Traduction

GC

CR 2006/50 (translation)

CR 2006/50 (traduction)

Monday 27 November 2006 at 10 a.m.

Lundi 27 novembre 2006 à 10 heures - 2 -

8 Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte.

La Cour se réunit aujourd’hui, en applica tion du paragraphe4 de l’article79 de son

Règlement tel qu’adopté le 14avril1978, pour en tendre les Parties en leurs plaidoiries sur les

exceptions préliminaires soulevées par le défendeur en l’affaire Ahmadou Sadio Diallo (République

de Guinée c. République démocratique du Congo).

Le juge Parra-Aranguren a informé la C our que, pour des raisons médicales, il serait

empêché de siéger pendant la durée des présentes audiences. Le juge Sepúlveda-Amor a également

informé la Cour qu’il serait empêché de siéger pendant la durée des présentes audiences.

Avant de rappeler les principales phases de la procédure, il échet de parachever la

composition de la Cour.

La Cour ne comptant pas sur son siège de juge de la nationalité des Parties, chacune d’elles a

usé de la faculté qui lui est conférée par le paraaphe2 de l’article31 du Statut de désigner un

juge ad hoc. La République de Guinée avait initiale ment désigné M. Mohammed Bedjaoui ;

celui-ci ayant démissionné de ses foncti ons le 10 septembre 2002, elle a désigné

Ah.mMedahiou. La République démocratique du Congo a désigné

M. Auguste Mampuya Kanunk’A-Tshiabo.

L’article 20 du Statut dispose que «[t]out membre de la Cour doit, avant d’entrer en fonction,

prendre l’engagement solennel d’exercer ses attributions en pleine impartialité et en toute

conscience». En vertu du paragraphe6 de l’ar ticle31 du Statut, cette disposition s’applique

également aux juges ad hoc.

Bien que M. Mahiou ait été désigné juge ad hoc en d’autres affaires dans lesquelles il a fait

des déclarations solennelles, il lui faut, conforméme nt au paragraphe 3 de l’article 8 du Règlement

de la Cour, en faire une nouvelle en la présente affaire.

Avant de les inviter à faire leurs déclarations solennelles, je dirai d’abord quelques mots de

la carrière et des qualifications de MM. Mahiou et Mampuya.

M. Mahiou, de nationalité algérienne, est bien connu de la Cour puisqu’il a siégé en qualité

de juge ad hoc en deuxautres affaires. Il est docteur d’Etat de la faculté de droit de Nancy et

9 agrégé de droit public et de science politique. Il a occupé divers postes d’enseignement et de - 3 -

recherche en Algérie, en France et dans d’autres pays, et a été doyen de la faculté de droit de

l’Université d’Alger. M.Mahiou a été membre de la Commission du droit international de1982

à1996, et a été élu président de cette Commission lors de sa quarante-huitième session en1996.

M. Mahiou a représenté l’Algérie dans de nombreuses conférences internationales et a été membre

de divers organes internationaux. Il a été vi ce-président du Conseil d’appel de l’UNESCO et a

exercé les fonctions d’arbitre dans le cadre de pl usieurs différends internationaux. M. Mahiou est

membre de divers organes et institutions scientif iques et membre associé de l’Institut de droit

international. Il a publié de nombreux ouvrages et articles dans différents domaines du droit

international.

M.Mampuya, de nationalité congolaise, est également docteur d’Etat de la faculté de droit

de Nancy et titulaire d’un diplôme d’études s upérieures de science politique de cette même

université. M. Mampuya est professeur à la faculté de droit de l’Université de Kinshasa, ainsi que

professeur invité auprès de plusieurs universités françaises. Il a occupé différents postes au sein du

Gouvernement de la RDC, notamment ceux de commi ssaire d’Etat à la justice, de conseiller

politique à la présidence de la République et de di recteur de cabinet adjoint à la présidence de la

République. M.Mampuya a publié de nombreux ouvrages et articles dans le domaine du droit

international public et des relations internationales.

J’invite maintenant MM. Mahiou et Mampuy a à prendre l’engagement solennel prescrit par

l’article20 du Statut et demande à toutes les pe rsonnes présentes à l’audience de bien vouloir se

lever. M. Mahiou.

M. MAHIOU :

«I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.»

Le PRESIDENT : Je vous remercie, M. Mahiou. M. Mampuya.

M. MAMPUYA :

«I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.» - 4 -

10 Le PRESIDENT: Je vous remercie, M.Mampuy a. Veuillez vous asseoir. La Cour prend

acte des déclarations solennelles faites par MM. Mahiou et Mampuya et je déclare ceux-ci dûment

installés en qualité de juges ad hoc en l’affaire Ahmadou Sadio Diallo (République de Guinée

c. République démocratique du Congo).

*

Je rappellerai maintenant les principales étap es de la procédure. Le 28décembre1998, le

Gouvernement de la République de Guinée a déposé au Greffe de la Cour une requête introductive

d’instance contre la République démocratique du Congo au sujet d’un différend relatif à de «graves

violations du droit internationa l» qui auraient été commises «sur la personne d’un ressortissant

guinéen». Dans ladite requête, la Guinée soutenait que

«M. Diallo Ahmadou Sadio, homme d’affaires de nationalité guinéenne, a[vait]
été, après trente-deux (32) ans passés en République démocratique du Congo,

injustement incarcéré par les autorités de cet Etat, spolié de ses importants
investissements, entreprises et avoirs mobiliers, immobiliers et bancaires puis
expulsé.»

L’arrestation et l’expulsion de M. Diallo constitueraient entre autres des violations

«[du] principe du traitement des étrangers selon «le standard minimum de
civilisation», [de] l’obligation de respect de la liberté et de la propriété des étrangers,
[et de] la reconnaissance aux étrangers incriminés du droit à un jugement équitable et

contradictoire rendu par une juridiction impartiale».

Dans sa requête, la Guinée invoquait, pour fonde r la compétence de la Cour, les déclarations

par lesquelles les deux Etats ont accepté la juridiction obligatoire de celle-ci au titre du

paragraphe 2 de l’article 36 du Statut de la Cour.

Par ordonnance du 25novembre1999, la Cour a fixé au 11septembre2000 la date

d’expiration du délai pour le dépôt du mémoire de la Guinée et au 11septembre2001 la date

d’expiration du délai pour le dépôt du contre-m émoire de la RDC. Par ordonnance du

8 septembre 2000, le président de la Cour, à la demande de la Guinée, a reporté au 23 mars 2001 la

date d’expiration du délai pour le dépôt du mémoire ; la date d’expiration du délai pour le dépôt du

contre-mémoire a été reportée, par la même or donnance, au 4 octobre 2002. La Guinée a dûment

déposé son mémoire dans le délai ainsi prorogé. - 5 -

11 Dans le délai prescrit pour le dépôt du c ontre-mémoire, la RDC a soulevé certaines

exceptions préliminaires portant sur la recevabilit é de la requête de la Guinée, en vertu du

paragraphe1 de l’article79 du Règlement de la Cour dans sa version adoptée le 14avril1978.

Conformément au paragraphe 3 de l’article 79 dudit Règlement, la procédure sur le fond a alors été

suspendue. Par ordonnance du 7novembre2002, la Cour, compte tenu des circonstances

particulières de l’espèce et de l’accord des Parties, a fixé au 7juillet2003 la date d’expiration du

délai pour la présentation par la Guinée d’un exposé écrit contenant ses observations et conclusions

sur les exceptions préliminaires soulevées par la RDC.

La Guinée a déposé un tel exposé dans le délai fixé, et l’affaire s’est ainsi trouvée en état

pour ce qui est des exceptions préliminaires.

Conformément au paragraphe2 de l’article53 de son Règlement, la Cour, après s’être

renseignée auprès des Parties, a décidé que d es exemplaires des pièces de procédure et des

documents annexés seraient rendus accessibles au public à l’ouverture de la procédure orale. En

outre, conformément à la pratique de la Cour, l’ensemble de ces documents, sans leurs annexes,

sera placé dès aujourd’hui sur le site Internet de la Cour.

Je constate la présence à l’audience des agen ts, conseils et avocats des deux Parties.

Conformément aux dispositions relatives à l’organisation de la procédure qui ont été arrêtées par la

Cour, les audiences comprendront un premier et un second tours de plaidoiries. La RDC présentera

son premier tour de plaidoiries ce matin jusqu’à 13 heures. La Guinée présentera son premier tour

de plaidoiries demain matin à partir de 10 he ures. La RDC présentera ensuite sa réponse le

mercredi 29 novembre à partir de 15 heures. La Guinée, pour sa part, présentera sa réponse le

er
vendredi 1 décembre à partir de 10 heures.

J’appelle l’attention des Parties sur les pres criptions du paragraphe 1 de l’article60 du

Règlement de la Cour, lequel se lit comme suit :

«Les exposés oraux prononcés au nom de chaque partie sont aussi succincts que
possible eu égard à ce qui est nécessaire pour une bonne présentation des thèses à
l’audience. A cet effet, ils portent sur l es points qui divisent encore les parties, ne

reprennent pas tout ce qui est traité dans les pièces de procédure, et ne répètent pas
simplement les faits et arguments qui y sont déjà invoqués.»

12 Je rappellerai également à cet égard que l’instru ction de procédure VI précise que «[l]a Cour

exige le plein respect de[s] dispositions [de l’article60] ainsi que du degré de brièveté requis» et - 6 -

que, «[l]ors de l’examen des exceptions d’incompétence ou d’irrecevabilité, la procédure orale doit

se borner à des exposés sur les exceptions».

Je donne maintenant la parole à l’agent de la République démocratique du Congo,

S. Exc. M. Masangu-a-Mwanza.

Mr. MASANGU-A-MWANGA: Madam President, Members of the Court, it is with great

pleasure that I am appearing this morning before your prestigious Court to speak on behalf of our

country, the Democratic Republic of the Congo, in this case.

We thus offer the Court our heartfelt greetings, trusting that it will perform good work in the

interests of international justice.

The delegation of the Democratic Republic of the Congo is as follows:

1. H.E. Mr. Pierre Ilunga M’Bundu wa Biloba, Minister of Justice and Keeper of the Seals,

Democratic Republic of the Congo,

as Head of Delegation;

2. H.E. Mr.JacquesMasangu-a-Mwanza, Ambass ador Extraordinary and Plenipotentiary of

the Democratic Republic of the Congo to the Kingdom of the Netherlands,

as Agent;

3. Maître Tshibangu Kalala, Deputy, Congolese Parliament, member of the Kinshasa and

Brussels Bars, Tshibangu et Associés,

as Co-Agent, Counsel and Advocate;

4. Mr.AndréMazyamboMakengoKisala, Professor of International Law, University of

Kinshasa,

as Counsel and Advocate;

5. Mr.Yenyi Olungu, Principal Advocate-General of the Republic, Principal Private

Secretary to the Minister of Justice and Keeper of the Seals,

6. Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice and Keeper of

the Seals,

13 7. Mr.Nsingi-zi-Mayemba, Minister-Counsello r, Embassy of the Democratic Republic of

the Congo in the Netherlands, - 7 -

8. Mr.BamanaKalonjiJerry, Second Counsellor, Embassy of the Democratic Republic of

the Congo in the Netherlands,

9. Maître Kikangala Ngoie, member of the Brussels Bar,

as Advisers;

10. Maître Kadima Mukadi, member of the Kinshasa Bar, Tshibangu et Associés,

11. Mr. Lufulwabo Tshimpangila, member of the Brussels Bar,

12. Mr. Tshibwabwa Mbuyi, member of the Brussels Bar,

as Research Assistants;

13. Ms Ngoya Tshibangu,

as Assistant.

The schedule of the oral proceedings today is as follows:

1. Presentation of the delegation by myself.

2. Address by the Minister of Justice, Pierre IlungaM’BunduwaBiloba, Minister of Justice and

Keeper of the Seals of the Democratic Republic of the Congo.

3. The facts on which the twopreliminary objections raised by the Democratic Republic of the

Congo are based, by Maître Tshibangu Kalala, Co-Agent, Counsel and Advocate.

4. The Republic of Guinea does not have the capacity to act before the Court in this case, by

Professor Mazyambo.

5. Mr.Diallo has not exhausted the internal reme dies in the Democratic Republic of the Congo,

by Maître Tshibangu Kalala.

6.The submissions of the Democratic Republic of the Congo by its Agent,

H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador.

That is our schedule, Madam President. Thank you.

Le PRESIDENT: Merci, Excellence. A qui souhaiteriez-vous que je donne la parole à

présent ?

14 Mr. MASANGU-A-MWANZA: May I ask the Minister of Justice to take the floor? - 8 -

Le PRESIDENT : Oui. Merci infiniment. Nous invitons le Ministre de Justice à prendre la

parole.

Mr.ILUNGA: Madam President, Members of the Court, the President of the Democratic

Republic of the Congo, H.E. Joseph Kabila Kaba nge, has instructed me to convey his warm

greetings to the Court and to express his deep respect for the high mission it performs on a daily

basis for the peaceful settlement of disputes between States, thereby strengthening peace and

justice in the world.

Madam President, Members of the Court, the Democratic Republic of the Congo is one of

the African countries which for many years have placed their trust in the principal judicial organ of

the United Nations. Indeed, my country has since 1989 signed the optional declaration accepting

the compulsory jurisdiction of the Court without reservation; as early as 1975 it participated in

proceedings for an advisory opinion and has sev eral times appeared before your Court, as

applicant, in contentious cases.

The case which today brings me to this prestig ious setting, and which formed the subject of

an application instituting proceedings of 28Dece mber1998, is between the Democratic Republic

of the Congo and the Republic of Guinea. The Democratic Republic of the Congo wishes to

emphasize before the Court that its bilateral rela tions with the Republic of Guinea are excellent.

Therefore, it is not this dispute that is going to destroy them.

Mr. Ahmadiou Sadio Diallo is a son of Afri ca who had chosen the Democratic Republic of

the Congo as his second country. He lived in our country for over 30years. That is quite

considerable. He was, it is true, expelled from Congolese territory for wrongful conduct under

Congolese law. But, where this expulsion case is concerned, it should be noted that the Democratic

Republic of the Congo has always pardoned other fo reign nationals who have been expelled on the

same grounds. They have returned to the Congo are now living there peacefully.

15 The Democratic Republic of the Congo has never expropriated Mr. Diallo’s assets The two

companies of which he is associate managing director still exist. If Mr. Diallo had wished to return

to the Democratic Republic of the Congo to resume his activities, the Congolese authorities would

have given favourable consideration to his request. - 9 -

Alas, he did not take this route. He opted for the international stage, levelling accusations at

my country. The Government of the Democratic Republic of the Congo regrets that the Republic

of Guinea encouraged Mr. Diallo in this action in stead of opening bilateral diplomatic negotiations

to settle the problem.

Since the matter has been brought before the Court, whose task is to state the law, the

Democratic Republic of the Congo has no choice but to defend itself. My country therefore places

its trust in the wisdom of the Court in order to obtain justice.

I thank the Court for its kind attention.

Le PRESIDENT: Je vous remercie infinime nt. Pourriez-vous indiquer qui vous voudriez

faire appeler après à la barre ?

Mr. MASANGU-A-MWANZA : May I ask the honourable Mr. Tshibangu to take the floor.

Le PRESIDENT : Dois-je comprendre que c’est M. Kalala que vous voudriez faire appeler à

la barre maintenant ? Veuillez prendre la parole, Maître Kalala.

KMAr. ALA:

1. Madam President, Members of the Court, please allow me first to make known my great

joy as I stand, for the second time in the space of a few months, before this prestigious Court to

represent the interests of my country in the present case. I cannot help but in this connection

express my deep thanks to the governmental authorities of my country, here represented at a senior

level by His Excellency the Minister of Justice and Keeper of the Seals,

16
Mr. Ilunga M’Bundu wa Biloba, for having afforded me a second opportunity, rare in the career of

a lawyer and specialist in international law, to partake of this momentous experience.

2. Madam President, I shall confine myself in this statement to setting out for the Court the

facts on which the Democratic Republic of the Congo has relied in raising the two preliminary

objections to admissibility with a view to seeing the Republic of Guinea’s Application rejected.

3. Madam President, Members of the Court, it was nearly eight years ago, on

23 December 1998, that the Applicant filed an A pplication against the Democratic Republic of the

Congo in the Registry of the Court. In its Application, Guinea stated that it was seeking to exercise - 10 -

diplomatic protection on behalf of one of its nationals, Mr.AhmadouSadioDiallo, to obtain

compensation for the prejudice resulting from internationally wrongful acts allegedly committed by

the Congolese authorities against two Congolese companies in which Mr. Diallo is shareholder and

managing director. The amount claimed by the Republic of Guinea is some

thirty-six (36) billion United States Dollars, plus bank and default interest at annual rates of 15 and

1
26percent accruing from the end of1995 . This amount, equal to several times the Democratic

Republic of the Congo’s annual budget, is undoubtedly one of the highest ever claimed before an

international court.

4. Mr. Ahmadou Sadio Diallo is a Guinean national who arrived in the Democratic Republic

of the Congo in 1964. During his long stay of mo re than 30 years in the Democratic Republic of

the Congo, he, in association with other partne rs, founded two private commercial companies of

which he was to become shareholder and managing director. An important point should be noted

here: Congolese law, which defines a commercial company as a contract between several persons,

does not recognize sole-shareholder commercial companies 2. Mr Diallo therefore formed a first

company, Africom-Zaire (hereinafter “Africom”), having general trade and import-export as its

corporate purpose. In 1979, Mr Diallo, in associ ation with two other partners, formed a second

company, Africontainers-Zaire (hereinafter “Africontainers”). The corporate purpose of this

17 company is the containerized transport of goods. Mr.Diallo is the managing director/shareholder

of these two companies incorporated under Congolese law. Under Congolese law, Africom-Zaire

and Africontainers-Zaire, which are private lim ited liability companies, have legal personality

3
distinct from that of their shareholders . Thus, Mr.Diallo did not engage in his activities in the

Democratic Republic of the Congo in his capacity as a natural person of Guinean nationality, but

rather through these two autonomous commercial companies formed under Congolese law.

5. As part of their activities, Africom and A fricontainers entered into contracts with other

Congolese economic operators, contracts to which I sh all revert to in a moment. The performance

1
Application, p. 37.
2According to Article446/1 of the Decree of 30July188: “A company is a contract by which two or more

persons agree to pool something, with a view to sharing the profit which may arise from it”.
3See Article 1 of the Decree of 27 February 1887 on commercial companies, providing: “Commercial companies
legally recognized in accordance with the present Decree shall be legal persons distinct from their shareholders”. - 11 -

of those commercial contracts gave rise to the disputes which the Applicant has seen fit to submit

to the Court.

6. The DRC would at the outset point out to the Court that all the commercial disputes in

question are between twocommercial companie s of Congolese nationality and other commercial

companies formed under Congolese law and concern contractual commitments assumed by the

parties and governed by Congolese law. The DRC a nd Mr. Diallo stand completely outside these

contracts and the disputes which have arisen from them.

Further, in these disputes, the local remedies available in the DRC have not been exhausted

either by Mr. Diallo or by the two companies, Africom and Africontainers.

7. Moreover, Mr.Diallo’s general conduct in 1995 in respect of the laws and internal and

external security of the DRC compelled the co mpetent Congolese authorities to expel him from

Congolese territory. Once back in his home country, Mr.Diallo succeeded in convincing the

Guinean authorities to exercise diplomatic protection on his behalf before the Court with a view to

helping him recover the colossal fortune of which he was allegedly robbed by the DRC authorities.

8. Madam President, Members of the Court, so as to enable the Court to have a clear

understanding of the facts relied on by the DRC in raising its two preliminary objections, I have

organized my statement this morning in threeparts. In the first part I shall discuss Africom’s

18 disputes with the Congolese State and with the company Plantations Lever au Zaïre (hereinafter

“PLZ”). Then, in the second part, I shall expl ain to the Court the position in respect of the

litigation between Africontainers and its Congolese busin ess partners. Finally, in the third and last

part, I shall describe to the Court Mr. Diallo’s expulsion from Congolese territory in January 1996.

9. I shall now turn to the first part of mstatement, devoted to Africom’s disputes with the

Congolese State and with Plantations Lever au Zaïre.

I.T HE DISPUTES BETWEEN A FRICOM -ZAIRE AND ITS CONTRACTING PARTNERS

10. Madam President, Members of the Court, Africom-Zaire is involved in two disputes.

The first is between it and the Congolese State, th e second between it and PLZ, a subsidiary of the

multinational company Unilever. Let us begi n with the dispute between Africom and the

Congolese State. - 12 -

Africom-Zaire v. DRC

11. Africom had regular commercial dealings in the 1980s with the Congolese State. In

June1986, the Congolese State ordered various items of stationery and small office equipment

from Africom. The orders totalled 28,382,872.70 za ires. A payment schedule for that amount was

proposed by Africom and accepted by the competent authorities. It provided for complete payment

of this debt by the end of March 1987.

12. As a result of the failure by the Congolese State to honour this payment schedule,

Mr.Diallo sent a letter of reminder to the Mi nister of Finance on 17January1987. In

December 1987 the Minister of Finance informed the Governor of the Central Bank of the Congo

that he had agreed to the payment, in fivein stalments, of the amounts owed to Africom-Zaire

further to the order placed in 1986. The paym ent dates ran from January to April1988. The

payments were not made and the DRC continued to owe Africom-Zaire a total amount, as

determined in December 1987, of more than 178,700,000 zaires.

13. Madam President, Members of the Court, an essential point I wish to make to the Court

is that from 1987 until Mr. Diallo’s expulsion from th e DRC in January 1986, that is for nearly ten

19 years, no judicial action was taken against the Cong olese State, either by Africom or by Mr. Diallo

in any capacity whatsoever, to recover this debt through judicial channels.

14. Thus, it is before the Court that Mr.Diallo is for the first time demanding, through

Guinea, payment of the debt I have just mentioned. I shall return to the legal consequences of this

fact in my second statement today.

15. The Democratic Republic of the Congo has never denied owing this sum to

Africom-Zaire. In accordance with settled practice in this area, the amount of the unpaid balance

of the debt has been added into the Congo’s domestic public debt. The matter was thus referred to

the Office de gestion de la dette publique (OGEDEP) [Office for the Management of the Public

Debt] to find a satisfactory solution . Thus, the debt owed to Africom-Zaire was treated in the

same manner as the debts owed to many other Congolese commercial companies which are

4
Memorial of the Republic of Guinea (MRG), Ann. 71. - 13 -

creditors of the Congolese State. These companies generally remain in contact with OGEDEP and

5
regularly have their claims certified by the Ministry of Finance and OGEDEP .

16. Thus, Africom-Zaire’s case is far from an isolated one. At any rate, this dispute involves

only a modest sum and is the sole dispute in which the Congolese State is directly involved. What

is most important is that it concerns the contractual rights of a Congolese company, not the rights

of Mr. Diallo as a natural person. Professor Mazyam bo will revert to this issue in the course of his

statement today.

17. If you would allow me, Madam President, I shall now turn to the second dispute, which

is between Africom-Zaire and PLZ (Plantations Lever au Zaire).

Africom-Zaire v. PLZ

18. Madam President, Members of the Court, unlike the other disputes referred to in the

present case, which are commercial in nature, the dispute between Africom and Plantations Lever

20 au Zaire originates in the lease entered into on 1November1975 between the two companies.

Under that lease, PLZ leased one of its apartments to Africom-Zaire, whic h, in turn, placed the

apartment at the disposal of its managing director, Mr. Diallo.

19. In 1991 Africom stopped paying the rent owed to PLZ. Notwithstanding the notices of

default sent to it, Africom persisted in its refusal to pay the claimed rents, contending that its lessor,

PLZ, was charging rent at rates applicable to furnished apartments, even though the apartment

made available to Mr. Diallo, as managing director of the company, was unfurnished.

20. In reaction to this continuing default in payment, PLZ terminated the lease agreement, as

from 30April1992, and brought proceedings before the Tribunal de grande instance of

Kinshasa-Gombe at the end of that year to force Africom to vacate the premises and to pay the

accrued rent, which amounted to US$32,964 at 19 November 1992.

21. Africom, meanwhile, brought a c ounter-claim against PLZ and asked the Tribunal to

order PLZ to pay it more than 32 million dollars, which was claimed to represent the

5
Preliminary Objections of the Democratic Republic of the Congo (PODRC), Ann. 1. - 14 -

“over-payment of monthly rent for 17 years, given that Africom paid as if the apartment had been

6
rented furnished when it was not” . Africom also sought $200,000 in damages and interest.

22. Madam President, in its judgment of 24 August 1993, the Tribunal de grande instance of

Kinshasa-Gombe rejected PLZ’s claim and upheld Africom’s counter-claim. The Tribunal ordered

PLZ to pay US$90,000 in damages and interest and US$32 million ⎯ I repeat, US$32 million ⎯

for over-payment of the rent and refund of the rental guarantees.

23. PLZ immediately appealed against this decision. By judgment of 9March1994 the

Court of Appeal of Kinshasa-Gombe vacated the appealed judgment on the ground of “lack of

reasoning” and ordered Africom to pay the past-due rents and to quit the apartment 7. Africom in

turn filed an appeal, in August 1994, to the Supreme Court against the judgment handed down by

the Court of Appeal.

21 24. The DRC does not know the upshot of this lawsuit, in which it is in no way involved and

which is between two private commercial companies, that is to say a lessee and its lessor.

25. This case confirms Mr.Diallo’s propensit y to make exaggerated, exorbitant financial

claims on behalf of the companies he runs and in which he holds the shares. This case shows

above all, once again, how Mr.Diallo uses the commercial companies of which he is managing

director in an attempt to enrich himself personall y and unduly to the detriment of the companies’

business partners. In any event, Madam Preside nt, no one but Ahmadou Sadio Diallo could claim

more than US$32million for the alleged over-payment of monthly rent on an unfurnished

apartment. This case also shows the circumstan ces in which the Congolese authorities, tired of

Mr.Diallo’s many illegal manoeuvres, finally decided in 1996 to expel him from Congolese

territory.

26. Madam President, Members of the Court,

6
PODRC, Ann. 46.
7PODRC, Ann. 47. - 15 -

II. THE DISPUTES BETWEEN AFRICONTAINERS AND ITS BUSINESS PARTNERS

27. In its written pleadings the DRC has thoro ughly set out the facts concerning the disputes

between Africontainers and its Congolese business pa rtners. So I shall not go over them again in

detail here. I therefore kindly ask the Court to refer to the DRC’s written pleadings.

28. To summarize, Africontainers devel oped business relations with certain Congolese

economic operators, entering into a substantial service contract with them during the 1980s. These

operators were two Congolese public undertakin gs (Gecamines and Onatra) and three oil

companies (Fina, Shell, and Mobil Oil). I shall first briefly describe the situation involving the

public undertakings and then that of the private oil companies.

Africontainers v. the public undertakings

29. As I have just said, Africontainers had commercial dealings with two State undertakings,

Gecamines and Onatra, in the 1980s.

22 Africontainers v. Gécamines

30. Commercial relations between Africontai ners and Gécamines date back to 1982, in

connection with a contract for containerised tran sport between the two economic operators. These

relations between the two partne rs ran smoothly until certain difficulties arose in the performance

of their contract. Africontainers sent letters on this matter to the management of Gécamines

protesting that its containers were immobilized for long periods in Gécamines depots, resulting in

downtime for Africontainers, and that they were used by Gécamines without authorization.

31. At the outset the protests by Africontainers did not give rise to any claims supported by

figures. Subsequently the dispute escalated, in pa rticular because of the difficulties caused by the

closure of the port of Kinshasa and the resulting increase in container turnaround times.

32. Many letters passed between Africontainers and Gécamines about problems of downtime

and misuse of containers, and the financial consequences for Africontainers that these situations

involved 8. The dispute between the partners then focused on three essential points.

33. The first point of dispute related to Afri containers’ complaint in 1991 about eight of its

containers that the company accused Gécamines of damaging and rendering unusable 9.

8
See for example MRG, Anns. 25, 29, 87, 90, 95. - 16 -

34. The second point of dispute was the disagreement on the downtime of Africontainers’

containers in Gécamines’ depots. Africontainers submitted a fi nancial claim amounting to about

3 billion zaires to compensate for this alleged loss 10.

35. The third point of dispute concerned a llegations by Africontainers that Gécamines

remained liable for serious breaches of contract, in particular by using other commercial partners to

23 carry certain products. Africontainers was of the op inion that such acts were contrary to the clause

11
in the 1983 contract which, in its view, granted it the exclusive right to such carriage .

36. As regards the first point of dispute, Gé camines rejected the claims by Africontainers,

which quoted a figure of US$17,000 per unit as the replacement value of the damaged containers 12,

whereas the public undertaking’s view was that th e value of a new container at the time was only

$3,000 13.

37. Madam President, the DRC is anxious to draw the attention of the Court to the attempt to

despoil Gécamines orchestrated by Mr. Diallo, ac ting under cover of Afric ontainers. To replace a

container that had already been used several times, Diallo claimed US$17,000 from Gécamines,

whereas a new container cost only US$3,000! It is easy to understand how Mr. Diallo, using such

a method for improper enrichment at every turn, might claim some US$36 billion from the DRC.

38. The fact remains that Gécamines, having first considered reconditioning the

14
eight containers belonging to Africontainers , decided after all to offer to compensate the carrier at

the rate of $1,400percontainer. This offer was rejected by Africontainers and this dispute has

never been settled and has never been brought before the courts and tribunals in the DRC.

39. Madam President, and this is very important, negotiations to find a satisfactory solution

15 16
began between Africontainers and Gécamines and continued until early July1997 , i.e., until

after Mr.Diallo’s expulsion from Congolese territory . The various meetings between the parties

9See letter from Africontainers-Zaire dated 26 June 1991, MRG, Ann. 87.

10See debit note dated 3 July 1991, MRG, Ann. 88.
11
See letter dated 9 September 1991, MRG, Ann. 95.
12
Above-mentioned letter dated 26 June 1991, Ann. 87.
13
Letter dated 16 July 1991, MRG, Ann. 90.
14Letter dated 7 January 1992, MRG, Ann. 98.

15See the minutes of the meeting between the parties on 1 June 1995, MRG, Ann. 151.
16
See the minutes for 2 and 7 July 1997, MRG, Anns. 224 and 226. - 17 -

made a complete inventory of the situation possi ble, and led Africontainers to admit that the

number of containers to which its claim related was overstated.

40. Madam President, as I have pointed out in this statement, Gécamines had set up a special

internal Commission with responsibility for negotia ting with all the carriers who were claiming

24 compensation from it in respect of the disappearance of their containers. Thus it devised a new

timetable of work with the various carriers, with a view to reaching a final agreement with each of

them 17.

41. This is the context in which working m eetings between Gécamines and Africontainers

were scheduled in 1997 in order finally to settle the commercial dispute between them. So on

26September1997 Gécamines sent Africontainers an invitation to take part in this new series of

working meetings. This invitation was actually received by Mr.N’Kanza, the administrative
18
director of Africontainers, on 29 September 1977 . Madam President, Members of the Court, you

will find this document in your judges’ folder, tab No.1. Representatives of Africontainers

initially attended these meetings, then dropped out.

42. Madam President, the refusal by the repres entatives of Africontainers to continue with

the negotiations is no mere chance. It should be noted that before the invitation to which I have

just referred was sent, Gécamines had sent Afric ontainers a letter protesting about the fraudulent

operations detrimental to Gécamines to which that company, and therefore its managing director,

had resorted and which had just been discovered dur ing the in-depth examination of the claims by

Africontainers 19. These fraudulent operations, organized by Mr. Diallo in his capacity as managing

director of Africontainers during the 1980s a nd which Gécamines had just discovered, involved

“adding to the consignment of containers sent for Gécamines to the city of Lumumbashi, the site of

its operational headquarters” several other cont ainers which were sent to the same city by

Africontainers but for other companies there. Carriage for the return of these containers empty to

Kinshasa would have cost Africontainers some US $1,000 per unit. Thus by fraudulently including

them in the regular consignment of containers sent to Gécamines, Africontainers made that

1See EPRDC, Anns. 7 and 8.
18
See EPRDC, Ann. 9.
1Letter DAT/DIR/54.137/97 dated 17 September 1997, Ann. 10, POC. - 18 -

company pay the cost of their return to Kinshasa. In fact it was Mr.Diallo himself who was

wrongfully enriching himself in this way at the expense of Gécamines. Initially Gécamines had

20
25 discovered 186cases of such fraudulent use and inte nded to pursue its investigations further .

Thus the discovery of this large-scale long-term fraudulent practice by Africontainers to the

21
detriment of Gécamines is why, despite several threats , Africontainers has never dared to bring its

dispute with Gécamines before the Congolese courts, so as to avoid judicial investigations. The

fact that this practice was discovered is also the main reason for Mr.Diallo’s flight from the

negotiation table with Gécamines in order to bring the dispute before the Court by way of

diplomatic protection. I will revert to this poi nt during my second statement on the objection that

local remedies have not been exhausted.

43. Madam President, the DRC wishes to inform the Court that the prospects for final

settlement held out by the negotiations in September 1997 have been confirmed for several of the

other carrier companies that attended these meeti ngs. Thus in this second round of negotiations

Gécamines arrived at an amicable solution with Kincontainers, Ataf and Flucoco, which recovered

a total of several hundred thousand American dollars at the end of these discussions 22. I also wish

to stress that the documents that record these ag reements show that the other carrier companies

invoiced the hire of their containers at rates that were from six to twenty times lower than those

23
used by Africontainers .

44. Since formulating its demands, Madam President, Africontainers has updated its

financial claims several times on the basis of the number of containers allegedly immobilized by

Gécamines. Africontainers has also claimed to update its rates, leading it to make ever more

substantial financial claims. Thus ⎯ and what I am going to say is important, Madam President ⎯

whereas in 1992 the company put the damage it ha d suffered as a result of this situation at

20Ibid.
21
See inter alia the summons served on Gécamines at the requesof Africontainers-Zaire on 5February1996,
MRG, Ann. 198.
22
See EPDRC, Ann. 11, pp. 36-39.
23Ibid., pp. 29-39. - 19 -

26 US$30 million , in 1996 the estimate rose from 30 million to 14 billion dollars, i.e., more than the

25
entire foreign debt of the DRC!

45. The validity of most of the claims was strongly contested by Gécamines during the

1997negotiations. Madam President, I will return to 1997 later because it is a critical year. It is

important for the continuation of the pleadings. Gécamines thus advanced sophisticated legal

arguments, according to which Gécamines maintained that:

⎯ the 1983 contract contained no exclusivity clause of benefit to Africontainers;

⎯ the claim by Africontainers based on misuse of its containers was greatly overstated;

⎯ the claim by Africontainers regarding updati ng of its invoices addressed to Gécamines was

difficult to understand, since all these invoices had been paid by Gécamines when they were

submitted;

⎯ the time-limit for submitting a claim involving carriage was two years from the day of delivery

of containers that were damaged or completely written off (Art. 27, Sect. 2, of the Commercial

Code); the claim submitted ten years after the event was statute-barred.

As I said a moment ago, Mr.Diallo, faced with the discovery of his fraudulent operations

and the substantial arguments presented by Géca mines, ordered his representatives to quit the

negotiating table with Gécamines.

46. It must be stressed that Africontai ners’ rejection did not prevent Gécamines from

recognizing that there were still undeniably a number of points in dispute between the

two companies, in respect of which compensation was probably due to Africontainers. Thus today

Gécamines is still fully prepared to resume negotiations with Africontainers on this basis, or even

to submit this dispute to the Congolese courts if the parties could not agree on a satisfactory

settlement.

27 47. Madam President, Members of the Court, once again an irrefutable fact emerges from

what I have just set before the Court. Although in fact Mr.Diallo has played an extremely

important part in the origin, development and continuity of these disputes, he has always ⎯ I

24
See the minutes of the meeting between the parties on 1 June 1995, MRG, Ann. 151, p. 2.
25See the summons served on Gecamines at the requestof Africontainers-Zaire on 5February 1996, MRG,

Ann. 198. - 20 -

stress, always ⎯ acted through a Congolese company ha ving its own legal personality,

Africontainers-Zaire. From the outset it has been the money owed to that company that he meant

to recover, by virtue of contracts conclude d by that company; again it is on behalf of

Africontainers, not on his own behalf, that he has made exorbitant claims. In law,

MadamPresident, the dispute has always been and continues to be between two companies of

Congolese nationality on the basis of a contract of carriage between them ⎯ a contract governed

by Congolese law. It is also beyond dispute, Ma damPresident, that this commercial dispute is

between twocompanies, and has never been brought before the courts and tribunals of the DRC.

My friend and colleague ProfessorMazyambo and I w ill revert later to the legal consequences of

this situation concerning the admissibility of the Application by the Court.

48. Madam President, Members of the Court, let me now turn to the dispute between

Africontainers and the second State undertaking, Onatra.

The Africontainers-Zaire v. Onatra case

49. In short, the dispute between Africontai ners-Zaire and Onatra falls within the same

context as the case between the carrier company and Gécamines. Here also the temporary closure

of the port of Kinshasa in 1986 is the starting-point of the deterioration in relations between these

two commercial partners.

50. Following Onatra’s cargo-handling difficulties at the river port of Kinshasa and the

redevelopment and modernization work in progress there, Gécamines called a meeting of the

carrier companies affected by this situation. Th at meeting was held in Lumumbashi in July1986

and brought together Ataf, Kincontainers, Flucoza and other companies.

The PRESIDENT: Maître Kalala, pourriez-vous parler un peu plus lentement? Merci.

28 Mr.KALALA: Gécamines called a meeting of the carrier companies affected by this

situation. During this meeting Gécamines informed those present about the decision taken on

26 June 1986 by Gécamines, Onatra and the SNCZ (Zaire National Railway Company) to transfer

from the river port of Kinshasa to the sea port of Matadi all discharging (i.e., opening) of local

containers, because of the rebuilding works in the port of Kinshasa. All the carriers present, - 21 -

including Africontainers-Zaire, understood and accepted that this was a good decision, the terms of

which were set down in the minutes of the meeting on 5July1986 2. The carrier companies had

pointed out on this occasion that they would be ob liged to charge Onatra for what they called

“immobilisation or extended turnaround” of their containers in the port of Matadi. In the context of

these temporary measures, therefore, Onatra had undertaken to send empty containers back to

Kinshasa as quickly as possible after their discharge in the port of Matadi, to allay the fears

expressed by the carriers on this point.

51. But only a year after the start of this operation, Madam President, Africontainers was the

only company to make a claim on Onatra for th e “immobilisation or extended turnaround of its

containers in the port of Matadi” 27. Africontainers having uni laterally assessed the damage

suffered as a result and constantly updated the fi gures on the basis of a rate of interest of

20 per cent per month ⎯ I repeat, 20percentpermonth ⎯ for late payment, the amount claimed

by the company from Onatra in compensation went from ⎯ say ⎯ 2millionzaires in July1987

(equivalent to 34,000dollars at the time) to ove r 248millionzaires in April1990 (equivalent to

422,000 dollars) 28.

52. After considering the claim by Africontainers, Onatra suggested to the company that they

should seek an amicable settlement of the dispute. It was agreed following negotiations between

the parties that Onatra would grant Africontainers a lump sum in compensation of

150 million zaires (US$254,000), payable in three monthly instalments. This arrangement was set

29
29 down in a compromise agreement signed by both parties on 6June1990 . MadamPresident,

Members of the Court, you will find this document in your judges’ folder, tab No.2. Onatra

honoured its obligations, paying Africontainers the whole amount . . .

The PRESIDENT: Maître Kalala, may I interrupt you? Could it be confirmed that Guinea

has the folders to which you are referring?

2MRG, Ann. 32.
27
See, for example, Anns. 16 and 17, EPRDC.
28
Ann. 18, EPRDC.
2MRG, Ann. 69. - 22 -

Mr. KALALA: Madam President, I see that in the proceedings, at this stage . . .

The PRESIDENT: I understand that the answer is in the negative.

Mr. KALALA: That is right.

The PRESIDENT: So naturally when one intro duces a document into Court it must also be

provided to your opponents. May I suggest that this be done at the coffee break but in the

meantime you manage without reference to the folder? Please continue.

Mr.KALALA: Thank you very much, Madam President, but they have the documents in

their annexes. This is not a document that is bei ng annexed now, they have it in their file. It was

sent a very long time ago, they have it in their annexes.

53. Madam President, Members of the Court, to the great surprise of the Onatra management

this compromise settlement was rejected by Africontainers on 12 October 1990, that is four months

afterwards, raising fresh claims amounting to 42 billionzaires, although all its claims had been

taken into account in the said settlement 30. These fresh claims by Africontainers were firmly

rejected by the public undertaking as being without foundation.

54. Madam President, Members of the Court, here the DRC wishes to draw the Court’s

attention to Mr. Diallo’s scandalous conduct in this dispute. After receiving the full amount of the

final settlement between Onatra and Africontainers ⎯ and these documents, as I said a short time

30 ago, are in their hands, signed by them, and communicated since ⎯ Mr.Diallo made no bones

about subsequently questioning the agreement and making fresh claims. Mr.Diallo’s attempt at

unlawful enrichment at the expense of Onatra, with offers and kickbacks, was vigorously rejected

by the management of this public undertaking. Madam President, Mr.Diallo’s conduct in this

specific case reveals his true nature.

55. A second dispute, of lesser magnitude, compounded the initial disagreement. It

originated in the loss of two containers of Africontainers by Onatra, which fell into the River

Congo in December 1988 when Onatra was transpor ting them. Onatra has never questioned the

30
MRG, Ann. 72. - 23 -

principle of its responsibility in the incident, but the two parties have been unable to agree on the

amount due to Africontainers by way of compensat ion, the claims of th e carrier company having

been deemed excessive by Onatra. While the latte r offered the replacement of the two containers,

together with an indemnity of 18.9 million zaires to cover the loss of earnings for Africontainers as

a result of the non-availability of the containers, Africontainers for its part claimed more than

31
2billion zaires of indemnity in this respect . The application of an annual commercial interest

rate of 75 per cent ⎯ I repeat, 75 per cent ⎯ on the lay-up indemnity explained the size of the sum

32
demanded . Despite various subsequent approaches by Onatra, and the formulation by the latter

of other settlement proposals 33, the dispute, MadamPresident, remains unsettled to date,

Africontainers-Zaire having never responded to the latest proposals made by Onatra in December

1992.

56. In common with Gécamines, Onatra has always treated the claims put forward by

Africontainers-Zaire seriously and professionally. This is reflected by the numerous attempts made

by the public undertaking to reach a settlement of its disputes with Africontainers-Zaire. Likewise,

Onatra has had no hesitation in carrying out internal assessments in order to check the soundness of

31 the claims by Africontainers. This testifies, MadamPresident, to management of these files in

good faith by Onatra, and certainly not to a syst ematic policy of blockage or opposition regarding

the claims by Africontainers. The best proof of this is that, when they were indeed sound, the

claims gave rise not only to avowal of its responsibility by the public body but also to significant

financial reparation.

57. In its awareness of the flimsy and irr esponsible nature of its exorbitant claims,

MadamPresident, Members of the Court, Afric ontainers has never dared to bring any legal

proceedings against Onatra in the Congolese courts to this day. A period of five years elapsed,

MadamPresident, between the time when Onatra confirmed its definitive rejection of the claims

advanced by Africontainers in the first dispute and the day when Mr.Diallo was forced to leave

3Ibid.
32
POC, Ann. 23.
3See, for example, Anns. 25, 26, 27, 29 and 30. - 24 -

Congolese territory in January 1996, without any le gal proceedings being brought against Onatra

by Africontainers, I repeat, to this day.

58. MadamPresident, Members of the Court, as the Court may readily appreciate, I repeat,

this dispute was and still is between two economic operators of Congolese nationality,

Africontainers and Onatra. Once more, the demands and claims are advanced in the name and on

behalf of Africontainers, as a legal entity with its own contractual entitlements and rights, and not

of Mr.Diallo as an individual of Guinean nationa lity. Furthermore, Africontainers has never

brought any legal proceedings in the courts and tribunals of the DRC against Onatra, as I said a

moment ago, with a view to recovering the a lleged debts. ProfessorMazyambo and I will be

reverting to these matters later during our oral arguments on the consideration of the DRC’s two

preliminary objections.

59. MadamPresident, Members of the Court, I now come to the disputes between

Africontainers and the oil companies.

The disputes between Africontainers-Zaire and the oil companies

60. There are three oil companies involved in the commercial disputes with Africontainers:

Zaire-Fina, Zaire-Shell and Mobil Oil Zaire. I sh all begin with the dispute between Africontainers

and Zaire-Fina.

32 Africontainers v. Zaire-Fina

61. In common with the litigation between A fricontainers and Onatra, that between the

company and Zaire-Fina covers two distinct disput es. The origin of these two disputes is, in the

first case, the loss by the company Zaire-Fina of two containers belonging to Africontainers and, in

the second, the application of the 1983 tripartite agreement.

62. On 14March 1987, nearly 20years ago, seven containers entrusted by the transport

companies Trans-Tshikem and Africontainers-Zaire to Zaire-Fina fell into the River Congo on the

Kinshasa-Lubumbashi route. Five of the cont ainers belonged to Tran s-Tshikem and two to

Africontainers. Zaire-Fina acknowledged its r esponsibility in the incident and undertook to

compensate the two transport companies for that loss. Under the insurance policy taken out by

Zaire-Fina to cover that type of accident, the Société Nationale d’Assurance (SONAS) of the DRC - 25 -

paid compensation in respect of the loss sustained by the two transport companies. Trans-Tshikem

accepted the payment offered by SONAS and the dispute so ended.

63. On 30June 1990, Zaire-Fina made available to Africontainers the sum of over

680,000zaires paid to it by SONAS as compensation for the loss of the two containers.

Africontainers initially judged the sum offered too small and refused to accept it as payment. But a

year later, on 16April 1991, Africontainers finally cashed the amount in the registry of the

Kinshasa-Gombe Tribunal de Grande Instance, where Zaire-Fina had deposited it under the

procedure of real offers applicable in such circumstances.

64. MadamPresident, true to its usual modus operandi, after cashing the sum offered as

compensation, Africontainers, acting as ever through its associate director,
Mr.Diallo, brought

judicial proceedings against Zaire-Fina on 10 March 1993 before the Kinshasa-Gombe Tribunal de

Grande Instance to claim payment of a sum equivalent to the replacement value of the two

containers lost, together with damages for the prejudice suffered following that incident.

65. In its Judgment of 12August 1993, th e Tribunal sentenced Zaire-Fina to pay

33 Africontainers a sum totalling US$38 million, and I really did say 38 million United States dollars,
34
as compensation for the loss of two empty containers . Zaire-Fina appealed against the decision

and the Kinshasa-Gombe Court of Appeal, by its order of 24February 1994, overturned the

35
first-instance judgment and declared the action brought by Africontainers inadmissible .

Africontainers in turn lodged an application for j udicial review of the appeal decision, in February

1995. The Ministère public of the Supreme Court of Justice filed submissions in favour of

quashing the appeal decision. The DRC has not been informed of the outcome of these

proceedings between two private commercial companies.

66. The second dispute between Africontainers and Zaire-Fina originates in the application

and interpretation of the 1983 tripartite agreement. Africontainers made a number of complaints

against Zaire-Fina, in particular that it failed to respect the exclusivity clause which, according to

the transport company, was part of the agreement. Africontainers-Zaire also sought to update the

34
POC, Ann. 55.
35
POC, Ann. 56. - 26 -

rates applied for rental of its containers by Zaire-Fina. It put the losses suffe red in this respect at

over US$ 14 million.

67. Zaire-Fina rejected all the claims of A fricontainers on the grounds that the 1983 contract

contained no exclusivity clause and that there could be no question of an ex post facto updating of

the rates charged by Africontainers, Fina having long since settled all the invoices that the transport

company had submitted to it in connection with their business dealings.

68. Madam President, Members of the Court, true to its modus operandi , after more than

two-and-a-half years’ silence on the dispute, A fricontainers, acting through Mr.Diallo, reiterated

its claims against Fina in November 1995 sending it debit notes totalling over two thousand six

36
hundred million (2.6 billion) US dollars . It was, once more, by applying exorbitant bank interest

37
rates (350 per cent for 1993 and 422 per cent for 1994) that these sums were arrived at, while the

34 initial debt that Africontainers claimed was owed it by Fina was, according to the figures presented

38
by the company itself, some $323,000 . Those claims, MadamPresident, were also rejected by

Fina on 16 November 1995.

69. This second aspect of the dispute between Africontainers and Fina was never brought

before the Congolese courts and there have so far been no further developments.

Professor Mazyambo and I will be reverting to these facts later when we show the Court that local

remedies have not been exhausted and that, once agai n, it is Africontainers as a distinct legal entity

in Congolese law, possessing its own contractual rights, which has acted in this dispute, which only

goes to confirm the factual basis denying the Republic of Guinea capacity to act in this case.

70. MadamPresident, Members of the Court, I shall now briefly set out the case of the

dispute between Africontainers and Shell.

Africontainers-Zaire v. Company Shell

71. The dispute between Africontainers and Sh ell also originates, MadamPresident, in the

contractual relations maintained by the two co mpanies during the 1980s. The DRF has described

in detail in its written pleadings the evolution of those relations and therefore requests the Court to

3MRG, Ann. 182.
37
Ibid., p. 2 of debit note.
3Ibid., pp. 1 and 7 of debit note. - 27 -

refer thereto. It must nevertheless be observe d that, in May 1992, Africontainers unexpectedly

made various financial claims against Shell at a time when their business dealings were

satisfactory. Africontainers accused Shell of unlawfully breaching the 1981 and 1983 contracts and

claimed payment of the sums of US$ 10 million for breach of the contracts and US 1.7 million for

unfair competition. These claims were firmly re jected by Shell, which argued that the 1983

tripartite agreement contained no exclusivity clause in favour of Africontainers.

72. Madam President, following the usual tac tics of its managing director Mr Diallo,

Africontainers maintained a long silence without r eacting to Shell’s refusal. It was only two and a

half years later, in early 1995, that Africontainers decided to bring the dispute before the Courts, its
35

principal claim being that Shell be ordered to pay it just over US$13 million for the breaches of the

1981 and 1983 contracts, and $10million in damag es. In its judgment of 3July1995, the

Kinshasa-Gombe Tribunal de Grand Instance upheld the claims of Africontainers; hence

Africontainers won the case. It also ordered th e immediate enforcement of the judgment in respect

of the principal amount of over US$13 million.

73. Africontainers then sought to have the judgment enforced. However, Shell tried to

oppose that action by applying to the Kinshasa-Gombe Court of Appeal for a stay of execution with

a view to having the immediate enforcement decision set aside. At the same time, Shell lodged an

appeal against the first-instance decision as a whole 39. By its judgment of 24August 1995 ⎯ a

copy of which has been communicated to the opposing party ⎯ the Kinshasa-Gombe Appeal Court

dismissed Shell’s opposition to immediate enforc ement because the Appellant had not produced

40
“an original execution copy or a certified copy of the judgment appealed against” . Africontainers

once more won the case. Shell then appealed against that decision before the Supreme Court of

41
Justice .

74. The appeal proceedings on the merits ⎯ which have never been affected by the passing

difficulties of the first-instance judgment ⎯ have since seen a new development with the decision

3POC, Ann. 65.
40
See POC, operative part of order, Ann. 67.
4POC, Ann. 68. - 28 -

of the Kinshasa-Gombe Court of Appeal, dated 20 June 2002 . That decision, duly communicated

to the opposing party, set aside the first-instance judgment and ordered Shell to pay Africontainers

only US$540 by way of capital and US$1,000 in damages. The Court dismissed the claim by

Africontainers regarding the alleged breaches by Shell of the 1983 contract, while recognizing the

36 existence of minor debts owing by Shell to the tran sport company. Africontainers has not to date

reacted to this judicial decision in its favour.

75. Furthermore, Africontainers sent Shell a debit note, dated 29 Se ptember 1995, regarding

43
the settlement of invoices addressed to the oil company between 1982 and 1990 , namely 13 and

five years previously. The procedure and the method of calculation of the sums that Africontainers

considered itself to be owed by Shell are identical with those used in the note sent to Fina of which

I was speaking a short while ago. Once again, the application of the same exorbitant interest rates

led Africontainers to claim from Shell an amount exceeding US$1.8billion, while the initial sum

that Africontainers claims to be owing to it from Shell is, according to the figures presented by

Africontainers itself, some US$277,000. The sum of US$277,000 has risen to US$1.8 billion. The

latter claim, vigorously rejected by Shell, has ne ver been brought before a court by Africontainers

up to the time of my addressing the Court today.

76. In the light of the foregoing, Madam Pr esident, the Democratic Republic of the Congo

requests the Court to find, on the one hand, that the dispute in question is between two commercial

companies of Congolese nationality, Africontainers-Z aire and Zaire-Shell and, on the other, that

local remedies in the DRC have not been exhausted.

77. Madam President, Members of the Court, I now come to the last dispute between

Africontainers and Mobil Oil.

Africontainers-Zaïre v. Mobil Oil

78. The dispute between Africontainers a nd the petroleum company Mobil Oil is fully

consistent with those I was discussing just a moment ago. In a letter addressed to Mobil Oil on

24 April 1992 4, Africontainers claims an amount of over US$13 million, as compensation for the

4POC, Ann. 66.
43
MRG, Ann. 178.
4Ann. 38, PODRC. - 29 -

damage suffered following the failure by the oil company to comply with its obligations arising

from the agreements concluded by the two companies in 1980 and 1983.

37 79. Mobil Oil immediately rejected these claims, asserting that the 1980Agreement had

already been rescinded and replaced by the Tripartite Agreement of 1983, and that the first of those

45
agreements could not therefore c onstitute the basis of any claim . The petroleum company also

pointed out that the failure to enforce the 1983 Agreement, which had been observed for some

46
time, was due to the fact that Africontainers was no longer functioning properly .

80. Madam President, Africontainers never replied to the arguments put forward by Mobil

Oil to counter them. However, at the beginning of November 1995, as it had done with the other

two oil companies which were parties to the 1983 contract, Africontainers sent Mobil Oil an overall

debit note for a total amount of some US$1.7 billion 4, whereas Africontainers itself put the initial

48
claim at just over 25 million dollars . Mobil Oil firmly rejected these extravagant and exorbitant

claims by a letter of 23 November 1995.

81. Notwithstanding this firm and clear rej ection, Madam President, Members of the Court,

Africontainers never brought this dispute before the Congolese courts . This shows the failure to

exhaust the available local remedies in the D RC. Also, it is once again the Congolese company

Africontainers, and not Mr.Diallo as such, who is a party to this particular dispute, which will

merely confirm Guinea’s lack of the capacity to act. Professor Mazyambo will revert to this matter

in a moment.

82. Madam President, Members of the Court, the moment has come for me to consider a

conflict different from all those I have discussed so far. This is the detention and expulsion of

Mr.Diallo from Congolese territory. I have now reached the third and last part of my oral

argument.

45See the letter of 12 May 1992, Ann. 40, PODRC.
46
Ibid.
47MRG, Ann. 183.

48Ibid. - 30 -

38 III. The arrest and deportation of Mr. Ahmadou Sadio Diallo from Congolese territory

83. MadamPresident, Members of the Court, I have explained in my presentation how

Mr.Diallo, sheltering behind the two companies of which he was the managing partner, harassed

the Congo’s major economic actors with exagge rated and groundless financial claims. Even

Guinea acknowledged the far-fetched and arbitrary na ture of the financial claims made by its

citizen in its written pleadings. Mr.Diallo di d not confine himself to legal harassment, he

confirmed his nuisance potential by unleashing a campaign of disinformation and defamation

concerning the Congolese State targeted at foreign dignitaries.

84. Mr.Diallo wrote letters, dated 30November1995, to the Prime Minister, the Minister

for Planning and the Minister for Finance in which he represented the financial claims at issue as

49
established and undisputed amounts .

85. MadamPresident, Members of the Court, more importantly for the image of the DRC,

copies of those letters were sent to, would you belie ve, the President of the International Court of

Justice (that is say the person in your position, Madam President), to the President of the Republic

of Guinea, to the President of ECOWAS, to the senior member of the Diplomatic Corps in the

DRC and to the Ambassadors to the DRC of Gu inea, the United States, the United Kingdom and

Belgium 50. A copy of that letter is in the judges’ folder as tab No. 3 and was, of course, transmitted

to the other Party many years ago. MadamPresident, Members of the Court, the DRC would

observe that if, like Mr. Diallo, businessmen the wo rld over were to send copies of their financial

claims to the President of the International Court of Justice, the President would spend the whole of

his or her tenure just reading that correspondence. And the Court itself would certainly have no

room to store all such correspondence. What is not eworthy is that by this act Mr. Diallo revealed

his true nature and the DRC asks the Court to take note thereof.

39 86. Mr.Diallo’s unjustified claims and the wi de publicity he gave to them were causing

serious harm to the DRC by undermining the country’s credibility and image, particularly with

foreign businesses and potential investors.

49
MG, Anns. 187-189.
50
Ibid., p. 5. - 31 -

87. That was the backdrop to the deportation order against Mr.Diallo issued by the

Congolese Government on 31 October 1995 51. Madam President, Members of the Court, a copy of

that order can be found as tab4 in the judges’ folder and, MadamPresident, a copy of this

document was, of course, sent to the other Party many years ago. The grounds given for the

deportation were based on the fact that “the pr esence and conduct [of Mr.Diallo] have breached

and continue to breach Congolese public order, pa rticularly in economic, business and monetary

52
matters” . In this respect, we might note, for example, the numerous attempts at bribery of

Congolese judicial officials, executives of public bodies and politicians in which Mr.Diallo was

involved with a view to obtaining payment of Africontainers’s fictitious debts, an issue which I

have addressed at great length in my statement. Some of the oil companies affected by such claims

even made official representations to the Congolese authorities to denounce Mr.Diallo’s

reprehensible conduct 53. Madam President, a copy of the letter addressed by the oil companies to

the Congolese Government of the time has been included in the judges’ folder as tab No. 4.

88. The legal basis for the expulsion order concerning Mr. Diallo thus lies in the Congolese

Immigration Law of 12 September 1983. Article 15 of that Law provides that “the President of the

Republic may, by a duly reasoned order, expel from [Congolese territory] any foreigner who, by

his presence or conduct, breaches or threatens to breach the peace or public order” 54.

89. This was how Mr. Diallo was arrested a nd detained for the first time in December 1995

under the deportation procedure pursuant to the Congolese Immigration Law of

12September1983. Under Article15 of that Law, foreigners against whom deportation

40 proceedings have been initiated, and who are liable to evade their enforcement, may be held at a

detention centre by the Administrator-General of the CNRI (National Intelligence Centre), or by his

representative, for a period of 48 hours. In cases of absolute necessity, that period may be extended

by further periods of 48 hours, up to a maximum of eight days.

51Decree No. 0043 dated 31 October 1995 expelling Mr. Diallo from the territory of the Republic of Zaire, POC,
Ann. 75.
52
Ibid.
53
See joint letter from Mobil and Fina dated 15 November 1995, POC, Ann. 74.
54POC, Ann. 73. - 32 -

90. That period of de tention, Madam President, was never exceeded in the present case. In

this respect, Guinea’s assertion that Mr.Diallo w as detained for no less than 75days in all, from

5November1995 to 10January1996 and then from 17January to 31January1996, at the very

least needs to be qualified. That claim is based exclusively on newspaper sources, which

themselves repeated at a press release by the association Avocats sans Frontières 55and that version

of the facts is, in any case, contradicted by certain elements in the case file itself.

91. It is noteworthy in this respect that, during the period when Mr.Diallo was allegedly

locked in a prison cell without any contact with th e outside world, he sent the three letters, signed

personally and dated 30November1995 , to the Prime Minister of Zaire, to the Minister for

Planning and to the Minister for Finance to which I have just referred 56. It may legitimately be

asked how Mr.Diallo was able to write tho se letters during a period when, according to the

Republic of Guinea, he was incarcerated and being brutalized in a Congolese Immigration

Department (SNIP) cell.

92. It is, moreover, particularly striking to note that Mr. Diallo, purportedly locked in a cell,

deprived of his liberty and being subjected to br utal treatment, makes no reference in those letters

to the ordeal allegedly being inflicted on him by that same Zairean [Congolese] Prime Minister at

the request of the oil companies. At a time when he is said to have been imprisoned, mistreated

and awaiting deportation from the DRC, Mr. Diallo curiously seems to have been more concerned

about recovering the monies owed to Africontainers and says not a word, not a single word, about

the Congolese authorities depriving him of his liberty. Finally, it is impossible to understand how

Mr.Diallo could have spent weeks under lock and key with nothing to eat or drink, as Guinea

41 asserts. In conclusion, it is clear that the allege d mistreatment that Mr.Diallo is said to have

undergone is not based on any evidence whatever, or even any credible reasoning.

93. Madam President, Members of the Court, the DRC would also like to point out here that

the deportation order against Mr.Diallo was in no way exceptional. Numerous orders for

expulsion from Congolese territory, no different fro m that concerning Mr.Diallo, were in fact

issued on a number of occasions during the same period against foreign nationals for similar

55
See for example MG, Anns. 190, 191 and 193.
56
See para. 86. - 33 -

reasons pursuant to the 1983Statute. To mention just one example, on 22February1995, six

months before Mr.Diallo’s deportation, the Congolese Government ordered the deportation of
57
86 foreign nationals on grounds related to the ma intenance of public order in economic matters .

This shows that Mr. Diallo’s removal from Congolese territory was not the only such case, and that

such measures, far from constituting reprisals or the persecution of individuals, were, on the

contrary, implemented as part of a campaign by the Congolese Government of the time against

corruption and white-collar crime involving certain fo reign nationals in the DRC. Mr. Diallo was

unfortunately one of those forei gn nationals who had chosen to turn the DRC into a place where

they could flout the law with impunity and take unfair advantage of the hospitality which the

Congolese people had extended to them.

94. Mr.Diallo was finally deported from the DRC on 31January1996. Since then, he has

not ⎯ and this is a very important point ⎯ lodged any form of appeal against that measure. This

shows that not all local remedies have been exha usted. As for the Applicant’s capacity to act,

which could theoretically have been entertained solely with respect to this point of the dispute,

where Mr. Diallo’s claim can be distinguished from those linked to the two Congolese companies

of which he is managing director, it is not admissible because ⎯ and this is fundamental ⎯

Guinea’s Application is essentially aimed at obtai ning reparation for the damages suffered by the

companies, Africom-Zaire and Africontainers-Zaire.

42 95. In the light of all I have said in my presentation, it is clear that the “Application for the

purposes of diplomatic protection” filed with th e Court by Guinea consists of an espousal of

Mr.Diallo’s claims with a view to ⎯ and this is very important ⎯ recovering monies totalling

US$36billion allegedly owed by the Congolese State, the public undertakings and the oil

companies to Africom-Zaire and Africontainers-Zaire, of which Mr.Diallo is the managing

partner. This is the essence of the Republic of Guinea’s Application.

96. These points clearly show that Guinea’s Application is seeking to help its national,

Mr.AhmadouDiallo, under the cover of two private registered companies, to recover exorbitant

and excessive sums of money by way of this Court.

57
POC, Ann. 76. - 34 -

97. MadamPresident, Members of the Court, the International Court of Justice was

established by the nations of the world to contri bute to the maintenance of international peace and

security through international justice. The DRC therefore refuses to condone for one instant the

action undertaken by Guinea, which effectively, and I stress, brings this prestigious organ down to

the level of a mere commercial court or a private ag ency for the recovery of debts on behalf of its

clients. What Guinea has really requested the Court to do ⎯ and this is extremely serious ⎯ is to

settle some quarrels over money, arguments about billing, differences over interest rates between

Congolese registered businesses and the DRC cannot condone that. It is almost a sign of disrespect

to the Court and is certainly a manifest abuse of procedure. MadamPresident, Members of the

Court, the DRC cannot really imagine how the Court, calculator in hand, would find its way

through these disputes over breaches of contracts, statutes of limitation for certain financial claims,

figures, updating of invoices, updating of prices a nd interest rates between a number of Congolese

registered companies. We cannot imagine the Court embarking upon such a task.

98. In the DRC’s view, Madam President, Members of the Court, its own competent national

courts, and not this Court, are best placed to consider these essentially commercial and contractual

disputes.

43 99. On the basis of all the points I have referred to in my presentation, MadamPresident,

Members of the Court, the DRC raises two prelim inary objections. With respect to the first

preliminary objection, my friend Professor Mazyambo Makengo Kisala will shortly show the Court

that Guinea lacks the capacity to act in the instant case as its Application seeks reparation for the

violation of the rights of private companies that do not possess its nationality. This must render

Guinea’s Application inadmissible. With r espect to the second preliminary objection,

Madam President, Members of the Court, I will take the floor again to explain to the Court that, as

the local remedies available in the DRC have no t been exhausted by Mr.Diallo or by the

companies of which he is the associate partner, Guinea’s Application must be declared

inadmissible.

100. MadamPresident, Members of the Court, I thank you for your attention. May I ask

you, Madam President, to give the floor to Professor Mazyambo who will explain to the Court why - 35 -

the Republic of Guinea’s Application must be declared inadmissible, as the twocompanies,

Africom and Africontainers, do not possess Guinean nationality.

101. Madam President, may I ask you, if you ha ve no objection, to adjourn the hearing for a

break, after which Professor Mazyambo will take the floor.

The PRESIDENT: Now would be a good time for a coffee break. Merci beaucoup,

Maître Kalala.

The Court adjourned from 11.55 a.m. to 12.05 p.m.

Le PRESIDENT : Veuillez vous asseoir. Monsieur Mazyambo, vous avez la parole.

Mr. KALALA: Excuse me, Madam President, Members of the Court, this is just in regard to

your request of a few minutes ago. At your request, I am providing to Guinea the five documents

to which I referred during my statement, but I wto have the Court officially note that since

2002, for more than 4 years, all the documents to which I refer have been communicated to Guinea.

They have those documents and, at this stage in the proceedings, it would be out of the question,

indeed inadmissible, for reference to be made to a document which had not been communicated to

44 the other Party. This is to say that I have complied with your request. Thank you.

Le PRESIDENT : Je vous remercie de l’information. Il ne s’agit pas de la question de savoir

si cela est inadmissible, mais d’une question de courtoisie, afin que l’autre Partie puisse suivre

aussi facilement que tout le monde. Je vous remercie de l'information. Nous pouvons poursuivre à

présent.

KMIr. LA:

THE R EPUBLIC OF G UINEA’SA PPLICATION MUST BE DECLARED INADMISSIBLE

FOR G UINEA S LACK OF STANDING

1. Madam President, Members of the Cour t, thank you for giving me the floor. As

Maître Tshibangu Kalala has already said, the Demo cratic Republic of the Congo, basing itself on

the facts which have just been presented, has raised two preliminary objections: the first concerns

the Republic of Guinea’s lack of standing in the present case; the second relates to Mr.Diallo’s - 36 -

failure to exhaust local remedies. With your leave, I shall devote myself to setting out the first of

these objections, the one concerning Guinea’s lack of standing.

2. Madam President, Members of the Court, Guinea’s Application is aimed essentially at

obtaining compensation for all injuries allegedly suffered by two companies, Africom-Zaire and

Africontainers-Zaire, of which Mr.Diallo is managing director/shareholder. Since the two

companies do not have the nationality of the Applican t, it is clear that the Applicant does not have

standing to act in the present case.

3. In the field of diplomatic protection, standing means that the State asserting the claim

58
must be the State of nationality of the injured party .

45 4. As Guinea’s Application is aimed at obt aining compensation for a violation of the rights

of persons not possessing Guinean nationality, na mely the Congolese companies Africom-Zaire

and Africontainers-Zaire, it must be declared inadmissible by the Court.

5. In its Memorial, Guinea seeks to avoid application of these well-established legal

principles by putting forward a two-pronged argume nt. First, it argues that in the specific

circumstances of the case it has standing to provide “shareholder’s diplomatic protection” 59, to

repeat the exact words used by the Applicant. Second, Guinea believes that it is entitled to provide

“protection of shareholders’ rights by substitution for the company” 60. Those too are the words of

the Applicant.

6. Madam President, Members of the Court, the Democratic Republic of the Congo will

refute these arguments, showing: first, that Guinea cannot in the present case claim to provide “the

shareholder’s diplomatic protection” and, second, that the notion of “protection of shareholders’

rights by substitution for the company” is unaccepta ble in international law, particularly in the

present case.

5See Article44 of the International Law Commission’s dr aft Articles on State Respons ibility, of which the

General Assembly has taken note, ILC, Fifty-third session, 23 April-1 June and 2 July-10 August 2001, Official Records
of the General Assembly, Fift y-sixth Session, Supp.No.10 (A/56/10). See also Article1 of the draft Articles on
Diplomatic Protection adopted by the Drafting Committee of the Internationa l Law Commission, IL C, Fifty-Fourth
Session, 29 April-7 June 2002, 22 July-16 August 2002, A/CN.4/L.613/Rev. 1, 7 June 2002.
59
MRG, p. 80, Title 1.
6MRG, p. 93, Title 2. - 37 -

I. Guinea cannot claim to exercise “shareholder’s

diplomatic protection” in favour of Mr. Diallo.

7. Madam President, Members of the Court, th e Republic of Guinea claims to have standing

to exercise its diplomatic protection for Mr.Diallo’s benefit on the basis that, in the

Barcelona Traction case, the Court recognized the right of the national State of a shareholder in a

company to exercise its diplomatic protection “if the act complained of is aimed at the direct rights

of the shareholder as such ” (Barcelona Traction, Light and Power Company, Limited (Belgium v.

Spain), Second Phase, I.C.J. Reports 1970, p. 36, para. 47). In truth, contrary to what is said in the

Judgment in that case, the Applicant identifies an attack on company rights, resulting in damage to

61
shareholders, with the violation of their direct rights . Indeed, in several passages in its written

pleadings, Guinea considers claims held by Africom-Zaire and Africontainers-Zaire to be claims

62
held by Mr. Diallo .

46 8. The Democratic Republic of the Congo will s how the Court that a violation of the rights

of the company is not equated under international law with a violation of the rights of the

shareholder and that international law allows for th e protection of the direct rights of shareholders

as such only under very limited conditions which are not fulfilled in the present case.

9. Madam President, Members of the Court, Guinea’s identification in the present case of an

infringement of the rights of a company with a violation of the rights of its shareholders is contrary

to positive international law. It is contrary to the logic itself of the institution of diplomatic

protection; it was rejected by the Court in the Barcelona Traction case; most legal commentators

reject such identification.

10. Madam President, Members of the Court, the institution of diplomatic protection is based

on the fundamental notion that a “State is in reality asserting its own rights ⎯ its right to ensure, in

the person of its subjects, respect for the rules of international law” ( Mavrommatis Palestine

Concessions, Judgment No.2, 1924, P.C.I.J., SeriesA, No.2 , p.12). “This right is... limited to

intervention [by a State] on behalf of its own nationals because, in the absence of a special

agreement, it is the bond of nationality between the State and the individual which alone confers

upon the State the right of diplomatic protection” (Barcelona Traction, Light and Power Company,

61
MRG, p. 83, paras. 4.24 and 4.25.
62
MRG, p. 7, para. 1.16. - 38 -

Limited (Belgium v. Spain), Second Phase, I.C.J. Reports970 , p.3, para.6 and

Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., SeriesA/B, No.76 , p.16). Conversely,

this means that “[w]here the injury was done to the national of some other State, no claim to which

such injury may give rise falls within the scope of the diplomatic protection which a State is

entitled to afford nor can it give rise to a claim which that State is entitled to espouse”

(Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16).

11. If these general principles are applied to the case of a violation of the rights of a

company, only the national State of the company can suffer any violation of its rights, and hence

only that State can claim reparation. Thus, an in fringement of the rights of the company cannot be

equated with a violation of the rights of its shareholders.

12. The refusal to identify the rights of the co mpany with the rights of the shareholder also

follows from the jurisprudence of the Court. In the Barcelona Traction case, the Court clearly and

explicitly refused to equate the rights of the comp any with those of the shareholders. The Court

stated in paragraph 44 of the 1970 Judgment:

47 “Notwithstanding the separate corporate personality, a wrong done to the

company frequently causes prejudice to its sh areholders. But the mere fact that
damage is sustained by both company and shareholder does not imply that both are
entitled to claim compensation. Thus no legal conclusion can be drawn from the fact
that the same event caused damage simultaneous ly affecting several natural or juristic

persons. Creditors do not have any right to claim compensation from a person who,
by wronging their debtor, causes them loss. In such cases, no doubt, the interests of
the aggrieved are affected, but not their rights . Thus whenever a shareholder’s
interests are harmed by an act done to the company, it is to the latter that he must look

to institute appropriate action; for alth ough two separate entities may have suffered
from the same wrong, it is only one entity whose rights have been infringed.”
(Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second
Phase, Judgment, I.C.J. Reports 1970, p. 35, para. 44.).

13. The principle laid down by the Court runs directly counter to Guinea’s argument. Even

supposing that the Democratic Republic of the Congo is required to pay its debts to Africom-Zaire

and Africontainers-Zaire, and that those companies are themselves in debt to Mr.Diallo, he does

“not have any right to claim compensation from the Congolese State, which, by wronging his

debtors, causes him a loss”. In other words, Mr. Dia llo’s “interests . . . are [possibly] affected, but

not [his] rights”. - 39 -

14. In this regard the Democratic Republic of the Congo notes that under Congolese law

commercial companies, and therefore the companies Africom-Zaire and Africontainers-Zaire, have
63
legal personality separate from th at of their shareholders or associés . I wish to draw the Court’s

attention to the fact that Congolese legislation, in dealing with private limited liability companies,

speaks of associés and parts sociales, not actionnaires (shareholders) and actions (shares). To be

more consistent with the legislation of the Court, we shall however use the generic terms

actionnaires (shareholders) and actions (shares).

15. However close they may be in factual and economic terms, the links between a company

and its shareholders do not prevent them from rema ining separate entities in law, inasmuch as they

possess distinct legal personalities.

16. The DRC wishes to indicate here that the argument now being advanced by Guinea is

very similar to that put forward by Belgium in the Barcelona Traction case. In that case, the

Belgian Government filed an Application, like the one in the present case, having as its object

“reparation for damage claimed to have been cau sed to a number of Belgian nationals, said to be

shareholders in the [company]” (I.C.J. Reports 1964, p. 9 and I.C.J. Reports 1970, p. 16).

48 17. In either case, this is “to identify an a ttack on company rights, resulting in damage to

shareholders, with the violation of their direct rights”. Thus, one need only in both cases apply the

same reasoning as that adopted in the Barcelona Traction case to dismiss this argument. Guinea’s

Application must, accordingly, be given the same treatment as that which the Court gave Belgium’s

Application, that is to say it must be found inadmissible.

18. Further, the Court’s decision in the Barcelona Traction case is the only jurisprudence of

relevance to the present proceedings. Neither the older or more recent arbitral awards nor the

decisions by the European Human Rights Commission relied on by Guinea can support its claim.

19. Madam President, Members of the Court, Guinea’s argument, which expressly seeks to

equate an attack on the company’s rights with a violation of the shareholders’ rights, is contradicted

not only by the case law but also by a significant body of commentary. Professors Patrick Daillier

and Alain Pellet have written that, in a case involving the possibility of diplomatic protection where

63
See Article 1 of the Decree of 27 February 1887 on commercial companies, as amended to date. - 40 -

the rights allegedly violated are those of a company, “it is in principle the personality ⎯ and the

nationality ⎯ of the company, a legal person, which prevails, which takes precedence” 64. In the

course which he taught at the Academy of Intern ational Law in 1974, ProfessorDiezdeVelasco

noted that:

“The admissibility of claims before international tribunals on account of wrongs

done to companies depends on the nationalities of the companies. The company is the
entity possessing a perfected right to the corporate property and the shareholder could
only claim compensation based on equity.” 65

20. The DRC observes in this connection that , notwithstanding some disagreement, the most

authoritative writers very clearly state that equa ting the company’s rights with shareholders’ rights

must also be rejected when the measures complained of are attributable to the national State of the

company. On this point, Professors Patrick Daillier and Alain Pellet rightly state:

“Where there are only two States involve d, the State of the corporate seat and

the national State of the shareholders, the problem can be resolved by reference to the
principles governing the nationality of companies . . .

“If the company must have the nationality of the State on whose territory it has
49
established its corporate seat, and if the me asures injuring the shareholders have been
taken by that State, it is clear that a claim by the national State is inadmissible.” 66

21. Madam President, Members of the Court, I have already pointed out that the Court in the

Barcelona Traction case acknowledged, in dictum, the possibility in principle of a claim by the

national State where the act complained of has been aimed at “the direct rights of the shareholder

as such” ( I.C.J. Reports 1970 , p.36, para.47). The DRC has already shown here that such a

situation can in no event result in “identify[ing] an attack on company rights, resulting in damage

to shareholders, with the violation of their direct rights”, as Guinea wishes to do 6. It remains to be

shown that, when properly construed, the circ umstances in which the “direct rights of the

shareholder as such” can be protected are very limited ones which do not correspond to the specific

facts in the present case.

64
P. Daillier and A. Pellet (Nguyen Quoc Dinh), Droit international public , 6thed.LGDJ, 1999, p.733,
para. 489 [translation by the Registry].
65Mr. Diez de Velasco “La protection diplomatique de s sociétés et des actionnaires ”, Collected Courses of the

Hague Academy of International Law (RCADI), 1974, I, Vol. 141, p. 152 [translation by the Registry].
66P.Daillier and A.Pell et (Nguyen Quoc Dinh), Droit international public , 6thed., op. cit., p.774, para.489
[translation by the Registry]; emphasis added.

67MRG, p. 83, paras. 4.24 and 4.25. - 41 -

22. The terms used by the Court in its benchmark Judgment make it possible to define very

clearly the scope of the rule relied on by Guinea. In paragraph 47 of that Judgment the Court states

in substance:

“The situation is different if the act complained of is aimed at the direct rights
of the shareholder as such. It is well known that there are rights which municipal law

confers upon the latter distinct from those of the company, including the right to any
declared dividend, the right to attend and vote at general meetings, the right to share in
the residual assets of the company on liquidation. Whenever one of his direct rights is

infringed, the shareholder has an independent right of action.” ( I.C.J. Reports 1970,
p. 36, para. 47.)

Th3is. obiter dictum thus begins by laying down a principle, then illustrates it with specific

examples. In both cases, it is clear that what is referred to are rights which shareholders can hold

only in the context of their relations with the company.

24. As regards the principle, I first note that the Court is not opening the door to diplomatic

protection on behalf of shareholders’ rights, without qualification. They must be “direct” (propres)

rights of the shareholder considered “as such” (en tant que tels) , not merely “rights as
68 69
shareholder” or “direct rights of shareholders”, as Guinea asserts in passing . As for the word

“propre”, its ordinary meaning is that “which pertains specifically to somebody or to something,
50
70
characterizing it and distinguishing it in a special way” . This simply confirms that the rights of

the shareholder cannot be confused with those of the company, as Guinea seeks to do. The phrase

“as such” adds a second condition: the rights concerned must belong to the party in question by

virtue of his status as shareholder and not in any other capacity. Hence, by definition, what is

envisaged here can only be the rights of shareholders in their relations with the company, since it is

only from the company that they can claim to deri ve their shareholders’ rights. Conversely, a

shareholder cannot have any direct right, as such , in seeing that contracts entered into by the

company with a third party are comp lied with, for in that case the right is not direct (it is the

company’s right which is involved), nor can it be long to the shareholder “as such” (any person,

whether or not a shareholder, can have rights of this kind).

68MRG, p. 67, para. 3.63.
69
MRG, p. 91, para. 4.46.
70Dictionnaire Larousse de la langue française, see “propre” [note by the Registry: in the English version of
Barcelona Traction, the word “propre” is rendered as “direct”, to which this definition is clearly not applicable]. - 42 -

25. This interpretation is confirmed by the list of examples provided by the Court: the right

to dividends, the right to attend and vote at genera l meetings, and the right to share in the residual

assets of the company on liquidation are rights whic h, by definition, the shareholder can invoke

only against the company, subject to certain cond itions and in accordance with certain procedures

laid down in the company’s articles and in the commercial law of the legal order concerned.

26. Those writers who have considered this question have favoured the same view, either

repeating the same examples or citing similar ones 71.

27. As will have been noted, no one cites as a “right of the shareholder as such” the right to

see the company suffer no injury, whether as a resu lt of non-performance of a contract to which it

is a party or as a result of tort or other non-contractual liability. In other words, the admissibility of

the claim is subject to the existence of what might be called “interference” in the relations between

the company and its shareholders.

28. Madam President, Members of the Court, contrary to the Applicant’s allegations, the

present case does not involve a situation in which the direct rights of the shareholder as such can be

51 protected. Moreover, it is the App licant’s awareness of this that l eads it to state explicitly in its

written pleadings that it is adopting a broad definition of the term “direct rights of the shareholder”.

And indeed, in this expansive view which it takes, this broad notion of the rights of the shareholder,

which fails to take account of the phrase “as such ”, which is nevertheless used by the Court,

72
Guinea, in its own words, includes both Mr. Diallo’s “functional rights” and his “property rights” .

29. The DRC will look in turn at the two types of rights referred to by Guinea to show that

Mr. Diallo’s direct rights as shareholder, that is to say as an associé under Congolese law, are not

at issue in the present case, whether those rights be “functional rights” or “property rights”.

30. Guinea claims that Mr.Diallo’s expulsi on constituted an infringement of his direct

rights. The expulsion allegedly prevented him from exercising his rights and responsibilities as

“owner and sole shareholder and managing director of the companies in question and from

71
M. Shaw, International Law, Cambridge, CAP, 4th ed., 1997, p. 566: J. Verhoeven, Droit international public,
Brussels, Larcier, 200, 637.
72MRG, p. 91, para. 4.46. - 43 -

pursuing collection of the monies owed him and seeking enforcement of the judicial decisions” 73.

Well, this argument is doubly wrong.

31. First, in purely factual terms, it is not a credible argument that the director of a company

cannot exercise his power of management and control from foreign territory, even if situated

thousands of kilometres from the places where the company carries on its business. Modern means

of communication as well as, quite simply, the po ssibility of delegating executive tasks to local

managers, including through the appointment of a new chief executive, undeniably represent means

for running a company, whether in the DRC or else where. On this point the Democratic Republic

of the Congo notes that Mr. Diallo himself continued to run Africontainers and pursued recovery of

the debts owed to that company well after his expul sion. All he needed to do to this end was to

appoint representatives and lawyers to act on his behalf and on his instructions.

32. The DRC would next point out that neither Mr. Diallo’s shares nor his dividends nor his

specific rights as shareholder were at any time ta rgeted. It is difficult to contend in these

52 proceedings that Mr.Diallo’s removal from Congolese territory was “aimed at” any of his rights

cited in the Court’s Judgment or any other rights granted him by Congolese law.

33. In truth, Guinea does not even try to show that Mr.Diallo’s rights as shareholder were

aimed at as such. It confines itself to asserting th at the effect of the measure complained of here,

that is to say the expulsion, was to prevent him from fully exercising his rights. Stress must

however be laid on the fact that there is absolute ly nothing to suggest that Mr.Diallo’s removal

from Congolese territory was a measure aimed at his rights as shareholder. Thus, Guinea’s

argument concerning the “functional rights” of its national is unfounded both in fact and in law.

34. Madam President, Members of the Court, in respect of what it calls the “property rights”

of its national, Guinea claims that Mr.Diallo saw the value of his property reduced to zero as a

result of internationally wrongful conduct on the pa rt of the Congolese authorities; and that this

conduct prevented its national fro m pursuing recovery of the monies owed him by the Congolese

State and various private companies, some of which claims had been reduced to judgment 74.

73
MRG, pp. 91-92, para. 4.48.
74
MRG, p. 92, para. 4.49. - 44 -

35. The DRC notes that this allegation is yet another illustration of the Applicant’s

deliberate, near-total merging of the rights, pers onalities and property of the two companies with

those of their managing director. In this context, the notion of direct “property rights” of

Mr.Diallo as shareholder clearly loses all meani ng and proves in any event to be fundamentally

incompatible with international law as it stands today.

36. Guinea asserts incidentally, and repeatedly, that Mr.Diallo is “owner” of Africom and

Africontainers 75. It is from this standpoint that it considers the companies in question to be part of

53 Mr. Diallo’s property and that, in seeking to recover debts owed to them, he is simply attempting to

recover “his own claims” 7, when these are in fact claims held by the companies.

37. Guinea thus expounds reasoning which, under cover of the notion of “direct rights of the

shareholder as such”, ends up denying any separation of legal personalities and, more

fundamentally, running counter to a number of general principles of the general theory of law. It

feigns ignorance of the fact that, in law, it would be more appropriate to consider Mr. Diallo merely

as owner of the shares or, more accurately, the parts sociales in the two companies, and not of the

companies themselves, and that, accordingly, the shareholder or associé does not himself own

either the property or the debts owed to the co mpanies in question. Moreover, Mr.Diallo cannot

claim to be the only creditor of the two comp anies because, aside from the specific case of

shareholders entitled to claim any dividends on th eir shares, there may obviously also be other

persons to whom these companies are indebted.

38. In short, Mr.Diallo’s strategy whereby he seeks to obtain in proceedings before the

International Court of Justice the totality of the sums claimed by the two companies run by him,

without any regard for other creditors of the co mpanies or for the companies’ debts or other

liabilities, is totally incompatible with the most elementary general principles of commercial law.

That law recognizes not only the separateness of the personalities and property of private

7Right from the opening lines of the Application, the Republic of Guinea refers in very general terms in regard to

Mr. Diallo to “the collection of substantial debts owed to his businesses by the State and by the oil companies established
on its territory and of which the said State is a sharer” (Application of Guinea, p. 3; emphasis added by the
Democratic Republic of the Congo). See also, for example, MRG, pp. 101, para. 4.71, 103, para. 4.75, and the first point
of the submissions by the Republic of Guinea, MRG, p. 108.
7MRG, p. 92, paras. 4.48 and 4.49; emphasis added by the Democratic Republic of the Congo. - 45 -

companies but also the need to take account of both the assets and the total liabilities which that

property comprises.

39. In conclusion, the identification and constant confusion of the person of the shareholder

with that of the company is in total contradi ction with positive intern ational law. Guinea’s

Application must therefore be declared inadmissible and, as the DRC will explain in a moment, this

conclusion cannot be overturned for the sake of “considerations of equity”.

II.Guinea cannot in this case claim to be exercising a “protection of the rights of

shareholders by substitution for the company owned” for considerations of equity

40. Madam President, Members of the Court, Guinea appeals to “considerations of equity” to

justify “the right to exercise its diplomatic pr otection, independently of the violation of the

77
shareholders’ direct rights” . This argument is based solely on the circumstance that, contrary to

54 the situation in the Barcelona Traction case, the State whose responsib ility is at issue is also the

State of nationality of the company or companie s concerned. Here, because the two companies

Africom-Zaire and Africontainers-Zaire have C ongolese nationality, Guinea considers it would be

equitable to admit the diplomatic protection of Mr.Diallo by “substitution” for the companies of

which he is a shareholder 78.

41. The Democratic Republic of the Congo will show here that, in the first place, by way of

principal argument, that the Guinean argument base d on equity is simply inadmissible here and,

secondly, in any event, that it would be in no way “equitable” to allow Mr. Diallo to be protected in

this case “in substitution” for the companies whose shares he holds.

42. Madam President, Members of the Court, Guinea’s principal argument cannot be upheld

because it is based on equity contra legem. For Guinea is asking the Court to accept its claim

whereas none of its rights has been violated.

43. The Court cannot allow itself to take such an extreme position. Under Article 38 of its

Statute, its duty is to “apply the law as it finds it and not to create it” ( South-West Africa, Second

Phase, I.C.J. Reports 1966, p.48, para.89; see also Fisheries Jurisdiction, I.C.J. Reports 1974 ,

77
MRG, p. 93, para. 4.52.
78
According to the heading of p. 93 of the MRG. - 46 -

p. 33, para. 78). The Court will no doubt take the same precautions as those taken by the Chamber

in the Frontier Dispute case, when it said:

“It is clear that the Chamber cannot decide ex aequo et bono. Since the Parties
have not entrusted it with the task of carry ing out an adjustment of their respective
interests, it must also dismiss any possibility of resorting to equity contra legem. Nor

will the Chamber apply equity prater legem.” (I.C.J. Reports 1986, p. 567, para. 28;
see also North Sea Continental Shelf cases, I.C.J. Reports 1969 , p. 47, para. 85 and
p. 48, para. 88).

Likewise in the present case, the Parties have not had recourse to the option available under

Article 38, paragraph 2, of the Court’s Statute by asking it to decide the case ex aequo et bono.

44. Madam President, Members of the Court, even assuming that the Court were to agree to

apply equity in the extremely broad sense Gu inea ascribes to it, the result would not be

fundamentally different. In the first place, the solution advocated by Guinea, which consists in

55 authorizing protection by the national State of the shareholders where the company has the

nationality of the respondent State, is not, even in principle, equitable. Secondly, the application of

that principle in this case would lead to an inequitable result.

45. In international law equity is defined as a “sure and spontaneous sense of what is just and

unjust” 79. For equity to be applied in law, and in partic ular if it is to be so applied with a view to

making good deficiencies and even to circumventing positive law, it must be able to base itself on a

spontaneous sentiment, one very widely shared. In other words, any attempt to circumvent a rule

of law, particularly a rule of international law, can be envisaged only in relation to a universal

conception of equity and not on the basis of any individual notion.

46. However, an analysis of doctrine and juri sprudence shows that, even in principle, the

protection of a shareholder by the applicant St ate right in substitution for the company possessing

the nationality of the respondent State is far from being unanimously accepted.

47. The possibility of protection by the national State of the shareholders where the company

possesses the nationality of the respondent State is considered inequitable by many judges and

writers 80, relevant passages of whose works are quoted in the DRC’s written pleadings . 81

79
J. Salmon (ed.), Dictionnaire de droit international public, Brussels, Bruylant-AUPELF, 2001, p. 916.
80
Jiménez de Aréchaga, “International Responsibility”,op. cit., p.581; I.Brownlie, Principles of Public
International Law, 5th ed., op. cit., p. 495.
81POC, pp. 93-94. - 47 -

48. Moreover, the possibility of protection by the national State of the shareholders where

the company possesses the nationality of the respondent State is considered inequitable in a number

of arbitral decisions. We will cite two cases to illustrate this, namely, the Baasch & Römer case

and the Jacob M. Henriquez case 82. In both cases, the Commission refused to admit a complaint by

the shareholders against measures directed at a corporation possessing the nationality of the

respondent State.

49. These precedents confirm that, in principle, a right of protection of foreign nationals in

the case of acts affecting the company possessing the nationality of the respondent State, while it

may on occasion have found favour with certain ju dges or writers, is far from being universally

56 accepted. Such a possibility cannot, therefore, be regarded as an equitable solution justifying a

decision which circumvents or goes beyond positive law.

50. MadamPresident, Members of the Court, the Democratic Republic of the Congo will

show, to conclude this first objection, that, even assuming that “protection by substitution” were

accepted as justified, application of this pr inciple to the case of Mr.Diallo would prove

fundamentally inequitable. Indeed, on the one hand, taking account of Mr. Diallo’s conduct must

result in protection by substitution being charact erized as inequitable and, on the other,

Mr.Diallo’s refusal to exhaust the remedies avai lable in the Democratic Republic of the Congo

would, in any event, render any protection by substitution inequitable.

51. Madam President, Members of the Court, the argument of “equitable protection by

substitution” is principally based on the compassi on supposedly aroused by the situation of a

foreign shareholder who has purportedly been the victim of arbitrary action by the State. The DRC

has however already shown that, notwithstanding th e almost idyllic image which Guinea seeks to

project in its written pleadings, Mr. Diallo’s personality and the conduct adopted by him since the

start of this case are far from irreproachable and that he, at the least, made arbitrary and unjustified

claims, embodying financial claims totalling over 30 billion American dollars, that is to say almost

three times the external debt of the Democratic Republic of the Congo! It was moreover these

82
RSA, Vol. X, pp. 726-727. - 48 -

fraudulent and anti-social activities which motivated his removal from Zairian territory by decision

of the competent authorities in January 1996.

52. The Democratic Republic of the Congo consid ers that, if the Court should decide to base

its judgment on considerations of equity, Mr.Diallo’s improper conduct should be the yardstick.

The DRC does not doubt for a moment that that conduct, described at length by my friend and

colleague, Maître Tshibangu Kalala, constitutes a fu rther reason for declaring inequitable Guinea’s

attempt to protect an individual who not only has suffered no violation of his rights but has also

conducted himself in a manner which has shown itself to be highly abusive and improper.

53. Madam President, Members of the Court, the argument of the need to allow an

“equitable right of protection by substitution” then relies on the fact that the shareholder in

question, Mr. Diallo, allegedly has no further remedy available to him to enforce his rights.

57 54. However, the DRC will explain, in connection with the second objection, that Mr. Diallo

is far from having exhausted all the internal remedies which were available to him.

55. Indeed, no author could reasonably claim that it is equitable to admit a diplomatic

protection claim when not only have the rights of the protected person not been injured, but that

person has not even exhausted the remedies avai lable to him on the national territory of the

company. For all these reasons, Guinea’s argument of equity cannot be accepted; its Application

is therefore inadmissible.

56. Madam President, Members of the Court, thank you for your kind attention.

57. May I ask you, Madam President, to give the floor to my friend and colleague

Maître Tshibangu Kalala, who will explain to the C ourt that neither Mr. Diallo nor the companies

of which he is managing director and associat e have exhausted the existing local remedies,

accessible and effective in the Congolese domestic legal order. Consequently, Guinea’s

Application must also be declared inadmissible.

Le PRESIDENT : Merci, M. Mazyambo. Je donne maintenant la parole à M. Kalala. - 49 -

Mr. KALALA:

The Application of the Republic of Guinea is inadmissible as the existing local
remedies in the Democratic Republic of the Congo have not been
exhausted by Mr. Diallo or by his companies

1. Madam President, Members of the Court, th e Application of the Republic of Guinea is a

diplomatic protection claim. It must, accordingly, satisfy twoclassic requirements to be declared

admissible by the Court. The first condition is th at the Republic of Guinea must show before the

Court that the person whose cause it has adopted in the international legal order does indeed

possess its nationality. Professor Mazyambo explained to the Court a moment ago that this is not

so in the present case. The se cond condition consists in Guinea’s demonstrating before the Court

that the person alleging injury by the Congolese St ate has exhausted local remedies. I will now

show the Court that Guinea’s Application did not satisfy the second condition.

58 I. The exhaustion of local remedies is a well-established rule of international law

2. Madam President, Members of the Court, I do not really want to bore you this afternoon

by attempting to explain the importance of the rule of the exhaustion of local remedies as a

preliminary and indispensable condition for the admi ssibility of any application brought before the

Court in the context of diplomatic protection.

3. I need only quote the Court itself, which, in the Interhandel case said that:

“The rule that local remedies must be exhausted before international
proceedings may be instituted is a well-est ablished rule of customary international

law; the rule has been generally observed in cases in which a State has adopted the
cause of its national whose rights are claime d to have been disregarded in another
State in violation of international law. Be fore resort may be had to an international
court in such a situation, it has been c onsidered necessary that the State where the

violation occurred should have an opportunity to redress it by its own means, within
the framework of its own domestic legal system.” (Interhandel (Switzerland v. United
States of America), Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 27.)

4. The Congo and Guinea both recognize the impor tance of this rule and its applicability to

the present case. I shall therefore refrain from further comment on this point.

5. However, the applicant State stresses the f act that the exhaustion of local remedies is not

an absolute rule and that a number of conditions wh ich domestic remedies must meet to enable this

rule to be applied have not been satisfied in this case. The Republic of Guinea considers that it was - 50 -

impossible in practice for Mr. Diallo to have r ecourse to the various local remedies established by

Congolese law and that, in any event, those remedies must be regarded as ineffective, for they had

not enabled Mr. Diallo effectively to protect his rights 83.

6. In reality, Madam President, Members of the Court, international law shares the burden of

proof between Guinea and the DRC. It is for the Congo to demonstrate the existence, within its

legal order, of remedies which could be used by Mr. Diallo or his companies. On the other hand, it

is for Guinea to show that such remedies do not satisfy the conditions laid down by international

law in order for their exhaustion to be require d before that State may espouse the claim of

Mr. Diallo 84.

59 Doctrine also adopts this approach. In th is connection, ProfessorAlainPellet and others

have written that:

“The existence of a presumption [that a State’s local remedies would enable an

individual who claims he has been wronged to protect his rights] means that it is for
the individual to bear the essential burden of pr oof; he will have to show that he has
indeed attempted to make effective use of all of the internal procedures theoretically
85
available.”

7. Madam President, as regards this apportionment of responsibilities as between the

two States, which I have just indicated, I shall expl ain to the Court, on the one hand, that remedies

enabling Mr. Diallo to safeguard his rights exist in the Congolese legal order and, secondly, that the

Republic of Guinea has not at all demonstrated the contrary.

II. Local remedies exist in the Congolese legal order enabling

Mr. Diallo and his companies to protect their rights.

8. Madam President, Members of the Court, during my oral argument this morning, I have

painted a complete picture of the many disputes between the two Congolese companies directed by

Mr.Diallo and their Congolese partners. I have also shown to the Court all the legal actions

brought by those companies against some of their partners. Similarly, I have pointed out that, in

certain cases, no remedy was sought either by the companies directed by Mr.Diallo or by

83
MRG, paras. 4.70-4.81.
84See, in this connection, the rule set out in Draft Article15 of the Draft Articles on Diplomatic Protection

proposed by the Special Rapporteur, John Dugard, in his Third Report 2002.
85AlainPellet and PatrickDaillier (NguyenQuocDinh), Droit international public , 6thed., Paris, LGDJ, 1999,
p. 776, No. 490. - 51 -

Mr. Diallo in his own name. I do not therefore want to bore the Court by reiterating what the DRC

has amply set out in its written pleadings and which I referred to in my previous oral argument. I

would therefore ask the Court to kindly refer to them.

9. I would simply say that the Republic of Gu inea does not dispute in its Memorial that there

are procedures and machinery for redress, judicial or otherwise, within the legal order of the DRC

which would have enabled the companies in ques tion or Mr.Diallo himself to safeguard their

rights. So in the opinion of Guinea itself local remedies exist in the DRC enabling Mr. Diallo and

his companies to protect their rights. The DRC takes formal note of this and asks the Court to do

likewise.

10. However, the Applicant maintains that the existing remedies should be regarded as

ineffective, because they would not have enabled Mr.Diallo or the companies of which he is

60 manager and partner to win his case or were not accessible in reality, especially after Mr.Diallo

was expelled from Congolese territory.

11. The Democratic Republic of the Congo w ill show the Court that, contrary to Guinea’s

assertions, the local remedies were entirely accessible and would have enabled Mr. Diallo and the

companies that he directed to safeguard their rights effectively, even after Mr.Diallo’s expulsion

for Congolese territory in January 1996.

III. Existing local remedies within the Congolese legal order are available and accessible

12. Madam President, Members of the Court, the DRC agrees with the Applicant on the

principle that only remedies that are actually available ⎯ and consequently accessible to the

plaintiff ⎯ must be exhausted. This principle is firm ly anchored in the international legal order

and is a generally accepted limitation on the exhaustion-of-local-remedies rule 86. In the

circumstances of the present case, however, ther e is nothing, absolutely nothing to warrant the

conclusion that it was impossible for Mr. Diallo to avail himself of the machinery and procedures

offered by Congolese law which would have enabled him to safeguard his rights.

86
C.F. Amerasinghe, Local Remedies in International Law , op. cit., p.191; see also the rule formulated in draft
Article14,f) of the Draft ArticlesDiplomatic Protection proposed by John Dugard, the Special Rapporteur, in his
third report on diplomatic protection, 2002. - 52 -

13. The Republic of Guinea does not dispute that the remedies existing within the Congolese

legal order were available or accessible for the period in which Mr. Diallo was lawfully residing on

Congolese territory. It is only following Mr.Dia llo’s expulsion from Congolese territory that the

Applicant considers that the existing remedies in the DRC were no longer available or accessible to

its national.

14. The Democratic Republic of the Congo asks the Court to reject this allegation by Guinea,

for two basic reasons.

15. Firstly, Mr.Diallo’s absence from Congolese territory was not an obstacle to the

proceedings already initiated when he was still in th e Congo. It is indisputable that instituting or

continuing with proceedings, judicial or otherwise, in no way requires the physical presence of an

61 individual on Congolese territory. The Congolese legal system contains no provision requiring the

presence of the plaintiff in the territory for due le gal process before the courts and tribunals. The

1960Code of Civil Procedure provides in this rega rd that “the parties shall appear in person or

through a duly authorized advocate” 87and stipulates that “[t]he power of representation at law

includes the right of appearance, the right to take all procedural steps and to plead for the party, and
88
the right to speak on his behalf” . So there was nothing in law to prevent Mr. Diallo from giving

one or more representatives power of attorney to act in legal proceedings ins tituted on behalf of the

companies of which he was the managing director, or even instituting fresh proceedings in other

disputes, even after his expulsion from Congolese territory.

16. In this connection, Madam President, Members of the Court, the DRC points to the deep

disappointment observed on this subject that the legal proceedings instituted in1993 and1995 by

Africontainers-Zaire and Africom-Zaire against Fina, Shell and PLZ continued to follow their

normal course long after Mr. Diallo’s expulsion. It is therefore clear that the proceedings already

set in motion by Mr.Diallo on behalf of the companies of which he was managing director were

not interrupted because of his removal from the national territory.

17. Moreover, certain aspects of the case s how that Mr.Diallo would have been in a

position, even after his expulsion from Congolese territory, not only to have the companies of

87
Code of Civil Procedure of the Congo, Art. 14, para. 1.
88
Ibid., para. 3. - 53 -

which he was managing director represented in the ongoing proceedings but also to continue

negotiations and, if necessary, to institute fresh proceedings before the competent Congolese courts

in the other pending disputes.

18. The DRC notes in this respect, Madam President, Members of the Court ⎯ and this is

fundamentally important and I emphasize ⎯ that the company Africontainers-Zaire continued to

take part in negotiations with Gécamines until October 1997, more than a year and a half after the

expulsion of Mr. Diallo. The status of the representa tives of Africontainers at those meetings is of

particular interest to us. It emerges from the minutes of the meetings held at the headquarters of

Gécamines, on 2 and 7 July 1997, that Africontainers was represented there by two members of its

62 management (Messrs. Kanza Ne Kongo and Ibrahim Diallo), and also by two Congolese lawyers

89
(Maître Musangu and Maître Kabasele) . Negotiations between the same people again took place

in September and October 1998, or nearly three years, note my words, nearly three years after the

expulsion of Mr. Diallo from Congolese territory. In view of what I have just explained, the DRC

requests the Court to ask itself why, if the inter ests of Africontainers-Zaire could be defended by

two lawyers in the negotiations with Gécamines in the absence of Mr. Diallo who was in Guinea,

those interests could not be defended before the Congolese courts and tribunals by the same

lawyers. Why not?

19. Secondly, Mr.Diallo’s financial situa tion did not prevent him from being represented

before the Congolese courts. For Guinea states that

“the state of extreme poverty into wh ich the internationally wrongful acts of the DRC

itself had plunged Mr.Diallo, who found it ma terially impossible to initiate further,
evidently costly, proceedings or even to provide for his basic needs . . .” . 90

The applicant State concludes from this that it w as impossible for Mr.Diallo to exhaust existing

91
local remedies within the Congolese legal order .

20. Madam President, Members of the Court, in factual terms, the alleged “extreme poverty”

of Mr.Diallo and his finding it “materially impossibl e to initiate further... proceedings” or even

“to provide for his basic needs” are affirmations l acking in credibility and quite without evidential

8MRG, Anns. 224 and 226.
90
MRG, para. 4.77; the italics are in the original.
9MRG, para. 4.81, in fine. - 54 -

value. On the contrary, Mr. Diallo’s finances does not seem to have constituted an obstacle to the

involvement of two Congolese lawyers in the negotia tions with Gécamines, and of a third Guinean

lawyer in the preparation of the arguments de veloped by Guinea with a view to endorsing

Mr. Diallo’s complaint.

21. In legal terms, Guinea does not refer to any rule of international law introducing a new

exception to the fundamental principle of the prior exhaustion of local remedies on the basis of a

state of poverty.

63 Quite the contrary, the principle that povert y cannot be pleaded in order to evade the

obligation to exhaust local remedies is firmly establis hed in international law. As stated in one of

the principal reference works on the question of the exhaustion of local remedies,

“[i]t has been confirmed on more than one occasion that lack of pecuniary
means on the part of the alien claimant or individual does not constitute a valid reason
for not pursuing local remedies... In th e area of human rights protection the same
92
rule has been applied.”

It is therefore well established, in general international law, that lack of financial means does

not constitute a justification for failure to exhaust lo cal remedies. It is therefore in vain that the

Republic of Guinea attempts to rely on this plea in an attempt to evade the application of this rule

in the present case.

IV. The existing local remedies in the Congolese legal order are effective

22. Madam President, Members of the Court, the Republic of Guinea has also disputed the

effectiveness of the existing local remedies in the Congolese internal legal order. In this respect,

the applicant State relies on the allegation that the Congolese political authorities unjustifiably and

arbitrarily suspended the enforcement of the judgment of the Kinshasa-Gombe Tribunal de grande

instance whereby Africontainers had obtained the sente ncing of the company Shell to payment of

damages 93. That, according to Guinea, was an unlawful practice precluding application of the rule

94
of the exhaustion of local remedies . The Republic of Guinea also argues that “”[v]arious other

judicial proceedings brought by Mr.Diallo on be half of Africontainers or Africom produced no

9C. F. Amerasinghe, Local Remedies in International Law, op.cit., p. 212 and the references cited.
93
MRG, paras. 4.71 and 4.72.
9MRG, para. 4.78. - 55 -

95
result” . The applicant State concludes from this that “even if the courts had found in his favour,

Mr.Diallo had scant hope of achieving any satisfactor y judicial settlement of his dispute with his

trading partners” 96. All in all, the Republic of Guinea considers that the condition of the

64 exhaustion of local remedies has been fulfilled since it does not require “recourse to a remedy

97
which manifestly has no chance of success” .

23. Similarly, Guinea also refers to the various steps taken by Mr. Diallo with the Congolese

political and administrative authorities to recover debts owing to the companies Africom and

98
Africontainers. Noting that “[a]ll these initiatives failed to produce any result” , Guinea concludes

that the existing or other remedies within the Congolese legal order are not effective, be they

judicial or other.

24. The DRC will show the Court that, contrary to the allegations of the applicant State, the

local remedies provided for in the Congolese le gal order are effective for the purposes of

international law and that, consequently, their exhaustion was obligatory in the present case.

25. In this respect, the DRC re calls that in international law . . . Madam President, Members

of the Court, I request the Court’s indulgence fo r this slight overrun; this morning’s ceremony

encroached on the time and I request your indulgence to enable us to make up some of it.

Le PRESIDENT : D’accord. Vous avez cert ainement le droit de poursuivre quelques

minutes encore.

Mr.KABALA: Merci beaucoup. In this conn ection the DRC recalls that in international

law a remedy is considered effective if it enables the plaintiff to preserve his rights without being

99
deprived of all chance of success and if it appears to be adequa te with respect to the purposes

pursued by the plaintiff’s application 100. It is also accepted, contrary to what Guinea suggests, that

95
MRG, para 4.73.
96Ibid., para. 4.74.

97Ibid.

98MRG, para. 4.77.
99
See, for example, the third report of J.Dugard on diplomatic protection, 2002, para.20; A.Pellet and
P. Daillier (Nguyen Quoc Dinh), Droit international public , 6d., op.cit., p.776, no.490; I.Brownlie, Principles of
Public Intgernational Law, 5 éd., op.cit., p. 500.
100
C. F. Amerasinghe, Local Remedies in International Law, op. cit., p. 171 (“adequate for the object sought”). - 56 -

the “effectiveness” of a remedy in no way implies that the plaintiff wins the case, and certainly not

for each of his claims. That is not what is meant by the effectiveness of a remedy. Madam

President, Members of the Court, the point is not to ensure success but to give a chance of success

to anyone having recourse to the available remedies.

65 26. Having made this point, the Democratic Republic of the Congo asks the Court to note the

fact that: (1) the local remedies available within the Congolese legal system have been shown to be

effective with respect to the disputes submitted to the ordinary Congolese courts by the companies

Africontainers and Africom-Zaire with respect to Shell, Fina and PLZ discussed in my previous

presentation — the first instance rulings went in th e companies’ favour; (2) the remedies available

within the Congolese legal system could have proved effective for the disputes which Mr. Diallo or

the companies managed by him decided not to subm it to the local courts; and (3) the remedies

available within the Congolese legal system coul d also have proved effective in challenging

Mr. Diallo’s deportation order.

27. Generally, there clearly appear to be within the Congolese legal order various existing

remedies which would have enabled Mr. Diallo a nd the companies managed by him to assert their

rights effectively. Such remedies were availa ble both against the private companies with which

Africontainers and Africom maintained business re lationships and against State undertakings such

as Gécamines and Onatra, and against the Congolese State itself. Numerous precedents show that

these remedies offer plaintiffs real chances of suc cess, and that they may accordingly be regarded

as fully effective for the purposes of international law. The DRC has discussed these precedents in

detail in its written pleadings. I will not therefore dwell on them now, but I kindly ask the Court to

refer to the written pleadings on this point.

28. The DRC submits, in this respect, that the essence of the judicial function consists

specifically in determining to what extent the clai ms of the parties to the proceedings are properly

founded and in deciding the dispute accordingly. In other words, there can clearly be no question

of contesting the effectiveness of local remedies simply because Mr.Diallo’s initial claims were

not upheld in full or were subsequently rejected. Madam President, Members of the Court, such an

appreciation is highly perilous. Thus for Guinea, when the first instance courts find in favour of

Africontainers and Africom, Congolese justice is fair and effective; however, when the claims of - 57 -

those two companies are rejected by the higher courts, the remedies provided for by the Congolese

66 legal order become inaccessible and ineffectiv e. The DRC kindly requests the Court not to

entertain this type of tactics on the part of the Applicant.

29. MadamPresident, Members of the Court, the important thing to bear in mind in the

present instance is that legal procedures are available in the DRC to enable Mr.Diallo and his

companies to safeguard their rights and that they clearly provide plaintiffs with a chance of success.

30. To conclude, the DRC draws the Court’s a ttention to the fact that there have always

existed, and there still continue to exist, with in the Congolese legal order, remedies which would

have allowed Mr. Diallo and the companies in qu estion to safeguard their rights. These remedies

met, and continue to meet, all the requirements of international law in the matter. In particular,

they were always accessible to Mr. Diallo, even after he was deported from the country. Moreover,

those remedies are effective and, as has been illustrated in practi ce, are far from devoid of chances

of success.

31. MadamPresident, Members of the Court, the rule regarding the exhaustion of local

remedies takes on all of its meaning in the present case. The domestic courts of the DRC are the

best suited and equipped for the disputes between Africontainers and Africom and their Congolese

trading partners. As I stressed throughout my ear lier presentation, the present proceedings derive

primarily from perfectly straightforward commercial disputes, for which the “natural” and logical

forum is of course the courts of the legal system from whence the disputes arose, that is to say the

Congolese courts. It is only in the event that, fo llowing recourse to all of these local remedies, the

plaintiff has been unable to safeguard his rights, that the Court could entertain such a claim. I have

shown the Court that this condition has not been fu lfilled in the current case, and that the Republic

of Guinea has been unable to demonstrate convincingly that the remedies available within the

Congolese legal order did not satisfy the requirements of international law in the matter. There is

thus no reason justifying the non-exhaustion — and, in several cases, a refusal even to act — of the

local remedies available to settle the disputes between Africontainers and Africom and their trading

partners. It is for all of these reasons that the Application submitted by the Republic of Guinea on

67 behalf of Mr. Diallo must be declared inadmissibl e on the basis of non-exhaustion of the available,

effective, local remedies provided for by the Congolese legal system. - 58 -

32. Madam President, Members of the Court, I thank you for your kind attention. I am sure

that Professor Alain Pellet, as a regular practitioner before the Court, will not contradict me,

Madam President, if I say that you cannot conceive what an immense pleasure it has been for me to

appear before such a prestigious institution. It is not an everyday occurrence. It is therefore with a

certain regret that I end my presentation, as I would like to have remained before you for several

more hours non-stop. However, my time is up and I must stop. Nevertheless, I ask you,

Madam President, to give the floor to H.. r. asangu-a-Mwanza, the Ambassador

Extraordinary and Plenitpotentiary to the Netherlands, as Agent for the DRC to formulate our final

submissions. I thank you.

The PRESIDENT: Thank you very much, Maître Kalala. Of course, we’re always delighted

to hear the Agent but I wonder if he would like to reserve those submissions as would be more

usual until the end of the second round. Thank you. But I think that it would be better to do so at

the end of the second round.

So that brings us to the end of today’s proceedings. The Court now rises and we will meet

again at 10 o’clock tomorrow to hear Guinea.

The Court rose at 1.20 p.m.

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