329

                        DISSENTING OPINION
                   OF JUDGE CANÇADO TRINDADE

                              TABLE OF CONTENTS
                                                                    Paragraphs

     I. PROLEGOMENA                                                        1-3
     II. THE EMERGENCE OF COUNTER-CLAIMS IN INTERNATIONAL LEGAL
         PROCEDURE                                                         4-9
 III. THE RATIONALE OF COUNTER-CLAIMS IN INTERNATIONAL LEGAL
      PROCEDURE                                                          10-19
        1. Prerequisites                                                 12-14
        2. Other characteristics and effects                             15-19
 IV. THE QUESTION OF THE ADMISSIBILITY OF COUNTER-CLAIMS IN THE
     CASE LAW OF THE ICJ                                                 20-27
     V. THE QUESTION OF THE ADMISSIBILITY OF THE COUNTER-CLAIM IN
        THE PRESENT CASE                                                 28-30
 VI. THE FACTUAL COMPLEX OF THE PRESENT CASE AND THE ARGU-
     MENTS OF THE CONTENDING PARTIES                                     31-59
        1. The 2008 Joint Declaration of Italy and Germany               32-35

        2. The Parties’ arguments on the counter-claim                   36-59

           (a) The scope of the dispute                                  36-42
           (b) The substance of the dispute                              43-54
           (c) The debate on the notion of “continuing situation”        55-59
VII. THE ORIGINS OF A “CONTINUING SITUATION” IN INTERNATIONAL
     LEGAL DOCTRINE                                                      60-64
VIII. THE CONFIGURATION OF A “CONTINUING SITUATION” IN INTERNA-
      TIONAL LITIGATION AND CASE LAW                                     65-83

        1. In public international law                                   66-72
        2. In the international law of human rights                      73-83
 IX. THE CONFIGURATION OF A “CONTINUING SITUATION” IN INTERNA-
     TIONAL LEGAL CONCEPTUALIZATION AT NORMATIVE LEVEL                   84-91

     X. THE “CONTINUING SITUATION” IN THE PRESENT CASE                   92-94
 XI. THE SCOPE OF THE PRESENT DISPUTE BEFORE THE COURT                  95-100

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330   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

XII. THE TRUE BEARERS (TITULAIRES) OF THE ORIGINALLY VIOLATED
     RIGHTS AND THE PITFALLS OF STATE VOLUNTARISM             101-123
      1. The “real cause” of the present dispute                     102-105
      2. Inconsistencies of State practice                           106-111
      3. No lip service to State voluntarism                         112-123
XIII. THE INCIDENCE OF JUS COGENS : PURPORTED WAIVER OF VINDICA-
      TION OF RIGHTS INHERENT TO THE HUMAN PERSON BEING DEVOID
      OF JURIDICAL EFFECTS                                       124-153
      1. Conventional international law                              126-135
         (a) International humanitarian law                          126-129
         (b) International labour Conventions                        130-133
         (c) International law of human rights                       134-135
      2. General international law                                    136-139
      3. The incidence of jus cogens, in the light of the submissions
         of the contending Parties                                    140-153
XIV. CONCLUSIONS                                                     154-179

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331   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

                              I. PROLEGOMENA

   1. I regret not to be able to follow the Court’s majority in the decision
which the Court has just adopted in the present Order, in the case con-
cerning Jurisdictional Immunities of the State (Germany v. Italy) (origi-
nal claim and counter-claim). I care to leave on the records the founda-
tions of my dissenting position, in view of the considerable importance
that I attach to the issues raised by both Italy and Germany in the cas
d’espèce, bearing in mind not only the settlement of the dispute at issue
(in respect of the counter-claim), but also the need to clarify a matter (in
order to say what the law is — juris dictio) which I regard as of the
utmost importance for the present state as well as the progressive develop-
ment of the law of nations (the jus gentium). I thus present with care the
foundations of my dissenting position on the matter dealt with by the
Court in the Order which it has just adopted, out of respect for, and zeal
in, the exercise of the international judicial function, guided above all by
the ultimate goal of the realization of justice.

   2. To that effect, I shall dwell on all the aspects concerning the issue
brought before the Court which form the object of the present Order of
the Court. My first line of consideration concerns the emergence and
rationale of counter-claims in international legal procedure, including
their prerequisites, other characteristics and effects. I shall next turn to
the question of the admissibility of counter-claims in the case law of the
International Court of Justice (ICJ), and the question of the admissibility
of the Italian counter-claim in the present case. After examining, in
sequence, the factual complex of the present case and the arguments sub-
mitted by Germany and Italy, I shall turn to my following line of con-
sideration concerning the notion of a “continuing situation” : its origins
in international legal doctrine, its configuration in international litigation
and case law (in public international law and in international law of
human rights), as well as in international legal conceptualization at nor-
mative level.

  3. The way will thus be paved for a consideration of that notion in the
present case, as well as of the scope of the present dispute lodged with
the Court. Next, I shall turn to my remaining line of considerations, on
the following points : (a) the true bearers (titulaires) of the originally
violated rights and the pitfalls of State voluntarism (the identification of
the “real cause” of the present dispute, the inconsistencies of State practice,
and the need to avoid paying lip service to State voluntarism) ; (b) the
incidence of jus cogens : waiver of vindication of rights inherent to the
human person being devoid of juridical effects. I shall consider this last
point in the light of both conventional international law (international

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332    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

humanitarian law, international labour Conventions, and the interna-
tional law of human rights) and general international law, and assess the
incidence of jus cogens in the light of the submissions of the contending
Parties. The way will then be paved, last but not least, for the presenta-
tion of my conclusions.

     II. THE EMERGENCE OF COUNTER-CLAIMS IN INTERNATIONAL LEGAL
                             PROCEDURE
   4. Counter-claims are a juridical institute historically transposed from
domestic procedural law into international procedural law. Another
example of a transposition of the kind is afforded by provisional meas-
ures of protection 1. But unlike these latter, counter-claims have not
received sufficient attention from expert writing to date. Although counter-
claims were never set forth in the Statute of The Hague Court (PCIJ and
ICJ), they were promptly provided for in the first Rules of Court (of 1922,
of the old Permanent Court of International Justice [PCIJ], Article 40),
and remained unchanged in the revised Rules of 1926 and 1931.

  5. In the early days of the PCIJ, the institute of counter-claims
appeared to be surrounded by hesitations and uncertainties 2, which
began to dissipate gradually with the Court’s practice on the matter. In
the Factory at Chorzów (Germany v. Poland) case (1928), for example,
the PCIJ had the occasion to pronounce such counter-claims, stressing
their need to be “juridically connected” (P.C.I.J., Series A, No. 17, p. 38)
to the original claim. In the years that followed, the Hague Court showed
increasing preparedness to dwell further on the matter.

   6. The next revised Rules of Court, of 1936, looked in fact more
closely at counter-claims, which became regulated by the new Article 63.
Emphasis was put on the requisites that a counter-claim was to fall
under the jurisdiction of the PCIJ, and was to be presented in the
Counter-Memorial, guarding a “direct connection” with the subject
of the original claim. Such early developments were regarded as
having been influenced, e.g., by an article by Judge Dionisio Anzilotti,
of the PCIJ, on “La riconvenzione nella procedura internazionale”,

  1 As I pointed out in my dissenting opinion in the case concerning Questions relating to

the Obligation to Prosecute or to Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, I.C.J. Reports 2009, pp. 165-200.
  2 Cf., e.g., the account by G. Guyomar, Commentaire du Règlement de la Cour Inter-

nationale de Justice — Interprétation et pratique, Paris, Pedone, 1973, pp. 372-377.

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333   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

published in the late 1920s 3. In 1930 he republished it in French (one of
the two official languages of the Court), shedding some light into the
rationale of counter-claims (cf. infra).

   7. The next steps were taken by the International Court of Justice
(ICJ), which slightly amended the phrasing of Article 63 of the Rules of
Court in 1946, and, four years later, pronounced on the matter in the
(right of) Asylum case (Colombia/Peru), drawing attention to the require-
ment of “connexité directe” (Judgment, I.C.J. Reports 1950, pp. 279-280)
between the counter-claim and the original claim (cf. infra). In the 1978
revised Rules of Court, the provision on counter-claims was renumbered
as Article 80, under “Proceedings in Contentious Cases — Incidental
Proceedings” 4.

   8. That provision, as amended on 5 December 2000, and in force as
from 1 February 2001, reads today as follows:
         “1. The Court may entertain a counter-claim only if it comes
      within the jurisdiction of the Court and is directly connected with
      the subject-matter of the claim of the other party.
         2. A counter-claim shall be made in the Counter-Memorial and
      shall appear as part of the submissions contained therein. The right
      of the other party to present its views in writing on the counter-
      claim, in an additional pleading, shall be preserved, irrespective of
      any decision of the Court, in accordance with Article 45 (2) of these
      Rules, concerning the filing of further written pleadings.

        3. Where an objection is raised concerning the application of
      paragraph 1 or whenever the Court deems necessary, the Court shall
      take its decision thereon after hearing the parties.”
  9. Both in its present (2000) version and in its prior (1978) drafting,
the ICJ had the occasion to apply Article 80 in a few cases (cf. infra),
notably in the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Order of 17 December 1997, in the case of the Oil
Platforms (Islamic Republic of Iran v. United States of America), Order
of 10 March 1998, in the case of the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Order of 30 June

  3 Originally in Scritti della Facoltà Giuridica di Roma in Onore di A. Salandra (1928),

pp. 341 et seq., and in Rivista di Diritto Internazionale, 1929, Vol. 21, pp. 309 et seq.
  4 Part III, section D ; and no longer presented solely in “Incidental Proceedings” insti-

tuted only by unilateral applications.

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334   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

1999, and in the case of Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), Order of 29 November
2001. And the ICJ has now, one decade later, another occasion to apply
Article 80 (on counter-claims) of its Rules, in the current and pending
case concerning Jurisdictional Immunities of the State (Germany v.
Italy).

       III. THE RATIONALE OF COUNTER-CLAIMS IN INTERNATIONAL
                          LEGAL PROCEDURE

   10. Yet, well before this jurisprudential construction or development,
the rationale of counter-claims was gradually identified and clarified by
international legal doctrine. Thus, in his aforementioned article, D. Anzi-
lotti pondered that
      “(. . .) once the system of unilateral application had been accepted,
      which allows the Applicant to establish the limits of the dispute as it
      sees fit, it was only natural that the Respondent be given the means
      to claim, in the same proceedings, that which is owed to it by the
      Applicant for a reason related to the dispute already pending” 5.
      [Translation by the Registry.]
  11. Underlying this outlook was the concern to ensure that the con-
tending parties shared identity in the process. As pointed out by Raoul
Genet still in the 1930s, “the Respondent in the initiated proceedings
becomes the Applicant” : reus in excipiendo fit actor, “the original Appli-
cant falls back into the role of counter-claim Respondent”. A new front
of litigation is opened before the same jurisdiction, “but the parties
remain precisely the same”. These latter conduct an enlarged debate
before the same tribunal, which is to settle the dispute opposing the same
adversaries “on what is virtually one and the same issue” 6. And R. Genet
considered that it was particularly necessary
      “that the counter-claim should be in the nature of an act having seri-
      ous intent, that is to say, (1) that it serve as a defence against the
      principal action ; (2) that its purpose is to neutralize either the claim
      itself or the legal grounds on which the claim is based. These two
      features are also reflected in the concerns of the Court.” 7 [Transla-
      tions by the Registry.]

  5 D. Anzilotti, “La demande reconventionnelle en procédure internationale”, 57 Jour-

nal du droit international — Clunet (1930), p. 870.
  6 R. Genet, “Les demandes reconventionnelles et la procédure de la Cour Permanente

de Justice Internationale”, 19 Revue de droit international et de législation comparée
(1938), p. 148.
  7 Ibid., p. 175.

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335   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

                                    1. Prerequisites
   12. Once the raison d’être of the counter-claim was identified, atten-
tion was turned to its prerequisites and other characteristics. As to the
former, it was beyond doubt that the first requirement had to do with
jurisdiction itself : the counter-claim had to come within the jurisdiction
of the Court concerned. And, secondly, there was the requirement of
direct connection, both in fact and in law : the counter-claim had to be
directly connected with the original claim of the contending party.

   13. In an article published in 1975, Adolfo Miaja de la Muela observed
that the counter-claim was based upon “constitutive facts” somewhat dis-
tinct from those alleged by the complainant, almost always not raised by
this latter ; yet, there was “the degree of connection” between them
required by the procedural system at issue. The counter-claim was
endowed with autonomy, though related to the original claim. Although
the qualification of the “connection” should be direct, it could not be
undertaken, he warned, on the basis of “aprioristic criteria” 8.

   14. The Court should thus examine the circumstances of the cas
d’espèce, and the final qualification was at the discretion of the Court.
The “direct connection” between the original claim and the counter-claim
was thus to be assessed, both in fact and in law, with the needed flexibil-
ity, in the light of the circumstances of each case. This requisite did not
appear as one of mechanical application 9. Counter-claims, going much
further than defences, aimed at establishing — just like the original
claims and in the same process — State responsibility.

                       2. Other Characteristics and Effects
  15. In addition to the aforementioned prerequisites, international legal
doctrine was soon to identify also certain characteristics and effects of
counter-claims. The counter-claim in a way enlarged the object of the
contentious case at issue, lodged with the Court by the original claim. It
thus widened the overview of the Court, as to both claims (the original
and the counter-claim), enabling it to decide them more consistently. The
counter-claim came thus to be regarded as a means of achieving more
consistency in the Court’s decision.

   8 A. Miaja de la Muela, “La Reconvención ante el Tribunal Internacional de Justicia”,

8 Boletín Mexicano de Derecho Comparado (1975), No. 24, p. 757, and cf., pp. 751-753
and 760.
   9 As early as in 1930, for his part, D. Anzilotti pointed out, in relation to the admissi-

bility of counter-claims, that “the jurisdiction of the Court is one condition for admissibil-
ity, but other conditions are undoubtedly necessary and . . . must be established through
interpretation” [translation by the Registry], D. Anzilotti, op. cit. supra note 5, p. 868.

29

336   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   16. The counter-claim — in the observation of Charles de Visscher in
the mid-1960s — enabled the Court to “rule on the reciprocal claims in
the course of the same proceedings, affording the Court an overview of
the parties’ respective legal positions” 10 [translation by the Registry].
This is what happened, inter alia, as early as in the case of Diversion of
Water from the Meuse (the Netherlands v. Belgium, 1937), wherein the
PCIJ applied the requisite of the “direct connection” (cf. supra) between
the original claim and the counter-claim. In the perception of Raoul
Genet in the mid-1930s, “counter-claims (. . .) are by their very nature
aimed at neutralizing the principal action and (. . .) imply that the
Respondent has an equivalent and counter entitlement to that which the
Applicant may invoke” 11 [translation by the Registry].
   17. Directly connected as they are, each of them maintains its identity.
The counter-claim has an autonomous nature, as opposed to defences.
The ICJ itself differentiated a counter-claim from a defence, in the United
States Diplomatic and Consular Staff in Tehran (Hostages) case (United
States of America v. Iran), Order of 15 December 1979, I.C.J. Reports
1979, p. 15, para. 24). Rather than a defence, a counter-claim appears as
a counter-attack. The counter-claim is independent from the original
claim (though directly connected with it), it has an autonomous charac-
ter. In S. Rosenne’s view, while it is true that the counter-claim, by means
of the “direct connection” with the original claim, has to rely on argu-
ments related to the factual complex, it is also certain that “the counter-
claim is a purely self-standing institution following its own logic, its own
procedure, and its own rules” 12.

  18. This led to yet another characteristic of counter-claims, namely,
they constitute a means of achieving essentially procedural economy, in
enabling the Court to have “an overview of the respective claims” of the
contending parties, and thereby to decide them “more consistently” 13. In
this respect, once again D. Anzilotti anticipated, with foresight, in the
early stage of operation of the PCIJ, that : “The principle of the autonamy

   10 Ch. de Visscher, Aspects récents du droit procédural de la Cour Internationale de Jus-

tice, Paris, Pedone, 1966, p. 114. In the same line of thinking, the Report of Georges Scelle
for the [ILC’s] Model Rules on Arbitral Procedure (adopted in 1958) stated that the counter-
claim “emanates from the party against which the principal claim is directed and seeks
to obtain more than the straightforward rejection of the Applicant’s submissions” [trans-
lation by the Registry] (UN doc. A/CN.4/18, note 78), in : Union Académique Interna-
tionale, Dictionnaire de la terminologie du droit international, Paris, Sirey, 1960, p. 199.
The ILC’s Model Rules on Arbitral Procedure are also mentioned, in connection specifi-
cally with counter-claims, in : J. Salmon (dir.), Dictionnaire de droit international public,
Brussels, Bruylant, 2001, p. 316.
   11 R. Genet, op. cit. supra note 6, p. 155, and cf. p. 165.
   12 S. Rosenne, “Counter-Claims in the International Court of Justice Revisited”, in

Liber Amicorum ‘In Memoriam’ of Judge J. M. Ruda (C. A. Armas Barea, J. A. Barberis
et al. (eds.)), The Hague, Kluwer, 2000, p. 476.
   13 Cf. ibid., p. 470.

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337     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

of the counter-claim also entails a requirement that the principal Appli-
cant have the same advantages in respect of the counter-claim as enjoyed
by the Respondent in respect of the principal claim.” 14 [Translation by
the Registry.]
   19. Having considered the rationale of counter-claims in international
legal procedure, and having identified its characteristics and effects, the
way is now paved for me to move on the consideration of their admissi-
bility in the case law of the ICJ. Before doing so, I allow myself to sum
up what I have examined so far. If I were to single out the major concern
of jurists of the past with the juridical institute of counter-claims in inter-
national legal procedure, I would surely elect the underlying and most
commendable preoccupation to secure the realization of justice at inter-
national level.

        IV. THE QUESTION OF THE ADMISSIBILITY OF COUNTER-CLAIMS
                      IN THE CASE LAW OF THE ICJ

   20. Turning now to the issue of the admissibility of counter-claims in
the case law of the ICJ, I shall concentrate on the Court’s decisions under
Article 80 of its Rules, both under its 1978 version and under its revised
2000 version (in force as from 2001). Four Orders of the Court had been
issued thereunder, before the Court’s present Order in the pending case
concerning Jurisdictional Immunities of the State (Germany v. Italy).

   In the first of those four Orders (and probably the most elaborate one),
in the case concerning the Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Order of 17 December 1997, the ICJ began by conceptu-
alizing the counter-claim.
   21. In the Court’s view, a counter-claim has a “dual character” in rela-
tion to the original claim ; it is both “independent of the principal claim”,
it is “an autonomous legal act”, while, at the same time, it is “linked” to
the original claim. The “thrust” of a counter-claim is thus “to widen the
original subject-matter of the dispute by pursuing objectives other than
the mere dismissal of the claim of the Applicant in the main proceed-
ings”. Filed against the Applicant, the counter-claim is thus “distinguish-
able from a defence on the merits” (I.C.J. Reports 1997, p. 256, para. 27).
Moving on to the criteria of admissibility, the Court added :
          “Whereas, (. . .) a claim should normally be made before the
       Court by means of an application instituting proceedings ; whereas,
       although it is permitted for certain types of claim to be set out as
       incidental proceedings, that is to say, within the context of a case

  14   D. Anzilotti, op. cit. supra note 5, p. 876.

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338   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

      which is already in progress, this is merely in order to ensure better
      administration of justice, given the specific nature of the claims in
      question ; whereas, as far as counter-claims are concerned, the idea is
      essentially to achieve a procedural economy whilst enabling the
      Court to have an overview of the respective claims of the parties and
      to decide them more consistently ; and whereas the admissibility of
      the counter-claims must necessarily relate to the aims thus pursued
      and be subject to conditions designed to prevent abuse ;
         Whereas the Respondent cannot use a counter-claim as a means
      of referring to an international court claims which exceed the limits
      of its jurisdiction as recognized by the parties ; and whereas the
      Respondent cannot use that means either to impose on the Appli-
      cant any claim it chooses, at the risk of infringing the Applicant’s
      rights and of compromising the proper administration of justice ;
      and whereas it is for that reason that paragraph 1 of Article 80 of the
      Rules of Court requires that the counter-claim ‘comes within the
      jurisdiction of the Court’ and ‘that it is directly connected with the
      subject-matter of the claim of the other party’ ; (. . .)

         Whereas the Rules of Court do not define what is meant by
      ‘directly connected’ ; whereas it is for the Court, in its sole discretion,
      to assess whether the counter-claim is sufficiently connected to the
      principal claim, taking account of the particular aspects of each
      case ; and whereas, as a general rule, the degree of connection
      between the claims must be assessed both in fact and in law” (I.C.J.
      Reports 1997, pp. 257-258, paras. 30-31 and 33).

   22. Thus, it was clarified by the Court, in its aforementioned Order in
the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (1997), that, pursuant to its own
analytical framework, in order to rule on the admissibility of a counter-
claim, it was incumbent upon it, first of all, to determine whether the
submissions presented by the Respondent State constituted a true
counter-claim ; in the affirmative, the Court was to ascertain whether the
counter-claim fell under its own jurisdiction, already established for the
adjudication of the contentious case at issue. And, in the affirmative,
the Court was further to ascertain whether the counter-claim was “directly
connected” with the subject-matter of the original claim, submitted
by the Applicant State. The Court was to proceed to this assessment in
the exercise of its own discretion, as a general rule on the basis of “fact
and law” ; in order to determine whether the claims are directly connected
in fact and law.
   23. In its following Order concerning counter-claims (of 10 March
1998), in the case concerning Oil Platforms (Iran v. United States of
America), the Court saw it fit to dwell upon the exercise of determining
whether the counter-claim was “directly connected” with the original
claim, since the Rules of Court did not define what was meant by that

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339    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

requirement (I.C.J. Reports 1998, pp. 196-197, para. 13). In order to
determine whether the counter-claim was “directly connected”, on the
basis of fact and law, with the subject-matter of the original claim, the
Court was to ascertain, first, whether the claim and the counter-claim
rested on “facts of the same nature”, i.e., whether they formed part of
“the same factual complex” (ibid., pp. 204-205, para. 37) ; and, secondly,
whether the claim and counter-claim pursued “the same legal aim”,
namely, the establishment of legal responsibility (ibid., p. 205, para. 38).

   24. The ICJ added that a decision on the admissibility of a counter-
claim, under Article 80 of the Rules of Court, “in no way prejudges any
question which the Court will be called upon to hear during the remain-
der of the proceedings” (ibid., p. 205, para. 41), a point which, by the
way, also applies to provisional measures of protection. In that case, the
ICJ concluded, as to the admissibility of the counter-claim, that the con-
tending parties’ submissions rested on “facts of the same nature”, and
formed “part of the same factual complex” (ibid., p. 205, para. 38).

   25. Over a year later, in the case of the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Order of 30 June
1999, the ICJ again found that the counter-claims of Nigeria met the
requirement of jurisdiction set out in Article 80 of the Rules of Court, as
they rested on “facts of the same nature” as those in the corresponding
claims of Cameroon, and both parties pursued “the same legal aim,
namely the establishment of legal responsibility and the determination of
the reparation due on this account”. The counter-claims were thus
“directly connected” with the subject-matter of the claims of the other
party, and were therefore found admissible (I.C.J. Reports 1999 (II),
pp. 985-986) by the Court.

   26. Subsequently, in its Order (of 29 November 2001) in the case of
the Armed Activities on the Territory of the Congo (Democratic Repub-
lic of the Congo v. Uganda), the ICJ, stressing the requirement of “direct
connection” (cf. supra) as a condition of admissibility of a counter-
claim (I.C.J. Reports 2001, p. 678, paras. 35-36), decided that the
first two of Uganda’s counter-claims (but not the third one) and the
respective original claims of Congo related to “facts of the same nature”
and concerned “a conflict in existence between the two neighbouring
States” since 1994, and were thus “directly connected”, pursuing “the
same legal aims”, being thus admissible (ibid., pp. 678-681, paras. 38-
45) 15. The Court pondered, in support of its decision of admissibility,
that, in view of the circumstances of the case, “the sound administration
of justice and the interests of procedural economy call for the simultane-

 15   Which was not the case with Uganda’s third counter-claim.

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340   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

ous consideration of those counter-claims and the principal claims”
(I.C.J. Reports 2001, p. 680, para. 44).

   27. Thus, in those four precedents of the Court’s present Order in the
pending case concerning Jurisdictional Immunities of the State (Germany
v. Italy), the Court found in favour of the admissibility of the counter-
claims, as above reported, and without prejudice to the subsequent deci-
sions on the merits of the respective cases. While in the present case,
Germany has challenged the jurisdiction of the ICJ over Italy’s counter-
claim, in the four preceding cases concerning counter-claims, the Court’s
jurisdiction had either not been contested by the Applicant States, or else
the Court had had the opportunity to establish its own jurisdiction in an
incidental phase, previous to the filing of the counter-claims 16. In any
case, their significance as precedents cannot be separated from their pro-
cedural history.

      V. THE QUESTION OF THE ADMISSIBILITY OF THE COUNTER-CLAIM
                         IN THE PRESENT CASE

   28. Such history shows that the Court’s practice in relation to counter-
claims is still in the making. The decision that the Court has just taken in
the present case in no way contributes to the evolution of its own case
law on the subject. It is, quite on the contrary, an involution, a step back-

   16 May it be recalled, first, that the case of the Application of the Convention on the

Prevention and Punishment of the Crime of Genocide was lodged with the ICJ in 1993,
jurisdiction having been based on a compromissory clause (Article IX of the Convention
against Genocide). There were two requests for provisional measures. The first set of pro-
visional measures proceedings which took place in 1993 culminated in an Order (of
8 April 1993) whereby the Court indicated three sets of measures, later confirmed by
another Order (of 13 September 1993). In its Judgment of 1996 in the preliminary objec-
tions phase, the ICJ confirmed its previous finding on jurisdiction and rejected Yugosla-
via’s objections (the Court decided that it had jurisdiction to adjudicate upon the dispute
on the basis of Article IX of the Genocide Convention).

   Yugoslavia included counter-claims in its Counter-Memorial, and Bosnia and Herze-
govina did not challenge the Court’s jurisdiction over the counter-claims ; it only chal-
lenged the connection with the subject-matter of the initial proceedings. Bosnia and
Herzegovina argued that the counter-claim at issue should not be joined to the principal
claim ; it suggested that Yugoslavia could always submit to the ICJ an Application insti-
tuting proceedings through the normal channels. By an Order of 17 December 1997, the
ICJ found that Yugoslavia’s counter-claims were “directly connected” with the subject-
matter of the Applicant’s claims and were thus admissible (para. 37). But later on Yugo-
slavia, in 2001, withdrew the counter-claims submitted in its Counter-Memorial, and
informed the Court that it intended to submit an Application for revision of the Judgment
of 11 July 1996. It did so later on, on 24 April 2001, when it requested the Court to revise
the Judgment on Preliminary Objections delivered on 11 July 1996. By an Order of

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341   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

wards, as it surrounds the handling of counter-claims with greater uncer-
tainties. In my understanding, the Court should have decided for the
admissibility of Italy’s counter-claim in the present Order, and should
have left for its subsequent decision on merits the determination as to
whether the counter-claim was well-founded or not, as it did in a couple
of precedents 17 of the present Order.

   29. This feature of the previous practice of the Court in the handling
of counter-claims had been favourably acknowledged in expert-writing,
for having thereby treated the counter-claims together with the main
claims, duly enlarging the object of the dispute and enabling the ICJ to
have a better knowledge of the dispute it had been called upon to adju-
dicate 18. Without Italy’s counter-claim of reparations for damages aris-
ing from war crimes, the Court will now have a much narrower horizon

10 September 2001, the Court’s President placed on record the withdrawal by Yugoslavia
of the counter-claims submitted in its Counter-Memorial.

   Secondly, in the Oil Platforms case (Iran v. United States of America), the United
States raised a preliminary objection to the jurisdiction of the Court pursuant to Arti-
cle 79 (1) of the Rules of Court. In a Judgment of 12 December 1996, the ICJ dismissed
the preliminary objection and found that it had jurisdiction to entertain the main claim
interposed by Iran. The United States filed its Counter-Memorial, which included a counter-
claim, challenged by Iran for allegedly failing to meet the requirements (of jurisdiction
and of direct connection) set out by Article 80 of the Rules of Court. By an Order of
10 March 1998, the ICJ found that it had jurisdiction to entertain the counter-claim ; the
procedural difference with the present case was that, in the Oil Platforms case, the ICJ
had already stated its jurisdiction with regard to the subject which became later an issue
of a counter-claim. Yet, in the present and pending case of Jurisdictional Immunities of
the State (Germany v. Italy), the Court’s jurisdiction had not been formally established.

   The Court had established its jurisdiction in a Judgment rendered on 12 December 1996
(para. 55 (2)), and the parties raised certain questions as to the precise significance or
scope of that Judgment. In its Judgment on the merits of 6 November 2003, the ICJ was
faced with new objections by Iran to its jurisdiction to entertain the counter-claim (or to
its admissibility) at the merits phase of the case ; such objections were different from those
addressed by the Court’s Order of 10 March 1998. The Court pointed out that, in its pre-
vious Order of 10 March 1998, it did “not address any other question relating to jurisdic-
tion and admissibility, not directly linked to Article 80 of the Rules” (para. 105 of the
Judgment). At last, the Court found, at that stage, that the counter-claims of the United
States could not be upheld.

   And thirdly, in the case of the Armed Activities on the Territory of the Congo (Demo-
cratic Republic of the Congo v. Uganda) (2001), Congo did not deny that Uganda’s
claims fulfilled the “jurisdictional” requirement of Article 80 (1) of the Rules of Court,
and the ICJ referred mainly to the “direct connection” between the original claims and the
counter-claims (cf. supra).
   17 E.g., those concerning the case of the Oil Platforms (1998) and the case of the Land

and Maritime Boundary between Cameroon and Nigeria (1999), supra.
   18 S. Torres Bernárdez, “La modification des articles du Règlement de la Cour Inter-

nationale de Justice relatifs aux exceptions préliminaires et aux demandes reconvention-
nelles”, 49 Annuaire français de droit international (2003), pp. 229, 233-234, 241 and 247.

35

342   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

to pronounce on Germany’s (original) claim of State immunity. The
present decision of the Court made tabula rasa of its own previous rea-
sonings, and of 70 years of the more enlightened legal doctrine on the
matter, to the effect that counter-claims do assist in achieving the sound
administration of justice (la bonne administration de la justice) and in
securing the needed equilibrium between the procedural rights of the con-
tending parties.

   30. In any case, as the Court’s majority decided summarily to discard
the counter-claim as “inadmissible as such” — with my firm dissent — it
should at least have instructed itself properly by holding, first, public
hearings to obtain further clarifications from the contending Parties. It
should not have taken the present decision without first having heard the
contending Parties in a public sitting, for five reasons, namely : (a) first,
as a basic requirement ensuing from the principle of international proce-
dural law, of the sound administration of justice (la bonne administration
de la justice) ; (b) secondly, because counter-claims are ontologically
endowed with autonomy, and ought to be treated on the same footing as
the original claims, that they intend to neutralize (supra) ; (c) thirdly,
claims and counter-claims, “directly connected” as they ought to be,
require a strict observance of the principe du contradictoire in their han-
dling altogether 19 ; (d) fourthly, only with the faithful observance of the
principe du contradictoire can the procedural equality of the parties
(Applicant and Respondent, rendered Respondent and Applicant by the
counter-claim) be secured ; and fifthly, and (e) last but not least, the
issues raised by the original claim and the counter-claim before the Court
are far too important — for the settlement of the case as well as for the
present and the future of international law — to have been dealt with by
the Court in the way it did, summarily rejecting the counter-claim.

              VI. THE FACTUAL COMPLEX OF THE PRESENT CASE
              AND THE ARGUMENTS OF THE CONTENDING PARTIES

   31. Turning now to the consideration of the factual complex of the
present case concerning Jurisdictional Immunities of the State, opposing
Italy to Germany in so far as the counter-claim submitted to the Court is
concerned, I shall at first consider and assess the 2008 Joint Declaration
of Italy and Germany. Secondly, I shall review the arguments of the con-
tending Parties on the counter-claim, focusing on : (a) the scope of the

  19 Cf. F. Salerno, “La demande reconventionnelle dans la procédure de la Cour Inter-

nationale de Justice”, 103 Revue générale de droit international public (1999), pp. 371-374.

36

343   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

dispute ; (b) the substance of the dispute ; and (c) the debate of the con-
tending Parties on the notion of “continuing situation”.

                       1. The 2008 Joint Declaration
                           of Italy and Germany
   32. On 18 November 2008, Italy and Germany adopted a significant
Joint Declaration at the memorial site “La Risiera di San Sabba” close to
Trieste, included in the documentary Annexes of both contending Parties
filed with this Court 20. In that
         “Italy and Germany share the ideals of reconciliation, solidarity
      and integration, which form the basis of the European construction
      that both countries have contributed to with conviction, will con-
      tinue to contribute to and drive forward.

         In this spirit of co-operation they also jointly address the painful
      experiences of the Second World War ; together with Italy, Germany
      fully acknowledges the untold suffering inflicted on Italian men and
      women in particular during massacres and on former Italian military
      internees, and keeps alive the memory of these terrible events.

         With this in mind, Deputy Chancellor and Federal Minister for
      Foreign Affairs Frank-Walter Steinmeier, accompanied by Foreign
      Minister Franco Frattini, visited the Risiera di San Sabba in what
      can be considered a gesture of great moral and humanitarian value
      to pay tribute to the Italian military internees who were kept in this
      transit camp before being deported to Germany, as well as to all the
      victims for whom this place stands.
         Italy respects Germany’s decision to apply to the International
      Court of Justice for a ruling on the principle of State immunity.
      Italy, like Germany, is a State Party to the European Convention of
      1957 for the Peaceful Settlement of Disputes and considers interna-
      tional law to be a guiding principle for its actions. Italy is thus of the
      view that the ICJ’s ruling on State immunity will help to clarify this
      complex issue”.
   33. Italy and Germany have seen it fit, very significantly, to issue this
Joint Declaration of 18 November 2008, near Trieste, to which I attach
much importance. It is highly commendable of Germany and Italy to
have honoured the memory of some of the victims, subjected to deporta-
tion and forced labour, in the Second World War. The past lies within us
in the present, and we can hardly face the future if we overlook it. It is

  20 Annexes to the Memorial of the Federal Republic of Germany, Vol. I, of 12 June

2009, Annex 2 ; and Annexes to the Counter-Memorial of Italy, of 22 December 2009,
Annex I.

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344   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

hardly surprising that, in the history of human thinking, to live within the
passing of time has, for centuries, proven to be one of the greatest enig-
mas of human existence (as acknowledged in the writings, e.g., of Plato,
Aristotle, Augustine, Seneca, B. Pascal, I. Kant, H. Bergson, P. Ricoeur,
among others).

   34. The triggering point of the present case opposing the two contend-
ing Parties lies in the two 1961 Agreements between Germany and Italy
(respectively, the Agreement on the Settlement of Certain Property-
Related, Economic and Financial Questions, and the Agreement on
Indemnity in Favour of Italian Nationals Affected by National-Socialist
Measures of Persecution). This point should not be taken as a blindfold,
so as to prevent or avoid the Court looking into the past, into one of the
darkest periods in contemporary history. Not at all. The past is ineluctably
within each one of us. By their Joint Declaration of 18 November 2008,
Italy and Germany have clearly demonstrated that they both remain pre-
pared to look into the past, and to honour the memory of those victim-
ized by human cruelty, by the horrors of the Third Reich. From much
less than a Joint Declaration of the kind, legal consequences have been
extracted, that States have felt themselves bound to bear 21. Facing the
past renders the present understandable and bearable, and the future
viable, if not promising.

   35. The weight of grave injustice does not dissipate nor lighten with
the passing of time ; instead, it becomes heavier and more unbearable. To
live well within time, one has to reckon, and abide by, the imperatives of
justice. Great injustices, atrocities, grave violations of human rights and
international humanitarian law, do not fade away. They can hardly be
forgotten. Even if one meets with forgiveness, this latter is not a synonym
of forgetfulness 22. However overlooked it has been by historians to date,
forced labour in the Second World War 23 is alive not only in the memory
of the surviving victims in our days, but also in collective or inter-

   21 Such is the case of certain unilateral acts of States in international law ; cf., e.g., Erik

Suy, Les actes juridiques unilatéraux en droit international public, Paris, LGDJ, 1962,
p. 44, and cf. pp. 1-290 ; G. Venturini, “La portée et les effets juridiques des attitudes et des
actes unilatéraux des Etats”, 112 Recueil des cours de l’Académie de droit international de
La Haye (1964), pp. 387-388, 391 and 400-401 ; A. Miaja de la Muela, “Los Actos Uni-
laterales en las Relaciones Internationales”, 20 Revista Española de Derecho Internacional
(1967), pp. 456-459.
   22 On this specific point, cf. A. A. Cançado Trindade, “Responsabilidad, Perdón y Jus-

ticia como Manifestaciones de la Conciencia Jurídica Universal”, 8 Revista de Estudios
Socio-Jurídicos, Universidad del Rosario de Bogotá (2006), pp. 15-36.
   23 Cf., generally, as to the Second World War, e.g., W. Gruner, Jewish Forced Labour

under the Nazis, Cambridge University Press, 2008, pp. 3-295 ; C. R. Browning, Politique
nazie, travailleurs juifs, bourreaux allemands, Paris, Ed. Tallandier, 2009, pp. 11-267. And
cf. generally, as to the First World War, e.g., F. Passelecq, Déportation et travail forcé des
ouvriers et de la population civile de la Belgique occupée (1916-1918), Paris/New Haven,
P.U.F./Yale University Press, 1928, pp. 1-404 ; [Various Authors], Captivity, Forced

38

345   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

generational human memory, in human conscience, and the present case
before this World Court bears witness of that.

              2. The Parties’ Arguments on the Counter-Claim

(a) The scope of the dispute
   36. It is beyond the purposes of the present dissenting opinion to
examine all the arguments of the contending Parties on the cas d’espèce,
as developed by them in the Memorial and Counter-Memorial. Instead,
at the present stage of consideration of the present case, I shall concen-
trate the examination that follows on the Parties’ arguments specifically
devoted to the counter-claim, which forms the object of the present Order
of the Court. Yet, a brief preliminary remark is called for, concerning the
distinct understanding of the contending Parties as to the “real scope” of
their dispute.
   37. In fact, Germany attributes to it a narrower, and Italy a broader,
scope. Germany describes the dispute, in its Memorial, as one relating to
a judgment rendered (on 11 March 2004) by Italy’s Corte di Cassazione
in the case Ferrini v. Federal Republic of Germany, whereby that Italian
Court allegedly breached violating its rights by denying it immunity in
proceedings instituted by Italian citizens who had been subjected to
forced labour in the armaments industries on German territory from
1943 to 1945. While Germany recognizes that the Third Reich’s action
towards the so-called “military internees” 24 was unlawful and criminal, it
is of the opinion that such past atrocities do not justify the breach of the
immunity that States enjoy under general international law.

   38. To that, Germany adds that war reparations are to be agreed upon
on the international level, and, more precisely, on an “inter-State level” 25,
as they have in fact been, through three international agreements, namely :
(a) the Peace Agreement that Italy celebrated with the Allied Powers in
1947 ; (b) the 1961 Treaty on the Settlement of Certain Property-Related,
Economic and Financial Questions between Germany and Italy ; and (c)
the 1961 Treaty on Indemnity in Favour of Italian Nationals Subjected

Labour and Forced Migration in Europe during the First World War (M. Stibbe, ed.),
London/N.Y., Routledge, 2009, pp. 1-81.
  24 As Germany points out, there are actually three categories of claimants, namely :

(a) civilians abducted in Italy and taken to Germany to perform forced labour ; (b)
prisoners of war of Italian nationality who were factually deprived of their status under
the Hague Conventions and then subjected to forced labour (the “military internees”,
whom the Parties frequently refer to) ; and (c) victims of massacres perpetrated by Ger-
man officials. Cf. Memorial of the Federal Republic of Germany, of 12 June 2009,
pp. 12-13, para. 13.
  25 Cf. ibid., pp. 9-12, paras. 10-12.

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346    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

to National-Socialist Measures of Prosecution, also between Germany
and Italy. Accordingly, in Germany’s view, the scope of the present dis-
pute is limited to the aforementioned denial of its immunity.

   39. On its part, Italy invites the ICJ to identify the “real cause of the
dispute” not in the judgment of its Corte di Cassazione in the Ferrini case
(2004), but rather in “the issue of reparation owed by Germany to the
Italian victims of the crimes committed by Nazi authorities” 26. Italy con-
tends that Germany has failed to provide Italian “military internees”
with the appropriate compensation, by inter alia excluding them from
reparation schemes established under German law 27 (cf. infra). Accord-
ingly, Italy submits that for the purposes of determining the “real cause
of the dispute”, its courts’ decisions with regard to the issue of the immu-
nity of the German State “have to be regarded as being a consequence of
the legal and factual situation created by Germany’s refusal to compen-
sate Italian victims” 28. It is on the basis of this broader view of the scope
of the present dispute that Italy introduced a counter-claim.

   40. As to the “direct connection” requirement for the interposition of
counter-claims (cf. supra), Italy advances the view that there is a manifest
connection between the facts and the law that it referred to, to the effect
of responding to Germany’s claim, and the facts and the law that sub-
stantiate the present counter-claim. Italy argues that “a State responsible
for violations of fundamental rules is not entitled to immunity” if this
would exonerate it from “bearing the consequences of its unlawful con-
duct”; in order to analyse this defence to Germany’s original claim, it
submits that the Court will have to deal with “many of the same factual
and legal issues” that serve as a basis for the counter-claim 29.

   41. On this point, Italy concludes with two remarks. First, it points
out that the fact that the counter-claim widens the object of the dispute in
no way affects its admissibility, as confirmed by the Court in its Order in
the case of the Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide case (1997, supra) 30. And secondly,
Italy asserts that, Germany having been “well aware of the strict link
existing in the present case between immunity and reparation”, it is
undeniable that the reparation issue is part of the “complex issue” to
which the Joint Declaration adopted by the Parties in 2008 alludes 31.

  26Counter-Memorial of Italy (22 December 2009), p. 35, para. 3.11.
  27Cf. ibid., pp. 16-18, paras. 2.9-2.19.
  28 Ibid., p. 36, para. 3.11.
  29 Ibid., p. 130, para. 7.6.
  30 Ibid., p. 130, para. 7.7.
  31 Ibid., pp. 130-131, para. 7.8.

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347   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   42. On its turn, Germany “deliberately refrains” from taking a stance
on “the inter-relatedness of the claim brought by it against the Respon-
dent and the counter-claim”, although it does indicate that there is, in its
view, “a significant disparity” between both claims 32. First, as to the lack
it sustains of direct connection in law, whereas its own claim refers to the
judicial practice of Italian courts in denying immunity of jurisdiction,
Italy’s counter-claim relates to violations of international law committed
by German troops during the Second World War. And second, in so far
as the alleged lack of direct connection in facts is concerned, the events
Germany wishes the Court to rule upon have taken place from 2004 onwards,
while those Italy wants the Court to examine took place in 1943-1945.
Germany takes the position, however, that the direct connection issue is
not relevant for the Court’s decision on admissibility of the counter-
claim, since “the lack of jurisdiction ratione temporis as well as ratione
materiae is evident” 33.

(b) The substance of the dispute
  43. In the last chapter of its Counter-Memorial 34, Italy introduces a
counter-claim whereby it asks the ICJ to adjudge and declare that

      “Germany has violated its obligation of reparation owed to Italian
      victims of the crimes committed by Nazi Germany during the Sec-
      ond World War and that, accordingly, Germany must cease its
      wrongful conduct and offer effective and appropriate reparation to
      these victims” 35.
Italy then concentrates on the prerequisites of admissibility of counter-
claims, under Article 80 of the Rules of Court (cf. supra). It begins by
arguing that “the dispute on immunity brought by Germany and the dis-
pute on reparation brought by Italy originate out of the same facts” 36.

   44. Its counter-claim, in its view, thus shares with the original claim
the same jurisdictional ground. In particular, Italy sustains that the
Court has jurisdiction ratione temporis in the present case, because the
events that constitute the “real cause of the dispute” — i.e., “the repara-
tion regime established by the two 1961 Agreements between Germany
and Italy” and the exclusion of Italian victims from the reparation

  32 Preliminary Objections of Germany regarding Italy’s Counter-Claim (10 March

2010), p. 4, para. 3.
  33 Ibid., p. 4, para. 3.
  34 Counter-Memorial of Italy (22 December 2009), pp. 128-133, paras. 7.1-7.14.
  35 Ibid., p. 128, para. 7.2.
  36 Ibid., p. 129, para. 7.4.

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348   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

scheme instituted by the Foundation “Remembrance, Responsibility and
Future” set up in 2000 — took place after the entry into force of the 1957
European Convention for the Peaceful Settlement of Disputes 37 (which
provides the jurisdictional basis for the adjudication of the present case).

   45. Italy considers the “more recent decisions of German authorities
regarding the claims of reparation put forward” by Italian victims (espe-
cially under the auspices of the “Remembrance, Responsibility and
Future” Foundation in 2000 38) to be additional “new situations” to the
end of establishing jurisdiction ratione temporis over the present counter-
claim. Since such decisions were taken upon the view that “individuals
who are victims of grave violations of international humanitarian law
would not be entitled to an individual right of reparation because the
issue of reparation in such cases has to be dealt with exclusively at the inter-
State level”, they would constitute an autonomous source of the Parties’
dispute in relation to the issue of reparations 39.

   46. Furthermore, Italy states that it “disagrees with Germany about
the scope of the waiver clauses” contained in the two Agreements of
1961 40. Accordingly, Italy denies that the “real cause of the dispute”
would lie in the atrocities committed by Nazi Germany during the Sec-
ond World War (between 1943 and 1945), as the contending Parties are
already “in clear agreement concerning the occurrence and the legal
qualification of facts which gave rise to the claims of reparation”, namely,
the “grave violations of international humanitarian law committed by
Nazi Germany” 41.
   47. The reason why the dispute does not originate in the 1947 Peace
Treaty either (although Article 77, paragraph 4, of which, containing the
waiver clause, calls for interpretation), is that, by celebrating the two
1961 Treaties (cit. supra), Germany allegedly renounced to invoke the
waiver clause of Article 77, paragraph 4, of the former Peace Treaty, thus
giving rise to a “new situation” between the Parties with regard to “the
issue of reparation” 42. For these reasons, Italy concludes that the dispute
can only arise from the interpretation of the two 1961 Treaties. In its own
words,
      “(. . .) [T]he Court has jurisdiction to deal with the dispute on immu-
      nity brought by Germany as well as with the dispute on reparation
      brought by Italy. There is no relevant temporal limitation on the
      Court’s jurisdiction since both disputes relate to facts and situa-

  37 Cf. Counter-Memorial of Italy (22 December 2009), p. 129, para. 7.4, and cf. also

pp. 33-37, paras. 3.6-3.13.
  38 Ibid., pp. 38 and 40, paras. 3.16 and 3.19.
  39 Ibid., p. 40, para. 3.19.
  40 Ibid., p. 39, para. 3.17.
  41 Ibid., pp. 37-38, para. 3.15.
  42 Ibid., p. 39, para. 3.18.

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349    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

     tions — the conclusion of the 1961 Compensation Agreements
     between Italy and Germany and Germany’s refusal to address the
     claims for reparation by IMIs — which took place after the entry
     into force of the European Convention as between the parties to the
     disputes.” 43
   48. On its part, in its “preliminary objections” to Italy’s counter-claim,
Germany argues that the Court has neither jurisdiction ratione materiae,
nor jurisdiction ratione temporis, to entertain it. In its view, neither its
declaration of 30 April 2008 (accepting the compulsory jurisdiction of the
ICJ) 44, nor the German-Italian Joint Declaration of 18 November 2008
(reproduced supra) could have had the effect of expressing its consent on
the exercise of jurisdiction by the Court over the Italian counter-claim 45.
Germany expresses the view that the temporal criterion established by
Article 27 of the European Convention for the Peaceful Settlement of
Disputes 46 pertains not to the date the dispute arises, but instead to the
date of “the facts or situations that entailed the dispute” 47. These facts
and situations — Germany adds — are “the unlawful acts and activities
committed by Germany by the German forces and other authorities dur-
ing the 20 months when Italy was placed under occupation and Italian
armed forces were treated as enemy forces” 48.

   49. As to Italy’s contention that the dispute arises from the interpreta-
tion of the waiver clauses of the two 1961 Agreements, Germany sees the
two 1961 Agreements as a “gesture of good will”, as “steps in a process
of inner-European normalization, intended to consolidate even further
the good partnership between Germany and Italy” 49 ; Germany denies to
have been required by international law to celebrate the 1961 Agree-
ments, which, it adjoins, “were validly concluded” and “do not negatively

  43 Counter-Memorial of Italy (22 December 2009), pp. 40-41, para. 3.20.
  44 Preliminary Objections of Germany . . ., op. cit. supra note 32, pp. 4-5, paras. 5-6.
Germany points out that the declaration accepting the compulsory jurisdiction of the ICJ
applies only to disputes arising after the date of its issuing, and, in any case, excludes
disputes relating to the activity of armed forces abroad.
  45 As to the 2008 Joint Declaration, Germany points out that it consists of a “political

document” issued for the purpose of reassuring the international community that the
institution of proceedings against Italy did not adversely affect the good relations between
the Parties. Moreover, the declaration mentions the European Convention of 1957 is seen
by Germany as proof that the Parties agreed that the Convention “was the only legal
foundation of the forthcoming proceedings before the Court” ; cf. ibid., p. 9, para. 12.
   46 Article 27 : “The provisions of this Convention shall not apply to : (. . .) 1. disputes

relating to facts or situations prior to the entry into force of this Convention as between
the parties to the dispute. (. . .)”.
   47 Preliminary Objections of Germany (. . .), op. cit. supra note 32, pp. 9-10, para. 14.

  48   Ibid., p. 10, para. 15.
  49   Ibid., pp. 20-21, paras. 32-33.

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350     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

affect Italian rights” 50. Moreover — Germany adds — Italy has never
mentioned “alleged defect, inconsistency or other failure of the two 1961
Agreements”, so that there is “simply no dispute about the relevance of
the Treaties with regard to the counter-claim” 51.

   50. Lastly, Germany briefly dismisses Italy’s argument that the exclu-
sion of Italian victims from the reparation scheme of the Foundation
“Remembrance, Responsibility and Future” (2000) constitutes a new
source of dispute. It points out that Italy admitted, in its Counter-
Memorial, that “the enactment of the law was not dictated by an existing
obligation under international law between two countries” 52 ; accord-
ingly, it submits that the events related to the enactment and execution of
the statute are not relevant to the present case.

   51. In turn, in its “Observations on the Preliminary Objections” of
Germany, Italy reiterates that Germany has failed to distinguish between
the “source of the rights alleged to have been breached” and the “[real]
source of the dispute” that the Court is being called to adjudicate upon.
Although the source of the rights to receive reparation lies on grave vio-
lations of international humanitarian law committed during the Second
World War, it submits that the dispute in reality concerns the interpreta-
tion of the two 1961 Agreements, thus falling within the jurisdiction
ratione temporis of the Court. According to Italy, what the Court is
asked to decide is : (a) “whether or not Italy, by concluding the two 1961
Settlement Agreements, waived all its claims for reparation, including the
claims relating to the grave violations of international humanitarian law
committed by the German Reich during the Second World War” ; and
(b) “whether Germany, by refusing to address the claims for reparation
submitted to it after the establishment in 2000 of the ‘Remembrance,
Responsibility and Future’ Foundation, failed to comply with its obliga-
tions concerning reparation for the Italian victims of the crimes commit-
ted by the German Reich, and if so, what the legal consequences arising
from such wrongful conduct are” 53.

  50   Preliminary Objections of Germany . . ., op. cit. supra note 32, p. 21, para. 33.
  51  Ibid., pp. 21-22, paras. 34-35.
  52  Ibid., p. 23, para. 37.
  53 Observations of Italy on the Preliminary Objections of the Federal Republic of Ger-
many regarding Italy’s Counter-Claim, 18 May 2010, pp. 7 and 9-10, paras. 14 and 21. In
its own words :
          “The dispute submitted by Italy has substantially a twofold object. First, there is
       the disputed question of the existence, at the time when, in the 2000s, the present
       dispute was triggered, of a right of reparation in favour of Italy. In this respect, what
       the Court has to decide is essentially whether or not Italy, by concluding the two
       1961 Settlement Agreements, waived all its claims for reparation, including the claims
       relating to the grave violations of international humanitarian law committed by the

44

351     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   52. Seeking to demonstrate that there is indeed a dispute between the
Parties as to how the two 1961 Agreements are to be interpreted, Italy
refers to some of the questions the Court will have to address if it decides
to entertain the counter-claim. It notes that the two 1961 Agreements
have threefold implications, in the sense that Germany is said to have :
(a) “waived what it considered to be its right to avail itself of the Italian
waiver of all claims” under the 1947 Peace Treaty ; (b) recognized that
“an obligation of reparation towards Italy existed (. . .) opening the way
for a process of reparations” ; and (c) “made it clear that [the two 1961
Agreements] did not exhaust the range of reparations which could be
provided to Italian victims, by explicitly recognizing that other avenues
remained available (or would become available) under German legis-
lation” 54.

   53. In order to substantiate the argument that the two 1961 Agree-
ments created a “radically new situation” so that Germany became pre-
cluded from resorting to the waiver clause of the 1947 Peace Treaty,
Italy refers to the text of Article 3 of the Indemnity Treaty [the second
1961 Agreement] (which suggests that the agreements are without preju-
dice to claims not falling within their specific subject-matter) and to an
“exchange of letters” that took place at the time of the Agreements’ celeb-
ration 55. Italy maintains that the 1961 Agreements could not have
solved the reparations issue as suggested by Germany, pointing to the
practice of several States that denied that, waiver clauses similar to
those of the two 1961 Agreements, could have the effect of closing the
debate on reparations 56.

     54. Italy further objects to Germany’s position that the two 1961

       German Reich during World War II. Secondly, and strictly linked to the first issue,
       there is the question of whether Germany, by refusing to address the claims for repa-
       ration submitted to it after the establishment in 2000 of the ‘Remembrance, Respon-
       sibility and Future’ Foundation, failed to comply with its obligations concerning
       reparation for the Italian victims of the crimes committed by the German Reich, and
       if so, what the legal consequences arising from such wrongful conduct are. Taking
       into account the subject-matter of the present dispute as here defined, it is clear that
       the facts or situations to which regard must be had for the purposes of applying the
       temporal limitation clause set forth in Article 27 (a) [of the 1957 European Conven-
       tion] are not the occurrences of World War II. The dispute submitted by Italy is one
       with regard to a certain situation — the reparation regime established by the two
       1961 Settlement Agreements — and with regard to certain facts, the events following
       the establishment of the ‘Remembrance, Responsibility and Future’ Foundation.
       These facts and situation, and not the occurrences during World War II, constitute
       the source or real cause of the dispute on reparation.” (Para. 21.)

  54Observations of Italy . . ., op. cit. supra note 53, p. 17, para. 43.
  55 Ibid., pp. 18-19, paras. 45-47.
  56 Ibid., pp. 20-21, para. 53.

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352    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

Agreements, as well as the German legislation on reparations, consisted
of ex gratia measures ; in Italy’s view, “no treaty can be really seen simply
as a gesture of good will and cannot be considered a unilateral act”, and
both the treaties and the relevant German legislation “were the result of
international pressure and intergovernmental negotiations” 57. Italy sums
up that

       “the mere fact that Italy and Germany have opposing views on these
       and other issues directly linked to the meaning and scope, as well as
       the effects, of the 1961 Agreements (and subsequent German prac-
       tice) proves that there is ‘. . . a disagreement on a point of law or
       fact, a conflict of views. . .’ between the Parties, and places the 1961
       Agreements and their consequence at the heart of the dispute” 58.

(c) The debate on the notion of “continuing situation”

  55. Another bone of contention between Germany and Italy concerns
the incidence in the cas d’espèce of the notion of “continuing situation”.
Germany stresses that “the core of the counter-claim [of Italy] is epito-
mized by the contention that Germany has a continuing obligation to
provide reparation for the violations of international humanitarian law
committed by the authorities of the Nazi regime during the time of the
military occupation of Italy” 59. In Germany’s view, since “[n]o tort claim
or other claims against Germany flows from the 1961 Agreements” 60, the
Court should abstain from entertaining the counter-claim for lack of
jurisdiction ratione temporis.

   56. Italy, on its part, affirms in its Counter-Memorial that the “obliga-
tion of reparation” on which its counter-claim is based, “has been and
continues today to be breached by the German side in relation to a great
number of victims” 61. That being so, it argues that, while “the crimes
from which the obligation of reparation takes its origins have to
be assessed as ‘faits instantanés’”, “the internationally wrongful act con-
sisting in breach of the obligation of reparation is by no means instant-
aneous”, falling within the definition of breaches having a continuing
character envisaged by Article 14, paragraph 2, of the ILC Articles on State
Responsibility 62.

  57 Observations of Italy . . ., op cit. supra note 53, pp. 21-22, para. 55.
  58  Ibid., pp. 22-23, para. 57.
  59 Preliminary Objections of Germany . . ., op. cit. supra note 32, pp. 22-23, para. 35.

  60 Ibid., pp. 22-23, para. 35.
  61Counter-Memorial of Italy (22 December 2009), p. 11, para. 1.17.
  62 Ibid., p. 12, para. 1.17.

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353     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   57. Although Italy makes this point when it discusses the applicability
of contemporary rules on State immunity and international humanitarian
law to the Applicant’s alleged obligation to provide reparation (cf. supra),
Germany argues that this line of reasoning consists in an attempt to
“overcome the temporal hurdles standing in the way of [Italy’s] counter-
claim” 63. Germany then invites the Court to make a distinction between
“the interference with the rights of the other party”, which, in the present
case, took place in 1943-1945 — i.e., in a period falling outside the juris-
diction ratione temporis of the Court — and “the consequences entailed
thereby” — i.e., the alleged obligation to provide reparation 64.

   58. Germany recalls, in this context, the decision of the PCIJ in the
Phosphates in Morocco case (Italy v. France, 1938) 65, and further con-
tends that, in the line of what has been decided by the PCIJ, “the com-
plaints raised against the way and method of settlement do not count
with regard to determining the applicability of the relevant time clause”
in the present case 66. In this connection, Germany refers to examples
taken from the case law of the European Court of Human Rights
(ECHR) 67, singling out cases such as those of Malhous v. Czech Repub-
lic case (2000, concerning deprivation of ownership or any other right in
rem), and the Kholodov and Kholodova v. Russia case (2006, concerning
Mr. D. Kholodov’s death) 68 ; yet, as these cases pertained admittedly to
“instantaneous acts” rather than continuing situations, they do not bear
relevance to the present case before the ICJ, which is of a distinct
nature.

  59. Italy, in turn, points out that it has “no difficulty in admitting that
the notion of a continuing wrongful act has no relevance for the purposes
of determining the jurisdiction ratione temporis of the Court”, and affirms

  63   Preliminary Objections of Germany . . ., op. cit. supra note 32, pp. 12-13, para. 20.
  64   Ibid., p. 13, para. 21.
  65  In that case, Italy submitted that the Court had jurisdiction ratione temporis to enter-
tain claims related to an executive decision taken by the Moroccan administration six
years before France accepted the compulsory jurisdiction of the Court because : (a) the
denial of justice on the part of France constituted in itself an internationally wrongful act ;
and (b) the executive decision and the denial of justice constituted “a single, progressive
illegal act which [had not been] fully accomplished until after the crucial date” (p. 23). The
PCIJ rejected these arguments, pondering that : (a) a complaint of a denial of justice
[could not] be separated from the criticism which the Italian Government [directed]
against the decision of the Department of Mines of 8 January 1925” ; (b) the alleged
denial of justice merely allowed “the unlawful to subsist”, exercising “no influence either
on the accomplishment of the act or on the responsibility ensuing from it” (p. 28).
   66 Preliminary Objections of Germany . . ., op. cit. supra note 32, pp. 13-15, para. 22.

  67 Cf. ibid., pp. 15-18, paras. 23-28 (references to the cases Malhous v. Czech Republic

[2000], Blečić v. Croatia [2006], Preussische Treuhand v. Poland [2008], Kholodov and
Kholodova v. Russia [2006], and Varnava and Others v. Turkey [2009]).
  68 Cf. ibid., pp. 15-17, paras. 24 and 26.

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354    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

that it “has never intended to rely on this argument” 69. Yet, Italy criti-
cizes Germany’s invocation, to its purpose, of the Phosphates in Morocco
case and of the examples taken from the case law of the European Court
of Human Rights 70. In Italy’s view,
       “Unlike the situation in the Phosphates in Morocco case, the subject-
       matter of the present dispute is not whether during the Second
       World War German authorities committed grave violations of inter-
       national humanitarian law giving rise to Germany’s international
       responsibility vis-à-vis Italy. These facts do not constitute the subject-
       matter of the present dispute simply because they are not in dispute
       between the Parties. Although the present dispute concerns the issue
       of the reparation owed by Germany as a consequence of the
       crimes committed by German authorities in the period between 1943
       and 1945, the focal point of the dispute — le fait générateur — is to
       be found in facts and situations subsequent to the critical date. Thus,
       Germany’s attempt to suggest that the present dispute presents the
       same situation as in the Phosphates in Morocco case is simply
       unconvincing”. 71

  VII. THE ORIGINS OF A “CONTINUING SITUATION” IN INTERNATIONAL
                         LEGAL DOCTRINE

   60. The origins of the notion of a “continuing situation” have passed
virtually unnoticed in expert writing of our times. It was necessary to
wait for its configuration, first, in international litigation, and then, in
international legal conceptualization (cf. infra), for the notion to begin to
attract some, but not much, attention on the part of expert writing. Coin-
cidentally, it was precisely in the rich tradition of German as well as Ital-
ian international legal thinking that the origin and early development of
that notion lie. It is not my intention, within the confines of the present
dissenting opinion, to proceed to an in-depth study of this specific point ;
I shall only refer to the earliest elaboration of this notion in international
legal doctrine.
   61. Already in the year of the First Hague Peace Conference, in his
book Völkerrecht und Landesrecht (1899), Heinrich Triepel identified the
point at issue :
         “Völkerrechtlich geboten nennen wir einmal alles Landesrecht,
       dessen Schöpfung sich als Erfüllung völkerrechtlicher Pflicht
       darstellt, ferner aber das, das der Staat zwar ohne solche Verpflich-

  69Observations of Italy . . ., op. cit. supra note 53, p. 11, para. 25.
  70 Ibid., pp. 11-13, paras. 26-29.
  71 Ibid., p. 12, para. 27.

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355    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

       tung geschaffen hat, aber nachmals aufrechtzuerhalten verpflichtet
       wird. Dort besteht die Staatspflicht in Erlass und Aufrechterhaltung
       des Rechts, hier allein in dieser. Umgekehrt — wenn die Staaten zu
       bestimmtem Zeitpunkte völkerrechtlich verpflichtet werden, ein
       Recht bestimmten Inhalts zu haben, so verletzt der Staat, der das
       entsprechende Recht besitzt, seine Pflicht durch dessen Abschaffung
       und die fortgesetzte Unterlassung der Wiedereinführung, der von
       vornherein des gebotenen Rechts ermangelnde nur durch die Nich-
       teinführung ; beide aber begehen ein, wenn ich so sagen darf, völk-
       errechtliches ‘Dauerdelikt’.” 72
   62. Although H. Triepel did not go deeper into the argument, he dis-
played his intuition as to situate it not only in the relationship between
international law and domestic law, but also in its temporal dimension.
Fourteen years later, shortly before the outbreak of the First World War,
his book came out in an Italian edition, where the same paragraph
appeared :
          “Imposto dal diritto internazionale è per noi anzitutto il diritto
       interno la cui creazione rappresenta l’adempimento di un obbligo
       internazionale, ed in secondo luogo il diritto interno che fu creato
       dallo Stato senza esservi internazionalmente obbligato, ma che pos-
       teriormente lo Stato si è obbligato a conservare in vigore. Nel primo
       caso il dovere dello Stato consiste nell’emanazione e nel manten-
       imiento in vigore di determinate norme di diritto, nel secondo caso
       soltanto nell’ultimo obbligo. Reciprocamente, si a un determinato
       momento gli Stati sono internazionalmente obbligatti ad avere norme
       di diritto di un dato contenuto, lo Stato ce già le possiede viola il suo
       dovere se le abolisce e trascura di introdurle nuovamente, mentre lo
       Stato che non le possiede ancora lo viola soltanto col non intro-
       durle ; ambedue peraltro commettono, se mi è lecito usare questa
       espressione, un ‘reato continuato’ internazionale.”73

   72 H. Triepel, Völkerrecht und Landesrecht, Leipzig, Verlag von C. L. Hirschfeld, 1899,

p. 289 :
         “We call ‘required by international law’ (völkerrechtlich geboten) all domestic law,
      the creation of which represents the fulfillment of an international obligation, but
      also that which the State has created absent such an obligation, but subsequently
      becomes obligated to uphold. In one case the obligation of the State comprises the
      enactment and the duty not to repeal the law, in the other only the latter. Conversely,
      if at a given time States are internationally obliged to have rules of law with a given
      content, the State which already has such laws is breaching its obligation if it repeals
      them and fails to re-enact them, whereas the State which does not yet have such laws
      breaches its obligation merely by not introducing them : both States thus commit, if
      I may say so, a continuous violation of international law (völkerrechtliches Dauer-
      delikt).” [Free translation.]

 73 H. Triepel, Diritto Internazionale e Diritto Interno (trad. G. C. Buzzati), Turin,

Unione Tipografico-Editrice Torinese, 1913, p. 286. One decade later, lecturing in the

49

356    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   63. It was during the inter-war period that the notion of “continuing
situation” was in fact elaborated in the early writings of Roberto Ago. In
his Hague Academy lectures of 1939, with the outbreak of the Second
World War, R. Ago argued that, in international law, there are situations
which are conformed by a sole wrongful act or omission (délit interna-
tional simple), and others which are conformed by a series of them, and
the effect of such wrongful human conduct in time (délit international
complexe or continu). In the case of these latter, there is a prolongation in
time of the tempus commissi delicti 74.

   64. The essential element in the distinction between them lies in whether
the action or omission is “transient or permanent”. An example of a
breach prolonged in time is afforded by the promulgation of a (domestic)
law in breach of the law of nations, thereby generating a délit continu 75.
And R. Ago added, as to the obligation of reparation, that this latter “in
no way manifests itself as a subsidiary obligation”, but rather as “a pri-
mary obligation, established by a customary rule” 76 [translation by the
Registry].
   By that time, the notion of a “continuing situation” in breach of inter-
national law was already being pleaded in international litigation (cf.
infra).

          VIII. THE CONFIGURATION OF A “CONTINUING SITUATION”
                      IN INTERNATIONAL LITIGATION
                             AND CASE LAW

  65. As the Court, in its present Order, appears not to have deemed it
necessary to pronounce on the notion of a “continuing situation”, I feel

opening courses of the Hague Academy of International Law (1923), Triepel reiterated his
view :
         “Nous nommons internationalement ordonné, d’abord tout le droit interne dont la
      creation se présente comme l’accomplissement d’un devoir international, et en outre
      le droit que l’Etat a créé sans y être tenu, mais qu’il est obligé maintenant de conser-
      ver. Dans la première hypothèse, le devoir de l’Etat consiste à créer et à conserver le
      droit, dans la seconde, il ne consiste qu’à le conserver. Inversement, quand les Etats
      sont internationalement astreints à avoir, à une certaine époque, un droit d’un conte-
      nu déterminé, l’Etat, qui possède le droit dont il s’agit, viole son devoir s’il abroge ce
      droit et s’il s’abstient ensuite de le réintroduire ; tandis que celui qui ne possède point
      dès le début le droit internationalement ordonné, ne viole son devoir que s’il ne
      l’introduit pas. Mais tous les deux commettent, pour ainsi dire, un ‘délit permanent
      international’ (Dauerdelikt, comme on dit en allemand)” ; H. Triepel, “Les rapports
      entre le droit interne et le droit international”, 1 Recueil des cours de l’Académie de
      droit international de La Haye (1923), p. 109.
  74 R. Ago, “Le délit international”, 68 Recueil des cours de l’Académie de droit inter-

national de La Haye (1939), pp. 512, 514, 517-519 and 523.
  75 Ibid., pp. 519-520.
  76 Ibid., p. 529.

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357   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

obliged to do so, as I regard the matter of importance for the present and
future of international law. It has been the object of contentions on the
part of both Italy and Germany, and has not seldom been raised before
contemporary international tribunals (such as the ICJ, and the European
and Inter-American Courts of Human Rights). Although, in the present
case before the ICJ, at the end of their recent debates (in the written
phase which preceded the present Order of the Court), it was clarified
that the notion at issue did not provide the main basis for the positions of
the contending Parties, yet not only was it invoked by both before the
Court, but it remains, in my view, important for a proper understanding
of the time dimension of cases of the kind. I shall thus dwell upon it, in
the domain of public international law, as well as in that of the interna-
tional law of human rights proper.

                         1. In Public International Law
  66. May I first refer to the era of the PCIJ. On one occasion, in his
oral arguments before the PCIJ in the public sitting of 12 May 1938, in
the case of Phosphates in Morocco (Italy v. France), counsel for Italy,
Roberto Ago, argued that the facts of that dispute before the PCIJ went
back to a legislative act of 1920 (establishing the “monopole des phos-
phates”), extended to a decision taken in 1925 (pertaining to the “cartel
phosphatier”), and to a déni de justice which occurred in 1931-1933 77. In
this succession of facts, there were thus — he added — elements which
were prior to the date of acceptance of the compulsory jurisdiction of the
PCIJ 78.
  67. In his view, the facts, in particular, which extended from 1925 to
1933, gave origin to a “clear violation of international law” 79. In the oral
argument of Roberto Ago,
         “In their entirety, those facts, which are intimately linked by a
      necessary connection (. . .) with a common aim, represent logically
      and teleologically — in terms of their practical and legal effects — a
      single continuing and progressive internationally wrongful act.
         Therein are contained (. . .) all the constituent elements of a con-
      tinuing offence : the plurality of actions, the unity of the law vio-
      lated, the unity of aim and purpose of the agent.
         (. . .) The continuing wrongful act, (. . .) which is simultaneously
      composed of a series of individual wrongful acts, must be regarded

  77 Phosphates in Morocco, P.C.I.J., Series C, Nos. 84-85, pp. 1218, 1220, 1230-1231.

According to Ago, the breach of international law incurred into, “prolonge son existence
dans le temps et se renouvelle à chaque instant” ; ibid., pp. 1240-1241, and cf. p. 1237.
  78 Ibid., p. 1233, and cf. p. 1231.
  79 Ibid., p. 1233, and cf. p. 1229.

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358    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

      as a single offence . . . . The progressive wrongful act must be treated
      in law as a single wrongful act.” 80 [Translation by the Registry.]

  68. This latter is represented by its being continuously maintained, in
breach of an international obligation ; in this way,

      “The violation of international law does not end at its first occur-
      rence ; it continues until the violation has ceased. What continues are
      not the effects of the initial, completed and concluded violation, but
      rather the violation itself, which is continuously renewed, and which
      thus continues to be perpetrated for as long as the will and actions of
      the agent remain unchanged.

        It is precisely for this reason that, in domestic law, in the face of a
      continuing criminal act, the prescription period only begins to run
      when the criminal act has ended.” 81 [Translation by the Registry.]

   69. In its Judgment of 14 June 1938 (Preliminary Objections) in the
Phosphates in Morocco case, the PCIJ was, however, of the view that, as
to the alleged continuing situation or acts, presumably constituting a
single whole (P.C.I.J., Series A/B. No. 74, pp. 22-23), what was ultimately
a determining factor was “the will of the State which only accepted
the compulsory jurisdiction within specified limits, and consequently
only intended to submit to that jurisdiction disputes having actually arisen
from situations or facts subsequent to its acceptance” (ibid., p. 24).
   70. In the cas d’espèce, the cited acts and situations were not, in the
view of the PCIJ, the culmination of earlier events, nor did they alter the
situation (as to the “monopolization” of Moroccan phosphates) which
had already been established. The Court thus dismissed the argument of
Italy of a “continuing and progressive violation” constituted by succes-
sive acts of the Respondent State (ibid., pp. 25-27). Conceptually, thus,
the PCIJ subscribed to the traditional voluntarist conception of its own
jurisdiction, and espoused a static and atomized view of the whole matter
brought into its cognizance.
   71. It is not my intention here to take this decision into discussion,
more than seven decades later, but rather to refer to it, for the purposes
of the present dissenting opinion. As to the ICJ era, may it be recalled
that, in its Advisory Opinion of 1971 on Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), the ICJ
pronounced on South Africa’s international responsibility arising from a
continuing violation (its “continued presence in Namibia”, which was

 80   Phosphates in Morocco, P.C.I.J., Series C, Nos. 84-85, pp. 1234-1235, and cf. p. 1238.
 81   Ibid., p. 1239.

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359    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

being “maintained in violation of international law”) 82. The ICJ found
that “[b]y maintaining the present illegal situation, and occupying the
territory without title, South Africa incurs international responsibilities
arising from a continuing violation of an international obligation” 83. It
then asserted the obligation of the UN member States “to recognize the
illegality and invalidity of South Africa’s continued presence in
Namibia” 84.

   72. The point I wish to make here is that, although the notion of con-
tinuing situation has roots in the international legal thinking of as early
as the first half of the twentieth century, it has passed almost unnoticed,
and remains virtually unexplored, in doctrinal writings to date, in public
international law. Yet, the notion has received some attention in the par-
ticular domain of the international law of human rights 85, on the part of
both the European and the Inter-American Courts of Human Rights. It
has further been acknowledged at not only the jurisprudential level but
also at the normative level in recent years, and can no longer be
overlooked.

                 2. In the International Law of Human Rights

   73. At jurisprudential level, the notion of “situation continue” was
early to become the object of attention on the part of the European
Court of Human Rights (ECHR) — as well as of the former European
Commission of Human Rights — in relation to the application of the
rule of exhaustion of local remedies in cases of detention [while] on
remand 86. Attention was then turned by the ECHR to the length or
actual duration of the detentions at issue, as “continuing situations” 87.
Over the years, the ECHR has at times been faced with continuing situ-
ations in distinct circumstances.
   74. It is not surprising to find that the notion of continuing situation
has been developed particularly in the domain of the international law of
human rights, given the special character of human rights treaties, which

  82 I.C.J. Reports 1971, p. 56, para. 126.
  83  Ibid., p. 54, para. 118 ; and cf. ibid., p. 47, para. 95, for the Court’s reference to a
“persistent violation of obligations”.
  84 Ibid., p. 54, para. 119.
  85 Among the very few articles devoted to the issue to date, cf., in particular : J. Pau-

welyn, “The Concept of a ‘Continuing Violation’ of an International Obligation : Selected
Problems”, 66 British Year Book of International Law (1995), pp. 415-450 ; A. Buyse, “A
Lifeline in Time — Non-Retroactivity and Continuing Violations under the ECHR”,
75 Nordic Journal of International Law (2006), pp. 63-88 ; A. Van Pachtenbeke and
Y. Haeck, “From De Becker to Varnava : The State of Continuing Situations in the Stras-
bourg Case Law”, 1 European Human Rights Law Review (2010), pp. 47-58.
  86 A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Rem-

edies in International Law, Cambridge University Press, 1983, pp. 221-228.
  87 Cf. ibid., pp. 223 and 225.

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360     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

create, within the conceptual universe of international law, mechanisms
of protection of the rights inherent to human beings, and positive obli-
gations (of protection) on the part of the State, whose responsibility may
be engaged by successive wrongful acts as well as omissions. There may
well exist a causal connection between the original facts (a term which is
not a synonym of acts) and subsequent acts or omissions of the State at
issue, conforming a continuing situation.

  75. In a recent case, that of Varnava and Others v. Turkey (2009), the
ECHR was seized of a case concerning the forced disappearance of nine
men in 1974. The Court was competent to examine complaints against
Turkey pertaining to facts having occurred after 28 January 1987. In its
judgment of 18 September 2009, the Grand Chamber of the ECHR
pointed out that the mortal remains of one of the fatal victims were dis-
covered in a mass grave in 2007, but there were no sighting or news of the
other eight missing men since late 1974 until the present (para. 112).

   76. The ECHR’s Grand Chamber cross-referred to the case law on
jurisdiction ratione temporis of its homologue, the Inter-American Court
of Human Rights (IACtHR), in particular the leading case of this latter,
the case Blake v. Guatemala (1998) (paras. 93-96, 138 and 147). The
ECHR decided that there had been a continuing violation of Article 2
(right to life) and of Article 5 (right to liberty and security of the person)
of the European Convention of Human Rights, on the account of the
failure of the authorities of the Respondent State to conduct an effective
investigation of the fate of the nine men who had disappeared in life-
threatening circumstances (dispositif, paras. 4 and 6).
   77. The Court, furthermore, found a continuing violation of Article 3
(freedom from torture and other inhuman or degrading treatment or
punishment) of the European Convention, in respect of the Applicants
(Operative Clause, para. 5) 88. In addressing the continuing suffering of
the relatives of the disappeared persons, the ECHR pondered :
          “A disappearance is (. . .) characterized by an ongoing situation of
       uncertainty and unaccountability in which there is a lack of informa-
       tion or even a deliberate concealment and obfuscation of what has
       occurred (. . .). This situation is very often drawn out over time, pro-
       longing the torment of the victim’s relatives. It cannot therefore be
       said that a disappearance is, simply, an ‘instantaneous’ act or event ;
       the additional distinctive element of subsequent failure to account
       for the whereabouts and fate of the missing person gives rise to a
       continuing situation.” (Para. 148.)

  88   And cf. paras. 194 and 208 of the judgment.

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361   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

  78. In the same judgment, the ECHR further observed, in relation to
the continuing violation of Article 3 of the Convention, that
         “The length of time over which the ordeal of the relatives has been
      dragged out and the attitude of official indifference in face of their
      acute anxiety to know the fate of their close family members dis-
      closes a situation attaining the requisite level of severity, There has,
      accordingly, been a breach of Article 3 in respect of the applicants.”
      (Para. 202.)
The ECHR insisted on its warning, in the context of the case at issue, as
to the impact of the passing of time in legal relations (para. 161), and
asserted the obligation “to take due measures to protect the lives of the
wounded, prisoners of war, or civilians in zones of international con-
flict”, a duty which extends to “providing an effective investigation for
those who disappeared in such circumstances” (which had not been pro-
vided in the cas d’espèce — para. 174).
   79. Earlier on, on the other side of the Atlantic, the Inter-American
Court of Human Rights (IACtHR), in its leading case on competence
ratione temporis, that of Blake v. Guatemala (1996-1999), referred to by
its European homologue, the ECHR (supra), was faced with the case of
a forced disappearance of a person (Mr. N. C. Blake), which began
in March 1985 and extended to June 1992, when his mortal remains were
found. In the meantime, the Respondent State recognized the compul-
sory jurisdiction of the Court on 9 March 1987, with regard to facts sub-
sequent to this date. The Respondent State raised a preliminary objection
of the Court’s lack of competence ratione temporis.
   80. The IACtHR, in its judgment on preliminary objections (of 2 July
1996), considered that the forced disappearance implied violations of sev-
eral human rights, some of which “may be prolonged continuously or
permanently until such time as the victim’s fate or whereabouts are estab-
lished” (para. 39). The IACtHR found itself competent ratione temporis
to examine, not the violations of the rights to life and personal liberty of
the disappeared person, but their subsequent effects on their close rela-
tives. Thus, in its judgment on the merits of the case (of 24 January 1998),
the IACtHR considered the forced disappearance of Mr. N. C. Blake as
marking the beginning of a “continuing situation” in breach of his close
relatives’ right to judicial protection (access to justice) and to a fair trial ;
the Court established the Respondent State’s responsibility for those
breaches — for lack of effective investigation, prosecution and sanction,
of those responsible for Mr. N. C. Blake’s disappearance and death.

   81. In my separate opinion in the IACtHR’s judgments on preliminary
objections (para. 14) as well as on reparations (para. 24), I deemed it fit
to draw attention to the impact of the legal conceptualization of a “con-
tinuing situation” upon traditional postulates of the law of treaties, and
called for the humanization of international law, to start and advance

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362   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

precisely in that chapter, so much impregnated with State voluntarism
and with undue weight attributed to the forms and manifestations of con-
sent as the law of treaties has been. In any case, I added, in my separate
opinion in the IACtHR’s judgment on reparations (of 22 January 1999),
that that process of humanization was already in course, with the inser-
tion, into the first Vienna Convention on the Law of Treaties (1969, and
also into the second, 1986), of the provisions on jus cogens (Articles 53
and 64), as well as the humanitarian provision of Article 60, paragraph 5,
a true safeguard clause in defence of the human being (paras. 30-32).

   82. Moreover, in my separate opinion in the IACtHR’s judgment on
the merits (para. 38) of the same Blake case, I further turned attention to
the enlargement of the notion of victim of violations of the protected
rights (due to the continuing suffering of the close relatives of the force-
fully disappeared person, para. 38). At last, in my separate opinion in the
following judgment on reparations, I turned attention also to the element
of intemporality proper to the international protection of rights inherent
to the human person, a protection which is thus intended to apply in all
circumstances and at all times, without temporal limitations (paras. 4 and
45).
   83. In sum, the notion of continuing situation has been upheld in the
case law of both the ECHR and the IACtHR, on the basis of a careful
examination of the circumstances of each cas d’espèce. The two interna-
tional human rights tribunals have been careful to avoid generalizations
and to set up general criteria for the identification of continuing situa-
tions. Notwithstanding, they have both at times established the existence
of continuing situations, without prejudice of juridical security. They
have thereby contributed to the fulfillment of the object and purpose of
the European and the American Conventions on Human Rights. Given
the nature of certain cases — such as the present case concerning Juris-
dictional Immunities of the State (opposing Germany to Italy) — nowa-
days lodged with the ICJ, which concern not only the rights of States, but
have a direct incidence also on the fundamental rights of the human per-
son, it is, in my view, high time for the Hague Court, also known as the
World Court, to become more attentive to the notion of continuing situa-
tion as it has been developing in public international law and the inter-
national law of human rights over the last decades.

         IX. THE CONFIGURATION OF A “CONTINUING SITUATION”
              IN INTERNATIONAL LEGAL CONCEPTUALIZATION
                         AT NORMATIVE LEVEL

  84. The notion of a “continuing situation” has marked its presence not
only at jurisprudential level, but also at normative level. Two elements

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363   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

marked their presence in its configuration in law-making exercises,
namely, first, the acknowledgment of the time factor, the inter-temporal
dimension, stretching from the fait générateur to the whole period of per-
sistence of the continuing situation ; and, secondly, the effects that such a
situation may have on the victims, which, in case of grave breaches of
human rights, constitute an aggravating circumstance. It is, however,
beyond the purpose of the present dissenting opinion to embark on an
examination of this second element. Examples of the conceptualization of
a “continuing situation” at normative level exist in regional as well as
universal (United Nations) levels.
   85. At regional level, the 1994 Inter-American Convention on Forced
Disappearance of Persons conceptualizes the forced disappearance of
persons as, inter alia, an offence which “shall be deemed continuous or
permanent as long as the fate or whereabouts of the victim has not been
determined” (Article III). Taking this provision of the 1994 Inter-American
Convention into account, in my aforementioned separate opinion in the
IACtHR’s Judgment on the merits of the Blake case (of 24 January 1998),
I pondered that

      “forced disappearance of person is, first of all, a complex form of
      violation of human rights ; secondly, a particularly grave violation ;
      and thirdly, a continuing or permanent violation (until the fate or
      whereabouts of the victim is established). In fact, the continuing
      situation (. . .) is manifest in the crime of forced disappearance of
      persons. As pointed out in this respect, in the travaux préparatoires
      of the Inter-American Convention on Forced Disappearance of
      Persons,

          ‘This crime is permanent in so far as it is committed not in an
        instantaneous way but permanently, and is prolonged as long as
        the person remains disappeared’ 89.
        Such consideration was duly reflected in Article III of the Con-
      vention (supra).” (Para. 9).
   86. At universal level, likewise, the 2006 UN International Convention
for the Protection of All Persons from Enforced Disappearance, on its
part, expressly refers to the “continuous nature” of the offence of enforced
disappearance of persons (Article 8, paragraph 1 (b)). The same concep-
tion was adopted, fourteen years earlier, in the 1992 UN Declaration on
the Protection of All Persons against Forced Disappearances of 1992,
which, after pointing out the gravity of the crime of forced disappearance
of person (Article 1 (1)), likewise warned that this latter ought to be

  89 OEA/CP-CAJP, Informe del Presidente del Grupo de Trabajo Encargado de Analizar

el Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas,
doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, of 25 January 1994, p. 10.

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364    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

“considered a permanent crime while its authors continue concealing the
fate or whereabouts of the disappeared person and while the facts have
not been clarified” (Article 17 (1)).

   87. May it further be recalled that, two decades earlier, still at the UN
level, ECOSOC resolution 1503 (XLVIII), of 27 May 1970, established a
(confidential) procedure to investigate situations revealing a “consistent
pattern of violations of human rights”. These latter were essentially
continuing situations (e.g., those brought about State policies of racial
discrimination). This is yet another example of the international legal
conceptualization, at normative level, of the configuration of a “contin-
uing situation” in breach of human rights.

   88. Yet, in so far as the notion of “continuing situation” is concerned,
in the international law of human rights, in particular, international case
law preceded law-making. Once again, in my same separate opinion in the
Blake case (merits), I further pointed out that
          “Long before the typification of the forced disappearance of
       person in the international law of human rights, the notion of
       ‘continuing situation’ found support in the international case law in
       the domain of human rights. Thus, already in the De Becker v. Belgium
       case (1960), the European Commission of Human Rights, for exam-
       ple, recognized the existence of a ‘continuing situation’ (situation
       continue/situación continuada) 90. Ever since, the notion of ‘continu-
       ing situation’ has marked presence in the case law of the European
       Commission, on numerous occasions 91. The continuity of each situa-
       tion appears — as the European Commission has expressly warned
       in the Cyprus v. Turkey case (1983) — as an aggravating circum-
       stance of the violation of human rights proven in the cas d’espèce.” 92
       (Para. 11.)
     89. A “continuing situation” may well occur with certain breaches of

  90 Cf., Cour européenne des droits de l’homme, Affaire De Becker (série B : Mémoires,

Plaidoiries et Documents), Strasbourg, C.E., 1962, pp. 48-49 (Rapport de la Commission,
8 January 1960).
  91 Cf., e.g., the decisions of the former European Commission of Human Rights con-

cerning the petitions Nos. 7202/75, 7379/76, 8007/77, 7742/76, 6852/74, 8560/79, 8613/79,
8701/79, 8317/78, 8206/78, 9348/81, 9360/81, 9816/82, 10448/83, 9991/82, 9833/82, 9310/81,
10537/83, 10454/83, 11381/85, 9303/81, 11192/84, 11844/85, 12015/86, and 11600/85, among
others.
  92 In its Report of 4 October 1983 in the Cyprus v. Turkey case (petition No. 8007/77)

the European Commission concluded that the continuing separation of families (as a
result of the refusal of Turkey to allow the return of Greek Cypriots in order to reunite
themselves with their next of kin in the North) constituted an “aggravating factor” of a
continuing situation in violation of Article 8 of the European Convention of Human
Rights. European Commission of Human Rights, Decisions and Reports, Vol. 72, pp. 6
and 41-42.

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365   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

human rights, but not all of them. Many of such breaches are “instanta-
neous acts”, such as, e.g., summary and extra-legal executions. But there
are some breaches which are continuous, and forced disappearance of
persons is not the only one. There may also occur a continuing denial of
justice : rather often, there are unreasonable and prolonged delays that
end up constituting a continuing denial of justice. As the time of human
beings is not the time of human justice 93, rather often the justiciable ones
have to wait a great many years — not seldom a whole lifetime — for
justice to be done, if at all. Lawyers, nationally and internationally, know
this far too well.

   90. In sum, no tribunal — national or international — can today over-
look the notion of a “continuing situation”, not even the World Court.
This notion has in recent years found international legal conceptualiza-
tion not only in international human rights protection, but also in
domains of public international law. To recall but one example, Article 14
(on “Extension in time of the breach of an international obligation”) of
the Articles on State Responsibility (2001) of the UN International Law
Commission (ILC) provides that

         “1. The breach of an international obligation by an act of a State
      not having a continuing character occurs at the moment when the
      act is performed, even if its effects continue.
         2. The breach of an international obligation by an act of a State
      having a continuing character extends over the entire period during
      which the act continues and remains not in conformity with the
      international obligation.
         3. The breach of an international obligation requiring a State to
      prevent a given event occurs when the event occurs and extends over
      the entire period during which the event continues and remains not
      in conformity with that obligation.”

   91. The work of the ILC on its adopted Articles on State Responsibil-
ity, in this particular respect, took due note of the contribution of the
IACtHR’s decision in the Blake case (supra) 94 on the matter at issue.
The ILC, furthermore, acknowledged the temporal element (the exten-
sion in time) when it addressed the consequences of a serious breach of

   93 On this specific point (and in relation to universal jurisdiction), cf. my dissenting

opinion in the case concerning Questions relating to the Obligation to Prosecute or Extra-
dite (Belgium v. Senegal), Order of 28 May 2009, I.C.J. Reports 2009, pp. 179-180 and
182-188, paras. 39 and 46-64.
   94 Cf. J. Crawford, The International Law Commission’s Articles on State Responsibil-

ity — Introduction, Text and Commentaries, Cambridge University Press, 2005 [reprint],
p. 136, and cf., pp. 251-252.

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366   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

an obligation under international law (Article 41 (3)), with a direct bear-
ing on the State’s duty to cease such consequences and to provide repara-
tion.

           X. THE “CONTINUING SITUATION” IN THE PRESENT CASE

   92. In the present case before the ICJ (original claim and counter-
claim), there is no dispute between Germany and Italy concerning the
facts of the Second World War and the facts extending up to the celebra-
tion of the two 1961 Agreements celebrated between them. Therefore, the
waiver of Article 77 (4) of the 1947 Peace Treaty between the Allied Powers
and Italy cannot possibly be invoked as a ground for establishing the lack
of jurisdiction ratione temporis of the ICJ to entertain Italy’s counter-
claim. This latter, according to Italy 95, pertains to the dispute as to the
facts ranging from the celebration of the two 1961 Agreements onwards
until the present time.

   93. This being the triggering point of the alleged “continuing situa-
tion” in the cas d’espèce, nor can the provision of Article 27 (a) 96 of the
1957 European Convention for the Peaceful Settlement of Disputes be
possibly invoked as a ground for determining the lack of jurisdiction
ratione temporis of the ICJ to entertain Italy’s counter-claim. The notion
of “continuing situation” was not at all invoked to bring the triggering
point back to the occurrences of 1943-1945 in the Second World War ;
quite on the contrary, it pertained to the right to reparation for war
crimes, being an element to be taken into account by the Court as from
the new continuing situation generated by the celebration of the two
Agreements of 1961 onwards, as it ensues from the contentions of the
Parties in the original claim and the counter-claim and all arguments
relating thereto.
   94. The finding of the Court’s majority of lack of jurisdiction ratione
temporis leading to the admissibility of the counter-claim thus requires
demonstration. The submissions contained in Italy’s counter-claim, and
the arguments as to the law submitted by the contending Parties to this
Court, in my understanding fall entirely within the Court’s jurisdiction
ratione temporis, and the Court should, thereby, in my view, have declared
the counter-claim admissible. To make my own position quite clear, I
shall next examine the scope of the present dispute before the ICJ, and
turn then attention to those I regard as the true bearers (titulaires) of the
originally violated rights, against the background of what I devise as the
pitfalls of State voluntarism.

  95 Observations of Italy . . ., op. cit. supra note 53, pp. 7, 9-10, 15 and 25, paras. 13, 21,

35 and 64 ; Counter-Memorial of Italy (22 December 2009), p. 129, para. 7.4.
  96 Cf., text cit. in note 46, supra.

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367    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

        XI. THE SCOPE OF THE PRESENT DISPUTE BEFORE THE COURT

   95. Already in the dawn of its era, the PCIJ spelled out its characteri-
zation of a “dispute”, in the well-known obiter dictum in its Judgment of
20 August 1924 in the case of the Mavrommatis Palestine Concessions
case (Greece v. United Kingdom), in the following terms : “A dispute is a
disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons.” 97 The present case (original claim and
counter-claim), opposing Germany to Italy, fits well into this characteri-
zation. There is here a dispute between Italy and Germany concerning
the law (not the facts). The facts are not in dispute. There is here a con-
flict of their legal views on a claim of State immunity in face of claims of
war reparations. This is the bone of contention between Germany and
Italy.

   96. A contentieux on reparations does not have a “subsidiary” nature
in relation to the faits générateurs of the international responsibility of
States. It has a dynamic of its own. Thus, besides the initial engagement
of State responsibility by its faits générateurs (the events of 1943-1945,
not controverted here), responsibility may ex hypothesi be again engaged
in case of lack of due reparation, as a separate and additional breach of
international law. It will depend whether there is State immunity or not,
a point which is beyond the scope of the present Order. Yet, we are here,
within the scope of the present Order, before a contentieux opposing a
vindication of State immunities to vindications of war reparations. The
original claim and the counter-claim are ineluctably intertwined.

   97. The duty of reparation emanates from a fundamental principle of
international law, acknowledged by the PCIJ in its early years in the Fac-
tory at Chorzów case (Germany v. Poland). In its Judgment on jurisdic-
tion of 26 July 1927, it asserted that “it is a principle of international law
that the breach of an engagement involves an obligation to make repara-
tion in an adequate form” 98. And in its Judgment on the merits (in the
same case) of 13 September 1928, it reiterated that “it is a principle of
international law, and even a general conception of law, that any breach
of an engagement involves an obligation to make reparation” 99.

   98. Likewise, early in its era, the ICJ itself had the occasion to reassert
this “principle of international law” (involving a duty to provide repara-
tion). In its historical Advisory Opinion on Reparation for Injuries Suf-

  97 Judgment No. 2, 1924, P.C.I.J. Series A, No. 2, p. 11.
  98 Jurisdiction, Judgment No. 8, 1927, P.C.I.J. Series A, No. 9, p. 21.
  99 Merits, Judgment No. 13, 1928, P.C.I.J. Series A, No. 17, p. 29.

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368   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

fered in the Service of the United Nations (of 11 April 1949) ; it added
therein that in “claiming reparation based on the injury suffered by its
agent, the Organization does not represent the agent, but is asserting its
own right, the right to secure respect for undertakings entered into
towards the Organization” (I.C.J. Reports 1949, p. 184). The Organiza-
tion vindicates its own right to reparation, not that of its agent. Its own
right is distinct from those of its agents. Likewise, a State’s right is dis-
tinct from the rights of individuals subject to its jurisdiction.

   99. Other contemporary international jurisdictions have also had the
occasion to acknowledge that a contentieux of reparations has its own
dynamics, distinct from that of the contentieux as to the merits of the
cases at issue, however complementary they may be. In recent years, the
Inter-American Court of Human Rights has faced successive cases of
(total or partial) recognition of international responsibility by the Respon-
dent States, which, in cases of total or integral recognition, has allowed
the Court to move on straight to the contentieux of reparations 100. This
latter followed its own dynamics, clearly separate from the original faits
générateurs of the international responsibility of the State concerned, in
relation to which controversy had ceased to exist. Controversy existed
only in relation to the claims as to the reparations due.

   100. The present case concerning Jurisdictional Immunities of the State
before the ICJ is an inter-State contentieux between Germany and Italy,
concerning their opposing claim and counter-claim, of State immunity
and war reparations, respectively. Such interrelated claims are two faces
of the same coin. By dismissing one of the claims by means of the present
Order, the Court’s majority deprived the Court of the examination and
settlement of the dispute in its entirety. The cas d’espèce originated not in
the events of the Second World War (1943-1945), but in the initiative of
aggrieved individuals, in recent years, to seek justice before domestic tri-
bunals.

XII. THE TRUE BEARERS (TITULAIRES) OF THE ORIGINALLY VIOLATED
         RIGHTS AND THE PITFALLS OF STATE VOLUNTARISM

  101. Individuals’ rights are not the same as their State’s right. How
those individuals are to vindicate their rights is another matter, beyond

   100 Cf., e.g., Inter-American Court of Human Rights (IACtHR), Aloeboetoe and Others

v. Suriname case (Reparations, Judgment of 10 September 1993), Series C, No. 15 ; IAC-
tHR, Trujillo Oroza v. Bolivia case (Reparations, Judgment of 27 February 2002), Series C,
No. 92 ; IACtHR, Goiburú and Others v. Paraguay case ([Merits and] Reparations,
Judgment of 22 September 2006), Series C, No. 153.

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369     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

the scope of the present decision of the ICJ on the Italian counter-claim.
And it is a question which, as a result of the unfortunate dismissal by the
Court’s majority of the counter-claim as “inadmissible as such”, will
now fall beyond the scope of the present dispute to be adjudicated by the
Court at the merits stage. The Court will now address only the German
claim of State immunity, in isolation. This is, in my view, much to be
regretted, for the unique occasion which the Court has just failed to take
up to settle the case while at the same time contributing to the progres-
sive development of international law in this domain still surrounded by
uncertainties, despite its utmost relevance for the jus gentium of our
times.

                   1. The “Real Cause” of the Present Dispute
  102. In the present Order, the Court’s majority relies on the general
waiver of Article 77 (4) the 1947 Peace Treaty between the Allied Powers
and Italy. That was a general Peace Treaty, to which, by the way, Ger-
many was not a party. The 1947 Treaty was general and wide in scope, a
product of its time, of the aftermath of the Second World War. The
waiver clause of its Article 7 (4), clearly turned to claims of a patrimonial
character, is in general, ma non troppo : as general as it may be, it is not
absolute.

   103. The waiver clause in the 1947 Peace Treaty was directed, as its
drafting terms disclose 101, to claims of a patrimonial nature, rather than
to all kinds of claims. By the time that waiver (Article 77 (4)) was
enshrined by the Allied Powers and Italy into the Peace Treaty in 1947,
they could not have anticipated that that waiver, however general it
intended to be, could not extend over all the complexities of victimization
in the Third Reich, such as the deportations and forced labour to which
Italian nationals (individuals and not their State) had been subjected to
by Nazi Germany between 1943 and 1945.

     104. This mens rea is confirmed by the other paragraphs of Article 77

  101   Article 77 (4) of the 1947 Peace Treaty states :
         “Without prejudice to these and to any other dispositions in favour of Italy and
      Italian nationals by the Powers occupying Germany, Italy waives on its own behalf
      and on behalf of Italian nationals all claims against Germany and German nationals
      outstanding on May 8, 1945, except those arising out of contracts and other obliga-
      tions entered into, and rights acquired, before September 1, 1939. This waiver shall
      be deemed to include debts, all inter-governmental claims in respect of arrangements
      entered into in the course of the war, and all claims for loss or damage arising during
      the war.”

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370   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

of the 1947 Peace Treaty, referring to : Italian property in Germany not
being enemy property (Article 77 (1)) ; Italian property removed to Ger-
many to be restituted to Italy (Article 77 (2)) ; new reference to Italian
property in Germany (Article 77 (3)) ; transfer of German assets in Italy
to Germany. This is the context into which the purported waiver of Arti-
cle 77 (4) was inserted, in a provision endowed with an essentially patri-
monial character. There is nothing whatsoever in Article 77 of the 1947
Peace Treaty, or in this latter as a whole (to which Germany was not a
party), that can provide a basis for the Court’s majority view that there is
a “continuity” between the 1947 purported waiver and the waiver clauses
in the two 1961 Agreements, or, worse still, that these latter would be an
indemonstrable “improvement” of the former.

   105. The subsequent adoption of the two 1961 Agreements, this time
between Germany itself and Italy, bears witness of that. The PCIJ had
already had the occasion to clarify that a dispute may well presuppose
“the existence of some prior situation or fact”, not controverted by the
parties. A situation or fact in respect of which a dispute is considered to
have arisen is to be seen as “the real cause of the dispute” 102. The celebra-
tion of the two 1961 Agreements constitutes, in my view, the triggering
point of a new continuing situation, containing the “real cause of the dis-
pute”, and projecting itself from then onwards into our days. Such dis-
pute between Germany and Italy thus clearly falls within the jurisdiction
of the Court ratione temporis, on the basis of Article 27 (a) of the 1957
European Convention for the Peaceful Settlement of Disputes.

                     2. Inconsistencies of State Practice
   106. Claims of Italian nationals on the basis of German legislation on
compensation for Nazi persecution victims were not encompassed by the
waiver of Article 77 (4) of the 1947 Peace Treaty, because of the provi-
sion “without prejudice to these and to any other dispositions in favour
of Italy and Italian nationals by the Powers occupying Germany”. This
provision, as just pointed out, was intended to apply to claims of a patri-
monial nature (cf. supra). State responsibility for war crimes subsisted.

   107. In fact, in this regard, the German Bundesgerichtshof (Supreme
Court) itself, in a decision of 14 December 1955, interpreted the limited
scope of the 1947 waiver clause, by reckoning that this latter had not
brought about a final settlement of the matter given the wording of the
clause, “without prejudice to (. . .) any (. . .) dispositions in favour of
Italy and Italian nationals by the Powers occupying Germany” [Decisions

 102 Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J. Series A/B,

No. 77, p. 82.

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371     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

of the Bundesgerichtshof in Civil Matters, Vol. 19, pp. 258 et seq.] ;
accordingly, the Bundesgerichtshof admitted that the Italian claims and
the corresponding German obligations still existed 103. In 1947, in a Peace
Treaty to which Germany was not a party, the Allied Powers demanded
the waiver from Italy “exclusively in their own interest”, and that waiver
did not cover claims of war crimes reparations 104. I cannot see why the
Court’s majority gave so much importance to that waiver, to the point of
trying to base its whole and succinct reasoning on it.

  108. The celebration of the two 1961 Agreements, this time by Ger-
many itself with Italy, disclosed Germany’s recognition that reparation
obligations existed in 1961. This marks, in my view, the triggering point
of a new continuing situation, from then onwards, up to the present,
which forms the object of the dispute before the Court (claim of State
immunity and counter-claim of pending war reparations). The two Agree-
ments, celebrated on 2 June 1961 between Germany and Italy, were : (a)
the Agreement on the Settlement of Certain Property-Related, Economic
and Financial Questions (the so-called “Settlement Agreement”) ; and
(b) the Agreement on Indemnity in Favour of Italian Nationals Affected
by National-Socialist Measures of Persecution (the so-called “Indemnity
Agreement”).

   109. The exchange of letters between Germany and Italy attached to
the 1961 Indemnity Agreement 105 stated that “claims brought by Italian
nationals which had been rejected with final and binding effect on the
basis of Article 77 (4) of the Italian Peace Treaty [of 1947] were to be
re-examined”. Thus, new applications under the 1953 Federal Restitution
Law (Bundesentschädigungsgesetz-BEG) were seemingly to be treated
without objections on the basis of Article 77 (4) of the 1947 Peace Treaty.
Furthermore, in a memorandum (Denkschrift) submitted to the Legis-
lative on 30 May 1962 106, the German Federal Government recalled
Article 77 (4) of the 1947 Peace Treaty, and instructed the German autho-
rities in charge not to raise objections on the basis of that provision, in
case of claims to restitution. In the words of the memorandum (Denkschrift) :

         “[. . .] [T]he special character of the claims to compensation for
        measures of National Socialist persecution (Ansprüche auf Wieder-

  103  Counter-Memorial of Italy (22 December 2009), p. 108, para. 5.53, note 223.
  104  Cf. ibid., p. 108, para. 5.53, and note 223.
  105  Cf. ibid., Annex 4.
   106 Cf. ibid., para. 5.56 (photocopy of whole memorandum in German, as obtained

from the library of the Bundestag in Berlin, Drucksache des Deutschen Bundestages
IV/438, p. 9).

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372   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

      gutmachung nationalsocialistischer Verfolgungsmaßnahmen) justifies
      not raising objections based on Article 77 (4) to applications pursu-
      ant to the Bundesentschädigungsgesetz. [. . .] Regarding the Bun-
      desrückerstattungsgesetz of 19 July 1957, the Federal Government
      [. . .] instructed the German authorities in charge not to raise objec-
      tions based on Article 77 (4) of the Peace Treaty with Italy of
      10 February 1947 in the case of claims to restitution.” 107

   110. All this shows that Germany reckoned, in its practice, that the
waiver clause contained in Article 77 (4) of the 1947 Peace Treaty did not
cover war crimes reparations. It further shows that the purported waiver
of Article 77 (4) of the 1947 Peace Treaty was not as general — and cer-
tainly not absolute at all — as the Court’s majority in the present Order
would make one believe, not even on the basis of German State practice !
The reasoning of the Court’s majority in the present Order, in my percep-
tion, tries in vain to find a basis in law, and finds none, not even on State
practice !

   111. And this is not all. More recently, the 2000 Law on the “Remem-
brance, Responsibility and Future” Foundation in Germany, provided
compensation to some victims of the war crimes of the Third Reich,
excluding, however, prisoners of war from its field of application (on the
basis of Section 11.3) ; the right to reparation of at least some victims was
thus reckoned to subsist. All this shows that the pending dispute between
Germany and Italy (claim and counter-claim together) remains indeed
surrounded by uncertainties, and that State practice alone — with its
usual inconsistencies — cannot provide secure guidance to the work of
international adjudication.

                    3. No Lip Service to State Voluntarism

   112. Unlike the Court’s majority, I am of the view that there is no
room at all for paying an instinctive lip service to State voluntarism in
the present case. The Court, in my understanding, cannot — and
should not — try to develop a sound reasoning on the basis of waivers
of claims of breaches of fundamental human rights. The facts before
the Court in a way show that conscience has stood above the will :
Germany and Italy have presented to the Court their distinct views of
the case or continuing situation at issue, in their respective original
claim and counter-claim. These two are inextricably interconnected,

  107 Drucksache des Deutschen Bundestages IV/438, p. 9, in : Observations of Italy . . .,

op. cit. supra note 53, p. 19, para. 47.

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373   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

and fall quite clearly under the jurisdiction of the Court ratione tem-
poris.
   113. The Court has been invited to proceed to the consideration of the
cas d’espèce at the height of its responsibilities, and in my view the only
way to do this properly is by taking cognizance of the original claim and
the counter-claim altogether. In the present case, without the counter-
claim on war reparations, the examination of the basic issue raised in the
original claim becomes irremediably mitigated and incomplete. By depriv-
ing the Court of the consideration of the original claim and the counter-
claim altogether, by means of the present Order it has just adopted, the
Court’s majority ended up, in my view, depriving the Court of the pos-
sibility of the proper and full exercise of its functions in the realization of
its mission. In my understanding, the pursuit of the realization of justice
at international level has, in the present Order of the Court, succumbed
to an instinctive search for manifestations of the will (or consent) of
States 108, in attributing an undue weight to waivers of claims of violated
rights which are not theirs.

   114. My own personal understanding is that a State can waive claims
on its own behalf, if it so decides, but not on behalf of human beings
(whether its nationals or not) who have been victims of atrocities which
shock the conscience of humankind. The individual victims, and not their
State, are the bearers (titulaires) of the rights which had been violated
shortly before the 1947 Peace Treaty (between 1943 and 1945), starting
with the right to respect for their own dignity as human beings. Rights
inherent to the human person are endowed with an element of timeless-
ness. Their vindication cannot be waived at will, by any State whatso-
ever.
   115. The present dispute between Italy and Germany shows, already
at this stage, that the rights of Italian victims of serious violations of
international humanitarian law (war crimes and crimes against human-
ity) have subsisted. Their vindication, by so-called “Italian Military
Internees” (IMIs, i.e., soldiers who were detained, denied the status of
prisoners of war, transferred to detention camps and sent to forced
labour), as well as civilians likewise detained and transferred to detention
camps and sent to forced labour, and other victims of the civilian popu-
lations in the context of massacres, “as part of a strategy of terror” 109,
has resisted the erosion of time. Fundamental human rights are simply
not amenable to waivers of their claims by States, by means of peace

  108 This is nothing new ; for earlier unfortunate examples, cf., e.g., East Timor (Portu-

gal v. Australia), Judgment, I.C.J. Reports 1995, pp. 90-106 ; case concerning Armed
Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006,
pp. 6-53.
  109 Cf. Counter-Memorial of Italy (22 December 2009), p. 15, para. 2.8.

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374     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

treaties, of other kinds of treaties, or by any other means. This can be
further appreciated in a wider horizon.

   116. In the days of the historical Second Peace Conference, held here
in The Hague, the participating States decided to set forth a general
obligation, incumbent on all parties to an armed conflict, to make
reparations (not only on the part of the defeated States in favour of the
victorious powers, as was the case in previous State practice). This was
done on the basis of a German proposal, which resulted in Article 3
of the Fourth Hague Convention 110 and is the first provision dealing
specifically with a reparation regime for violations of international human-
itarian law 111. Thanks to the reassuring German proposal, Article 3
of the Fourth Hague Convention of 1907 clarified that it was intended to
confer rights directly upon individuals 112, human beings, rather than
States.

   117. This legacy of the Second Hague Peace Conference of 1907
projects itself to our days 113. The time projection of the suffering of
those subjected to deportation and sent to forced labour in the Second
World War (period 1943-1945) has been pointed out in expert writing,
also in relation to the prolonged endeavours of the victims to obtain
reparation.

  110   Article 3 states :
         “A belligerent Party which violates the provisions of the said Regulations [Regu-
      lations respecting the laws and customs of war on land, annexed to the Fourth Hague
      Convention] shall, if the case demands, be liable to pay compensation. It shall be
      responsible for all acts committed by persons forming part of its armed forces.”
   111 This Article of the Fourth Hague Convention of 1907 came to be regarded as being

also customary international law, and it was reiterated in Article 91 of the I Additional
Protocol (of 1977) to the 1949 Geneva Conventions on international humanitarian law.
Article 91 (Responsibility) of the I Protocol states : “A Party to the conflict which violates
the provisions of the Conventions or of this Protocol shall, if the case demands, be liable
to pay compensation. It shall be responsible for all acts committed by persons forming
part of its armed forces.”
   112 Cf., to this effect, Eric David, “The Direct Effect of Article 3 of the Fourth Hague

Convention of 18 October 1907 Respecting the Laws and Customs of War on Land”, in
War and the Rights of Individuals — Renaissance of Individual Compensation (H. Fujita,
I. Suzuki and K. Nagano, eds.), Tokyo, Nippon Hyoron-sha Co. Publs., 1999, pp. 50-53 ;
and cf. also, e.g., F. Kalshoven, “State Responsibility for Warlike Acts of the Armed
Forces”, 40 International and Comparative Law Quarterly (1991), pp. 831-833 ; D. Shel-
ton, Remedies in International Human Rights Law, 2nd ed., Oxford University Press,
2006, p. 400.
   113 For a general reassessment of that 1907 Conference, on the occasion of its centen-

nial commemoration in 2007, cf. [Various Authors], Actualité de la Conférence de La
Haye de 1907, Deuxième Conférence de la paix/Topicality of the 1907 Hague Conference,
the Second Peace Conference (Yves Daudet, ed.), Leiden, Nijhoff/The Hague Academy of
International Law, 2008, pp. 3-302.

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375    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

     In the early 1970s it was pointed out, for example, that
       “it is both surprising and alarming that twenty-five years after the
       [Second World] War many restitution and compensation cases are
       still pending. It is especially disturbing that some of these cases have
       been pending for more than twenty years.” 114

   118. More recently, after the enactment of the German Compensation
Law of 2 August 2000, it was again recalled that the subjection of pris-
oners of war to forced labour was characterized by “inhuman condi-
tions” of detention, “insufficient nutrition” and “lack of medical care”.
And,
        “According to historical research, these appalling conditions were
     predominant for Italian military internees [IMIs] in Germany. (. . .)
     The Italians were not prisoners of war who happened also to be sub-
     jected to forced labour. Instead, the exploitation of their labour
     force was the principal reason for their continued detention in Ger-
     many. (. . .)
        Lastly, one can only deeply regret the tardiness of the legislation
     passed only in the year 2000, 55 long years after the end of the
     Second World War. This tardiness was properly recognized by the
     German Parliament itself when, in the Stiftungsgesetz Statute’s pre-
     amble, it emphasized that ‘the law comes too late for those who lost
     their life as victims of the National Socialist regime, or died in the
     meantime’.” 115

Not only had those victims to endure inhuman and degrading treatment,
but later crossed the final limit of their ungrateful lives living with impu-
nity, without reparation and amidst manifest injustice. The time of
human justice is definitively not the time of human beings.

   119. Looking at the serious breaches of the law during the Second
World War in a wider dimension, the pitfalls of State voluntarism —
proper of the positivist legal thinking — were eloquently denounced by
the learned professor at the University of Heidelberg, Gustav Rad-
bruch, in the aftermath of the Second World War, and shortly before
his death in 1949. In announcing his own personal conversion to the
thinking of natural law, he pondered that positivism left the German
judiciary immobilized and defenceless in face of all the atrocities
perpetrated in the Third Reich, seen by the power-holders as in con-
formity with their jus positum (or rather, their imposed laws). That
tragically showed, after “a century of legal positivism”, added Rad-

  114 K. Schwerin, “German Compensation for Victims of Nazi Persecution”, 67 North-

western University Law Review (1972), p. 518, and cf. pp. 519-523.
  115 B. Fassbender, “Compensation for Forced Labour in World War II”, 3 Journal of

International Criminal Justice (2005), pp. 251-252.

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376   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

bruch, that all laws ought to be in conformity with the law superior to
them, that is, natural law 116.

   120. Stressing the cleavage between the Sein and the Sollen, he argued
that, where statutory law manifestly negates — to an extreme and intol-
erable degree — the equality at the core of all justice, it must be disre-
garded by judges in favour of the fundamental principles of justice. The
international legal profession nowadays, marked by a preponderant and
thoughtless adherence to legal positivism, should not forget the warnings
of that German professor, tormented as he became by the horrors, per-
petrated with impunity, of the Third Reich. The main lesson which Rad-
bruch drew was that the positivist conviction that “a law is a law” (dura
lex sed lex, or else Gesetz ist Gesetz) rendered German jurists of the time
defenceless against arbitrary or “criminal” (verbrecherische) laws.

    121. He added that positivism is incapable of establishing the validity
of laws on its own, and it had assumed that such validity follows from the
fact that such laws had the power to come into being. Notwithstanding,
it is justice which constitutes the highest value, and an unjust law, in prin-
ciple to be observed, when it comes to be in tension with justice, becomes
an “incorrect law” (unrichtiges Recht), which is displaced by justice.
When that law does not even aspire to serve justice, oblivious of equality
which is at its centre, it is not only “incorrect law”, it never achieves the
quality of law at all, the ultimate purpose of which is to serve justice 117.

   122. In an essay published posthumously, G. Radbruch, again regret-
ting the sad legacy of positivism, insisted on his view that there exists a
law higher than the laws, a natural law, a law of reason (ratio), which is
above the laws (ein übergesetzliches Recht). And he expressed the hope —
keeping in mind the then recent horrors of the Third Reich — that one
day the world will see a whole array of international organizations
wherein groups of people are no longer attached to their respective
nation States, but rather dedicated solely to the cause of humanity as a
whole. These human beings “beyond nationality” (übernationale Men-
schen), in his forecast, would be capable to create properly a true inter-
national law, and to adjudicate international disputes 118.

  116 G. Radbruch, Introducción a la Filosofía del Derecho [3rd Spanish edition of Vor-

schule der Rechtsphilosophie], Mexico/Buenos Aires, Fondo de Cultura Económica, 1965,
pp. 178 and 180.
  117 G. Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht” (1946), in G. Rad-

bruch, Rechtsphilosophie (E. Wolf, ed.), Stuttgart, K. F. Koehler Verlag, 1950, pp. 352-
353, and cf. pp. 347-357.
  118 G. Radbruch, “Die Erneuerung des Rechts”, in Naturrecht oder Rechtspositivis-

mus ? (W. Maihofer, ed.), Bad Homburg vor der Höhe, H. Gentner Verlag, 1962, pp. 2
and 6-7, and cf. pp. 1-10.

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377     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   123. I find of perennial value the main lesson extracted by G. Rad-
bruch from the grave violations of human rights and international
humanitarian law perpetrated during the long dark night 119 of the years
of the Third Reich. Among those brutalities stands that of forced labour
in war industry, which has received much less attention from historians
than other aspects of those somber times. For those of us who have the
privilege to serve the cause of justice, it is imperative not to lose sight, in
regard to that abominable practice, that the ultimate bearers (titulaires)
of the originally violated rights were not States, but human beings, of
flesh and bones and soul. The vindication of their rights stand in the
background of the vindicated State right to immunity. In the present case
before the Court, counter-claim and original claim form an indivisible
whole.

       XIII. THE INCIDENCE OF JUS COGENS : PURPORTED WAIVER OF
      VINDICATION OF RIGHTS INHERENT TO THE HUMAN PERSON BEING
                     DEVOID OF JURIDICAL EFFECTS

   124. In any case, any purported waiver by a State of the rights inher-
ent to the human person would, in my understanding, be against the
international ordre public, and would be deprived of any juridical effects.
To hold that this was not yet recognized at the time of the Second World
War and the 1947 Peace Treaty — a view remindful of the old positivist
posture, with its ineluctable subservience to the established power —
would be, in my view, without foundation. It would amount to conceding
that States could perpetrate crimes against humanity with total impunity,
that they could systematically perpetrate manslaughter, humiliate and
enslave people, deport them and subject them to forced labour, and then
hide themselves behind the shield of a waiver clause negotiated with other
State(s), and try to settle all claims by means of peace treaties with their
counterpart State(s).

   125. Already in the times of the Third Reich, and before them, this
impossibility was deeply-engraved in human conscience, in the universal
juridical conscience, which is, in my understanding, the ultimate material
source of all law. To hold that enforced labour was not prohibited at the
time of the German Third Reich would not stand (cf. infra), not even on
the basis of the old positivist dogmas. It does not stand at all, neither in
times of armed conflict, nor in times of peace. The gradual restrictions
leading to its prohibition, so as to avoid and condemn abuses of the past
against the human person, became manifest not only in the domain of
international humanitarian law, but also in that of the regulation of
labour relations (proper of the international Conventions of the Interna-

  119   To paraphrase some medieval thinkers.

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378   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

tional Labour Organization — ILO). In my own perception, even before
all those instruments (infra), enslavement and forced labour were pro-
scribed by human conscience, as the gross abuses of the past weighed too
heavily on this latter.

                     1. Conventional International Law

(a) International humanitarian law
   126. As to international humanitarian law, may it be recalled that,
well before the sinister epoch of the Third Reich, the Regulations Respect-
ing the Laws and Customs of War on Land, Annex to the (IV) Hague
Convention Respecting the Laws and Customs of War on Land, adopted
at the Second Hague Peace Conference of 1907, with the aim “to serve,
even in this extreme case, the interests of humanity” (preamble, para. 2),
imposed clear restrictions on the labour of prisoners of war (Article 6),
and prohibited the confinement of these latter (Article 5). The Fourth
Hague Convention of 1907 contained, in its preamble, the célèbre Martens
clause (cf. infra), whereby in cases not included in the adopted Regula-
tions annexed to it,

      “the inhabitants and the belligerents remain under the protection
      and the rule of the principles of the law of nations, as they result
      from the usages established among civilized peoples, from the prin-
      ciples of humanity, and the dictates of the public conscience”
      (para. 8).
  127. Two decades later, by means of the 1926 Geneva Anti-Slavery
Convention, the States parties recognized that it was “necessary to pre-
vent forced labour from developing into conditions analogous to slavery”
(preamble, para. 5). They further warned that “recourse to compulsory
or forced labour may have grave consequences”, and thereby they
undertook,

      “each in respect of the territories placed under its sovereignty, juris-
      diction, protection, suzerainty or tutelage, to take all measures to
      prevent compulsory or forced labour from developing into condi-
      tions analogous to slavery” (Article 5).
   128. Three years later, and still one decade before the outbreak of the
Second World War, the 1929 Geneva Convention Relative to the Treat-
ment of Prisoners of War, again imposed restrictions on the labour of
prisoners of war (Articles 28-30 and 32-34), and categorically prohibited
“to employ prisoners in the manufacture or transport of arms or muni-
tions of any kind, or on the transport of material destined for combatant
units” (Article 31). And, promptly at the end of the Second World War,

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379    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

the 1945 Charter of the International Military Tribunal of Nuremberg
listed among “war crimes” the “deportation to slave labour or for any
other purpose of civilian population of or in occupied territory” (Article
6 (b)), and among “crimes against humanity” the “enslavement, depor-
tation, and other inhumane acts committed against any civilian popula-
tion, before or during the war” (Article 6 (c)).

   129. In any case, well beyond the provisions of the aforementioned
treaties, celebrated years before, and shortly after, the Second World
War, forced labour — analogous to slavery — in the war industry was
prohibited by the universal juridical conscience, the ultimate material
source of international law. In this respect, we do not need to indulge
into the superficial positivist exercise of spotting express prohibitions in
the text of treaties (the jus positum). Slave work, forced labour in arma-
ments industry, was prohibited by general international law well before
the nightmare and the horrors of the Third Reich.

(b) International labour Conventions

   130. As to the international instruments of the International Labour
Organization (ILO), may it be recalled that the Forced Labour Conven-
tion (No. 29) of the ILO was adopted in 1930, almost one decade before
the outbreak of the Second World War. And even well before then,
forced labour was proscribed by human conscience. The International
Labour Office itself has drawn attention to the fact that the 1930 Forced
Labour Convention (No. 29), followed by the 1957 Abolition of Forced
Labour Convention (No. 105), have practically found universal accept-
ance 120 (being “the most widely ratified of all international labour
conventions” 121), and the principles embodied therein have been incor-
porated in several international instruments at both universal and regional
levels. The International Labour Office has, accordingly, propounded the
view that “[T]he prohibition of the use of forced or compulsory labour in
all its forms is considered now as a peremptory norm of modern inter-
national law of human rights” 122.

     131. It has gone even beyond the domain of the international law of

   120 Counting nowadays on 170 and 164 ratifications, respectively ; cf. op. cit. note 122,

infra, p. 12.
   121 Cf. op. cit. note 122, infra, pp. 1 and 34. Yet, despite this universal condemnation of

forced labour, the problem remains in our days, as “millions of people around the world
are still subjected to it”, in a true “affront to human dignity” (ibid., p. 1), as illustrated by
the persistence of slavery-like practices, trafficking in persons for the purpose of exploita-
tion, and illegal forms of compulsion to work (cf. ibid., pp. 35-47).
   122 International Labour Office, Eradication of Forced Labour, Geneva, ILO, 2007,

p. XI.

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380   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

human rights, in reiterating, in its recent study on the matter (published
almost eight decades after the 1930 Forced Labour Convention [No. 29]),
the view that
      “Freedom from forced or compulsory labour was among the first
      basic human rights subjects within the Organization’s mandate to be
      dealt with in international labour standards. The principles embod-
      ied in the ILO Conventions in this field have since been incorporated
      in various international instruments, both universal and regional,
      and have therefore become a peremptory norm of international
      law.” 123
   132. This is not the only assertion to this effect ; in yet another study
published seven years ago by the ILO, the view is restated that, as from
the letter and the spirit of the 1930 Forced Labour Convention (No. 29),
followed by the 1957 Abolition of Forced Labour Convention (No. 105),
the evolution of this particular matter has attained “the status of the abo-
lition of forced or compulsory labour in general international law as a
peremptory norm from which no derogation is permitted” 124.

   133. It should not be forgotten that this was achieved only after much
human suffering of succeeding generations. As observed at the time of
the celebration of the 1957 Abolition of Forced Labour Convention
(No. 105), there is “humiliating historical evidence” that “the formal abo-
lition of slavery was only reluctantly achieved, little by little, during the
nineteenth century” ; as “hidden or even overt forms of serfdom” still
persisted in some countries, in the mid-twentieth century it was thus nec-
essary to conclude the 1957 ILO Convention on Abolition of Forced
Labour (No. 105). At that same time, moreover, the 1958 UN Confer-
ence on the Law of the Sea “found itself faced with the infamous slave
trade to deal with as a still existing evil surviving from the past” 125.

(c) International law of human rights

   134. Keeping in mind all the aforementioned developments — the evo-
lution of the new jus gentium of our times — it is clear that, a long time
ago, the prohibition of forced labour in all circumstances became estab-

   123 Eradication of Forced Labour, op. cit. supra note 122, p. 111. For a study of the

historical background of the 1930 Forced Labour Convention (No. 29), and the early
engagement in the matter on the part of the ILO and the League of Nations, cf. Jean
Bastet, Le travail forcé et l’organisation internationale (SDN et BIT), Paris, LGDJ, 1932,
pp. 1-181.
   124 M. Kern and C. Sottas, “The Abolition of Forced or Compulsory Labour”, in

Fundamental Rights at Work and International Labour Standards, Geneva, ILO, 2003,
p. 44, and cf. p. 33.
   125 J. H. W. Verzijl, Human Rights in Historical Perspective, Haarlem, Haarlem Press,

1958, p. 6.

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381   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

lished in the law of nations, in times of armed conflict as well as of peace
(cf. supra). As proclaimed, in the aftermath of the Second World War,
by the 1948 Universal Declaration of Human Rights, “[a]ll human beings
are born free and equal in dignity and rights” (Article 1). This
prohibition derives from the fundamental principle of equality and non-
discrimination. This fundamental principle, according to Advisory
Opinion No. 18 of the Inter-American Court of Human Rights (IACtHR)
on the Juridical Condition and Rights of Undocumented Migrants (of
17 September 2003), belongs to the domain of jus cogens.
   135. In that transcendental Advisory Opinion of 2003, the IACtHR, in
line with the humanist teachings of the “founding fathers” of the droit
des gens (jus gentium), pointed out that, under that fundamental princi-
ple, the element of equality can hardly be separated from non-discrimina-
tion, and equality is to be guaranteed without discrimination of any kind.
This is closely linked to the essential dignity of the human person, ensu-
ing from the unity of human kind. The basic principle of equality before
the law and non-discrimination permeates the whole operation of the
State power, having nowadays entered the domain of jus cogens 126. In a
concurring opinion, it was stressed that the fundamental principle of
equality and non-discrimination permeates the whole corpus juris of the
international law of human rights, has an impact in public international
law, and projects itself onto general or customary international law itself,
and integrates nowadays the expanding material content of jus cogens 127.

                           2. General International Law

   136. I have already referred to the Martens clause (para. 126, supra)
inserted into the preamble of the Fourth Hague Convention of 1907 (cf.
supra), and, even before that, also in the preamble of the Second Hague
Convention of 1899 (para. 9), adopted at the First Hague Peace Confer-
ence of 1899 128, both pertaining to the laws and customs of land warfare.
Its purpose was to extend juridically needed protection to civilians and
combatants in all situations, even though not contemplated by the con-

   126 IACtHR, Advisory Opinion No. 18 (of 17 September 2003), on the Juridical Condi-

tion and Rights of Undocumented Migrants, Series A, No. 18, paras. 83, 97-99 and 100-
101.
   127 Ibid., concurring opinion of Judge A. A. Cançado Trindade, paras. 59-64 and

65-73. In recent years, the IACtHR, together with the ad hoc International Criminal Tri-
bunal for the former Yugoslavia, have been the contemporary international tribunals
which have most contributed, in their case law, to the conceptual evolution of jus cogens
(well beyond the law of treaties), and to the gradual expansion of its material content ; cf.
A. A. Cançado Trindade, “Jus Cogens : The Determination and the Gradual Expansion
of Its Material Content in Contemporary International Case Law”, in XXXV Curso de
Derecho Internacional Organizado por el Comité Jurídico Interamericano — OAS (2008)
pp. 3-29.
   128 It was originally presented by the Delegate of Russia (Friedrich von Martens) to the

First Hague Peace Conference (1899).

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382   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

ventional norms ; to that end, the Martens clause invoked the “principles
of the law of nations” derived from “established” custom, as well as the
“principles of humanity” and the “dictates of the public conscience”.
Subsequently, the Martens clause was again to appear in the common
provision, concerning denunciation, of the four Geneva Conventions of
international humanitarian law of 1949 (Articles 62, 63, 142 and 158), as
well as in the Additional Protocol I (of 1977) to those Conventions (Arti-
cle 1, paragraph 2), to quote some of the main Conventions of interna-
tional humanitarian law.

  137. The Martens clause has thus been endowed, for more than a cen-
tury, with continuing validity, in its invocation of public conscience 129,
and it keeps on warning against the assumption that whatever is not
expressly prohibited by the Conventions on international humanitarian
law would be allowed ; quite on the contrary, the Martens clause sustains
the continued applicability of the principles of the law of nations, the
principles of humanity, and the dictates of the public conscience, inde-
pendently of the emergence of new situations 130. The Martens clause
impedes, thus, the non liquet, and exerts an important role in the herm-
eneutics and the application of humanitarian norms.

   138. The fact that the draftsmen of the Conventions of 1899, 1907 and
1949 and of Protocol I of 1977 have repeatedly asserted the elements of
the Martens clause in those international instruments reckons that clause
as an emanation of the material source of international humanitarian
law 131 and of international law in general. In this way, it exerts a con-
tinuous influence in the spontaneous formation of the contents of new
rules of international humanitarian law.
   139. By intertwining the principles of humanity and the dictates of
public conscience, the Martens clause establishes an “organic inter-
dependence” of the legality of protection with its legitimacy, to the ben-
efit of all human beings 132. The legacy of Martens is also related to the
primacy of law in the settlement of disputes and the search for peace 133.
Contemporary juridical doctrine has also characterized the Martens clause

   129 As, however advanced may the codification of humanitarian norms be, it will hardly

be considered as being truly complete.
   130 B. Zimmermann, “Protocol I — Article 1”, in Commentary on the Additional Pro-

tocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Y. Sandoz, Ch. Swi-
narski and B. Zimmermann, eds.), Geneva, ICRC/Nijhoff, 1987, p. 39.
   131 H. Meyrowitz, “Réflexions sur le fondement du droit de la guerre”, in Etudes et

essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en
l’honneur de Jean Pictet (Ch. Swinarski, ed.), Geneva/The Hague, CICR/Nijhoff, 1984,
pp. 423-424 ; and cf., H. Strebel, “Martens’ Clause”, in Encyclopedia of Public Interna-
tional Law (R. Bernhardt, ed.), Vol. 3, Amsterdam, North-Holland Publ. Co., 1982,
pp. 252-253.
   132 Ch. Swinarski, “Préface”, in V. V. Pustogarov, op. cit. infra note 133, p. XI.
   133 V. V. Pustogarov, Fedor Fedorovich Martens — Jurist i Diplomat, Moscow, Ed.

Mejdunarodnie Otnosheniya, 1999, pp. 1-287.

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383   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

as source of general international law itself 134 ; and no one would dare
today deny that the “principles of humanity” and the “dictates of the
public conscience” invoked by the Martens clause belong to the domain
of jus cogens 135. The aforementioned clause, as a whole, has been con-
ceived and reiteratedly affirmed, ultimately, to the benefit of humankind
as a whole, thus maintaining its topicality. The clause may be considered
as an expression of the raison d’humanité imposing limits on the raison
d’Etat.

3. The Incidence of Jus Cogens, in the Light of the Submissions of the
                         Contending Parties

   140. The previous considerations bring me to a remaining line of brief
reflections on the incidence of jus cogens, in the light of the submissions
of Italy and Germany in the present case concerning Jurisdictional Immu-
nities of the State. Their submissions, on this specific issue, and in the
context of the cas d’espèce, are not so diverging as one might perhaps
expect them to be. It is certain that, in its Memorial, Germany begins by
criticizing the arguments of Italy’s Corte di Cassazione in its 2004 Judg-
ment in the Ferrini case, as, in Germany’s view,
      “(. . .) As a legal concept, jus cogens did not exist at the time when
      the violations occurred from which the plaintiffs attempt to derive
      their claims. Thus, to apply the standard of jus cogens to the tragic
      events of the Second World War does not correspond to the general
      rules of temporal applicability of international law. Any conduct
      must be appraised by the standards in force at the time it was prac-
      tice.” 136
It then added that, “since international law is essentially based on the
consent of States”, it is in their “general practice” that answers must be
sought as to the consequences “entailed by a breach of a jus cogens
rule” 137.
   141. Such assertions do not resist closer examination. State consent
and jus cogens are as antithetical as they could possibly be. The practice
of States alone, permeated with incongruencies as it usually is, cannot at
all provide sole guidance for extracting the consequences of a breach of a
peremptory norm of general international law (jus cogens), in the sense
of Articles 53 and 64 of the two Vienna Conventions on the Law of Trea-

   134 F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Inter-

nacional — Libro-Homenaje al Prof. D. A. Truyol y Serra, Vol. II, Madrid, Univ. Com-
plutense, 1986, p. 836.
   135 S. Miyazaki, “The Martens Clause and International Humanitarian Law”, in Etudes

et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en
l’honneur de Jean Pictet, op. cit. supra note 131, pp. 438 and 440.
   136 Memorial of Germany (12 June 2009), pp. 52-53, para. 85.
   137 Ibid., p. 54, para. 87.

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384   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

ties (1969 and 1986). When the first of those Vienna Conventions was
adopted, it marked the emergence of jus cogens only in the domain of the
law of treaties. In the course of the official debates of the Vienna Con-
ference of 1986, which adopted the second Vienna Convention, I deemed
it fit to warn of the manifest incompatibility between jus cogens and the
static positivist-voluntarist conception of international law (with empha-
sis on the will or consent of States) 138.

  142. The truth is that jus cogens goes well beyond the law of treaties,
and this is not new. Still in its Memorial, Germany asserts that, “undoubt-
edly”, jus cogens “prohibits genocide” ; and it promptly concedes, in this
connection, that : “This ban has its legal foundation both in the 1948
Convention on the Prevention and Punishment of the Crime of Genocide
and in (earlier) general rules of international law.” 139

   Thus, Germany itself rightly — and commendably — recognizes the
incidence of jus cogens going well back into the past, and well before the
relevant provisions (Articles 53 and 64) of the 1969 Vienna Convention
on the Law of Treaties. It ends up by recognizing that jus cogens (in gen-
eral international law) prohibited genocide already at the times of the
crimes of the Third Reich, which shocked the conscience of humankind.
Even before the end of the nineteenth century (on the occasion of the
First Hague Peace Conference of 1899), the prohibition of genocide was
deeply-rooted in the universal juridical conscience, or in “the dictates of
the public conscience”, to paraphrase the Martens clause (supra).

   143. The 1948 Convention against Genocide went on to put that on
paper, after the horrors of the Third Reich. But well before that Conven-
tion, everyone with a sane mind knew perfectly well that the perpetration
of genocide is a wrongful act, is a crime, it goes against the law. As to the
treatment of detained persons, in its Counter-Memorial in the present
case, Italy, on its turn, in relation to jus cogens, considers that

        “It seems to be universally accepted that, even before the Second
      World War, provisions concerning the treatment of prisoners had a
      non-derogable character. (. . .) The Charter annexed to the Agree-
      ment of 8 August 1945 establishing the Nuremberg International
      Military Tribunal qualified as war crimes the violations of the laws
      or customs of war. The Tribunal found that, by 1939, the humani-
      tarian rules included in the Regulations annexed to the Hague Con-

  138 Cf. Official Records of the United Nations Conference on the Law of Treaties

between States and International Organizations or between International Organization
(Vienna, 18 February-21 March 1986), Vol. I, N.Y., 1995, pp. 187-188 [intervention by
Mr. Cançado Trindade (Brazil)].
  139 Memorial of Germany (12 June 2009), p. 53, para. 86.

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385     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

        vention IV of 1907 ‘were recognized by all civilized nations and were
        regarded as being declaratory of the laws and customs of war’.

           In 1946, General Assembly resolution 95 (I) confirmed the Nurem-
        berg Principles as regards international crimes. Even if the context
        was that of individual criminal responsibility and not of State respon-
        sibility and jus cogens definition, it cannot be denied that the crimi-
        nalization of violations of humanitarian law committed during the
        Second World War is indicative of the idea that such violations were
        considered, already at that time, as affecting the most fundamental
        values of the international community.” 140

  144. In fact, we can go back — even before the Second Hague Peace
Conference (1907) — to the time of the First Hague Peace Conference
(1899), in the line of the viewpoints submitted to the Court by both
Germany and Italy, not necessarily diverging herein. By the end of the
nineteenth century, in the days of the First Hague Peace Conference,
there was a sense that States could incur delictual responsibility for
mistreatment of persons (e.g., for transfer of civilians for forced labour) ;
this heralded the subsequent age of criminal responsibility of individual
State officials, with the typification of war crimes and crimes against
humanity.

   145. The gradual awakening of human conscience led to the evolution
from the conceptualization of the delicta juris gentium to that of the
violations of international humanitarian law (in the form of war crimes
and crimes against humanity) — the Nuremberg legacy — and from these
latter to that of the grave violations of international humanitarian law
(with the four Geneva Conventions on international humanitarian law of
1949, and their I Additional Protocol of 1977) 141. With that gradual awaken-
ing of human conscience, likewise, human beings ceased to be objects of
protection and became reckoned as subjects of rights, starting with the
fundamental right to life, encompassing the right of living in dignified
conditions.
   146. Human beings were recognized as subjects of rights in all circum-

  140 Counter-Memorial of Italy (22 December 2009), pp. 62-63, paras. 4.62-4.63.
  141 I Geneva Convention, Articles 49-50 ; II Geneva Convention, Articles 50-51 ;
III Geneva Convention, Articles 129-130 ; IV Geneva Convention, Articles 146-147 ;
I Additional Protocol, Articles 85-88. The I Additional Protocol of 1977 (Article 85)
preferred to stick to the terminology of the four Geneva Conventions of 1949 in this
particular respect, and maintained the expression of “grave breaches” on international
humanitarian law, in view of the “purely humanitarian objectives” of those humanitarian
treaties ; yet, it saw it fit to state that “grave breaches” of those treaties (the four Geneva
Conventions and the I Additional Protocol) “shall be regarded as war crimes” (Arti-
cle 85 (5)). Cf. Y. Sandoz, Ch. Swinarski and B. Zimmermann (eds.), Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Gen-
eva, ICRC/Nijhoff, 1987, pp. 990 and 1003.

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386   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

stances, in times of peace as well as of armed conflict. As to the former,
may it here be briefly recalled that, well before the 1948 Universal Decla-
ration of Human Rights, in the inter-war period, the pioneering experi-
ments of the minorities system and the mandates system under the
League of Nations granted direct access to the individuals concerned to
international instances (the Minorities Committees and the Permanent
Mandates Commission, respectively), in order to vindicate the rights
emanated directly from the law of nations (the evolving jus gentium). As
to the latter, likewise, as from the Second Hague Peace Conference of
1907 onwards, human beings were recognized as being entitled to war
reparations claims.

  147. A detailed factual account of the cruelty and the untold human
suffering of deportation and forced labour of workers and of the civilian
population (of occupied Belgium) 142, already in the First World War
(period 1916-1918), published in 1928, observed that

         “The system of deportation set up in the autumn of 1916 essen-
      tially consisted in the widespread requisitioning or mass conscription
      of working-class males, in order to meet the labour requirements of
      the German war machine (. . .)
         Such requisitioning is clearly in breach of international law, both
      traditional and as codified by the Hague Conventions.” 143 [Transla-
      tion by the Registry.]
Two decades later, the IV Geneva Convention (1949) expressly prohib-
ited forcible transfers 144, in addition to the earlier restrictions set forth in
the 1907 Hague Regulations (IV Hague Convention). Those interna-
tional instruments came to be regarded as declaratory of the evolving
customary law on the matter 145.
   148. The 1907 Hague Regulations (IV Hague Convention) contained
restrictions, rather than a peremptory prohibition, because at the begin-
ning of the twentieth century the practice of deporting persons came to
be regarded as “having fallen into abeyance”. But the worst was still to
come, with the imposed formation of a “forced labour service”, over two
World Wars, with its appalling features, insufficiently examined by his-

   142 Cf. F. Passelecq, Déportation et travail forcé des ouvriers et de la population civ-

ile . . ., op. cit. supra note 23, pp. 318-320, 329-330, 334-335, 374-376 and 394. The author
ends his book (on the considerable suffering of those subjected to deportation and forced
labour from 1916-1918) with these words : “We will not draw any conclusions. For a
number of reasons, it is preferable that the reader be left directly confronted with the
facts, to hear their silent message without human intervention” [translation by the Reg-
istry] ; ibid., p. 404. He let the facts speak for themselves.
   143 Ibid., p. 374.
   144 Article 49 (1), in addition to Article 147 on unlawful deportations or transfers.
   145 Cf., e.g., J.-M. Henckaerts, “Deportation and Transfer of Civilians in Time of

War”, 26 Vanderbilt Journal of Transnational Law (1993), pp. 469-519.

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387   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

torians to date : “millions of human beings were torn from their homes,
separated from their families and deported from their country, usually
under inhumane conditions” 146.
   They were in this way sent to forced labour in the war industry. Such
events disclosed the necessity of “more detailed provisions” on the mat-
ter, giving expression to a prohibition which was already present in
human conscience. Accordingly, in the IV Geneva Convention of 1949,
“‘unlawful deportation or transfer’ was introduced among the grave
breaches, defined in Article 147 of the Convention as calling for the most
severe penal sanctions” 147.
   149. Thus, by the mid-twentieth century any doubt was dispelled that
prohibitions of the kind had come to be regarded as “having been
embodied in international law” 148. As to the idea of jus cogens, it had
found expression even earlier, in relation to distinct situations, keeping in
mind general international law and the very foundations of the interna-
tional legal order. The expression “jus cogens” was utilized by Judge
Schücking, of the PCIJ, in his separate opinion in the Oscar Chinn
case 149. One year later, in his course at the Hague Academy of Interna-
tional Law, A. Verdross also evoked the expression “jus cogens”, and
referred himself to the aforementioned separate opinion of Judge Schück-
ing 150.
   150. In the same year of 1935, another scholar, J. H. W. Verzijl,
endorsing the views of Judge Schücking in his invocation of jus cogens in
the Oscar Chinn case (in his own words, “M. Schücking, le juge alle-
mand, me paraît avoir parfaitement raison”), also referred to jus cogens,
and was quite critical of the decision of the PCIJ in the Oscar Chinn case
for having pursued an essentially voluntarist-positivist approach (unfor-
tunately still en vogue in our days). In the words of J. H. W. Verzijl,

        “(. . .) To a fundamental question of public international law, the
      Judgment gave a highly regrettable response. At issue was what the
      Court should do when a treaty is claimed by some of its parties to be
      totally null and void because it violates certain pre-existing jus
      cogens norms (. . .)

         The position is quite simple : if the Court accepts that the later text
      infringes pre-existing norms of a jus cogens character, it cannot

   146 Jean S. Pictet et al. (eds.), Commentary on the IV Geneva Convention Relative to the

Protection of Civilian Persons in Time of War, Geneva, ICRC, 1958, p. 278.
   147 Ibid., p. 280.
   148 Ibid., p. 279.
   149 Oscar Chinn (United Kingdom v. Belgium), Judgment, 1934, P.C.I.J., Series A/B,

No. 63, pp. 148-150, esp. p. 149.
   150 Cf., A. Verdross, “Les principes généraux du droit dans la jurisprudence interna-

tionale”, 52 Recueil des cours de l’Académie de droit international de La Haye (1935),
pp. 206 and 243.

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388   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

      apply the treaty, and must consider it null and void in its totality,
      even if that nullity is not invoked by any of the parties to the dis-
      pute. In such a situation, nullity is automatic and the Court must
      make a finding to that effect proprio motu.
         The Permanent Court, however, failed to do this (. . .) I have no
      hesitation in describing this Judgment as a pessimi exempli. Because,
      by submitting to the will of the parties to the dispute, the Court, by
      this unfortunate Judgment, has opened the door to all manner of
      evasions of peremptory norms of international law. Through this
      Judgment, it has prepared the ground for States to escape — with
      impunity, and indeed with its tacit approval — the application of
      rules of law previously recognized as necessarily representing for the
      future an unshakeable basis for international relations.” 151 [Trans-
      lation by the Registry.]

   151. My own view, as I have already pointed out, is that States cannot
waive claims of violations of the fundamental rights inherent to the
human person, and any purported waiver to that effect would be deprived
of any juridical effects. This applies even more forcefully if those viola-
tions (under the international law of human rights) are also serious or
grave breaches of international humanitarian law and amount to war
crimes. This was already recognized in the mid-twentieth century, in
respect of deportation to slave labour. Thus, the 1945 [London] Charter
of the International Military Tribunal (of Nuremberg) included “depor-
tation to slave labour” among “war crimes, namely, violations of the laws
or customs of war” (Article 6 (b)). The 1945 Charter of the Nuremberg
Tribunal further included “enslavement” and “deportation” among
“crimes against humanity” (Article 6 (c)).

   152. Shortly after the adoption of the Charter of the Nuremberg Tri-
bunal, the UN International Law Commission (ILC) was directed by the
UN General Assembly resolution 177 (II), paragraph (a), to “formulate
the principles of international law recognized in the Charter of the
Nuremberg Tribunal and in the judgment of the Tribunal”. In pursuance
of the General Assembly resolution, the ILC started considering the sub-
ject at its very first session. The ILC espoused the view that

      “since the Nuremberg principles had been affirmed by the General
      Assembly, the task entrusted to the Commission by paragraph (a)
      of resolution 177 (II) was not to express any appreciation of these
      principles as principles of international law but merely to formulate
      them” 152.

  151 J. H. W. Verzijl, “La validité et la nullité des actes juridiques internationaux”,

15 Revue de droit international (1935), pp. 321-322.
  152 UN, Yearbook of the International Law Commission (1950), Vol. II, p. 374.

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389    JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

This view was approved by the General Assembly in 1949, and, after the
consideration of the report on the matter (rapporteur, Jean Spiropoulos),
the ILC adopted, in its session of 1950, a formulation of the principles of
international law formulated in the Charter of the Nuremberg Tribunal
and in the judgment of the Tribunal 153.
   153. Principle VI of the ILC’s formulation of the Nuremberg Princi-
ples included, among “war crimes”, the “deportation to slave labour or
for any purpose of civilian population of or in occupied territories” ;
and it likewise included, among “crimes against humanity”, “enslave-
ment” and “deportation” of “any civilian population” 154. In sum, the
ILC only formulated the principles at issue, which had already been rec-
ognized by the international community, and duly asserted by the UN
General Assembly. The “dictates of the public conscience” — to para-
phrase the Martens clause — had already echoed in the UN General
Assembly. The international community already recognized jus cogens.
Could claims of war crimes reparations be waived in 1947 ? Not at all.
Could claims of reparations of crimes against humanity be waived in
1947 ? Not at all. Could claims of reparations of serious breaches (two
years later codified as “grave breaches”) of international humanitarian
law be waived in 1947 ? Not at all ; not in my perception, not in my
conception.

                                 XIV. CONCLUSIONS

   154. May I now, at last, proceed to a summary of the foundations I
have cared to lay, in the present dissenting opinion, of my own position,
contrary to the decision taken by the Court’s majority in the present
Order. In summarily discarding the Italian counter-claim as “inadmis-
sible as such”, the Court should have at least instructed properly the
dossier of the cas d’espèce, by holding, prior to the decision it has just
taken, public hearings to obtain further clarifications from the con-
tending Parties. The same treatment is to be rigorously dispensed to the
original claim and the counter-claim as a requirement of the sound
administration of justice (la bonne administration de la justice). They
are, both, autonomous, and should be treated on the same foot-
ing, with a strict observance of the principe du contradictoire. Only in
this way the procedural equality of the parties (Applicant and Respond-
ent, rendered Respondent and Applicant by the counter-claim) is
secured.

 153   Yearbook of the International Law Commission (1950), Vol. II, p. 374.
 154   Ibid., p. 377.

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390   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   155. Counter-claims, as a juridical institute transposed from domestic
procedural law into international procedural law, already have their his-
tory, but the ICJ’s jurisprudential construction on the matter is still in the
making. Article 80 (1) of the Rules of Court entitles the ICJ to entertain
a counter-claim if “it comes within the jurisdiction of the Court” and “is
directly connected with the subject-matter of the claim of the other
party”. The present Order of the Court is not in line with the procedural
history of the Court’s handling of counter-claims (cf. supra). The Court,
furthermore, felt it sufficient to examine only one of the requisites of
Article 80 (1), on the basis, data venia, of erroneous assumptions as to the
facts and as to the law, and failing thus to comply in toto with that provi-
sion of its own Rules.

   156. The Order that the Court has just adopted has made abstraction
of the configuration of the notion of “continuing situation” in interna-
tional legal thinking, in both international litigation and case law, and in
international legal conceptualization at normative level. Furthermore, it
has not addressed the position of the true bearers (titulaires) of the origi-
nally violated rights, oblivious of the pitfalls of State voluntarism. Its
emphasis fell solely on waiver of claims, again oblivious of the incidence
of jus cogens, rendering certain waivers of claims devoid of any juridical
effects (supra).

   157. The Court has discarded the Italian counter-claim on the basis of
succinct considerations in the two brief paragraphs 28 and 29, of the
present Order. Paragraph 29 is a petitio principii, simply begging the
question. The ratio decidendi lies in paragraph 28 of the Order : it argues
that the two 1961 Agreements provided Italy with forms of compensation
for certain of its nationals going beyond the “regime” established shortly
after the Second World War, and that they did not affect or change the
legal situation of the Italian nationals at issue in the present case. It adds
that the legal situation of those Italian nationals is “inextricably linked”
to an “appreciation” of the scope and effect of the waiver contained in
Article 77 (4) of the 1947 Peace Treaty and “the different views of the
Parties as to the ability of Germany to rely upon that provision”.

  158. This is, in fact, another petitio principii, trying to make one
believe that there is continuity between the 1947 Peace Treaty between
the Allied Powers 155 and Italy, and the 1961 Agreements. This petitio

   155 Namely : Union of Soviet Socialist Republics, United Kingdom of Great Britain and

Northern Ireland, United States of America, China, France, Australia, Belgium, Byelorus-
sian Soviet Socialist Republic, Brazil, Canada, Czechoslovakia, Ethiopia, Greece, India,
the Netherlands, New Zealand, Poland, the Ukrainian Soviet Socialist Republic, Union of
South Africa, and the People’s Federal Republic of Yugoslavia.

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391     JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

principii ultimately leads the Court to declare that the counter-claim
relates to facts and situations which already existed prior to the entry into
force of the 1957 European Convention for the Peaceful Settlement of
Disputes, thus falling outside its jurisdiction ratione temporis, and ena-
bling it to declare the counter-claim “inadmissible as such”. The matter
summarily disposed of, in the present Order, is not so clear and self-
evident as the Court’s majority seems to believe. On the basis of the con-
siderations and reflections developed in the present dissenting opinion, I
am led to conclude that the Court’s majority position does not stand, and
finds no basis, neither as to the facts nor as to the law, to rely upon.
It is nothing but a petitio principii.

   159. Germany expressly acknowledges that “there exists in fact a cer-
tain divergence of opinions regarding the legal connotation of the two
1961 Agreements” 156, whether they set up or not a “reparation regime” 157.
Germany and Italy further disagreed as to whether the celebration of the
two 1961 Agreements represented a gesture of good will on the part of
Germany, or else a mandatory process of settlement of reparations
claims 158. Germany’s obligation of effective reparation in respect of Ital-
ian victims’ claims of serious international humanitarian law violations,
though finding a historical causal nexus in the crimes committed by
the Third Reich, actually derives juridically from decisions of post-war
Germany, formalized through the two 1961 Agreements 159.

  160. In this connection, both Parties have excluded occurrences of the
period preceding the entry into force of the 1957 European Convention
for the Peaceful Settlement of Disputes from the subject-matter of the
present dispute, in so far as consideration of the counter-claim is con-
cerned 160. Italy makes it quite clear that “it is the issue of reparation, and
not the factual and legal assessment of events of the Second World War,
which forms the central point of the dispute” 161. The tragic occurrences
of the Second World War do not constitute the real cause of the present
dispute on reparation claims ; the 1961 Agreements do, and form the trig-
gering point of a continuing situation persisting to date.

  156   Preliminary Objections of Germany..., op. cit. supra note 32, p. 22, para. 35.
  157 Cf. Observations of Italy . . ., op. cit. supra note 53, pp. 20 and 25, paras. 52 and 65.
  158 Ibid., pp. 22-23, paras. 56-57.
  159 Cf. Counter-Memorial of Italy (22 December 2009), p. 111, para. 5.63.
  160 Memorial of Germany (12 June 2009), pp. 8-9, para. 7 ; Counter-Memorial of Italy

(22 December 2009), pp. 37-38, paras. 3.14-3.15.
  161 Counter-Memorial of Italy (22 December 2009), pp. 37-38, para. 3.15.

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392   JURISDICTIONAL IMMUNITIES OF THE STATE (DISS. OP. CANÇADO TRINDADE)

   161. As already pointed out, there is evidence to the effect that, from
1961 onwards, Germany decided no longer to avail itself of the waiver
clause of Article 77 (4) of the 1947 Peace Treaty, even retroactively ; from
then onwards, applications of Italian nationals would no longer be dis-
carded (unlike what used to happen before 1961, on the basis of Article
77 (4) of the Peace Treaty). Reference has already been made, first, to the
exchange of letters (between the Secretary of State of the German For-
eign Office and the Italian Ambassador in Bonn) of 2 June 1961 (on the
same day as the two Agreements were signed 162, taking into account that
exchange of letters), indicating that a new obligation had emerged, and,
secondly, to the memorandum submitted to the legislative bodies by the
German Federal Government on 30 May 1962, indicating its prepared-
ness to consider claims of reparations (arising out of war crimes in the
Second World War) of Italian victims 163. These Agreements embodied an
obligation under international law, representing not only a simple gesture
of good will 164.

   162. Be that as it may, even if that would not be the case, the Court is
not in principle bound by the submissions of the parties. In the determi-
nation of its own jurisdiction, so as to say what the law is (juris dictio),
it is perfectly entitled to go beyond the submissions of the contending
parties. The Court is the master of its own jurisdiction. In the present
case, it does not need to embark on an exercise of the kind, motu proprio,
as the submissions of the contending Parties leave no room for doubt
that the Court’s jurisdiction ratione temporis is well-established, and the
way was thus paved for it to declare the admissibility of the counter-claim.

   163. The present Order seems to be at pains to concede that the two
1961 bilateral Agreements provided forms of compensation extending
beyond (allant au-delà) the “regime” established in the aftermath of the
Second World War. The truth is that the two “regimes” (of 1947 and
1961) are independent from each other, and are to be considered sepa-
rately. May I recall that the celebration of the 1961 Indemnity Agreement
was accompanied by an exchange of letters between Germany and Italy
(cf. supra) — which cannot pass unnoticed here — wherein Germany
itself held that all applications which had previously been rejected in the
1950s because of Article 77 (4) of the 1947 Peace Treaty would be recon-
sidered, and new applications of Italian nationals under the Federal

   162 Observations of Italy . . ., op. cit. supra note 53, pp. 18-19, para. 46 ; and cf. Counter-

Memorial of Italy (22 December 2009), Annex 4.
   163 There was a clear instruction of the German Government to its legislative authori-

ties not to object to claims to restitution on the basis of the waiver of Article 77 (4) of the
1947 Peace Treaty ; cf. also Counter-Memorial of Italy (22 December 2009), pp. 108-109,
para. 5.56.
   164 Observations of Italy . . ., op. cit. supra note 53, pp. 21-22, para. 55.

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Compensation Law of 1953 165 and Federal Restitution Law would be
dealt without raising objections based on Article 77 (4) of the 1947 Peace
Treaty.

   164. The new legal reparation regime, started with the two 1961 Agree-
ments — as explained by Germany itself in that exchange of letters —
does not match the previous one established in 1947 by the Peace Treaty
and that rendered Article 77 (4) of the 1947 Peace Treaty obsolete. A new
situation emerged in 1961, without continuity with that of the 1947 Peace
Treaty. This is owed to several factors. To start with, Germany was not
a party to the 1947 Peace Treaty between the Allied Powers and Italy.
The mens rea of that extensive 1947 Treaty (a piece of contemporary
world history) was to strike a balance between the will of the Allied Pow-
ers to impose a heavy toll on Germany and the concomitant attempt by
the Allied Powers not to undermine their chances to resort in due course
to Germany’s economic potential and solvency. The issue of reparation
was dealt with in a piecemeal approach, tangentially, and was postponed
for proper regulation at a later time.

   165. The mens rea of the two 1961 Agreements was quite different, as
their titles indicate themselves, and their contents clearly confirm it (cf.
supra), and the celebration of the two 1961 Agreements constitutes the
triggering point of a new situation, a continuing situation in respect of
claims of war reparations which extends up to the present time. This con-
tinuing situation started in 1961, relating to facts subsequent to the entry
into force of the 1957 European Convention for the Peaceful Settlement
of Disputes, thus falling entirely within the Court’s jurisdiction ratione
temporis, what enabled it to declare the counter-claim “admissible as
such”. That is what the Court should have done.

   166. The present Order itself identified the Italian nationals at issue in
the present case as “certain Italian victims of serious violations of humani-
tarian law committed by Nazi Germany between 1943 and 1945”
(para. 26), that is, human beings of flesh and bones, and soul. During the
1950s, several States started to engage in political processes with Germany
through the celebration of Treaties such as the two 1961 Agreements.
Italy started negotiations with Germany which led to the conclusion of
their two bilateral 1961 Agreements.

 167. This was the first bilateral step which eventually led to the settle-
ment of certain pending bilateral claims of reparation for war crimes.

  165 This law has been amended many times ; the Federal Compensation Law of 1965

(BEG Final Law) is still in force. Cf. Counter-Memorial of Italy (22 December 2009),
Annexes 5 and 6.

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Shortly afterwards, in the aforementioned exchange of letters following
the celebration of the 1961 Indemnity Agreement, Germany interpreted
the waiver clause and explicitly held that it was not applicable (cf. supra).
The 1961 Agreements are the ones to which both Germany and Italy are
parties, and the Court cannot thus “link” (even less so “inextricably” !)
the situation of war reparation claims of the Italian victims at issue here,
with the one established between Italy and the Allied Powers (not Ger-
many). But this is not all.

   168. May I further recall that Germany’s conception of the waiver
clause contained in Article 77 (4) of the 1947 Peace Treaty was again, for
a second time, clarified in 1962. The Federal Government instructed the
German authorities in charge, on 30 May 1962, not to raise objections
based on Article 77 (4) of the 1947 Peace Treaty in case of claims of res-
titution, due to the special character of the claims to compensation for
measures of Nazi persecution (cf. supra). Unlike what the Court’s major-
ity assumes, the “regime” of the 1947 Peace Treaty was not “continued”
or perfected by the 1961 Agreements : it was simply replaced. Article 77
(4) of the 1947 Peace Treaty had become obsolete, and thus no longer
applicable.

   169. The relationship between the Peace Treaty of 1947 and the two
Agreements of 1961 cannot at all be described as one of continuity. There
is merely a historical causal nexus, which does not entail the exclusion of
the Court’s jurisdiction ratione temporis over the Italian counter-claim.
As I previously observed, the international contentieux of reparations is
endowed with a dynamics of its own, and there are nowadays many
examples in international litigation to that effect (cf. supra). Under these
circumstances, the Court does not need to “appreciate” (as the Order
says), the scope and effect of the waiver contained in Article 77 (4) of the
1947 Peace Treaty in order to decide whether the counter-claim falls
within its jurisdiction.

   170. This “appreciation” was, in any case, undertaken by Germany
itself, already in 1961 and 1962, and deprived that waiver clause of its
raison d’être. The Court’s Order seeks to establish an “inextricable link”
(only in its imagination) between the 1947 waiver, fallen into desuetudo,
and the legal situation of the victimized Italian nationals concerned, in
order to conclude that the present dispute relates to facts or situations
existing prior to 1961, so as to find itself deprived of jurisdiction ratione
temporis. However, Germany’s position as to that waiver clause had only
been established in 1961, and not earlier, in the sense of rendering the
waiver clause at issue inapplicable.
   171. Germany recognized that the waiver of Article 77 (4) of the 1947
Peace Treaty had no longer any effect. Applications (for compensation)
which had been previously rejected in the 1950s on the ground of Article
77 (4) would be reconsidered, and new applications (of Italian nationals)

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under the Federal Compensation Law of 1953 and Federal Restitution
Law would be dealt without raising objections based on Article 77 (4) of
the 1949 Peace Treaty. Germany’s position disclosed a juridical convic-
tion that the 1947 purported waiver of claims against it was no longer to
have legal effects, on ground of obsolescence. Germany expressed its
belief not to be obliged by the waiver clause of 1947. Its subsequent prac-
tice — the aforementioned exchange of letters, and the memorandum
(Denkschrift) of 30 May 1962 — affected directly the waiver clause of
the 1947 Peace Treaty.

  172. A new continuing situation thus emerged in 1961 as to war repa-
ration claims, extending to the establishment in 2000 of the “Remem-
brance, Responsibility and Future” Foundation, and from then to date.
This is what Italy actually expressed before the Court 166, adding that

      “as Germany has always (. . .) acknowledged its international respon-
      sibility deriving from the conduct of the German Reich, (. . .) the
      present dispute did not arise because of the unlawful conduct of
      German authorities during the Second World War. (. . .) It does not
      constitute the source or real cause of the present dispute” 167.
This was triggered much later, with the celebration of the two 1961 German-
Italian Agreements.

   173. In addition, and much to my regret, the Court’s decision in the
present Order seems more open and receptive to the sensitivity of States
than to that of the victimized human beings, subjected to deportation
and sent to forced labour. Unfortunately for its posture, not seldom
States appear to be even more sensitive than human beings, so they are
unlikely to be pleased, anyway. The Court’s tenacious search to identify,
above all, the will of States, is also, in my view, much to be regretted. Its
decision in the present Order, in my view, does not stand, however, even
from its voluntarist outlook. Germany itself cared to show, in its new
posture (as from 1961 onwards) in relation to the 1947 waiver, that to try
to build a legal reasoning on a waiver of the kind is like trying to build a
castle in the sand.

   174. After all, above the will stands human conscience. Moved by this
latter, the contending Parties, Germany and Italy, agreed to submit their
present dispute (original claim and counter-claim) to this Court. By
means of their respective original claim and counter-claim, Italy and Ger-

  166   Observations of Italy..., op. cit. supra note 53, pp. 9-10, para. 21.
  167   Ibid., p. 9, para. 20.

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many commendably provided the Court with a unique opportunity to
pronounce on a matter — that of State immunity in relation to claims of
war crimes reparation — of the utmost importance for the present state
and the future of the law of nations (the jus gentium) ; the Court regret-
tably dropped this unique occasion for reasons which escape my
comprehension.

  175. The present case concerning Jurisdictional Immunities of the State
does not concern State immunities in abstracto, or in isolation : it pertains
to State immunity in direct connection with reparations for war crimes.
The arguments of the contending Parties, in the written phase which pre-
ceded the present Order of the ICJ, in my perception leave no doubt that
there is a direct connection between Germany’s original claim and Italy’s
counter-claim, in conformity with Article 80 (1) of the Rules of Court.
Such direct connection is inescapable.

   176. As to the jurisdictional requirement, the vindications of the con-
tending Parties, both that of Germany as to State immunities, and that of
Italy as to war reparation claims, as from the two 1961 Agreements, in
my perception fall clearly within the Court’s jurisdiction ratione tempo-
ris, on the basis of Article 27 (a) of the 1957 European Convention for
the Peaceful Settlement of Disputes. Any assertion to the contrary would
require demonstration, which I have not at all found in the present Order
of the Court.

   177. The fact that the Court found itself, in the present Order, without
jurisdiction ratione temporis and declared the counter-claim “inadmissi-
ble as such”, does not mean that it really does not have jurisdiction to
entertain it : the Court’s majority has found it so, but there are, data
venia, cogent reasons to the contrary. All it means is that the conception
of international law espoused by the Court’s majority in the present
Order led it to its finding. It is not my own conception, which goes well
beyond the strict inter-State outlook, so as to reach the ultimate bearers
(titulaires) of rights, the human beings, confronted with waiver of their
claims of reparation of serious breaches of their rights by States supposed
to protect, rather than to oppress, them.

   178. 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 pub-
lic ; 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 “founding 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 international legal
thinking.

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  179. 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 during 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.

                     (Signed) Antônio Augusto CANÇADO TRINDADE.

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