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Dissenting Opinion of Judge A.A. Cançado Trindade in the Case of the Jurisdictional Immunities of the State (Germany versus Italy, Order, Counter-Claim, of 06.07.2010)

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Chapter Summary

The author dwells on all the aspects concerning the issue brought before the Court. The author's first line of consideration concerns the emergence and rationale of counterclaims in international legal procedure, including their pre-requisites, other characteristics and effects. The author next turns 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 submitted by Germany and Italy, the author turns to the following line of consideration 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 normative level.

Keywords: case law; International Court of Justice (ICJ); International Law of Human Rights; Italian counter-claim; public international law



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