Anmerkung zur Liechtenstein-Entscheidung des Internationalen Gerichtshofs

On February 10, 2005, the International Court of Justice in deciding on the preliminary objections raised by Germany found that it had no jurisdiction to decide the Case concerning Certain Property (Liechtenstein v. Germany). It based this decision on the limitation ratione temporis contained in article 27 (a) of the 1957 European Convention on the Peaceful Settlement of Disputes, the instrument relied upon by Liechtenstein to establish the jurisdiction of the ICJ. According to the view of the Court's majority, the dispute was »inextricably linked« to the Settlement Convention of 1955 and the Beneš-Decrees – both predating the entry of the European Convention as between the parties in 1980.In reaching this conclusion, the court merely referred to its earlier case law, without specifically relying on the clause in article 27 (a). Although there is an understanding that it is the real cause of the dispute, which is relevant for deciding on the jurisdiction ratione temporis, this does not explain much. Article 27-a treaty clause-has to be interpreted in accordance with Vienna Convention principles taking into account the intent of the parties and object and purpose of the treaty – i.e. to settle existing disputes by peaceful means. The object of the limitation ratione temporis in article 27 (a) is to preclude a Court's assessment of situations and facts dating from a period when the state could not foresee the legal proceedings. Hence, the real cause can be only acts of the state concerned that are deliberately done in the exercise of free discretion and not legally or factually determined by earlier acts. Starting from this basis, three separate events clearly after the critical date, can be identified as real cause of the dispute: the decisions of the German courts 1995 to 1998, the adoption of that position by the German government, and, indeed, the Exchange of Notes of 27/28 September 1990 terminating the Settlement Convention but leaving the inadmissibility rule in force.However, in the Court's view, this dispute could only relate to events after 1980, if during the 1990s Germany either departed from a previous common position or if the German courts applied the Settlement Convention »to a new situation«. Hardly convincing, and firmly opposed by the dissenting judges, the Court finds that neither of these alternatives persists in the present case. This reasoning surprises in particular because the Settlement Convention had never before been applied to neutral property – this is clearly a »new situation".