The preliminary objections proceedings in Nicaragua v Germany before the International Court of Justice have surfaced a temporal question that reaches well beyond that case: when an occupation lasts for decades and its legal character evolves, how should a court identify the "situations or facts" giving rise to a dispute concerning the obligations of third States? A symposium contribution by Ihsan Adel, Founder and Chair of Law for Palestine and an international lawyer pursuing a PhD in Germany, argues that the critical date cannot freeze either the legal character of an evolving situation or the obligations of third States toward it.

The jurisdictional pivot is Germany's Optional Clause declaration of 30 April 2008, which accepts the Court's jurisdiction only over disputes arising after that date "with regard to situations or facts subsequent to this date". Germany contends that significant aspects of Nicaragua's case concern long-standing policies and conduct toward Israel that predate the critical date and continued thereafter. On that view, post-2008 conduct merely continues an older situation whose "source or real cause" predates Germany's acceptance of jurisdiction. Nicaragua answers that its claims concern post-2008 situations and facts, including discrete German decisions taken after the critical date.

From the Source of Rights to the Source of the Dispute

The starting point is Right of Passage over Indian Territory (Portugal v India), which concerned a temporal reservation closely resembling Germany's. India's declaration excluded disputes arising before 5 February 1930 or "with regard to situations or facts" prior to that date (para. 199). Portugal's claimed right of passage long predated the critical date; India's obstruction of passage occurred in 1954. The Court distinguished situations or facts that "constitute the source of the rights claimed" from those "which are the source of the dispute". Only the latter mattered for the temporal reservation. A dispute may therefore presuppose an older legal relationship without arising "with regard to" it. The Court stressed that the dispute could not arise until all its constituent elements existed, including India's obstruction. The converse emerges from Phosphates in Morocco and Certain Property (Liechtenstein v Germany). Subsequent events cannot found jurisdiction where they merely confirm, develop or give effect to a pre-critical-date situation constituting the real cause of the dispute. In Certain Property, post-critical-date German judicial decisions could not be separated from earlier confiscations and the governing legal regime. The inquiry is therefore neither an archaeological search for the earliest antecedent of a claim nor an exercise in selecting the latest manifestation of an already constituted dispute. The question is whether post-critical-date facts merely continue a fully constituted situation, or are themselves legally operative in constituting or transforming it.

Continuing Situations Cross the Critical Date

International law distinguishes a completed act whose effects persist from a breach that itself continues. Article 14(2) of the ILC's Articles on State Responsibility provides that a breach of a continuing character extends throughout the period the act continues and remains inconsistent with the obligation. The European Court of Human Rights' Loizidou v Turkey judgment illustrates the point. The territorial situation preventing the applicant's enjoyment of her property originated before Turkey's acceptance of jurisdiction, but the continuing denial of access persisted beyond the critical date. The point bears directly on Nicaragua v Germany. In its 2024 Advisory Opinion, the ICJ characterised Israel's unlawful continued presence in the Occupied Palestinian Territory as a "wrongful act of a continuing character" (para. 267). If the underlying unlawful situation continued beyond 30 April 2008, the third-State obligations applicable to it likewise remained relevant to Germany's post-2008 conduct. Nicaragua's case, moreover, is not confined to the continuing effects of pre-2008 German decisions. It relies on successive post-critical-date export authorisations for weapons and military equipment; increased military export authorisations; military cooperation and procurement from Israeli arms manufacturers; and Germany's failure to prevent German companies from participating in settlement-related infrastructure, exploitation of Palestinian natural resources and the supply of equipment facilitating discriminatory practices. Whether these allegations establish breaches is a merits question. For temporal purposes, Nicaragua challenges Germany's own conduct during the post-critical-date continuation of allegedly unlawful situations.

Juridical Transformation, Not Mere Continuity

Continuity is only part of the answer. A prolonged occupation may not simply persist; subsequent developments may alter its juridical character. The 2024 Advisory Opinion provides the conceptual basis. Prolongation does not itself change an occupation's status under international humanitarian law, yet the occupying Power's exercise of effective control must "at all times" remain consistent with the prohibition on territorial acquisition by force and the right to self-determination (para. 109). In 2024 the Court assessed Israel's policies and practices cumulatively and concluded they entrenched permanent control, amounted to annexation of large parts of the territory and frustrated Palestinian self-determination. Namibia offers an instructive precedent: South Africa's physical presence did not commence when it became unlawful. What changed was its legal character, and once its continued presence was unlawful, consequences followed for other States, required to refrain from dealings implying recognition or lending support or assistance. Not every development is legally constitutive; mere passage of time is not. Article 15 ARSIWA offers an analogy: later conduct may be constitutive of an aggregate legal situation rather than another manifestation of one already completed. Settlement construction may independently violate humanitarian law while contributing, cumulatively, to annexation or permanent control. Different obligations may possess different temporal predicates; there need not be a single date on which a prolonged occupation becomes a "new situation".

Palestine Across the 2008 Divide

Israel's occupation, settlement policy and restrictions on self-determination plainly predate 30 April 2008; the 2004 Wall Advisory Opinion had already found the settlements contrary to international law. Yet the 2004 Opinion itself described the wall's associated regime as a fait accompli that "could well become permanent" and, if it did, tantamount to de facto annexation (para. 121). Twenty years later, the Court found annexation of large parts of the territory. The post-2008 record includes the Gaza blockade and the 2008 ceasefire breakdown that led to Operation Cast Lead; settlement expansion, land appropriation and territorial integration in the West Bank including East Jerusalem; Security Council Resolution 2334 (2016), which called upon all States to distinguish "in their relevant dealings" between Israel and the territories occupied since 1967; the 2017 report by then UN Special Rapporteur Michael Lynk warning that de facto annexation had transformed the occupation into an illegal regime; and Israel's 2018 Nation-State Basic Law. Together, Adel argues, these form a post-critical-date factual and legal record that cannot be treated as temporally irrelevant.

Practical Consequences for Practitioners

Even assuming Germany's policies toward Israel did not fundamentally change after 2008, the legal conclusion does not follow. An unchanged third-State policy can acquire different legal significance when the juridical character of the underlying situation changes; the alleged breach may lie precisely in maintaining an unchanged policy toward a materially altered situation. The analysis must remain date- and obligation-specific: what obligation bound Germany at the relevant time, what situation engaged it, and what conduct breached it? Germany's own position that export licences undergo individual governmental assessment underscores that each authorisation was a discrete decision taken in the circumstances prevailing at the time. Judge Charlesworth's question at the close of the September 2026 hearings, asking Nicaragua to identify for submissions 4 to 9 the situations or facts constituting the "source or real cause" of the dispute, reflects this claim-by-claim approach. The broader implication: third-State obligations cannot be discharged through a once-and-for-all assessment. States maintaining military, economic or other relevant relations with a State involved in a prolonged occupation must assess developments on an ongoing basis and adjust their conduct where required.