, I came to the conclusion that the merits of the case fall outside the jurisdiction of the Court ratione temporis only after a preliminary examination of those facts found by the Court which related to the issue of the title and control of the property.
My subsequent dissent from the second and the third points of the operative provisions of the judgment was effected cumulatively by the reasoning under (b) above, by my preliminary and partial understanding of the merits of the case, and by some further considerations which I set out below.
II.
5. The alleged original ("instantaneous") breach is in my view veiled in the factual and legal uncertainties of events which occurred as long ago as 1974 and even before. It also seems beyond this Court's abilities and competence to assess with the required certainty whether Turkey's interference was (in)consistent with international agreements, and whether or not it was (in)consistent with general principles of international law.
I am indebted to my colleague Judge Wildhaber for having reminded me also of the following ideas. The United Nations and other international policies of non-recognition of the "TRNC" are valid on an inter-State level. As a result, the "TRNC" Government cannot create legislation or bring about changes with legal effect in international law. However, it would be going too far to say that no purportedly legal acts of the "TRNC" administration are valid. For example, a marriage conducted by a "TRNC" official, and registered in the "TRNC", would have legal effect outside that "jurisdiction". Similarly, a transfer of property between private individuals in northern Cyprus, registered by an official of the "TRNC", would have legal effect elsewhere in the world.
Similar situations have occurred in other countries in the past. For example, in the settlement between Czechoslovakia and Germany following the Second World War, it was decided that the Munich Agreement was null and void, but that land transactions between private individuals were valid.
Furthermore, the events in northern Cyprus in 1974 would not be sufficient on their own to establish that Mrs Loizidou had lost her property. For example, if the prior status quo had been re-established in 1975 or 1976, she would not have lost her property. But the prior status quo has not yet been restored. Although it may be seen that Mrs Loizidou did not lose her property by an instantaneous act in 1974, it may nonetheless be disputed that no transfer of ownership was effected.
The Court's earlier case-law has always dealt in this respect with concrete situations. For example, in the Papamichalopoulos and Others v. Greece judgment (of 24 June 1993) the case concerned a refusal by the authorities to execute a national court decision. That is not the case here, where the ownership of Mrs Loizidou was allegedly altered by the events of 1974, or even as a result of the follow-up "process of the 'taking of the property".
I must therefore suppose that after a certain time events in the "TRNC" may have led to a transfer of ownership - in which case there is no violation continuing to the present day: the relevant acts in northern Cyprus were possibly completed by the time of the Turkish declaration recognising this Court's jurisdiction.
The doctrine of "continuing violation" implies a beginning, i.e., a critical event constituting the original breach, and its continuation. In the case of Mrs Loizidou the Court in my view failed to ascertain both ingredients to this concept in an unequivocal manner. This line of reasoning thus led me, inter alia, to the conclusion that the objection ratione temporis applies.
6. Moreover, the factual situation established in 1974 has persisted ever since and it is still uncertain which side in the conflict, or even more likely, what kind of negotiated compromise solution will be
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