INTERNATIONAL COURT OF JUSTICE
2007/3 Summary
2007 May 24
(Republic of Guinea
History of proceedings and submissions of the Parties
The Court begins by recapitulating the various stages of the proceedings (this history may be
found in Press Release No.2006/36 of 9November2006). It also recalls the final submissions
presented by the Parties at the oral proceedings (see Press Release No2
1 December 2006).
Background to the case (paras. 13-25)
The Court indicates that, in their written pleadings, the Parties are in agreement as to the
following facts. Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC (called “Congo”
between 1960 and 1971 and “Zaire” between 1971 and 1997) in 1964. There, in 1974, he founded
an import-export company, Africom-Zaire, a société privée à responsabilité limitée
liability company, hereinafter “SPRL”) incorporat ed under Zairean law and entered in the Trade
Register of the city of Kinshasa, and he became its gérant
his activities, taking part, as gérant
the founding of another Zairean SPRL, specializing in the containerized transport of goods. The
capital in the new company, Africontainers-Zaire, was held as follows: 40 per cent by Mr. Zala, a
Zairean national; 30 per cent by Ms Dewast, a French national; and 30 per cent by Africom-Zaire.
It too was entered in the Trade Re gister of the city of Kinshasa . In 1980 Africom-Zaire’s two
partners in Africontainers-Zaire withdrew. The parts sociales
held as follows: 60percent by Africom-Zaire an d 40percentbyMr.Diallo. Atthesametime
Mr.Diallo became the gérant
Africom-Zaire’s and Africontainers-Zaire’s relationships with their business partners started to
deteriorate. The two companies, acting through their gérant
steps, including judicial ones, in an attempt to recover alleged debts. The various disputes between
Africom-Zaire or Africontainers-Zaire, on the one hand, and their business partners, on the other,
continued throughout the 1990s and for the most part remain unresolved today. Thus,
Africom-Zaire claims payment from the DRC of a debt (acknowledged by the DRC) resulting from
default in payment for deliveries of listing paper to the Zairean State between 1983 and 1986.
Africom-Zaire is involved in another dispute, c oncerning arrears or overpayments of rent, with
Plantation Lever au Zaire (“PLZ”). Africontainers -Zaire is in dispute with the companies Zaire -2 -
Fina, Zaire Shell and Zaire MobilOil, as well as with the Office National des Transports
(“ONATRA”) and Générale des Carrières et des Mines (“Gécamines”). For the most part these
differences concern alleged violations of contractual exclusivity clauses and the lay-up, improper
use or destruction or loss of containers.
The Court considers the following facts also to be established. On 31October1995, the
Prime Minister of Zaire issued an expulsion Order against Mr.Diallo . The Order gave the
following reason for the expulsion: Mr. Diallo’s “presence and conduct have breached public order
in Zaire, especially in the econ omic, financial and monetary areas, and continue to do so”. On
31 January 1996, Mr. Diallo, already under arrest, was deported from Zaire and returned to Guinea
by air. The removal from Zaire was formalized and served on Mr. Diallo in the shape of a notice of
refusal of entry (refoulement) on account of “illegal residence” (séjour irrégulier) that had been
drawn up at the Kinshasa airport on the same day.
However, throughout the proceedings Guinea and the DRC continued to differ on a number
of other facts, inter aliathe specific circumstances of Mr.Diallo’s arrest, detention and expulsion
and the reasons therefor. Guinea maintained that Mr. Diallo’s arrest, detention and expulsion were
the culmination of a DRC policy to prevent him from recovering the debts owed to his companies.
The DRC rejected that allegation and argued that hi s expulsion was justified by the fact that his
presence and conduct breached public order in Zaire.
Violations of rights invoked by Guinea for wh ich it seeks to exercise diplomatic protection
(paras. 26-31)
The Court notes that Guinea, as well as claiming the payment of debts due to Mr. Diallo and
his companies, seeks to exercise its diplomatic pr otection on behalf of Mr. Diallo for the violation,
alleged to have occurred at the time of his arrest, detention and expulsion, or to have derived
therefrom, of three categories of rights: his individual personal rights, his direct rights as associéin
Africom-Zaire and Africontainers-Zaire and the rights of those companies, by “substitution”.
Jurisdiction of the Court (para. 32)
To establish the jurisdiction of the Court, Guinea relies on the declarations made by the
Parties under Article 36, paragraph 2, of the Stat ute. The DRC acknowledges that the declarations
are sufficient to found the jurisdiction of the Court in the present case. The DRC nevertheless
challenges the admissibility of Guinea’s Application and raises two preliminary objections in doing
so. First of all, according to the DRC, Guinea lacks standing to act in the current proceedings since
the rights which it seeks to protect belong to Africom-Zaire and Africontainers-Zaire, Congolese
companies, not to Mr.Diallo. Guinea, it is argued, is further precluded from exercising its
diplomatic protection on the ground that neither Mr.Diallo nor the companies have exhausted the
remedies available in the Congolese legal system to obtain reparation for the injuries claimed by
Guinea before the Court.
Admissibility of the Application in so far as it con cerns the protection of Mr. Diallo’s rights as an
individual (paras. 33-48)
The Court recalls that, according to the DRC, Guinea’s claims in respect of Mr.Diallo’s
rights as an individual are inadmissible because he “[has not] exhausted the available and effective
local remedies existing in Zaire, and subsequently in the Democratic Republic of the Congo”. The
Court notes, however, that in the course of the present proceedings the DRC elaborated on only a
single aspect of that objection: that concerning his expulsion from Congolese territory. It indicates
that on this subject the DRC maintained that its domestic legal system provided for available,
effective remedies which Mr.Diallo should have exhausted, and that his expulsion from the
territory was lawful. The DRC ac knowledges that the notice signed by the immigration officer
“inadvertently” refers to “refusal of entry” (refoulement) instead of “expulsion”. It does not -3 -
challenge Guinea’s assertion that Congolese law provides that refusals of entry are not appealable.
The DRC nevertheless maintains that “despite this erro r, it is indisputable . . . that this was indeed
an expulsion and not a refusal of entry”. According to the DRC, calling the action a refusal of
entry was therefore not intended to deprive Mr. Diallo of a remedy.
Guinea responds, with respect to Mr.Diallo ’s expulsion from the Congolese territory, that
there were no effective remedies first in Zaire, nor later in the DRC, against this measure. It recalls
that the expulsion Order against Mr.Diallo wa s carried out by way of an action denominated
“refusal of entry”, which precluded any possib ility of redress. Guinea adds, moreover, that
“[a]dministrative or other remedies which are neither judicial nor quasi-judicial and are
discretionary in nature are not... taken into ac count by the local remedies rule”. Guinea further
contends that, even though some remedies may in theory have been available to Mr.Diallo in the
Congolese legal system, they would in any event have offered him no reasonable possibility of
protection at the time as the objective in expelling Mr.Diallo was precisely to prevent him from
pursuing legal proceedings.
The Court recalls that under customary internat ional law, diplomatic protection “consists of
the invocation by a State, through diplomatic acti on or other means of peaceful settlement, of the
responsibility of another State for an injury caused by an internationally wrongful act of that State
to a natural or legal person that is a national of the former State with a view to the implementation
of such responsibility” (Article1 of the draft Ar ticles on Diplomatic Protection adopted by the
International Law Commission (ILC) at its Fifty-eighth Session (2006)). In the present case, it falls
to the Court to ascertain whether the Applicant has met the requirements for the exercise of
diplomatic protection, that is to say whether Mr. Diallo is a national of Guinea and whether he has
exhausted the local remedies available in the DRC.
On the first point, the Court observes that it is not disputed by the DRC that Mr. Diallo’s sole
nationality is that of Guinea and that he has contin uously held that nationality from the date of the
alleged injury to the date the proceedings were initiated.
On the second point, the Court notes, as it stated in the Interhandel (Switzerland v. United
States of America) case, that “[t]he rule that local remedies must be exhausted before international
proceedings may be instituted is a well-established rule of customary international law” which “has
been generally observed in cases in which a State has adopted the cause of its national whose rights
are claimed to have been disregarded in another State in violation of international law.”
The Court observes that the Parties do not question the local remedies rule; they do however
differ as to whether the Congolese legal system ac tually offered local remedies which Mr.Diallo
should have exhausted before his cause could be espoused by Guinea before the Court. More
specifically, the Court indicates that, in matters of diplomatic protection, it is incumbent on the
applicant to prove that local remedies were in deed exhausted or to establish that exceptional
circumstances relieved the allegedly injured pers on whom the applicant seeks to protect of the
obligation to exhaust available local remedies. It is for the respondent to convince the Court that
there were effective remedies in its domestic legal system that were not exhausted.
In view of the arguments made by the Par ties, the Court addresses the question of local
remedies solely in respect of Mr. Diallo’s expulsion. It notes that the expulsion was characterized
as a “refusal of entry” when it was carried out , as both Parties have acknowledged and as is
confirmed by the notice drawn up on 31 January 1996 by the national immigration service of Zaire.
It is apparent that refusals of entry are not appealable under Congolese law. Article13 of
Legislative Order No.83-033 of 12September1983, concerning immigration control, expressly
states that the “measure [refusing entry] shall not be subject to appeal”. The Court considers that
the DRC cannot now rely on an error allegedly made by its administrative agencies at the time
Mr.Diallo was “refused entry” to claim that he should have treated the measure as an expulsion. - 4 -
Mr. Diallo, as the subject of the refusal of entry, was justified in relying on the consequences of the
legal characterization thus given by the Zairean authorities, including fo r purposes of the local
remedies rule.
The Court further observes that, even if this wa s a case of expulsion and not refusal of entry,
the DRC has also failed to show that means of redress against expulsion decisions are available
under its domestic law. The DRC did, it is true, cite the possibility of requesting reconsideration by
the competent administrative authority. The Co urt nevertheless recalls that, while the local
remedies that must be exhausted include all remedi es of a legal na ture, judicial redress as well as
redress before administrative bodies, administrativ e remedies can only be taken into consideration
for purposes of the local remedies rule if they are aimed at vindicating a right and not at obtaining a
favour, unless they constitute an essential prerequisite for the admissibility of subsequent
contentious proceedings. Thus, the possibility op en to Mr.Diallo of submitting a request for
reconsideration of the expulsion decision to the administrative authority having taken it ⎯ that is to
say the Prime Minister ⎯ in the hope that he would retract his decision as a matter of grace cannot
be deemed a local remedy to be exhausted.
Having established that the DRC has not proved the existence in its domestic legal system of
available and effective remedies allowing Mr.Diallo to challenge his expulsion, the Court
concludes that the DRC’s objection to admissibility based on the failure to exhaust local remedies
cannot be upheld in respect of that expulsion.
Admissibility of the Application in so far as it con cerns protection of Mr. Diallo’s direct rights as
“associé” in Africom-Zaire and Africontainers-Zaire(paras. 49-75)
The Court indicates that the DRC raises two ob jections to admissibility regarding this aspect
of the Application: the DRC contests Guinea’s st anding, and it suggests that Mr.Diallo has not
exhausted the local remedies that were available to him in the DRC to assert his rights. The Court
deals with these objections in turn.
⎯ Guinea’s standing (paras. 50-67)
The DRC accepts that under international law the State of nationality has the right to
exercise its diplomatic protection in favour of associés or shareholders when there is an injury to
their direct rights as such. It nonetheless cont ends that “international law allows for [this]
protection . . . only under very limited conditions which are not fulfilled in the present case”. The
DRC maintains first of all that Guinea is not seeki ng, in this case, to protect the direct rights of
Mr.Diallo as associé , but that it identifies a violation of the rights of Africom-Zaire and
Africontainers-Zaire with a violation of the rights of Mr.Diallo. The DRC further asserts that
action to protect the direct rights of shareholders as such applies to only very limited cases and,
relying on the Judgment of the Court in the Barcelona Traction case, contends that the only acts
capable of violating those rights would consequent ly be “acts of interference in relations between
the company and its shareholders”. For the DRC, therefore, the arrest, detention and expulsion of
Mr.Diallo could not constitute acts of interferen ce on its part in rela tions between the associé
Mr. Diallo and the companies Africom-Zaire and Africontainers-Zaire. As a result, they could not
injure Mr.Diallo’s direct rights. The DRC thus indicates that Mr.Diallo could very well have
exercised his rights from foreign territory and th at he could have delegated his tasks to local
administrators.
Guinea also refers to the Judgment in the Barcelona Traction case, in which the Court,
having ruled that “an act directed against and infringing only the company’s rights does not involve
responsibility towards the shareholders, even if th eir interests are affected”, added that “[t]he
situation is different if the act complained of is aimed at the direct rights of the shareholder as
such”. Guinea further claims that this position of the Court was taken up in Article 12 of the ILC’s
draft Articles on Diplomatic Protection. Guinea points out that, in SPRLs, the parts sociales “are - 5 -
not freely transferable”, which “considerably accentuates the intuitu personae character of these
companies” and emphasizes that this character is seen as even more marked in the case of
Africom-Zaire and Africontainers-Zaire, since Mr. Diallo was their “sole manager (gérant) and sole
associé (directly or indirectly)”. According to Guinea, “in fact and in law it was virtually
impossible to distinguish Mr. Diallo from his companies” and the arrest, detention and expulsion of
Mr.Diallo not only had the effect “of preventing him from continuing to administer, manage and
control any of the operations” of his companies, but were specifically motivated by the intent to
prevent him from exercising these rights, from pursuing the legal proceedings brought on behalf of
the companies, and thereby from recovering their debts. Finally, Guinea maintains that, contrary to
what is claimed by the DRC, Mr. Diallo could not validly exercise his direct rights as shareholder
from his country of origin.
Noting that the Parties have referred to the Barcelona Traction case, the Court recalls that
this involved a public limited company whose capit al was represented by shares, while the present
case concerns SPRLs whose capital is composed of parts sociales. In order to establish the precise
legal nature of Africom-Zaire and Africontainers-Zaire, the Court must refer to the domestic law of
the DRC. It indicates that Congolese law acco rds an SPRL independent le gal personality distinct
from that of its associés, particularly in that the property of the associés is completely separate from
that of the company, and in that the associés are responsible for the debts of the company only to
the extent of the resources they have subscrib ed. Consequently, the company’s debts receivable
from and owing to third parties relate to its respective rights and obligations.
The Court recalls that the exercise by a State of diplomatic protection on behalf of a natural
or legal person, who is associé or shareholder, having its nationality, seeks to engage the
responsibility of another State for an injury caused to that person by an internationally wrongful act
committed by that State. What amounts to the internationally wrongful act, in the case of associés
or shareholders, is the violation by the respondent State of their direct rights in relation to a legal
person, direct rights that are defined by the domestic law of that State. On this basis, diplomatic
protection of the direct rights of associés of an SPRL or shareholders of a public limited company
is not to be regarded as an exception to the general legal régime of diplomatic protection for natural
or legal persons, as derived from customary international law.
Having considered the arguments advanced by the Parties, the Court finds that Guinea does
indeed have standing in this case in so far as its action involves a person of its nationality,
Mr.Diallo, and is directed against the allegedly unlawful acts of the DRC which are said to have
infringed his rights, particularly his direct rights as associé of the two companies Africom-Zaire
and Africontainers-Zaire. The Court not es that Mr.Diallo, who was associé in both companies,
also held the position of gérant in each of them. An associé of an SPRL holds parts sociales in its
capital, while the gérant is an organ of the company acting on its behalf.
In view of the foregoing, the Court concludes that the objection of inadmissibility raised by
the DRC due to Guinea’s lack of standing to protect Mr.Diallo cannot be upheld in so far as it
concerns his direct rights as associé of Africom-Zaire and Africontainers-Zaire.
⎯ Non-exhaustion of local remedies (paras. 68-75)
The DRC further claims that Guinea cannot exercise its diplomatic protection for the
violation of Mr.Diallo’s direct rights as associé of Africom-Zaire and Africontainers-Zaire in so
far as he has not attempted to exhaust the local remedies available in Congolese law for the alleged
breach of those specific rights. It submits in this respect that “Mr.Diallo’s absence from
Congolese territory was not an obstacle [in Congolese law] to the proceedings already initiated
when Mr. Diallo was still in the Congo” or for him to bring other proceedings, and that Mr. Diallo
could also have appointed representatives to that end. The DRC also asserts that the existing
remedies available in the Congolese legal system are effective. -6 -
For its part, Guinea alleges that “the Congolese State deliberately chose to deny access to its
territory to Mr.Diallo because of the legal pr oceedings that he had initiated on behalf of his
companies”. It maintains that “[i]n these circumstances, to accuse Mr.Diallo of not having
exhausted the remedies would not only be manifestly ‘unreasonable’ and ‘unfair’, but also an abuse
of the rule regarding the exhaustion of local remedies”. According to Guinea, the circumstances of
Mr. Diallo’s expulsion moreover precluded him from pursuing local remedies on his own behalf or
on that of his companies. Guinea further emphasi zes that the existing remedies in the Congolese
legal system are ineffective in view, inter alia , of excessive delays, “unlawful administrative
practices” and the fact that “at th e time of the events, the enforcem ent of legal decisions depended
solely on the government’s goodwill”.
The Court notes that the alleged violation of Mr.Diallo’s direct rights as associé was dealt
with by Guinea as a direct consequence of his expulsion. The Court has already found that the
DRC has not proved that there were effective remedies, under Congolese law, against the expulsion
Order. The Court further observes that at no ti me has the DRC argued that remedies distinct from
those in respect of Mr. Diallo’s expulsion existed in the Congolese legal system against the alleged
violations of his direct rights as associéand that he should have exhausted them. According to the
Court, the Parties indeed devoted some discussion to the question of the effectiveness of local
remedies in the DRC but have confined themse lves in it to examining remedies open to
Africom-Zaire and Africontainers-Zaire, without considering any which may have been open to
Mr. Diallo as associé in the companies. Inasmuch as it has not been argued that there were
remedies that Mr.Diallo should have exhauste d in respect of his direct rights as associé , the
question of the effectiveness of thoseremedies does not in any case arise.
The Court thus concludes that the objection as to inadmissibility raised by the DRC on the
ground of the failure to exhaust the local remedies against the alleged violations of Mr.Diallo’s
direct rights as associé of the two companies Africom-Zaire and Africontainers-Zaire cannot be
upheld.
Admissibility of the Application in so far as it con cerns the exercise of diplomatic protection with
respect to MrD . iallo “by substitution for” Africom-Zaire and Africontainers-Zaire
(paras. 76-95)
The Court notes that here too the DRC raises two objections to the admissibility of Guinea’s
Application, derived respectively from Guinea’s lack of standing and the failure to exhaust local
remedies. The Court again addresses these issues in turn.
⎯ Guinea’s standing (paras. 77-94)
The DRC contends that Guinea cannot invoke “‘ considerations of equity’ in order to justify
‘the right to exercise its diplomatic protection [in favour of Mr.Diallo and by substitution for
Africom-Zaire and Africontainers-Z aire] independently of the violation of the direct rights [of
Mr.Diallo]’” on the ground that the State whose responsibility is at issue is also the State of
nationality of the companies concerned. Diploma tic protection “by substitution” is said by the
DRC to go “far beyond what positive intern ational law provides” and neither the Court’s
jurisprudence nor State practice re cognizes such a possibility. The DRC even goes as far as to
assert that Guinea is in reality asking the Court to authorize it to exercise its diplomatic protection
in a manner contrary to international law. In this connection, it indicates that the Court should
dismiss any possibility of resorting to equity contra legem . The DRC also points out that Guinea
has not demonstrated that protection of the sh areholder “in substitution” for the company which
possesses the nationality of the respondent State woul d be justified in the present case. According
to the DRC, such protection by substitution would in fact lead to a discriminatory régime of
protection, resulting as it would in the unequal treatment of the shareholders. Lastly, the DRC - 7 -
maintains that application of protection “by subs titution” to the case of Mr.Diallo would prove
“fundamentally inequitable”, in view of his personality and conduct, which are “far from
irreproachable”.
For its part, Guinea observes that it is not aski ng the Court to resort to equity contra legem ,
but it contends that, in the Barcelona Traction case, the Court referred, in a dictum, to the
possibility of an exception, founded on reasons of equity, to the general rule of the protection of a
company by its national State, “when the State whose responsibility is invoked is the national State
of the company”. Guinea contends that the exis tence of the rule of protection by substitution and
its customary nature are confirmed by numerous arbitral awards. Further, according to Guinea,
“[s]ubsequent practice [following Barcelona Traction ], conventional or jurisprudential... has
dispelled any uncertainty . . . on the positive nature of the ‘exception’”. Finally Guinea claims that
the application of protection by substitution is particularly appropriate in this case, as
Africom-Zaire and Africontainers-Zaire are SPRLs, which have a marked intuitu personae
character and which, moreover, are statutorily controlled and managed by one and the same person.
Further, it especially points out that Mr. Diallo was bound, under Zairean legislation, to incorporate
the companies in Zaire.
The Court recalls that, as regards diplomatic protection, the principle as emphasized in the
Barcelona Traction case, is that: “Not a mere interest affected, but solely a right infringed involves
responsibility, so that an act directed against an d infringing only the company’s rights does not
involve responsibility towards the shareholders, even if their interests are affected.” (I.C.J. Reports
1970, p. 36, para. 46.) Since its dictum in the aforementioned case, the Court notes that it has not
had occasion to rule on whether, in international law, there is indeed an exception to the general
rule “that the right of diplomatic protection of a company belongs to its national State”, which
allows for protection of the shareholders by th eir own national State “by substitution”, and on the
reach of any such exception. It observes that in the case concerning Elettronica Sicula
S.p.A. (ELSI) (United States of America v. Italy), the Chamber of the Court allowed a claim by the
United States of America on behalf of two United States corporations (who held 100 per cent of the
shares in an Italian company), in relation to alleged acts by the Italian authorities injuring the rights
of the latter company. However, the Court recalls that in doing so, the Chamber based itself not on
customary international law but on a Treaty of Friendship, Commerce and Navigation between the
two countries directly granting to their nationals, corporations and associations certain rights in
relation to their participation in corporations a nd associations having the nationality of the other
State.
The Court examines whether the exception invoked by Guinea is part of customary
international law. It notes in this respect that the role of diplomatic protection has somewhat faded,
as in practice recourse is only made to it in rare cases where treaty régimes do not exist or have
proved inoperative. According to the Court, the theory of protection by substitution seeks to offer
protection to the foreign shareholders of a comp any who could not rely on the benefit of an
international treaty and to whom no other remedy is available, the allege dly unlawful acts having
been committed against the company by the State of its nationality. Protection by “substitution”
would therefore appear to constitute the very last resort for th e protection of foreign investments.
Having examined State practice and decisions of in ternational courts and tribunals, it is of the
opinion that these do not reveal ⎯ at least at the present time ⎯ an exception in customary
international law allowing for protection by substitution, such as is relied on by Guinea. The Court
adds that the fact invoked by Guinea that various international agreements have established special
legal régimes governing investment protection, or that provisions in this regard are commonly
included in contracts entered into directly between St ates and foreign investors, is not sufficient to
show that there has been a change in the customary rules of diplomatic protection; it could equally
show the contrary. - 8 -
The Court then turns to the question of whether customary international law contains a more
limited rule of protection by substitution, such as that set out by the ILC in its draft Articles on
Diplomatic Protection, which would apply only where a company’s incorporation in the State
having committed the alleged violation of interna tional law “was required by it as a precondition
for doing business there” (Article11, paragraph(b) ). However, this very special case does not
seem to correspond to the one the Court is dealing with here. The Court observes that it appears
natural that Africom-Zaire and Africontainers-Zaire were created in Zaire and entered in the Trade
Register of the city of Kinshasa by Mr.Diallo, who had settled in the country in 1964.
Furthermore, and above all it has not satisfactorily been established before the Court that their
incorporation in that country, as legal entities of Congolese nationality, would have been required
of their founders to enable the founders to oper ate in the economic sectors concerned. The Court
thus concludes that the two companies were not in corporated in such a way that they would fall
within the scope of protection by substitution in the sense of Article11, paragraph(b) , of the ILC
draft Articles on Diplomatic Protection. Therefore, the question of whether or not this paragraph of
Article 11 reflects customary international law does not arise in this case.
The Court cannot accept Guinea’s claim to exercise diplomatic protection by substitution. It
is therefore the normal rule of the nationality of the claims which governs the question of the
diplomatic protection of Africom-Zaire and Africontainers-Zaire. The companies in question have
Congolese nationality.
The objection as to inadmissibility raised by th e DRC owing to Guinea’s lack of standing to
offer Mr. Diallo diplomatic protection as regard s the alleged unlawful acts of the DRC against the
rights of the two companies Africom-Zaire and Af ricontainers-Zaire is consequently well founded
and must be upheld.
⎯ Non-exhaustion of local remedies (para. 95)
Having concluded that Guinea is without sta nding to offer Mr.Diallo diplomatic protection
as regards the alleged unlawful acts of the DRC against the rights of the companies Africom-Zaire
and Africontainers-Zaire, the Court need not fu rther consider the DRC’s objection based on the
non-exhaustion of local remedies.
Findings (para. 96)
In view of all the foregoing, the Court conc ludes that Guinea’s Application is admissible in
so far as it concerns protection of Mr.Diallo’s rights as an individual and his direct rights as
associé in Africom-Zaire and Africontainers-Zaire.
Further proceedings (para. 97)
The Court indicates that, in accordance with Article 79, paragraph 7, of the Rules of Court as
adopted on 14April1978, time-limits for the further proceedings shall subsequently be fixed by
Order of the Court.
Operative paragraph (para. 98)
“For these reasons,
T HE C OURT ,
(1) As regards the preliminary objection to admissibility raised by the Democratic Republic
of the Congo for lack of standing by the Republic of Guinea to exercise diplomatic protection in
the present case: -9 -
(a) unanimously,
Rejects the objection in so far as it concerns protection of Mr. Diallo’s direct rights as associé
in Africom-Zaire and Africontainers-Zaire;
(b) by fourteen votes to one,
Upholds the objection in so far as it concerns prot ection of Mr.Diallo in respect of alleged
violations of rights of Africom-Zaire and Africontainers-Zaire;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov;
Judge ad hoc Mampuya;
AGAINST : Judge ad hoc Mahiou;
(2) As regards the preliminary objection to admissibility raised by the Democratic Republic
of the Congo on account of non-exhaustion by Mr. Diallo of local remedies:
(a) unanimously,
Rejects the objection in so far as it concerns protection of Mr.Diallo’s rights as an
individual;
(b) by fourteen votes to one,
Rejects the objection in so far as it concerns protection of Mr. Diallo’s direct rights as associé
in Africom-Zaire and Africontainers-Zaire;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov;
Judge ad hoc Mahiou;
AGAINST : Judge ad hoc Mampuya;
coIns(e3q)uence,
(a) unanimously,
Declares the Application of the Republic of Guinea to be admissible in so far as it concerns
protection of Mr. Diallo’s rights as an individual;
(b) by fourteen votes to one,
Declares the Application of the Republic of Guinea to be admissible in so far as it concerns
protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov;
Judge ad hoc Mahiou;
AGAINST : Judge ad hoc Mampuya; -10-
(c) by fourteen votes to one,
Declares the Application of the Republic of Guinea to be inadmissible in so far as it concerns
protection of Mr.Diallo in respect of alleged violations of rights of Africom-Zaire and
Africontainers-Zaire.
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov;
Judgead hoc Mampuya;
AGAINST: Judge ad hoc Mahiou.
*
Judge ad hoc M AHIOU appends a declaration to the Judgment of the Court;
Judge ad hocM AMPUYA appends a separate opinion to the Judgment of the Court.
___________ Annex to Summary 2007/3
Declaration of Judge ad hoc Mahiou
After declaring Guinea’s Application admissible in so far as it concerns protection of, on the
one hand, Mr. Diallo’s rights as an individual and, on the other hand, his direct rights as associé in
the companies Africom-Zaire and Africontainers-Zaire, the Court declares inadmissible the
Application seeking to protect Mr.Diallo in resp ect of the alleged violations of rights of these
companies. In rejecting this latter Application, the Court relies on the approach set out by the
International Law Commission (ILC) in its draft Ar ticles on Diplomatic Protection, which it takes
up in paragraphs88 and 91 of the Judgment. However, after explaining and apparently accepting
this approach to diplomatic protection, the Court takes the view that it does not apply in the present
case. After noting that the first condition has been satisfied ⎯ since the two companies in question
do indeed have the nationality of the Congolese State, which has committed the wrongful acts ⎯ it
considers that the second condition has not been me t, because this nationality results from a free
choice of their owner and not from a requirement of local law that would enable diplomatic
protection to be invoked.
The choice of Congolese nationality was certainly made by Mr.Diallo, but it seems
questionable to conclude that this was a free choice, as the Court does in paragraph92 of the
Judgment. Freedom of choice is more appearance than reality when one examines Congolese law,
which requires both the registered office and admi nistrative headquarters to be in the DRC if the
main operating centre is located in that country, failing which the two companies would
automatically be struck off the Trade Register, th ereby preventing them from existing or carrying
on activities in the DRC. Consequently, because of this legal and factual situation, this case falls
within the scope of Article11, paragraph(b) , of the ILC draft as one in which it would be
legitimate for the right to diplomatic protection from the State of the shareholders’ nationality to be
exercised if prejudicial measures are taken bythe State against a company having its nationality.
Furthermore, it should be noted that one of the two companies, Africom-Zaire, is said to
have disappeared as a result of action taken by the Congolese authorities. If that should prove to be
the case, a new situation would result in which th ere would no longer be any possibility for that
company to assert its rights directly, and that coul d deprive its sole shareholder, Mr. Diallo, of any
means of redress if he were refused the benefit ofdiplomatic protection. I therefore believe that the
Court should have taken further account of this situation in order to safeguard the rights and
interests of the sole shareholder in this company.
Separate opinion of Judge ad hoc Mampuya
In this case between Guinea and the Democr atic Republic of the Co ngo, while generally
subscribing to the Court’s findings on the admiss ibility of Guinea’s Application, I would express
reservations about certain aspects of the approach taken in the Judgment and about some issues
associated with the admissibility of the Application as regards the protection of the direct rights of
a Guinean national as associé in the two Congolese companies.
I endorse the main operative part of the Judgment declaring Guinea’s Application admissible
in so far as it concerns the direct rights of its national as an individual and inadmissible in so far as
it also concerned the rights of non-Guinean companies.
However, it seemed to me in fact that wherea s a study of the Court’s case law points to the
need for the nature of its claim to be stated “within the degree of precision and clearness requisite
for the administration of justice”, Guinea’s Application was not worded clearly enough to define its - 2 -
object, the circumstances of its filing explaining why Guinea has, from start to finish in the
procedure, wavered between, on the one hand, protection of the two companies controlled by its
national Mr. Diallo but which are of Congolese nati onality, whose financial claims emerge clearly
as the real object of the Application, and, on the other hand, protection of Mr. Diallo’s direct rights
as an individual and associé . I believe that, on grounds of obscuri libelli , if not lack of standing,
the admissibility of Guinea’s Application is at least problematic. Moreover, by upholding the
direct rights of Mr.Diallo as an object of the A pplication, opting for this artificial dispute instead
of the real one, the Court is admitting quite new private claims, not hitherto known to the
Congolese authorities and not constituting in themse lves a dispute arising directly from relations
between Guinea and the Democratic Republic of the Congo, without verifying, contrary to all its
previous case law, whether Mr.Diallo’s private di spute had given rise to an international dispute
between the two States which could be submitted to the Court, the latt er only entertaining
international disputes and not mere acts, even if they may be internationally wrongful. Lastly,
while Guinea’s right to act in respect of th e direct rights of its national as associé cannot be
contested, I did not support the finding that, since the DRC had not shown remedies against the
expulsion order to exist, there would also be none against the alleged infringement of these direct
rights as associé, which is regarded as a direct consequence of that expulsion. That is why, having
accepted Guinea’s standing, in particular to act in respect of alleged violations of human rights, I
did not join the majority in favour of the opera tive provision which rejects, on the grounds set out
here, the DRC’s preliminary objection that domestic remedies concerning the direct rights as
associé had not been exhausted.
___________
Summary of the Judgment of 24 May 2007