Rilevazione, creazione, resistenza: l'opinione separata e il diritto internazionale

Abstract

Separate opinions have made the object of extensive scholarship in recent decades: in the international legal order, this is a consequence of that institution’s peculiar success, as virtually all judiciary and quasi-judiciary bodies allow for the allegation of separate opinions (either concurring or dissenting) to their rulings. This contribution tests the impact of separate opinions on subsequent case law and opinions, on the process of international law-making, and eventually on the mechanisms through which the Italian legal order adapts to international law as interpreted by international judiciary or quasi-judiciary bodies. The practice under scrutiny is admittedly multifarious; yet, it demonstrates that it is possible to frame separate opinions within the system of international law sources. Their usefulness as a means of ascertaining existing law, as a stimulus for the creation of new law, and as a tool allowing for the adaptation of domestic law to international law is undisputed still today.