third State would be a "necessary precondition" to the
Court disposing of the dispute before il. This is something on which the
Parties in the present case appear ta be in agreement. ft goes without say-
ing, though, that that test cannot be applied until it is established what
the dispute is. The Court has now made its objective determination of the
subject-matter of the dispute between the Parties (a determination with

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which 1 respectfully agree), and, in the light of that determination, it
seems to me clear that the seulement ofthat dispute does not in any sense
require the Court tirst to pronounce on whether the Bene!; Decrees as
such, or particular confiscations undenaken pursuant ta any of those
Decrees, were or were not lawful (in the particular sense of infringing the
rights of Liechtenstein under international law). To the extent that it
might, however, be felt that the final answer to that question was not yet
sufficiently clear at this stage of the argument in the case, that would of
itself suggest that the objection was not one of an exclusively preliminary
character, and ought therefore to be joined ta the merits, as with the
second preliminary objection (para. 23 above).
   27. Haying reached the aboye conclusions, 1 feel it necessary ta add
somefinal remarks.
   28. The first of these is the fairly elementary observation, which harks
back to the remark in paragraph 4 aboye, that the decision by the Court
that it has no jurisdiction to hear this case does not of itself resolye the
dispute between the two States. Ta the contrary, the Court has now
found that Liechtenstein and Germany are in dispute with one another,
that the dispute is a legal dispute, and has made its own objective deter-
mination of what the subject-matter of the dispute is. Sorne element of
res judicata doubtless attaches to those findings. One may assume that
the matter will not rest there. The leader of the German delegation ta the
bilateral consultations in June 1999 recognized that a solution needed to
be found, whether by judicial decision or otherwise. Ta have had that
unresolved dispute - whateyer its merits or demerits - settled by deci-
sion of this Court, if necessary by some l'orm of ad hoc understanding
between the disputants not to contest jurisdiction, would have been an
entirely civilized way to handle the matter, one in accordancc with the
honourable traditions ofboth States, and, needless ta say, entirely within
the spirit of the European Convention for the Peaceful Settlement of Dis-
putes. But other methods, of an equally civilized character, remain open
to them as weil.
   29. The second observation may be thought a little more pointed, so 1
preface it by saying with ail emphasis that it is not offered in a critical
spirit. One cannot read the papers in this case without the feeling that,
faced with the undoubtedly difficult and highly sensitive issue of the
Benes Decrees, the German courts have taken refuge behind the Settle-
ment Convention (and previously Allied High Commission Law No. 63),
and that then the German Government has taken refuge behind the Ger-
man courts. That position, understandable as it may be in relation to the
confiscation of German property, is not a proper way of dealing with the
question of neutral property confiscated as if it were German. It is aU too
easy to portray Chapter Six of the Settlement Convention as if it were
simply a heavy burden imposed upon an unwiUing Germany. But the
truth is that Chapter Six also served to protect the newly founded Ger-
man State by absolving it of co-responsibility for the confiscations, and
al the same time absolving its courts l'rom the invidious task of having to

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82                CERTAIN PROPERTY (mss. OP. BERMAN)

sit in judgment on a flood of cornplaints from its citizens about the treat-
ment visited on their property abroad. Yet the counterpart ta this protec-
tion for Germany - the necessary element for its completion - must
surely have been, quite intentionally, the obligation to compensate laid
down in Article 5 of that same Chapter (with no apparent limitation, it
may be remarked, ta German citizens ai aH). To lay daim ta the one
while disclaiming the other is surely a position that requires re-examina-
tian. One can only hope that even now sorne such re-examination may be
possible.

   30. My last observation of all goes back ta the remark at the begin-
ning of this opinion that Liechtenstein's claim in this case is a very
unusual one, requiring, shall we say, a degree of legal creativity. That is
however a question going to its mails. lt is hard ta resist the conclusion
that the Respondent - and, dare one say it, in due course the Court
itself - has allowed the difficulty it experiences in weighing the prospec-
tive legal merits of the claim ta become transmuted into an issue in
limine. However imaginative the claim, it deserved a hearing, and the
Court could with ample justification have achieved just that by joining
the second and fifth preliminary objections ta the merits.

                                            (Signed) Franklin BERMAN.

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