The Cases of Invocation of the Jurisdictional Clause of the Convention

1) In the Case of the North Sea Continental Shelf (Germany/Denmark and Germany/Netherlands) the ICJ joined the two cases upon the request of the three parties. Since Germany was not a party to the Statute of the ICJ, by declaration of 29 April 1961 and in conformity with the Resolution 9 (1946)³⁵ of the Security Counci1 of the United Nations of 15 October 1946 on conditions under which the ICJ should be open to States not parties to the Statute of the Court, it accepted the jurisdiction of the Court in respect to all disputes which might arise between Germany and any of the parties to the European Convention of 29 April 1957 for the Peaceful Settlement of Disputes. Beside Germany, Denmark and Netherlands were parties to the Convention, too. A special agreement concluded between Germany and Denmark provided for the submission to the ICJ of the difference between the two states concerning the delimitation of the continental shelf in the North Sea. The special agreement among others rested upon the obligation assumed by the two states under Articles 1 and 28 of the European Convention for the Peaceful Settlement of Disputes to submit to the judgment of the ICJ all international legal controversies³⁶. Similar special agreement was concluded between Germany and Netherlands.

2) In the Case of Certain Property (Liechtenstein v. Germany) Liechtenstein instituted proceedings against Germany concerning “decisions of Germany […]

to treat certain property of Liechtenstein nationals as German assets […] seized for the purposes of reparation or restitution as a consequence of World War II […] without ensuring any compensation.”

35 http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/ NR0/036/72/IMG/ NR003672.

pdf?OpenElement

36 Special Agreement for the submission to the International Court of Justice of a difference between the Kingdom of Denmark and the Federal Republic of Germany concerning the delimitation, as between the Kingdom of Denmark and the Federal Republic of Gemany, of the continental shelf in the North Sea; Special Agreement for the submission to the International Court of Justice of a difference between the Federal Republic of Germany and the Kingdom of the Netherlands concerning the delimitation, as between the Federal RepubIic of Germany and the Kingdom of the Netherlands, of the continental shelf in the North Sea. In International Court of Justice. Pleadings, oral arguments, documents. North Sea Contental Shelf Cases.

Volume I. 1968, 6, respectively 8.

In 1945, Czechoslovakia – during World War II an allied country and a belligerent against Germany – through a series of decrees (the Beneš decrees) seized German and Hungarian property located on its territory. Czechoslovakia applied those decrees not only to German and Hungarian nationals, but also to other persons allegedly of German or Hungarian origin or ethnicity. For this purpose it treated the nationals of Liechtenstein as German nationals. A decision of the Federal Constitutional Court of 28 January 1998 concerned a Pieter van Laer painting which was among the Liechtenstein property seized in 1945, and which was in possession of the Historic Monument Offi ces in Brno, Czech Republic, a State entity of the Czech Republic. It was brought to Germany for the purposes of an exhibition, and thus came into possession of the Municipality of Cologne. At the request of the Reigning Prince, Prince Hans Adam II, acting in his private capacity, the painting was attached pending determination of the claim by the German courts. Eventually, however, the claim failed. The Federal Constitutional Court held that the German courts were required by Article 3 of the Convention on the Settlement of Matters Arising out of the War and the Occupation, signed by the United States of America, the United Kingdom, France and the Federal Republic of Germany, at Bonn on 26 May 1952 (in force from 5 May 1955, hereinafter Settlement Convention) to treat the painting as German property in the sense of the Convention. Accordingly the painting was released and returned to the Czech Republic. The application of Liechtenstein claimed that the decision of the Federal Constitutional Court was unappealable, and was attributable to Germany as a matter of international law and was binding upon Germany³⁷.

As a basis for the Court’s jurisdiction, Liechtenstein invoked Article 1 of the European Convention for the Peaceful Settlement of Disputes. For this case it administered to Lichtenstein the only legal title for proceedings against Germany at the ICJ.

Germany raised six preliminary objections to the jurisdiction of the Court and the admissibility of Liechtenstein’s application. One of them maintained that the application had to be rejected on the grounds that the Court lacked jurisdiction ratione temporis to decide the dispute. Germany asserted the dispute fell outside the jurisdiction of the Court by virtue of Article 27 para. a) of the European Convention for the Peaceful Settlement of Disputes. In its view, such a dispute related to facts or situations prior to 18 February 1980, the date when the Convention entered into force as between Germany and Liechtenstein.

The ICJ found that the decisions of the German courts in the Pieter van Laer Painting case could not be separated from the Settlement Convention and the Beneš Decrees (in concreto Decree No. 12 of 21 June 1945), and therefore the

37 ICJ Press Release 2001/14, 1 June 2001.

latters were the source or real cause of the dispute. In light of the provisions of Article 27 para. a) of the Convention, Germany’s preliminary objection was therefore upheld, and consequently the Court found that due to lack of jurisdiction it could not rule on Liechtenstein’s claims on the merits³⁸.

A judgment on merits undoubtedly would be of great interest to Hungary since the Court probably would not be in the position to avoid legal evaluation of the Beneš Decrees.

3) In the next case (Case of Jurisdictional Immunities of the State) it was Germany, which invoked Article 1 of the Convention as the basis for instituting proceedings before the Court against the Italian Republic. Germany made the declaration under the optional clause on 30 April 2008 but between Germany and Italy the jurisdictional clause of the Convention entered into force on 18 April 1961, when it was ratifi ed by Germany. In its application Germany alleged that

“[t]hrough its judicial practice […] Italy has infringed and continues to infringe its obligations towards Germany under international law”. In its application, Germany contended: “In recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State. The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim […] brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed confl ict.”

The Ferrini judgment having been recently confi rmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it”³⁹.

Italy submitted a counter-claim by which it asked the Court to declare that 1) Germany had violated this obligation with regard to Italian victims by denying them effective reparation; 2) Germany’s international responsibility was engaged for this conduct; 3) […]. Germany denied that the counter-claim had met the requirements of jurisdiction. It noted that Italy based the Court’s jurisdiction over its counter-claim on Article 1 of the Convention and that

38 Case of Certain Property (Liechtenstein v. Germany) Judgment of 10 February 2005. http://

www.icj-cij.org/docket/index.php?p1=3&code=la&case=123&k=d9&PHPSESSID=08e21601 0eaa9baf657b8e537cfd1a70

39 Case of Jurisdictional Immunities of the State (Germany v. Italy), Application of 23 December 2008, http://www.icj-cij.org/docket/fi les/143/14925.pdf?PHPSESSID=08e216010eaa9baf657b 8e537cfd1a70

Germany contended that, under Article 27 para. a) of that same Convention, the Court did not have jurisdiction ratione temporis over the counter-claim, because the provisions of the Convention “shall not apply to […] disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”, which, according to Germany, was the case in this instance. The Court proceeded to fi nd that the dispute that Italy intended to bring before the Court by way of its counter-claim related to facts and situations existing prior to the entry into force of the European Convention as between the parties, namely, the legal régime established in the aftermath of the Second World War. That dispute accordingly fell outside the temporal scope of the Convention; the counter-claim therefore did not come within the Court’s jurisdiction as required by Article 80, paragraph 1, of the Rules of Court. At the same time the Court observed that it did not need address the question whether the counter-claim was directly connected with the subject matter of the claims presented by Germany.⁴⁰ The latest development in the case was that on 13 January 2011 Greece requested permission to intervene in the proceedings referring to legal interest⁴¹.

The case is pending. Should the ICJ not fi nd a lack of jurisdiction it may face the challenge to rule on merits the issue whether could the sovereign immunity of state be dispensed with or even withdrawn for violations of jus cogens including human rights in the scope of acta jure imperii⁴².

4) The jurisdictional clause of the Convention was applied in settlement of a minority’s protection dispute, too. In 1971 with reference to the Convention Austria and Italy concluded an agreement which was enforced in 1992 and which was in favour of the German-speaking population of the Italian Trentino Alto Adige. This agreement provided for the possibility that a bilateral dispute of minority issue might be submitted to the ICJ with a very important stipulation which suspended the ratione temporis effect of the Convention, i. e. the compulsory jurisdiction of the ICJ got retroactive effect as from 5 September

40 Order of 6 July 2010 of the ICJ, available at: http://www.icj- cij.org/docket/fi les/143/16027.pdf?

PHPSESSID=08e216010eaa9baf657b8e537cfd1a70

41 See details of Greek application: http://www.icj-cij.org/docket/fi les/143/16294.pdf . Seealso infra note 42, for the European Court of Human Rights (hereinafter ECHR) has already examined some of the Greek judgments that form the base of the legal interest of Greece to intervene.

42 In Case of Kalogeropoulou and Others v. Greece and Germany (appl. No. 59021/00) in a Decision brought 12 December 2002 the ECHR examining judgments rendered by Greek courts in actions for damages against Germany brought by relatives of victims of massacre perpetrated by Nazi occupation forces in Distomo (Greece), did not fi nd it established, that there was yet acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity [point D/1/a.]. The Court observed, however, that these fi ndings do not preclude a development in customary international law in the future.

1946 (the date of the conclusion of the so-called De Gasperi-Gruber South Tyrol agreement).

5. Conclusion

Two states form the connecting link in the four cases above reviewed: Germany and Italy. As Italy has not made yet a declaration recognizing the compulsory jurisdiction of the ICJ and Germany made such one only 21 months ago, the jurisdictional clause of the Convention may be still very useful in supplying the defi ciency in relation to these two states. The value of the Convention should be not measured by the rare cases of its application, its existence as a dispute-settlement instrument is valuable in itself. In the opinion of Seidl-Hohenveldern the Convention often plays a fl eet in being role⁴³.

Considering the ICJ a central institution for the peaceful settlement of legal disputes which in accordance with the UN Charter is the principal judicial organ of the UN, the bodies of the Council of Europe regularly stress the importance of the acceptance of the compulsory jurisdiction of the ICJ, always referring to the Convention. Last time it was promoted by Recommendation CM/

Rec(2008)8 of the Committee of Ministers to member states on the acceptance of the jurisdiction of the International Court of Justice⁴⁴.

43 SEIDL-HOHENVELDERN op. cit. 184.

44 http://www.coe.int/t/e/legal_affairs/legal_co- operation/public_international_law/texts_%26_

documents/Rec%282008%298%20E.pdf

OF INTERNATIONAL LAW