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The present author has recently argued at some length in this JOurnal: (1) that acts in violation of international law are not void under the internal law of the actor state; (2) that international law does not regulate the “property” side of territorial expropriations, but merely imposes, in appropriate cases, an obligatio to offer monetary compensation; and (3) that the standard remedy for “illegal” expropriations is monetary compensation, not restitution. Some of these conclusions have incurred extensive criticism from eminent authority.
It has recently been held in The Netherlands that Indonesian nationalization measures failed to affect title to goods and securities situated in The Netherlands. Almost simultaneously, it was decided in Western Germany that the same measures did affect title to goods situated in Indonesia. Martin Domke concludes his admirably informative report on these decisionss with the statement that while the decisions of the Dutch courts correspond with the concept of non-recognition of foreign confiscatory decrees which assertedly still prevails in Western countries, the German courts in “abandoning” what is called the prevailing view did not submit convincing reasons for “changing the well-established principles of international law.” Issue is here taken only with these latter assertions. It will be contended that the German decisions were in conformity with well-established principles of international law and followed the prevailing practice of Western countries.
More than 75,000 nationals of the Netherlands are currently residing in the Federal Republic of Germany. The courts of the Federal Republic have therefore quite often had to deal with questions bearing on succession to property belonging to Netherlands nationals and situated in their jurisdiction. Furthermore, a short article on the subject here discussed, written by this author two years ago, has not only provoked extensive academic discussion in German legal periodicals, but has also recently guided— or, as asserted by eminent authority, misguided —at least one German court to a decision on the Netherlands private international law of succession which not only is at odds with well-nigh universal legal opinion in the Netherlands but also at least seemingly at variance with a long line of Netherlands judicial decisions.
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