                    505

                                           separate opinion
                                      of judge cançado trindade

                                                  table of contents

                                                                                Paragraphs

                     I. Introduction                                                                 1-2
                    II.	Greece’s Application for Permission to Intervene                             3-5
                    III. The Limits of State Consent Revisited                                       6-8
                    IV. Jus Gentium in the Twenty-First Century : Rights of
                        States and Rights of Individuals                                            9-54
                         1. States as titulaires of rights : Greek Courts decisions as
                            Referred to by Germany                                                  9-14
                         2. States as titulaires of rights : Summary of Greek Courts deci-
                            sions                                                                 15-20
                            (a) Judgment of the First Instance Court of Livadia in the
                                Distomo Massacre case (1997)                                          15
                            (b) Judgment of the Court of Cassation (Areios Pagos) in
                                the Distomo Massacre case (2000)                                  16-18
                            (c) Judgment of the Greek Special Supreme Court in the
                                Margellos and Others case (2002)                                  19-20
                         3. States as titulaires of rights : Approaches by Germany and
                            Greece                                                                21-24
                         4. Individuals as titulaires of rights : The legacy of the indivi
                            dual’s subjectivity in the law of nations                             25-29
                         5. Individuals as titulaires of rights : Their presence and partici-
                            pation in the international legal order                               30-35

                         6. Individuals as titulaires of rights : The rescue of the indivi
                            dual as subject of international law                                  36-49
                         7. Individuals as titulaires of rights : The historical significance
                            of the international subjectivity of the individual                   50-52
                         8.	General assessment                                                    53-54
                     V. Concluding Observations : The Resurrectio of Interven-
                        tion in Contemporary International Litigation                             55-61

                                                             *

                    15

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                                                      I. Introduction

                       1. I have concurred with my vote to the adoption today, 4 July 2011,
                    by the International Court of Justice, of the present Order whereby it
                    grants to Greece permission to intervene in the case concerning the Juris‑
                    dictional Immunities of the State, opposing Germany to Italy. Given the
                    importance that I ascribe to the matters dealt with by the Court in the
                    present Order, and those underlying it, I feel obliged to leave on the
                    records the foundations of my personal position on the matter, in all its
                    aspects. The dossier of the present case, relating to the proceedings before
                    the Court concerning Greece’s Application for permission to intervene, is
                    conformed by six documents, namely : two submitted to the Court by the
                    applicant State, Greece 1, and two presented by each of the two Parties in
                    the main case before the Court, Germany 2 and Italy 3.
                       2. In the present separate opinion, I shall consider the matter at issue
                    in dwelling upon the points developed hereunder, namely : (a) Greece’s
                    Application for permission to intervene ; (b) the limits of State consent
                    revisited ; (c) jus gentium in the twenty-first century : rights of States and
                    rights of individuals (as submitted by the contending Parties), including a
                    review of relevant Greek Courts decisions (in the Distomo Massacre case
                    and the Margellos and Others case), among other related aspects in his-
                    torical perspective ; and (d) the resurrectio of intervention in contempo-
                    rary international litigation. Let me turn to those points, one by one, in a
                    logical sequence.

                              II. Greece’s Application for Permission to Intervene

                      3. In its Application for permission to intervene, of 13 January 2011,
                    based on Article 62 of the ICJ Statute, the Hellenic Republic (hereinafter
                    Greece) pointed out that it was not requesting to intervene as a party to
                    the present case, and that it had in mind only clearly circumscribed
                    aspects of the procedure, concerning decisions of its own domestic courts
                    on claims pertaining to occurrences during the Second World War, inten
                    ded to be enforced by Italian Courts. In its observations on Greece’s
                    Application, of 23 March 2011, Germany submitted that it did not

                       1 Greece’s Application for permission to intervene, of 13 January 2011, pp. 1-17 ;

                    Observations of Greece in Reply to the Written Observations of Germany and Italy, of
                    5 May 2011, pp. 1‑3.
                       2 Written Observations of the Federal Republic of Germany on the Application for

                    Permission to Intervene Filed by Greece, of 23 March 2011, pp. 1-7 ; Additional Observa-
                    tions of Germany on Whether to Grant the Application for Permission to Intervene Filed
                    by Greece, of 26 May 2011, pp. 1‑4.
                       3 Written Observations of Italy on the Application for Permission to Intervene Filed by

                    Greece, of 22 March 2011, p. 1 ; Additional Observations of Italy on Whether to Grant the
                    Application for Permission to Intervene Filed by Greece, of 23 May 2011, p. 1.

                    16

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                    507 jurisdictional immunities of the state (sep. op. cançado trindade)

                    f ormally object to it, but it substantially contradicted the grounds of
                     Greece’s purported intervention under Article 62 of the ICJ Statute
                     (cf. infra). Italy, for its part, in a letter of 22 March 2011, plainly stated
                     that it had no objection to Greece’s aforementioned Application.

                       4. Greece’s Application hinged on Italian Court decisions which inter
                    alia rendered possible the enforcement in Italy of Greek Court decisions
                    (cf. infra) that had granted civil claim damages against Germany, pertain-
                    ing to grave violations of human rights and international humanitarian
                    law perpetrated by German troops in Greece, particularly in the Greek
                    village of Distomo, during the Second World War (cf. infra). Such Court
                    decisions were denied enforcement in Greece, since under Greek law,
                    execution of a judgment against a foreign State is subject to prior consent
                     of the Minister of Justice, which was not given in the cas d’espèce 4.

                       5. In view of failed attempts to enforce those Court decisions 5, the
                    Greek nationals concerned sought recognition and enforceability of those
                    decisions in Italy. In its Application instituting proceedings before the
                    ICJ, Germany seeks a determination by the ICJ of what it considers a
                    breach by Italy of its jurisdictional immunity. At this stage of the pro-
                    ceedings of the present case, what is before the Court is solely the ques-
                    tion of Greece’s purported intervention on the ground of Article 62 of the
                    Statute. Greece itself clarified, in its Application of 13 January 2011, that
                    by requesting the Court permission to intervene it was “by no means ask-
                    ing the Court to resolve a dispute between Greece and the parties to the
                    proceedings (. . .)” 6.

                                     III. The Limits of State Consent Revisited

                       6. As to the consent of the Parties in the main case — which is not
                    strictly or formally at issue in the present case —, such consent does not
                    play a role in the proceedings conducive to the Court’s decision whether
                    or not to grant permission to intervene. As pointed out in a joint declara-
                    tion in a recent Judgment of the Court (in the case of the Territorial and
                    Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for
                    Permission to Intervene, Judgment of 4 May 2011 (I.C.J. Reports 2011
                    (II), p. 420)),
                               “In the present joint declaration, we wish to stress the non‑
                             existence of a ‘requirement’ of consent by the parties in the main

                         4
                         Cf. Greek Code of Civil Procedure, Article 923.
                         5
                         The Greek nationals concerned did not succeed to obtain relief from the European
                    Court of Human Rights (ECHR), where their cause (Kalogeropoulou and Others v. Greece
                    and Germany case, Judgment of 12 December 2002) was dismissed.
                       6 Op. cit. supra note 1, p. 6.

                    17

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                    508 jurisdictional immunities of the state (sep. op. cançado trindade)

                             case, in relation to the requisites for applications for permission to inter-
                             vene set forth in Article 62 of the ICJ Statute. In our view, such consent
                             by the main parties to the proceedings is irrelevant to the assessment
                             of an application for permission to intervene, and cannot be perceived
                             as a requirement under Article 62 of the Statute of the Court. (. . .)
                                State consent also has its limits, in respect of applications for per-
                             mission to intervene. (. . .)
                                Our understanding is in the sense that the consent of the parties to
                             the main case is not, in any way, a condition for intervention as a
                             non‑party. The Court is, anyway, the master of its own jurisdiction,
                             and does not need to concern itself with the search for State consent
                             in deciding on an application for permission to intervene in interna-
                             tional legal proceedings.
                                In effect, third party intervention under the Statute of the Court
                             transcends individual State consent. What matters is the consent ori
                             ginally expressed by States in becoming parties to the Court’s Statute,
                             or in recognizing the Court’s jurisdiction by other instrumentalities,
                             such as compromissory clauses. The Court’s Chamber itself rightly
                             pointed out, in the Judgment of 1990 in the case concerning the Land,
                             Island and Maritime Frontier Dispute between El Salvador and Hon-
                             duras (Application by Nicaragua for permission to intervene), that
                             the competence of the Court, in the particular matter of intervention,
                             ‘is not, like its competence to hear and determine the dispute referred
                             to it, derived from the consent of the parties to the case’. 7

                                There is no need for the Court to keep on searching instinctively
                             for individual State consent in the course of the international legal
                             proceedings. After all, the consent of contending States is alien to the
                             institution of intervention under Article 62 of the ICJ Statute. We
                             trust that the point we make here, in the present joint declaration,
                             regarding the irrelevance of State consent in the consideration by the
                             Court of applications for permission to intervene, under Article 62 of
                             the Court’s Statute, may be helpful to elucidate the positions that the
                             Court may take on the matter in its jurisprudential construction.” 8
                       7. In the cas d’espèce, anyway, there is no formal objection to Greece’s
                    Application for permission to intervene (supra); even if there were any
                    such objection, it would have been immaterial for the purpose of the
                    Court’s assessment of the Application at issue for permission to inter-
                    vene. State consent indeed has its limits ; the ICJ is not always restrained
                    by State consent, in relation not only to intervention, but also in respect
                    of other aspects of the procedure before the Court, as I sought to demon-
                    strate in my extensive dissenting opinion (paras. 45‑118, 136‑144 and
                    156‑214) in the Court’s Judgment of 1 April 2011 in the case concerning
                         7
                        Footnote omitted.
                         8
                        Judgment, I.C.J. Reports 2011 (II); joint declaration of Judges Cançado Trindade
                    and Yusuf, pp. 468-470, paras. 8, 10 and 13‑15.

                    18

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                    509 jurisdictional immunities of the state (sep. op. cançado trindade)

                    the Application of the International Convention on the Elimination of All
                    Forms of Racial Discrimination (Georgia v. Russian Federation) (I.C.J.
                    Reports 2011 (I), pp. 239-322) ; the ICJ is not an arbitral tribunal.

                       8. In its Application of 13 January 2011, Greece made it clear that its
                    object was to inform the Court of the “nature” of its “legal rights and
                    interests” that “could be affected” by the Court’s decision in the main
                    case advanced by Germany before it (p. 10). The request by Greece being
                    thus clearly circumscribed, and bearing in mind its own Court decisions,
                    it is difficult to behold how the ICJ could in the main proceedings circum-
                    vent or avoid making a finding that would not affect Greece’s interest of
                    a legal nature (under Article 62 of the Statute).

                               IV. Jus Gentium in the Twenty-First Century :
                                 Rights of States and Rights of Individuals

                                       1. States as Titulaires of Rights :
                                Greek Courts Decisions as Referred to by Germany
                      9. In the proceedings before the Court (with a written phase only) con-
                    cerning Greece’s Application for permission to intervene (supra), in its
                    second round of submissions, Germany referred to three judgments of
                    Greek Courts, in order to substantiate its argument that it would be
                    “utterly” contradictory, in its view, that the enforcement of a Greek judg-
                    ment in Italy could affect Greece’s legal interests, given that the same
                    judgment was denied enforcement in Greece 9. The relevant part of Ger-
                    many’s additional observations read as follows :
                             “In the present case, the specific facts speak even more strongly
                         against an interest of a legal nature which Greece could assert. In
                         2002, the Greek Special Supreme Court under Article 100 of the
                         Constitution, which discharges the functions of a constitutional
                         court, confirmed with the Margellos judgment the jurisdictional immu-
                         nity of Germany by overruling the findings of the Areios Pagos in the
                         Distomo case and thus rendering the decision of the regional court of
                         Livadia unenforceable in Greece itself. Moreover, Greek legislation
                         (Code of Civil Procedure, Art. 923) establishes that no judgment
                         rendered against a foreign State may be enforced on Greek territory
                          without an explicit authorization of the Greek Minister of Justice.
                          Such authorization was denied by the Minister of Justice in respect
                          of the judgment of the Court of Livadia the execution of which was
                          later sought in Italy. The plaintiffs brought an application against
                          that refusal before the European Court of Human Rights. In
                       9 Additional Observations of Germany on Whether to Grant the Application for

                    Permission to Intervene Filed by Greece, of 26 May 2011, paras. 5-6.

                    19

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                    510 jurisdictional immunities of the state (sep. op. cançado trindade)

                          alogeropoulou, the Strasbourg judges dismissed the application.
                         K
                         Thus, the official position of Greece is that the Livadia judgment
                         cannot, and should not, be executed in Greece. Accordingly, it must
                         be considered as utterly contradictory that Greece should have an
                         official interest in the enforcement of the same judgment in Italy.” 10
                       10. The three Greek Court decisions cited by Germany, in order of
                    judicial hierarchy, were : (a) the judgment of 1997 of the First Instance
                    Court of Livadia in the Distomo Massacre case ; (b) the judgment of 2000
                    of the Court of Cassation (Areios Pagos) in the same Distomo Massacre
                    case ; and (c) the judgment of 2002 of the Greek Special Supreme Court
                    in the Margellos and Others case. It would be clarifying, at this stage,
                    to summarize the legal proceedings in Greece, as referred to by Germany
                    itself 11.
                       11. In 1995, over 250 relatives of the victims of the massacre (of 1944)
                    in the village of Distomo instituted proceedings against Germany before
                    Greek Courts, claiming compensation for loss of life and property for
                    acts perpetrated in June 1944 by German occupation forces (under the
                    Third Reich) in Greece. The First Instance Court of Livadia held Ger-
                    many liable to pay compensation to the relatives of the victims. Germany
                    brought the case before the Court of Cassation (Areios Pagos) in Greece,
                    claiming immunity, which was dismissed by the Areios Pagos.

                       12. Following the judgment by the Court of Cassation, the judgment
                    of the First Instance Court of Livadia awarding compensation became
                    final. As the German authorities did not comply with the latter judgment
                    awarding compensation, the claimants sought to enforce the aforemen-
                    tioned judgment against German property in Greece. Yet, such enforce-
                    ment against a foreign State required the consent of the Minister of
                    Justice (Greek Code of Civil Procedure, Art. 923), which was not given in
                    the cas d’espèce. The claimants then resorted to the European Court of
                    Human Rights (ECHR) 12, against the refusal of Greece and Germany to
                    comply with the decision of the First Instance Court of Livadia awarding
                    compensation, but their application was dismissed by the ECHR.
                       13. Parallel to that, proceedings in a similar but yet another case (the
                    Margellos and Others case) were also ongoing before Greek Courts. The
                    Court of Cassation referred the Margellos and Others case to the Greek
                    Special Supreme Court, asking essentially the following questions :
                    (a) whether the exception to State immunity for torts committed jure
                    imperii in the forum State constituted a generally recognized rule of cus-

                       10 Additional Observations of Germany on Whether to Grant the Application for

                    Permission to Intervene Filed by Greece 26 May 2011, para. 5.
                       11 Ibid.
                       12 Invoking Article 6 (1) of the European Convention on Human Rights ; ECHR, Kalo‑

                    geropoulou and Others v. Greece and Germany, Judgment of 12 December 2002 (Applica-
                    tion 59021/00).

                    20

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                    511 jurisdictional immunities of the state (sep. op. cançado trindade)

                    tomary international law ; (b) and if so, whether it covered torts commit-
                    ted during an armed conflict against non‑combatants uninvolved in the
                    conflict.
                       14. The Greek Special Supreme Court, by a majority of six votes to
                    five, held, inter alia, that, under customary international law, a foreign
                    State continued to enjoy sovereign immunity in respect of a tort commit-
                    ted in the forum State irrespective of whether the conduct at issue vio-
                    lated jus cogens norms or whether the armed forces were participating in
                    an armed conflict. As a result of that, the effect of the latter Special
                    Supreme Court judgment in the Margellos case was essentially to overrule
                    the judgment of the First Instance Court of Livadia awarding compensa-
                    tion to the plaintiffs, as confirmed by the Court of Cassation in the same
                    case 13.

                                            2. States as Titulaires of Rights :
                                           Summary of Greek Courts Decisions
                    (a)
                        Judgment of the First Instance Court of Livadia in the Distomo
                        Massacre case (1997)
                      15. On 25 September 1997, the First Instance Court of Livadia found
                    that a State cannot rely on immunity when the act attributed to it was
                    perpetrated in breach of norms of jus cogens, and affirmed that a State
                    committing such a breach had indirectly waived immunity. Accordingly,
                    the Court of Livadia held Germany liable and ordered it to pay compen-
                    sation to the relatives of the victims of the massacre of Distomo. This
                    judgment became object of enforcement proceedings in Italy, which Ger-
                    many referred to in its pleadings in the case before the Court 14. In con-
                    nection with jus cogens, the Court of Livadia expressly referred to the
                    IV Hague Convention of 19 October 1907, Article 46 of the Regulations
                    on the Laws and Customs of War annexed thereto, as well as to custom-
                    ary international law, and to the general principle of law ex injuria jus non
                    oritur.
                    (b) Judgment of the Court of Cassation (Areios Pagos) in the Distomo
                         Massacre case (2000)
                       16. Subsequently, Germany instituted proceedings, against the latter
                    judgment, before the Greek Court of Cassation (Areios Pagos), claiming
                    immunity from the jurisdiction of Greek Courts. On 4 May 2000, the
                    First Chamber of the Court of Cassation found, by seven votes to four,
                    in the Distomo Massacre case, that the Greek Courts were competent to
                    exercise jurisdiction over the case. On the substantive law, the Court held

                       13 In the case, moved by Germany against the Prefecture of Voiotia, this latter repre-

                    sented 118 persons from the village of Distomo.
                       14 Cf. Annex 17 to Germany’s Memorial and Observations of Greece in Reply to the

                    Written Observations of Germany and Italy.

                    21

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                    512 jurisdictional immunities of the state (sep. op. cançado trindade)

                    first that State immunity is a generally accepted rule of international law
                    which, pursuant to Article 28 (1) of the Greek Constitution, is part of the
                    Greek legal order. Secondly, the Court held that it is now accepted by
                    European countries that State immunity is not absolute and applies only
                    to sovereign acts performed jure imperii, and not to acts jure gestionis
                    performed by the State in the same manner as private individuals.

                      17. The Court of Cassation further held that restrictive immunity was
                    enshrined in the European Convention on State Immunity adopted in
                    Basel on 16 May 1972 (the “Basel Convention”). While only eight Euro-
                    pean States (including Germany) ratified the Convention, all other Euro-
                    pean States accepted the doctrine of restrictive immunity. The Court of
                    Cassation further found, in the same Distomo Massacre case, that there is
                    a generally accepted rule of customary international law to the effect that
                    States are competent to exercise jurisdiction over claims for damages
                    against a foreign State, in relation to torts committed by its organs against
                    persons or property on the territory of the forum State, even if the acts in
                    question were performed jure imperii.

                      18. Moreover, the Court of Cassation held that immunity is tacitly
                    waived whenever the acts at issue are performed in violation of jus cogens
                    norms (again referring to Article 46 of the Regulations on the Laws and
                    Customs of War Annexed to the IV Hague Convention of 1907). The
                    Areios Pagos also held, in the Distomo Massacre case, that an exception
                    to the immunity rule should apply when the acts for which compensation
                    was sought (especially crimes against humanity) had targeted individuals
                    in a given place who were neither directly nor indirectly connected with
                    the military operations ; moreover, immunity was tacitly waived whenever
                    such acts, as already indicated, were in breach of jus cogens.

                    (c) Judgment of the Greek Special Supreme Court in the Margellos and
                         Others case (2002)
                       19. In a case parallel to the aforementioned one, in respect of the ques-
                    tion submitted to the Greek Special Supreme Court, this latter held, on
                    17 September 2002, by a majority of six votes to five, that, at the current
                    stage of progressive development of international law, there does not
                    exist a generally accepted rule that would allow, by exception ensuing
                    from the principle of immunity, to prosecute lawfully a State before the
                    Court of another State for compensation for offenses that took place on
                    the territory of the forum State, wherein the armed forces of the defen-
                    dant State were involved, irrespective of whether the actions at issue vio-
                    lated jus cogens norms.
                       20. Furthermore, the Greek Special Supreme Court ruled that Arti-
                    cle 31 of the 1972 Basel Convention, which provided for immunity in

                    22

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                    513 jurisdictional immunities of the state (sep. op. cançado trindade)

                    respect of the acts of armed forces, was formulated in absolute terms. The
                    five minority judges, in their joint dissenting opinion, contrariwise, sus-
                    tained that the prohibition of war crimes has the status of a peremptory
                    norm of international law (jus cogens), and that the provisions contained
                    in the IV Hague Convention of 1907 on the Laws and Customs of War
                    on Land are now generally recognized as peremptory norms of customary
                    international law (jus cogens).

                                              3. States as Titulaires of Rights :
                                             Approaches by Germany and Greece
                      21. In its Application of 13 January 2011 for permission to intervene,
                    Greece also referred specifically to Germany’s Application instituting pro-
                    ceedings (of 23 December 2008) in the main case 15, and submitted that :
                                 “The legal interest of Greece derives from the fact that Germany
                              has acquiesced to, if not recognized, its international responsibility
                              vis-à-vis Greece for all acts and omissions perpetrated by the Third
                              Reich between 6 April 1941, when Germany invaded Greece, and the
                              unconditional surrender of Germany on 8 May 1945.” (P. 6).
                    Greece further asserted, in its Application for permission to intervene, its
                    rights and jurisdiction under general international law, relating to the
                    judgments delivered by its domestic courts (cf. supra) and enforceable by
                    Italian Courts (pp. 4 and 8).
                       22. In its Response, of 23 March 2011, Germany retorted that Greece’s
                    approach could hardly demonstrate its “legal interest”. Germany distin-
                    guished the interests of the individuals concerned from those of the
                    Greek State. Referring to the interests of the individuals in relation to the
                    Distomo Massacre case, it stated :

                                 “The private claimants who were successful in the Distomo case
                              have certainly a legal interest in seeing the judgments of the respon-
                              sible trial judgments (Court of First Instance of Livadia), confirmed
                              by the Areios Pagos, executed, be it in Greece, in Italy or in any other
                              country where they may hope to get hold of assets of Germany. But
                              this is not a legal interest of the Greek State. (. . .) Italy overstepped
                              the limits of its legitimate sovereign power by lending a hand for the
                              execution of Greek judgments that, after the binding decision of the
                              Special Supreme Court in the Margellos case, cannot be executed in
                              Greece itself. The very subject-matter of the Court’s findings will be,
                              solely and exclusively, Italy’s conduct.” 16

                         15
                          Under item 3, and its paragraph 10.
                         16
                          Written Observations of Germany on Whether to Grant the Application for Permis-
                    sion to Intervene Filed by Greece, of 26 May 2011, para. 17.

                    23

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                    514 jurisdictional immunities of the state (sep. op. cançado trindade)

                      23. For its part, Italy, in a new letter of 23 May 2011, once again
                    plainly stated, in confirmation of its position, that it had no objection to
                    Greece’s Application for permission to intervene. In turn, in its more
                    recent submission, of 5 May 2011, Greece contended that the elements in
                    the cas d’espèce revolved around the enforcement of decisions of the
                    Greek Judiciary 17. In its view, both
                           “a Greek judicial body and Greek nationals lie at the heart of the
                           Italian enforcement proceedings and of the conflict between enforce-
                           ment and immunity.
                              In consequence, the Court’s decision as to whether judgments —
                           Italian and Greek — may be enforced in Italy is directly and primar-
                           ily of interest to Greece and could affect the interests of a legal nature,
                           in particular regarding persons of Greek nationality, enjoyed by
                           Greece under general international law.” 18

                       24. In my understanding, it could hardly be denied that the question of
                    the enforceability of judgments of a State’s judiciary, which is part and
                    parcel of the State concerned, conforms an interest of a legal nature of
                    that State, for the purposes of its purported intervention in international
                    litigation. This is so, even if the ultimate beneficiaries of the enforcement
                    of those judgments are individuals, human beings, nationals of that State.
                    An interest relating to the enforcement (abroad) of judicial decisions can
                    only be qualified as an interest of a legal nature, and not of another kind
                    or of a distinct nature.

                         4. Individuals as Titulaires of Rights : The Legacy of the Individual’s
                                           Subjectivity in the Law of Nations
                       25. In the present proceedings concerning the Greek Application for
                    permission to intervene, curiously Germany saw it fit to bring to the fore
                    the position of individuals as titulaires of rights — an issue which was, in
                    my perception, central in the recent consideration of the Italian counter‑
                    claim, which led to, data venia, a regrettable decision by the Court, in
                    its Order of 6 July 2010 in the present case of the Jurisdictional Immuni‑
                    ties of the State, whereby it dismissed that counter‑claim. I felt obliged to
                    leave on the records my firm dissenting opinion (I.C.J. Reports 2010 (I),
                    pp. 329-397, paras. 1‑179) on that decision of the Court, wherein I upheld,
                    inter alia, that claims as to rights which are inherent to human beings
                    (such as, in the ambit of the counter‑claim, the right to personal integrity,
                    not to be subjected to forced labour) cannot be waived by States by
                    means of inter‑State agreements. There can be no tacit or express waiver
                    in that respect, as the rights at stake are not rights of States, but of

                       17 Observations of Greece in Reply to the Written Observations of Germany and Italy,

                    of 5 May 2011, para. 6.
                       18 Ibid., para. 6.

                    24

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                    515 jurisdictional immunities of the state (sep. op. cançado trindade)

                    human beings. As I sustained, inter alia, in my aforementioned dissenting
                    opinion,

                            “States may, if they so wish, waive claims as to their own rights.
                         But they cannot waive claims for reparation of serious breaches of
                         rights that are not theirs, rights that are inherent to the human person.
                         Any purported waiver to this effect runs against the international
                         ordre public; is in breach of jus cogens. This broader outlook, in a
                         higher scale of values, is in line with the vision of the so‑called ‘found-
                         ing fathers’ of the law of nations (the droit des gens, the jus gentium),
                         and with what I regard as the most lucid trend of contemporary inter-
                         national legal thinking.

                            One cannot build (and try to maintain) an international legal order
                         over the suffering of human beings, over the silence of the innocent
                         destined to oblivion. At the time of mass deportation of civilians, sent
                         to forced labour along the two World Wars (in 1916‑1918 and in
                         1943‑1945) of the twentieth century (and not only the Second World
                         War), everyone already knew that that was a wrongful act, an atrocity,
                         a serious violation of human rights and of international humanitarian
                         law, which came to be reckoned as amounting also to a war crime
                         and a crime against humanity. Above the will stands conscience,
                         which is, after all, what moves the law ahead, as its ultimate material
                         source, removing manifest injustice.” (I.C.J. Reports 2010 (I),
                         pp. 396-397, paras. 178‑179.)

                       26. The question of individual rights is again brought to the fore now,
                    in the present case, this time in respect of the Greek Application for per-
                    mission to intervene (cf. supra). Likewise I deem it fit to lay on the records
                    my reflections on the matter. The first point to recall herein is the legacy
                    of the individual’s subjectivity in the law of nations. The notorious impor-
                    tance attributed to the matter by the so‑called “founding fathers” of the
                    discipline should not be forgotten in our times. As early as throughout
                    the sixteenth century, the conception of Francisco de Vitoria (author of
                    the renowned Relecciones Teológicas, 1538‑1539) flourished, whereby the
                    law of nations regulates an international community (totus orbis) consti-
                    tuted of human beings organized socially in States and co-extensive with
                    humanity itself ; the reparation of breaches of (human) rights reflects an
                    international necessity fulfilled by the law of nations, with the same prin-
                    ciples of justice applying both to States and to individuals and peoples
                    who form them. On his turn, Alberico Gentili (author of De Jure Belli,
                    1598) sustained, by the end of the sixteenth century, that law governs the
                    relationships between the members of the universal societas gentium.
                       27. In the seventeenth century, in the outlook advanced by Francisco
                    Suárez (author of the treaty De Legibus ac Deo Legislatore, 1612), the law

                    25

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                    516 jurisdictional immunities of the state (sep. op. cançado trindade)

                    of nations discloses the unity and universality of humankind, and regu-
                    lates the States in their relations as members of the universal society.
                    Shortly afterwards, the conception elaborated by Hugo Grotius (De Jure
                    Belli ac Pacis, 1625) sustained that societas gentium comprises the whole
                    of humankind, and the international community cannot pretend to base
                    itself on the voluntas of each State individually ; human beings — occupy-
                    ing a central position in international relations — have rights vis‑à‑vis the
                    sovereign State, which cannot demand obedience of their citizens in an
                    absolute way (the imperative of the common good), as the so‑called “rai‑
                    son d’Etat” has its limits, and cannot prescind from law. In this line of
                    reasoning, in the seventeenth century, Samuel Pufendorf (De Jure Natu‑
                    rae et Gentium, 1672) sustained as well the subjection of the legislator to
                    reason, while Christian Wolff (Jus Gentium Methodo Scientifica Pertrac‑
                    tatum, 1749) pondered that, just as individuals ought to — in their asso-
                    ciation in the State — promote the common good, the State on its turn
                    has the correlative duty to seek its perfection 19.
                       28. The subsequent personification of the all‑powerful State, inspired
                    mainly in the philosophy of law of Hegel, had a harmful influence in the
                    evolution of international law by the end of the nineteenth century and in
                    the first decades of the twentieth century. This doctrinal trend resisted as
                    much as it could to the ideal of emancipation of the human being from
                    the absolute control of the State, and to the recognition of the individual
                    as subject of international law. But the individual’s submission to the
                    “will” of the State was never convincing to all, and it soon became openly
                    challenged by the more lucid doctrine. The idea of absolute State sover-
                    eignty — which led to the irresponsibility and the alleged omnipotence of
                    the State, not impeding the successive atrocities committed by it (or in its
                    name) against human beings — appeared with the passing of time entirely
                    unfounded.
                       29. The massacre of Distomo (1944), brought before the Greek Courts
                    (cf. supra), is but one of such numerous State atrocities perpetrated
                    throughout the last century. Much has been written on it ; the facts are of
                    public and notorious knowledge, and are not disputed. In one of the his-
                    torical accounts of that massacre, its facts have been so summed up :
                           “On the morning of June 10, 1944, in the village of Distomo, in the
                         Prefecture of Voiotia, Greece, Nazi soldiers posed as merchants and
                         passed through Distomo, looking for Greek resistance fighters said
                         to be in the area. Because Distomo was not a part of the resistance
                         movement, no guerrillas were found in the village. The soldiers moved
                         on to the town of Delphi. After leaving Delphi, on their way to the
                         town of Steiri, the Greek resistance fighters attacked the Germans
                         and killed eighteen German soldiers. The surviving Nazi soldiers then
                       19 A. A. Cançado Trindade, “A Personalidade e a Capacidade Jurídicas do Indivíduo

                    como Sujeito do Direito Internacional”, Jornadas de Derecho Internacional [of the OAS]
                    (Mexico City, December 2001), Washington D.C., Under‑Secretariat for Legal Affairs of
                    the OAS, 2002, pp. 311-347.

                    26

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                    517 jurisdictional immunities of the state (sep. op. cançado trindade)

                          turned around, marched back past Delphi to Distomo, and began a
                          reign of terror that ended in the brutal massacre of 218 men, women
                          and children.
                             The soldiers stormed the village and ordered all residents indoors.
                          They went on a two‑hour, door‑to‑door rampage, bayoneting babies
                          in their cribs, tearing fetuses from pregnant women, and beheading
                          the village priest. The only survivors were those who were able to
                          escape to the mountains, but they have never fully recovered from the
                          horror of that day. In memory of the dead, the entire village was
                          dressed in black for years and the relatives of the Distomo victims
                          mourn their dead to this day. This mass killing has been labeled as
                          one of the most savage civilian, non‑Jewish massacres of World
                          War II.” 20

                                           5. Individuals as Titulaires of Rights :
                                              Their Presence and Participation
                                              in the International Legal Order
                       30. Not surprisingly, human conscience has reacted against State atro
                    cities of the kind. The State — it is nowadays reckoned — is responsible
                    for all its acts — both jure gestionis and jure imperii — as well as for all
                    its omissions, amounting to grave breaches of the rights of the human
                    person (human rights and international humanitarian law). In case of vio-
                    lation of human rights, the direct access of the individual to national and
                    international jurisdictions is thus fully justified to vindicate such rights
                    (even against his own State) 21. The necessity of the legitimatio ad causam
                    of individuals in international law is in our times widely acknowledged 22.
                    After all, individuals have marked their presence and participation in the
                    international legal order already for a long time.
                       31. The individual has, in fact, constantly remained in contact, directly
                    or indirectly, with the international legal order. He is subject of both
                    domestic and international law 23. In the inter‑war period, the experiments
                       20 E. Vournas, “Prefecture of Voiotia v. Federal Republic of Germany : Sovereign Immu-

                    nity and the Exception for Jus Cogens Violations”, 21 New York Law School Journal of
                    International and Comparative Law (2002), pp. 635-636.
                       21 S. Glaser, “Les droits de l’homme à la lumière du droit international positif ”,

                    Mélanges offerts à H. Rolin — Problèmes de droit des gens, Paris, Pedone, 1964, pp. 117-118,
                    and cf. pp. 105-106 and 114-116.
                       22 Cf. note 34 infra.
                       23 On the historical evolution of the legal personality in the law of nations, cf. H. Mosler,

                    “Réflexions sur la personnalité juridique en droit international public”, Mélanges offerts à
                    H. Rolin — Problèmes de droit des gens, Paris, Pedone, 1964, pp. 228-251 ; G. Arangio-
                    Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972,
                    pp. 9-268 ; G. Scelle, “Some Reflections on Juridical Personality in International Law”,
                    Law and Politics in the World Community (ed. G. A. Lipsky), Berkeley/Los Angeles,
                    University of California Press, 1953, pp. 49-58 and 336 ; J. A. Barberis, “Nouvelles ques-
                    tions concernant la personnalité juridique internationale”, 179 Recueil des cours de
                    l’Académie de droit international de La Haye (RCADI) (1983), pp. 157-238.

                    27

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                    518 jurisdictional immunities of the state (sep. op. cançado trindade)

                    of the minorities 24 and mandates 25 systems under the League of Nations,
                    for example, bear witness thereof 26. They were followed, in that regard,
                    by the trusteeship system 27 under the United Nations era, parallel to the
                    development under this latter, along the years, of the multiple mecha-
                    nisms — conventional and extraconventional — of international protec-
                    tion of human rights. Those early experiments in the twentieth century
                    were of relevance for subsequent developments in the international safe-
                    guard of the rights of the human person 28.
                       32. To that effect of evidencing and reasserting the constant contact of
                    the individual with the international legal order, the considerable evolu-
                    tion in the last decades not only of the international law of human rights,
                    but likewise of international humanitarian law, has contributed deci-
                    sively. This latter likewise considers the protected persons not only as
                    simple object of regulation that they establish, but rather as true subjects
                    of international law 29. In effect, the impact of the norms of the former
                    has, in turn, been having already for a long time repercussions in the cor‑
                    pus juris and application of international humanitarian law. This latter, in
                    the light of the principle of humanity, gradually frees itself from a purely
                    inter‑State obsolete outlook, placing an increasingly greater emphasis on

                        24 Cf., e.g., P. de Azcárate, League of Nations and National Minorities : An Experiment,

                    Washington, Carnegie Endowment for International Peace, 1945, pp. 123-130 ; J. Stone,
                    International Guarantees of Minorities Rights, Oxford University Press, 1932, p. 56 ;
                    A. N. Mandelstam, “La protection des minorités”, 1 RCADI (1923), pp. 363-519.
                        25 Cf., e.g., G. Diena, “Les mandats internationaux”, 5 RCADI (1924), pp. 246-261 ;

                    N. Bentwich, The Mandates System, London, Longmans, 1930, p. 114 ; Quincy Wright,
                    Mandates under the League of Nations, Chicago University Press, 1930, pp. 169-172.
                        26 C. A. Norgaard, The Position of the Individual in International Law, Copenhagen,

                    Munksgaard, 1962, pp. 109-131 ; A. A. Cançado Trindade, “Exhaustion of Local Reme-
                    dies in International Law Experiments Granting Procedural Status to Individuals in the
                    First Half of the Twentieth Century”, 24 Netherlands International Law Review/Nederlands
                    Tijdschrift voor international Recht (1977), pp. 373-392.
                        27 Cf., e.g., C. E. Toussaint, The Trusteeship System of the United Nations, London,

                    Stevens, 1956, pp. 39, 47 and 249-250 ; J. Beauté, Le droit de pétition dans les territoires sous
                    tutelle, Paris, LGDJ, 1962, pp. 48-136 ; G. Vedovato, “Les accords de tutelle”, 76 RCADI
                    (1950), pp. 613-694.
                        28 Cf., e.g., C. Th. Eustathiades, “Une nouvelle expérience en droit international — Les

                    recours individuels à la Commission des droits de l’homme”, Grundprobleme des internatio‑
                    nalen Rechts — Festschrift für J. Spiropoulos, Bonn, Schimmlebusch, 1957, pp. 111-137,
                    esp. pp. 77 and 121, note 32.
                        29 It is what ensues, e.g., from the position of the four Geneva Conventions on Inter

                    national Humanitarian Law of 1949, erected as from the rights of the protected persons
                    (III Convention, Articles 14 and 78 ; IV Convention, Article 27). This is what, furthermore,
                    clearly ensues from the fact that the four Geneva Conventions plainly prohibit the States
                    parties to derogate — by special agreements — from the rules enunciated in them and in
                    particular to restrict the rights of the persons protected set forth in them (I, II and
                    III Geneva Conventions, Article 6 ; and IV Geneva Convention, Article 7). In fact, as early
                    as in the passage from the nineteenth to the twentieth century, the first Conventions on
                    international humanitarian law expressed concern for the fate of human beings in armed
                    conflicts, thus recognizing the individual as direct beneficiary of the international conven-
                    tional obligations.

                    28

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                    519 jurisdictional immunities of the state (sep. op. cançado trindade)

                     the protected persons and on the responsibility for the violation of their
                     rights 30.
                        33. The attempts of the past to deny to individuals the condition of
                     subjects of international law, for not being recognized to them some of
                      the capacities which States have (such as, e.g., that of treaty‑making), are
                      definitively devoid of any meaning 31. Besides unsustainable, that concep-
                     tion appears contaminated by an ominous ideological dogmatism, which
                     had as the main consequence to alienate the individual from the inter
                     national legal order 32. In the brief historical period in which that statist
                    conception prevailed, in the light — or, more precisely, in the darkness —
                    of legal positivism, successive atrocities were committed against the human
                    being, on a scale without precedent. This is evidenced, in the factual
                    context of the present proceedings before this Court, by the massacre
                     of Distomo, of 10 June 1944.
                        34. No one with sane conscience would today dare to deny that human
                     beings effectively possess rights and obligations which emanate directly from
                     international law, with which they find themselves in direct contact. There is
                     nothing intrinsic to international law that impedes or renders such direct
                     contact impossible. It is perfectly possible to conceptualize as subject of inter-
                     national law any person or entity, titulaire of rights and bearer of obligations,
                     which emanate directly from norms of international law. Such is the case of
                     human beings, who have thus fostered and strengthened their direct con-
                     tact — without intermediaries — with the international legal order 33.
                        35. In sum, the very process of formation and application of the norms
                    of international law ceases to be a monopoly of the States. Furthermore,
                    beyond the individual’s presence and participation in the international
                    legal order, to the recognition of his rights, as subject of international

                        30 On the historical roots of this development, cf. E. W. Petit de Gabriel, Las Exigen‑

                     cias de Humanidad en el Derecho Internacional Tradicional (1789-1939), Madrid, Tecnos,
                     2003, pp. 149, 171 and 210.
                        31 Nor at domestic law level, not all individuals participate, directly or indirectly, in the

                    law-making process, and they do not thereby cease to be subjects of law. That doctrinal
                    trend, attempting to insist on such a rigid definition of international subjectivity, condi-
                     tioning this latter to the very formation of international norms and compliance with them,
                     simply does not sustain itself, not even at the level of domestic law, in which it is not
                     required — it has never been —, from all individuals to participate in the creation and
                     application of the legal norms in order to be subjects (titulaires) of rights, and to be bound
                     by the duties, emanated from such norms.
                        32 It is surprising — if not astonishing —, besides regrettable, to see that conception

                     repeated mechanically and ad nauseam by a doctrinal trend, apparently trying to make
                     believe that the intermediary of the State, between the individuals and the international legal
                     order, would be something inevitable and permanent. Nothing could be more fallacious.
                        33 The international movement in favour of human rights, launched by the Universal

                    Declaration of Human Rights of 1948, came to disauthorize the aforementioned false
                    analogies, and to overcome traditional distinctions (e.g., on the basis of nationality) :
                     subjects of law are all human beings as members of the “universal society” ; R. Cassin,
                     “L’homme, sujet de droit international et la protection des droits de l’homme dans la
                     société universelle”, La technique et les principes du droit public — Etudes en l’honneur de
                     G. Scelle, Vol. I, Paris, LGDJ, 1950, pp. 81-82.

                    29

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                    520 jurisdictional immunities of the state (sep. op. cançado trindade)

                    law, ought to correspond the procedural capacity to vindicate them at
                    international level. It is by means of the consolidation of the full inter
                    national procedural capacity of individuals that the international pro
                    tection of human rights becomes reality 34.

                                      6. Individuals as Titulaires of Rights :
                            The Rescue of the Individual as Subject of International Law
                       36. Although the contemporary international scenario is entirely dis-
                    tinct from that of the epoch of the so‑called “founding fathers” of inter-
                    national law (no one would deny it), who propounded a civitas maxima
                    gentium ruled by the law of nations, there is a recurrent human aspira-
                    tion, transmitted from one generation to another, along the last centuries,
                    to the effect of the construction of an international legal order applicable
                    both to States (and international organizations) and to individuals, pur-
                    suant to certain universal standards of justice. Hence the importance
                    which, in this new corpus juris of protection, the international legal per-
                    sonality of the individual assumes, as subject of both domestic and inter-
                    national law.
                       37. The individual, as subject of international law on his own right,
                    was certainly distinguishable from his own State, and a wrong done to
                    him was a breach of classical jus gentium, as universal minimal law 35. The
                    whole new corpus juris of the international law of human rights has been
                    constructed on the basis of the imperatives of protection and the superior
                    interests of the human being, irrespective of his link of nationality or of
                    his political statute, or any other situation or circumstance. Hence the
                    importance assumed, in this new law of protection, by the legal per
                    sonality of the individual, as the subject (not mere “actor”) of both
                    domestic and international law 36.

                       34 Cf. A. A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Inter‑

                    nacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 17-96. Even if,
                    by the circumstances of life, certain individuals (e.g., children, the mentally ill, aged
                    persons, among others) cannot fully exercise their capacity (e.g., in civil law), this does not
                    mean that they cease to be titulaires of rights, opposable even to the State. Irrespective of
                    the circumstances, the individual is subject jure suo of international law, as sustained by the
                    more lucid doctrine, since the writings of the so-called founding fathers of the discipline ;
                    P. N. Drost, Human Rights as Legal Rights, Leyden, Sijthoff, 1965, pp. 226-227, and cf.
                    pp. 215 and 223. Human rights were conceived as inherent to every human being, indepen-
                    dently of any circumstances.
                       35 C. Parry, “Some Considerations upon the Protection of Individuals in International

                    Law”, 90 RCADI (1956), pp. 686‑688 and 697-698.
                       36 The application and expansion of the international law of human rights, in turn, has

                    had sensible repercussions, not surprisingly, in the trends of contemporary public interna-
                    tional law ; cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
                    Humanos, Vol. I, 2nd ed., Porto Alegre/Brazil, S. A. Fabris Ed., 2003, pp. 33-50, and
                    Vol. II, 1999, pp. 23-194 ; A. A. Cançado Trindade, El Derecho Internacional de los
                    Derechos Humanos en el Siglo XXI, Santiago, Editorial Jurídica de Chile, 2001, pp. 15-58
                    and 375-427.

                    30

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                    521 jurisdictional immunities of the state (sep. op. cançado trindade)

                        38. In fact, already in the first decades of the twentieth century, one
                    recognized the manifest inconveniences of the protection of individuals
                     by the intermediary of their respective States of nationality, that is, by the
                     exercise of discretionary diplomatic protection, which rendered the “com-
                     plaining” States at a time “judges and parties” 37. In a monograph of
                     1931, André Mandelstam warned as to the necessity of the recognition
                     of a juridical minimum — with the primacy of international law and of
                     human rights over the State legal order — below which the international
                     community should not allow the State to fall. In his vision, the “horrible
                     experience of our time” demonstrated the urgency of the necessary
                     acknowledgement of this juridical minimum, to put an end to the “unlim-
                     ited power” of the State over the life and the freedom of its citizens, and
                     to the “complete impunity” of the State in breach of the “most sacred
                     rights of the individual” 38.
                        39. In his “célèbre” Précis of 1932‑1934, Georges Scelle criticized the
                     fiction of the contraposition of an “inter‑State society” to a (national)
                     society of individuals : one and the other — he pondered — are formed
                     by individuals, subjects of domestic law and of international law,
                     whether they are individuals moved by private interests, or else endowed
                     with public functions (rulers and public officials) in charge of looking
                     after the interests of national and international collectivities. G. Scelle
                     then identified “the movement of extension of the legal personality of
                     individuals”, by means of the emergence of the right of individual peti-
                     tion at international level, which led him to conclude that “individuals
                     are subjects of law both of national communities and the worldwide
                     international community : they are directly subjects of the law of
                     national” 39.
                        40. Also in the American continent, in the twentieth century, even
                     before the adoption of the American and Universal Declarations of
                     Human Rights of 1948, doctrinal manifestations flourished in favour of
                     the international juridical personality of the individuals, such as those
                     which are found, for example, in the writings of Alejandro Alvarez 40 and
                    Hildebrando Accioly 41. And Philip Jessup, in 1948, pondered that the old
                     conception of State sovereignty was not consistent with the higher inter-

                       37 One started, as a consequence, to overcome such inconveniences, to nourish the idea

                    of the direct access of the individuals to the international jurisdiction, under certain condi-
                    tions, to vindicate their rights against States — a theme which came to be effectively
                    considered by the Institut de droit international in its sessions of 1927 and 1929.
                       38 A. N. Mandelstam, Les droits internationaux de l’homme, Paris, Editions internatio-

                    nales, 1931, pp. 95-96 and 138, and cf. p. 103.
                       39 G. Scelle, Précis de droit des gens — Principes et systématique, Part I, Paris, Sirey,

                    1932 (CNRS reprint, 1984), pp. 42-44, and cf. p. 48.
                       40 A. Alvarez, La Reconstrucción del Derecho de Gentes — El Nuevo Orden y la Reno‑

                    vación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 46-47 and 457-463, and cf.
                    pp. 81, 91 and 499-500.
                       41 H. Accioly, Tratado de Direito Internacional Público, Vol. I, 1st ed., Rio de Janeiro,

                    Imprensa Nacional, 1933, pp. 71-75.

                    31

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                    522 jurisdictional immunities of the state (sep. op. cançado trindade)

                    ests of the international community and the status of the individual as
                    subject of international law 42.
                       41. In Europe, in a celebrated book of 1950, Hersch Lauterpacht
                    asserted that “the individual is the final subject of all law”, there being
                    nothing inherent to international law impeding him to become subject of
                    the law of nations and to become a party in proceedings before inter
                    national tribunals 43. On his turn, in a perspicacious essay, also of 1950,
                    Maurice Bourquin pondered that the growing concern of the international
                    law of the epoch with the problems which affected directly the human
                    being revealed the overcoming of the old exclusively inter‑State vision of
                    the international legal order 44.
                       42. In his course delivered at the Hague Academy of International
                    Law, three years later, in 1953, Constantin Eustathiades linked the inter-
                    national subjectivity of the individuals to the broad theme of the inter
                    national responsibility (of them, parallel to that of the States) 45. This
                    development heralded the emancipation of the individual from the tute-
                    lage of his own State, and the individual’s condition of subject of inter
                    national law 46. The same conclusion was reached by Paul Guggenheim, in
                    a course delivered also at the Hague Academy, one year earlier, in 1952 : as
                    the individual is “subject of duties” at international law level, one cannot
                    deny his international legal personality, recognized also in fact by custom‑
                    ary international law itself 47.

                        42 Ph. C. Jessup, A Modern Law of Nations — An Introduction, New York, MacMillan

                    Co., 1948, p. 41.
                        43 H. Lauterpacht, International Law and Human Rights, London, Stevens, 1950,

                    pp. 51, 61 and 69, and cf. p. 70. Such recognition of the individual as subject of rights also
                    at international law level brought about a clear rejection of the old positivist dogmas,
                    discredited and unsustainable, of the dualism of subjects in the domestic and international
                    orders, and of the “will” of States as exclusive “source” of international law ; cf. ibid.,
                    pp. 8-9. On the “natural right” of petition of individuals, exercised also in the general
                    interest, cf. ibid., pp. 247-251, and cf. pp. 286-291 and 337.
                        44 M. Bourquin, “L’humanisation du droit des gens”, La technique et les principes du

                    droit public . . ., op. cit. supra note 33, Vol. I, pp. 21-54.
                        45 As a reaction of the universal juridical conscience, the recognition of the rights and

                    duties of the individual at international level, and his capacity to act in order to defend his
                    rights, are linked to his capacity to commit an international delict ; international responsi-
                    bility thus comprises, in his vision, both the protection of human rights as well as the
                    punishment of war criminals (forming a whole) ; C. Th. Eustathiades, “Les sujets du droit
                    international et la responsabilité internationale — Nouvelles tendances”, 84 RCADI
                    (1953), pp. 402, 412-413, 424, 586-589, 601 and 612.
                        46 Ibid., pp. 426-427, 547, 586-587, 608 and 610-611. Although not endorsing the theory

                    of Duguit and Scelle (of the individuals as the sole subjects of international law) —
                    regarded as expression of the “sociological school” of international law in France —,
                    Eustathiades recognized in it the great merit of reacting to the traditional doctrine
                    which visualized States as the sole subjects of international law ; the recognition of the
                    international subjectivity of individuals, parallel to that of States, came to transform the
                    structure of international law and to foster the spirit of international solidarity ; ibid.,
                    pp. 604-610.
                        47 P. Guggenheim, “Les principes de droit international public”, 80 RCADI (1952),

                    pp. 116, and cf. pp. 117-118.

                    32

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                    523 jurisdictional immunities of the state (sep. op. cançado trindade)

                       43. Still in the mid‑twentieth century, in the first years of application
                    of the European Convention on Human Rights, there was support for
                    the view that the individuals had become “titulaires of legitimate inter-
                    national interests”, as, in international law, a process of emancipation of
                    the individuals from the “exclusive tutelage of the State agents” had already
                    started 48. In the legal doctrine of that time, the recognition of the
                    expansion of the protection of individuals at the international legal

                    order became evident 49. In the lucid words of B. V. A. Röling, the over-
                    coming of legal positivism was reassuring, as the individual, bearer of inter
                    national rights and duties, was no longer at the mercy of his State, and

                            “Humanity of today instinctively turns to this natural law, for the
                          function of law is to serve the well‑being of man, whereas present
                          positive international law tends to his destruction.” 50

                        44. This view was in keeping with the posture upheld by the Judge
                     Kotaro Tanaka, in his opinions in cases before the ICJ in that epoch,
                     that is an international law transcending the limitations of legal
                     positivism 51, and thus capable of responding effectively to the needs and
                      aspirations of the international community as a whole 52. In the late
                    sixties, the pressing need was pointed out of protecting internationally the
                     human person both individually and in groups 53, for unless such inter
                     national protection was secured to individuals and groups of them, “the

                        48 G. Sperduti, “L’individu et le droit international”, 90 RCADI (1956), pp. 824, 821

                    and 764. The juridical experience itself of the epoch contradicted categorically the
                    unfounded theory according to which the individuals were simple objects of the inter
                    national legal order, and destructed other prejudices of State positivism ; ibid., pp. 821-
                    822 ; and cf. also G. Sperduti, L’Individuo nel Diritto Internazionale, Milan, Giuffrè Ed.,
                    1950, pp. 104-107.
                        49 C. Parry, “Some Considerations . . .”, op. cit. supra note 35, p. 722 ; B. V. A. Röling,

                    International Law in an Expanded World, Amsterdam, Djambatan, 1960, pp. XXII and 1-2.
                        50 B. V. A. Röling, op. cit. supra note 49, p. 2.
                        51 Cf. Y. Saito, “Judge Tanaka, Natural Law and the Principle of Equality”, The Living

                    Law of Nations — Essays in Memory of A. Grahl-Madsen (eds. G. Alfredsson and P. Maca
                    lister-Smith), Kehl/Strasbourg, N. P. Engel Publ., 1996, pp. 401‑402 and 405-408 ;
                    K. Tanaka wanted law to be wholly liberated from both the State (“as asserted by Hegel
                    and his followers”) and from the nation (Völk — as asserted by Savigny and Puchta, and
                    other jurists of the “historical school”) ; ibid., p. 402.
                       52 Cf. V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests

                    of the International Community”, The International Court of Justice : Its Future Role after
                    Fifty Years (eds. A. S. Muller et al.), The Hague, Kluwer, 1997, pp. 344-346.
                       53 As acknowledged, e.g., by the 1994 Framework Convention for the Protection of

                    National Minorities of the Council of Europe (in force as from February 1998). For earlier
                    general studies, cf., e.g., P. Thornberry, International Law and the Rights of Minorities,
                    Oxford, Clarendon Press, 1992 (reprint), pp. 38-54 ; F. Ermacora, “The Protection of
                    Minorities before the United Nations”, 182 RCADI (1983), pp. 257-347.

                    33

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                    524 jurisdictional immunities of the state (sep. op. cançado trindade)

                    fate of the individual” would be “at the mercy of some Staatsrecht” 54. In
                    an essay published in 1967, René Cassin, who had participated in the pre-
                    paratory process of the elaboration of the Universal Declaration of
                    Human Rights of 1948 55, stressed the advance represented by the access
                    of individuals to international instances of protection, secured by many
                    human rights treaties 56.
                       45. To Paul Reuter,
                                 “Individuals become subjects of international law when two basic
                              conditions are fulfilled, namely, when they are titulaires of rights
                              established directly by international law, which they can exercise,
                              and are bearers of obligations sanctioned directly by international
                              law.” 57
                    A similar view was upheld by Eduardo Jiménez de Aréchaga, to whom
                    “there is nothing inherent to the structure of the international legal order”
                    which impedes the recognition to the individuals of rights that emanate
                    directly from international law, as well as international remedies for the
                    protection of those rights 58. Also in this line of reasoning, Julio Barberis
                    pondered in 1983 that, for individuals to be subjects of law, it is necessary
                    that the legal order at issue attributes to them rights or obligations (as is
                    the case of international law) 59.
                         54
                          J. J. Lador-Lederer, International Group Protection, Leyden, Sijthoff, 1968, p. 19.
                         55
                          As rapporteur of the Working Group of the former United Nations Commission on
                    Human Rights, entrusted with the preparation of the Draft Declaration (from May 1947
                    to June 1948).
                       56 In his own thoughtful words,

                          “if there still subsist on earth great zones where millions of men and women, resigned
                          to their destiny, do not dare to utter the least complaint nor even to conceive that
                          any remedy whatsoever is made possible, those territories diminish day after day.
                          The awakening of conscience that an emancipation is possible, becomes increasingly
                          more general . . . The first condition of all justice, namely, the possibility of cornering
                          the powerful so as to subject them to . . . public control, is nowadays fulfilled much
                          more often than in the past . . . The fact that the resignation without hope, that the
                          wall of silence and that the absence of any remedy are in the process of reduction or
                          disappearance, opens to moving humanity encouraging perspectives . . .” (R. Cassin,
                          “Vingt ans après la Déclaration universelle”, 8 Revue de la Commission internationale
                          de juristes (1967), No. 2, pp. 9-10, and cf. pp. 11-17.)
                       57 Thus, as from the moment when the individual is granted a remedy before an organ

                    of international protection (access to international jurisdiction) and can thus initiate the
                    procedure of protection, he becomes subject of international law (P. Reuter, Droit inter
                    national public, 7th. ed., Paris, PUF, 1993, pp. 235 and 238, and cf. p. 106).
                       58 E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos,

                    1980, pp. 207-208.
                       59 The subjects of law are, thus, heterogeneous — he added — and theoreticians who

                    beheld only States as such to be subjects simply distorted reality, failing to take into
                    account the transformations undergone by the international community, which came to
                    admit that non-State actors also possess international legal personality (J. A. Barberis,
                    “Nouvelles questions concernant la personnalité juridique…”, op. cit. supra note 23,
                    pp. 161, 169-172, 178 and 181).

                    34

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                    525 jurisdictional immunities of the state (sep. op. cançado trindade)

                       46. In fact, successive studies of instruments of international protec-
                    tion came to emphasize precisely the historical importance of the recogni-
                    tion of the international legal personality of individuals as complaining
                    party before international organs 60. In my own thematic course delivered
                    at the Hague Academy of International Law in 1987, I pondered that the
                    continuous expansion of international law is also reflected in the multiple
                    contemporary mechanisms of international protection of human rights,
                    the operation of which cannot be dissociated from the new values
                    acknowledged by the international community. Individuals were at last
                    enabled “to exercise rights emanating directly from international law
                    (droit des gens)”. And I added :

                               “In this connection, the insight and conception of Vitoria devel-
                         oped in his manuscripts of 1532 (made public in 1538‑1539) can be
                         properly recalled in 1987, four‑and‑a‑half centuries later : it was a
                         conception of a universal law of nations, of individuals socially
                         organized in States and also composing humanity (. . .) ; redress of
                          violations of (human) rights, in fulfilment of an international need,
                          owed its existence to the law of nations, with the same principles of
                          justice applying to both States and individuals or peoples forming
                          them.
                           �����������������������������������������������������������������������������������������������������������������
                               There is a growing and generalized acknowledgement that human
                          rights, rather than deriving from the State (or from the will of
                          individuals composing the State), all inhere in the human person, in
                           whom they find their ultimate point of convergence. (. . .) The non-
                           observance of human rights entails the international responsibility of
                           States for treatment of the human person.” 61

                      47. The international subjectivity of the human being (whether a child,
                    an elderly person, a person with a disability, a stateless person, or any
                    other) emerged with all vigour in the international legal thinking of the
                        60 Cf., e.g., A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local

                    Remedies in International Law, Cambridge University Press, 1983, pp. 1-445 ; A. Z. Drzem-
                    czewski, European Human Rights Convention in Domestic Law, Oxford, Clarendon Press,
                    1983, pp. 20-34 and 341 ; F. Matscher, “La Posizione Processuale dell’Individuo come
                    Ricorrente dinanzi agli Organi della Convenzione Europea dei Diritti dell’Uomo”, Studi in
                    Onore di G. Sperduti, Milan, Giuffrè Ed., 1984, pp. 601-620 ; J. A. Carrillo Salcedo, Dignidad
                    frente a Barbarie — La Declaración Universal de Derechos Humanos, Cincuenta Años
                    Después, Madrid, Ed. Trotta, 1999, pp. 27-145 ; E.-I. A. Daes (rapporteur spécial), La
                    condition de l’individu et le droit international contemporain, United Nations doc. E/CN.4/
                    Sub.2/1988/33, of 18 July 1988, pp. 1-92 ; R. A. Mullerson, “Human Rights and the
                    Individual as Subject of International Law : A Soviet View”, 1 European Journal of Inter‑
                     national Law (1990), pp. 33-43.
                        61 A. A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of Inter-

                     national Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI
                     (1987), pp. 411-412, and cf. pp. 32-33.

                    35

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                    526 jurisdictional immunities of the state (sep. op. cançado trindade)

                    twentieth century, as a reaction of the universal juridical conscience
                    against the successive atrocities committed against the humankind. By
                    the time that subjectivity so emerged, sovereign immunity had already
                    been erected, pursuant to an inter‑State static outlook, placing States out-
                    side the reach of law. What was meant to be an exception (immunity)
                    showed itself as the rule, in the name of “absolute” sovereignty.

                       48. The advent of the juridical category of the international legal
                     ersonality of individuals came to fulfill one of the necessities of the inter-
                    p
                    national community — precisely one which appeared with prominence
                    — namely, that of providing protection to the human beings who com-
                    pose it, in particular those who find themselves in a situation of special
                    vulnerability. Nowadays, if one has, on the one hand, a domestic court
                    decision such as that of the Greek Special Supreme Court in the Margel‑
                    los and Others case (2002), one also has, on the other hand, domestic
                    court decisions such as those of the Greek Court of Cassation (Areios
                    Pagos) in the Distomo Massacre case (2000), and of the Italian Court of
                    Cassation in the Ferrini v. Federal Republic of Germany case (2004) 62.
                       49. It has lately become clear that State immunity is not a static
                    concept, tied up immutably to its historical origins, but that it also read-
                    justs itself within the evolving conceptual universe of contemporary jus
                    gentium. Furthermore, to the international legal doctrine of the second
                    half of the twentieth century, it did not pass unnoticed that individuals,
                    besides being titulaires of rights at international level, also have duties
                    which are attributed to them by international law itself. The consolida-
                    tion of the international legal personality of individuals, as active as well
                    as passive subjects of international law, enhances accountability in inter-
                    national law for abuses perpetrated against human beings. Thus, indi-
                    viduals are also bearers of duties under international law, and this reflects
                    the consolidation of their international legal personality 63.

                                         7. Individuals as Titulaires of Rights :
                                              The Historical Significance
                                   of the International Subjectivity of the Individual
                      50. Ultimately, all law exists for the human being, and the law of
                    nations is no exception to that, guaranteeing to the individual his rights

                       62 Decision of 11 March 2004, which held that an Italian national, deported to Germany

                    for forced labour in 1944, was entitled to compensation for such war crime, as Germany
                    could not claim State immunity in such a case of violation of a peremptory norm of inter-
                    national law (jus cogens).
                       63 Developments in international legal personality and international accountability go

                    hand in hand, and this whole evolution bears witness of the formation of the opinio juris
                    communis to the effect that the gravity of certain violations of fundamental rights of the
                    human person affects directly basic values of the international community as a whole.

                    36

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                    527 jurisdictional immunities of the state (sep. op. cançado trindade)

                    and the respect for his personality 64. The respect for the individual’s per-
                    sonality at international level is instrumentalized by the international
                    right of individual petition. Human rights do assert themselves against all
                    forms of domination or arbitrary power. The human being emerges, at
                    last, even in the most adverse conditions, as the ultimate subject of law,
                    domestically as well as internationally.
                        51. The international juridical subjectivity of the human being, as
                    foreseen by the so‑called founders of international law (the droit des
                    gens), is nowadays a reality. At this beginning of the twenty-first century,
                    this highly significant conquest can be appreciated within the framework
                    of the historical process of humanization of international law, attentive
                    to fundamental values and the realization of superior common goals. On
                    the basis of the right of individual petition is erected the juridical
                    mechanism of emancipation of the human being vis‑à‑vis his own State
                     for the protection of his rights in the ambit of the international law of
                     human rights — an emancipation which comes at last to give an ethical
                     content to the norms of both domestic public law and international
                     law 65.
                        52. No one with sane conscience would deny that individuals effectively
                     possess rights and have duties which derive directly from international
                     law, with which they are thus in direct contact. This evolution — contrib-
                     uting ultimately to the rule of law at national and international levels —
                     is to be appreciated in a wider dimension 66. The expansion of international
                     legal personality, nowadays encompassing that of individuals as active
                     and passive subjects of international law, goes pari passu with the
                     acknowledgement of accountability in international law. The universal
                     juridical conscience — as the ultimate material source of all law — seems
                     to have awakened to the realization of justice at national and interna-
                     tional levels. International law has gradually liberated itself from the
                     chains of statism, and has again met with the conception of a true, and
                     new, jus gentium.

                       64 F. A. von der Heydte, “L’individu et les tribunaux internationaux”, 107 RCADI

                    (1962), p. 301 ; cf. also, in this respect, e.g., E. M. Borchard, “The Access of Individuals to
                    International Courts”, 24 American Journal of International Law (1930), pp. 359-365.
                       65 This is, furthermore, a logical development, as it does not seem reasonable to con-

                    ceive rights at international level without the corresponding procedural capacity to vindi
                    cate them. The recognition of the direct access of the individuals to the international
                    justice reveals the new primacy, in our days, of the raison de l’humanité over the raison
                    d’Etat, inspiring the current historical process of humanization of international law
                    (A. A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brazil,
                    Ed. Del Rey, 2006, pp. 3-409).
                       66 The subjects of international law have, already for a long time, ceased to be reduced

                    to territorial entities. More than six decades ago, as acknowledged in the celebrated Advi-
                    sory Opinion of the International Court of Justice on Reparations for Damages Injuries
                    Suffered in the Service of the United Nations (1949), the advent of international organiza-
                    tions had put an end to the States’ monopoly of the international legal personality and
                    capacity, with all the juridical consequences which ensued therefrom.

                    37

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                    528 jurisdictional immunities of the state (sep. op. cançado trindade)

                                               8. General Assessment
                       53. From all the aforementioned it can be seen, in the factual context
                    of the present case concerning the Jurisdictional Immunities of the State,
                    that the individuals concerned (private claimants) have had formal access
                    to domestic courts (in Greece and Italy) as well as to an international
                    tribunal (the European Court of Human Rights) ; yet, they do not seem
                    to feel that they have found justice to date (material access to justice),
                    and they keep on seeking compensation for the wrongs suffered in the
                    past. As for the States concerned, they have had access to this Court —
                    the contending Parties in the main case (Germany and Italy), as well as
                    the intervening State (Greece).

                      54. The Court has now before a case concerning the jurisdictional
                    immunities of the State, with repercussions to all titulaires of rights, States
                    and individuals alike. This is a case which has a direct bearing on the
                    evolution of international law in our times. There is no reason for keep-
                    ing on overworking the rights of States while at the same time overlook-
                    ing the rights of individuals. One and the other are meant to develop pari
                    passu in our days, attentive to superior common values. State immunity
                    and the fundamental rights of the human person are not to exclude
                    each other, as that would make immunity unacceptably tantamount to
                    impunity.

                     V. Concluding Observations : The Resurrectio of Intervention
                              in Contemporary International Litigation

                      55. Germany, a Party to the main case, has asked the Court to pro-
                    nounce on Italy’s conduct also in respect of judgments delivered by Greek
                    Courts (seeking the upholding of jurisdictional immunities). Whichever
                    Judgment the Court comes to deliver in the present case, it is bound to
                    have a direct effect on Greece. It is bound to affect third States. It is hard
                    to see how Greece could not claim to have an interest of a legal nature in
                    such circumstances. An interest in the enforceability in a foreign State of
                    judgments of a State’s own judiciary appears to fall squarely within the
                    concept of an interest of a legal nature of the would‑be intervening State.
                    In sum, in my perception, Greece has demonstrated that it has an interest
                    of a legal nature that may indeed be affected by the Court’s Judgment in
                    the present case concerning the Jurisdictional Immunities of the State,
                    opposing Germany to Italy.

                       56. In the ambit of the circumstances of the present case, intervention
                    has at last seen the light of the day. In a very recent case wherein it was
                    likewise requested, but not granted, concern was expressed, within the
                    Court, as to the need of a more proactive attitude of the ICJ as to the
                    institution of intervention (under Article 62 of the ICJ Statute) in inter

                    38

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                    529 jurisdictional immunities of the state (sep. op. cançado trindade)

                    national litigation 67. The same hope has been expressed in expert writing
                    in recent years as to the need for a more liberal attitude of the ICJ in rela-
                    tion to aspects of intervention 68. In the history of the ICJ, intervention
                    has never died, though it lay dormant in the Peace Palace for most of the
                    time of the Court’s history.
                       57. Twice before, permission to intervene was granted by the ICJ : by
                    its Chamber, in the case concerning the Land, Island and Maritime Fron‑
                    tier Dispute between El Salvador and Honduras (Application by Nicara-
                    gua for permission to intervene, Judgment of 13 September 1990) (I.C.J.
                    Reports 1990, p. 92), and by the full Court itself, in the case concerning
                    the Land and Maritime Boundary between Cameroon and Nigeria,
                    wherein, by its Order of 21 October 1999 (I.C.J. Reports 1999 (II),
                    p. 1029), it authorized Equatorial Guinea to intervene. Both cases con-
                    cerned land and maritime boundaries. This time, with the Order it adopts
                    today, 4 July 2011, the ICJ grants to Greece permission to intervene in
                    the case concerning the Jurisdictional Immunities of the State, a domain
                    of great importance in and for the development of contemporary inter

                        67 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica

                    for Permission to Intervene, Judgment, I.C.J. Reports 2011 (II); joint dissenting opinion of
                    Judges Cançado Trindade and Yusuf, pp. 401-413, paras. 1-29.
                        68 Cf., e.g., S. Rosenne, Intervention in the International Court of Justice, Dordrecht,

                    Nijhoff, 1993, pp. 79 and 104 (as to consent and to jurisdictional link) ; J. M. Ruda, “Inter-
                    vention before the International Court of Justice”, Fifty Years of the International Court of
                    Justice — Essays in Honour of R. Jennings (eds. V. Lowe and M. Fitzmaurice),
                    Cambridge University Press, 1996, p. 495 (no need of additional consent) ; K. Mbaye,
                     “L’intérêt pour agir devant la Cour internationale de Justice”, 209 RCADI (1988),
                     pp. 340-341 (beyond consent) ; S. Torres Bernárdez, “L’intervention dans la procédure de
                     la Cour internationale de Justice”, 256 RCADI (1995), pp. 213-214, 223, 230-233, 252, 259
                     and 437 ; S. Rosenne, “Some Reflections on Intervention in the International Court of
                     Justice”, 34 Netherlands International Law Review (1987), p. 89 ; E. Decaux, “La juridiction
                     internationale permanente — L’intervention”, La juridiction internationale permanente
                     (SFDI — Colloque de Lyon), Paris, Pedone, 1987, pp. 219, 223, 229 and 255 ; A. J. J. de
                     Hoogh, “Intervention under Article 62 of the Statute and the Quest for Incidental Jurisdic-
                     tion without the Consent of the Principal Parties”, 6 Leiden Journal of International Law
                     (1993), pp. 17-46 ; R. St. J. Macdonald and V. Hughes, “Intervention before the Interna-
                     tional Court of Justice”, 5 African Journal of International and Comparative Law (1993),
                     p. 33 ; D. W. Greig, “Third Party Rights and Intervention before the International Court”,
                     32 Virginia Journal of International Law (1992), pp. 289, 334, 352 and 367 ; J. G. Starke,
                    “Locus Standi of a Third State to Intervene in Contentious Proceedings before the Inter
                    national Court of Justice”, 58 Australian Law Journal (1984), p. 358 (as to “jurisdictional
                    links”) ; P. Palchetti, “Opening the International Court of Justice to Third States : Inter
                    vention and Beyond”, 6 Max Planck Yearbook of United Nations Law (2002), pp. 158, 160
                    and 180-181 ; C. Chinkin, “Third-Party Intervention before the International Court of
                    Justice”, 80 American Journal of International Law (1986), pp. 500-502, 515, 519 and 525 ;
                    G. Sperduti, “L’intervention de l’Etat tiers dans le procès international : une nouvelle
                    orientation”, 31 Annuaire français de droit international (1985), pp. 288-290 and 293 ;
                    T. Licari, “Intervention under Article 62 of the Statute of the ICJ”, 8 Brooklyn Journal of
                    International Law (1982), pp. 286-287 ; G. Morelli, “Note sull’Intervento nel Processo
                    Internazionale”, 65 Rivista di Diritto Internazionale (1982), pp. 805-806, 808, 811 and 814
                    (widening dispute‑settlement).

                    39

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                    530 jurisdictional immunities of the state (sep. op. cançado trindade)

                    national law. The Court has so decided at the height of its responsibilities
                    as the principal judicial organ of the United Nations (Article 92 of the
                    UN Charter).
                       58. Unlike land and maritime delimitation cases, or other cases con-
                    cerning predominantly bilateralized issues, the present case is of interest
                    to third States — such as Greece — other than the two contending Par
                    ties before the Court. The subject‑matter is closely related to the evolu-
                    tion of international law itself in our times, being of relevance, ultimately,
                    to all States, to the international community as a whole, and, in my per-
                    ception, pointing towards an evolution into a true universal international
                    law.
                       59. The Court has found, in resolutory point (1) of the dispositif, and
                    the corresponding reasoning of the present Order, that this is a clear case
                    for intervention as a non‑party under Article 62 of the ICJ Statute. In
                    sum, Greece’s Application for permission to intervene fits squarely within
                    the requisites for intervention set forth under Article 62 of the Court’s
                    Statute. By granting to Greece permission to intervene, the present Order
                    of the Court gives a proper expression to the principle of la bonne admi
                    nistration de la justice in the context of the cas d’espèce.
                       60. The present case also leaves as a lesson that we cannot approach a
                    matter like that of the jurisdictional immunities of the State, in circum-
                    stances such as the present ones (having as factual origin grave breaches
                    of human rights and international humanitarian law), from a strictly
                    inter‑State dimension. In the present proceedings before the Court, con-
                    sideration has been given to States as titulaires of rights, as well as to
                    individuals as titulaires of rights. Even in a recent, individualized case,
                    such as that of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
                    Republic of the Congo) (Judgment of 30 November 2010), the facts under-
                    lying that dispute before the ICJ concerned ultimately the treatment dis-
                    pensed to an individual, the rights of an individual, as I pointed out in my
                    lengthy separate opinion (I.C.J. Reports 2010 (II), p. 729-811, paras. 1‑245)
                    in that case.

                       61. States, as well as individuals, are subjects of international law. The
                    outcome of the Court’s decision in the present Order in the case concern-
                    ing the Jurisdictional Immunities of the State, of historical importance,
                    shows that intervention in contemporary international litigation is alive
                    and well : it has at last seen the light of the day. What we behold today,
                    here at the Peace Palace, is a true resurrectio of intervention in present‑day
                    international litigation ; its resurgere from its long sleep may come to
                    satisfy the needs not only of the States concerned, but of the individuals
                     concerned as well, and ultimately of the international community as a
                     whole, in the conceptual universe of the new jus gentium of our times.

                                           (Signed) Antônio Augusto Cançado Trindade.

                    40

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