Summary of the Judgment of 30 November 2010

INTERNATIONAL COURT OF JUSTICE

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Summary
Not an official document

Summary 2010/3
30 November 2010

Ahmadou Sadio Diallo
(Republic of Guinea v. Democratic Republic of the Congo)

Summary of the Judgment of 30 November 2010

After recalling the history of the proceed ings and the submissions of the Parties
(paragraphs 1 to 14 of the Judgment), the Court presents its reasoning in four parts.

I.G ENERAL FACTUAL BACKGROUND (paras. 15-20)

The Court devotes the first part of its Judgm ent to recalling the general factual background
of the case. It notes that, in its Judgment of 24May2007, it declared the Application
of the Republic of Guinea to be admissible in so far as it concerns protection of
Mr.AhmadouSadioDiallo’s rights as an individual, and in so far as it concerns protection of his

direct rights as associé in Africom-Zaire and Africontainers-Zaire. It states that it will therefore
consider in turn the questions of the protection of Mr. Diallo’s rights as an individual (paras. 21-98)
and the protection of his direct rights as associin Africom-Zaire and Africontainers-Zaire
(paras. 99-159). In the light of the conclusions it comes to on these questions, the Court will then

examine the claims for reparation made by Guinea in its final submissions (paras. 160-164).

II. ROTECTION OF M R . IALLO ’S RIGHTS AS AN INDIVIDUAL (paras. 21-98)

In its arguments as finally stated, Guinea maintains that Mr.Diallo was the victim in
1988-1989 of arrest and detention measures take n by the DRC authorities in violation of
international law and in 1995-1996 of arrest, detention and expulsion measures also in violation of
international law. Guinea reasons from this that it is entitled to exercise diplomatic protection of its
national in this connection.

The DRC maintains that the claim relati ng to the events in 1988-1989 was presented
belatedly and must therefore be rejected as inadmissible. In the alternative, the DRC maintains that
the said claim must be rejected because of failure to exhaust local remedies, or, otherwise, rejected

on the merits. The DRC denies that Mr. Diallo’s treatment in 1995-1996 breached its obligations
under international law. - 2 -

Accordingly, the Court must first rule on the DRC’s argument contesting the admissibility of
the claim concerning the events in 1988-1989 before it can, if necessary, consider the merits of that

claim. It must then consider the merits of the grievances relied upon by Guinea in support of its
claim concerning the events in 1995-1996, the admiss ibility of which is no longer at issue in this
phase of the proceedings.

A. The claim concerning the arrest and detention measures taken against
Mr. Diallo in 1988-1989 (paras. 24-48)

In order to decide whether the claim relating to the events in 1988-1989 was raised late, the
Court must first ascertain exactly when the claim was first asserted in the present proceedings.

The Court observes that, to begin, note should be taken that there is nothing in the
Application instituting proceedings of 28 December 1998 referring to the events in 1988-1989, and

nor are these facts mentioned in the Memorial Guin ea filed pursuant to Article 49, paragraph 1, of
the Rules of Court on 23 March 2001. It notes that it was not until the Applicant filed its Written
Observations on the preliminary objections raised by the Respondent on 7July2003 that

Mr. Diallo’s arrest and detention in 1988-1989 were referred to for the first time.

In the opinion of the Court, the claim in respect of the events in 1988-1989 cannot be
deemed to have been presented by Guinea in its “Written Observations” of 7 July 2003. According

to the Court, the purpose of those observations was to respond to the DRC’s objections in respect
of admissibility. As those were incidental proceed ings opened by virtue of the DRC’s preliminary
objections, Guinea could not present any submission other than those concerning the merit of the
objections and how the Court should deal with th em. Accordingly, the Written Observations of

7July2003 cannot be interpreted as having introduc ed an additional claim by the Applicant into
the proceedings. In particular, the Court goes on to observe that Guinea first presented its claim in
respect of the events in 1988-1989 in its Reply, filed on 19November2008, after the Court had
handed down its Judgment on the preliminary obj ections. The Reply describes in detail the

circumstances surrounding Mr.Diallo’s arrest and detention in 1988-1989, states that these
“inarguably figure among the wrongful acts for whic h Guinea is seeking to have the Respondent
held internationally responsible” and indicates for the first time what, from the Applicant’s point of
view, were the international obligations, notably treaty-based ones, breached by the Respondent in

connection with the acts in question.

Having determined exactly when the clai m concerning the events in 1988-1989 was
introduced into the proceedings, the Court can now decide whether that claim should be considered

late and inadmissible as a result. The J udgment handed down on 24May2007 on the DRC’s
preliminary objections does not prevent the Re spondent from now raising the objection that the
additional claim was presented belatedly, since th e claim was introduced, as just stated, after
delivery of the 2007 Judgment.

Relying on its jurisprudence con cerning additional claims introduced ⎯ by an Applicant ⎯
in the course of proceedings, the Court is of the opinion that such claims are inadmissible if they
would result, were they to be entertained, in transforming “the subject of the dispute originally

brought before [the Court] under the terms of the Application” (Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007 (II), p. 695, para. 108).

However, the Court recalls that it has also prev iously made clear that “the mere fact that a
claim is new is not in itself decisive for the issue of admissibility” and that: - 3 -

“In order to determine whether a new claim introduced during the course of the
proceedings is admissible [it] will need to consider whether, ‘although formally a new

claim, the claim in question can be considered as included in the original claim in
substance’.” (Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007(II) ,
p.695, para.110, in part quoting Ce rtain Phosphate Lands in Nauru (Nauru v.

Australia), Preliminary Objecti ons, Judgment, I.C.J. Reports 1992 , pp.265-266,
para. 65.)

In other words, a new claim is not inadmissible ipso facto ; the decisive consideration is the
nature of the connection between that claim and th e one formulated in the Application instituting
proceedings.

In this regard, the Court has also had the occasi on to point out that, to find that a new claim,
as a matter of substance, has been included in the original claim, “it is not sufficient that there
should be links between them of a general nature” (Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports

2007 (II), p. 695, para. 110).

The Court recalls that, in order to be admissibl e, either the additional claim must be implicit
in the Application or it must arise directly out of the question which is the subject-matter of the

Application.

The Court finds itself unable to consider this claim as being “implicit” in the original claim
as set forth in the Application. The initial claim concerned violations of Mr.Diallo’s individual

rights alleged by Guinea to have resulted from the arrest, detention and expulsion measures taken
against him in 1995-1996. It is hard to see how allegations concerning other arrest and detention
measures, taken at a different time and in different circumstances, could be regarded as “implicit”
in the Application concerned with the events in 1 995-1996. This is especially so given that the

legal bases for Mr.Diallo’s arrests in 1988-1989, on the one hand, and 1995-1996, on the other,
were completely different. His first detention w as carried out as part of a criminal investigation
into fraud opened by the Prosecuto r’s Office in Kinshasa. The second was ordered with a view to
implementing an expulsion decree, that is to say, as part of an administrative procedure. Among

other consequences, it follows that the applicable international rules ⎯ which the DRC is accused
of having violated ⎯ are different in part, and that the domestic remedies on whose prior
exhaustion the exercise of diplomatic protection is as a rule contingent are also different in nature.

The Court considers that this last point deserves particular attention. Since, as noted above,
the new claim was introduced only at the Reply stage, the Respondent was no longer able to assert
preliminary objections to it, since such objecti ons have to be submitted, under Article79 of the

Rules of Court as applicable to these proceedings, within the time-limit fixed for the delivery of the
Counter-Memorial (and, under that Article as in for ce since 1 February 2001, within three months
following delivery of the Memorial). A Respondent’s right to raise preliminary objections, that is
to say, objections which the Court is required to ru le on before the debate on the merits begins (see

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 26, para. 47), is a fundamental procedural right. This
right is infringed if the Applicant asserts a substantively new claim after the Counter-Memorial,

which is to say at a time when the Respondent can still raise objections to admissibility and
jurisdiction, but not preliminary objections. Th is is especially so in a case involving diplomatic
protection if, as in the present instance, the new claim concerns facts in respect of which the
remedies available in the domestic system are different from those which could be pursued in

respect of the facts underlying the initial claim. - 4 -

The Court considers that it cannot therefore be said that the additional claim in respect of the
events in 1988-1989 was “implicit” in the initial Application.

For similar reasons, the Court sees no possibility of finding that the new claim “arises
directly out of the question which is the subj ect-matter of the Application”. It would be
particularly odd to regard the claim concerning the events in 1988-1989 as “arising directly” out of

the issue forming the subject-matter of the Applica tion in that the claim concerns facts, perfectly
well known to Guinea on the date the Application was filed, which long pre-date those in respect of
which the Application (in that part of it concerni ng the alleged violation of Mr. Diallo’s individual
rights) was presented.

For all of the reasons set out above, the Court finds that the claim concerning the arrest and
detention measures to which Mr. Diallo was subject in 1988-1989 is inadmissible.

In light of the above finding, the Court deems th at there is no need for it to consider whether
the DRC is entitled to raise, at this stage in the proceedings, an objection to the claim in question
based on the failure to exhaust local remedies, or, if so, whether the objection would be warranted.

B. The claim concerning the arrest, detention and expulsion measures taken
against Mr. Diallo in 1995-1996 (paras. 49-98)

The Court presents its reasoning on this point in two subsections, the first of which is

devoted to the proven facts in the case and the second to the consideration of these in the light of
the applicable international law, namely: (a) the International Covenant on Civil and Political
Rights; (b) the African Charter on Human and Peoples’ Rights; (c) the prohibition on subjecting a

detainee to mistreatment; and (d) the Vienna Convention on Consular Relations.

1. The facts (paras. 49-62)

The Court recalls that some of the facts relating to the arrest, detention and expulsion
measures taken against Mr.Diallo between Oc tober1995 and January1996 are acknowledged by
both Parties; others, in contrast, are in dispute. It briefly sets forth (para. 50) the facts on which the
Parties are in agreement, before moving on to those on which the Parties disagree markedly. These

concern, on the one hand, Mr.Diallo’s situati on between 5November1995, when he was first
arrested, and his release on 10 January 1996, and, on the other hand, his situation during the period
between this latter date and his actual expulsion on 31 January 1996.

As regards the first of these periods, Guinea maintains that Mr. Diallo remained continuously
in detention for 66 consecutive days. According to the DRC, Mr. Diallo was only detained for two
days in the first instance and subsequently for no longer than eight days. With regard to the period
from 10January to 31January1996, Guinea main tains that Mr.Diallo was rearrested on

14January1996, on the order of the Congolese Prime Minister for the purpose of effecting the
expulsion decree, and kept in detention until he was deported from Kinshasa airport on 31 January,
i.e., for another 17days. On the other hand, the DRC asserts that Mr.Diallo remained at liberty
from 10January to 25January1996, on which date he was arrested prior to being expelled a few

days later, on 31 January.

In addition, the Court recalls that the Parti es also differ as to how Mr.Diallo was treated
during the periods when he was deprived of his liberty.

Faced with a disagreement between the Parties as to the existence of the facts relevant to the
decision of the case, the Court must first address the question of the burden of proof. The Court
recalls that, as a general rule, it is for the party which alleges a fact in support of its claims to prove - 5 -

the existence of that fact (see, most recently, the Judgment delivered in the case concerning Pulp
Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20April2010, para.162). It

points out, however, that it would be wrong to re gard this rule, based on the maxim onus probandi
incumbit actori, as an absolute one, to be applied in all circumstances. The determination of the
burden of proof is in reality dependent on the subject-matter and the nature of each dispute brought
before the Court; it varies according to the type of facts which it is necessary to establish for the

purposes of the decision of the case.

The Court goes on to state that in particular, where, as in these proceedings, it is alleged that
a person has not been afforded, by a public aut hority, certain procedural guarantees to which he

was entitled, it cannot as a general rule be demanded of the Applicant that it prove the negative fact
which it is asserting. A public authority is genera lly able to demonstrate that it has followed the
appropriate procedures and applied the guarantees required by law ⎯ if such was the case ⎯ by

producing documentary evidence of the actions that were carried out. However, it cannot be
inferred in every case where the Respondent is unable to prove the performance of a procedural
obligation that it has disregarded it: that depends to a large extent on the precise nature of the
obligation in question; some obligations norma lly imply that written documents are drawn up,

while others do not. The Court observes that the time which has elapsed since the events must also
be taken into account.

It is for the Court to evaluate all the evidence produced by the two Parties and duly subjected

to adversarial scrutiny, with a view to forming its conclusions. In short, the Court finds that when
it comes to establishing facts such as those which ar e at issue in the present case, neither party is
alone in bearing the burden of proof.

The Court is not convinced by the DRC’s alle gation that Mr. Diallo was released as early as
7November1995 and then only rearrested at the beginning of January1996, before being freed
again on 10January. After setting out the reasons which led it to form this view (para.59), it
concludes that Mr. Diallo remained in continu ous detention for 66 days, from 5 November 1995 to

10January1996. On the other hand, the Cour t does not accept the Applicant’s assertion that
Mr.Diallo was rearrested on 14January1996 and remained in detention until he was expelled on
31 January. This claim, which is contested by the Respondent, is not supported by any evidence at
all. However, since the DRC has acknowledged th at Mr.Diallo was detained, at the latest, on

25January1996, the Court will take it as establis hed that he was in detention between 25and
31 January 1996. Nor can the Court accept the allega tions of death threats said to have been made
against Mr. Diallo by his guards, in the absence of any evidence in support of these allegations.

2. Consideration of the facts in the light of the applicable international law (paras. 63-98)

Guinea maintains that the circumstances in which Mr.Diallo was arrested, detained and

expelled in1995-1996 cons titute in several respects a breach by the DRC of its international
obligations.

First, the expulsion of Mr.Diallo is said to have breached Article13 of the International
Covenant on Civil and Political Rights (hereinaft er the “Covenant”) of 16December1966, to

which Guinea and the DRC became parties on 24 April 1978 and 1 February 1977 respectively, as
well as Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights (hereinafter
the “African Charter”) of 27June1981, which entered into force for Guinea on 21October1986

and for the DRC on 28 October 1987.

Second, Mr.Diallo’s arrest and detention are said to have violated Article9, paragraphs1
and 2, of the Covenant, and Article 6 of the African Charter. - 6 -

Third, Mr.Diallo is said to have suffered c onditions in detention comparable to forms of
inhuman or degrading treatment that are prohibited by international law.

Fourth and last, Mr.Diallo is said not to have been informed, when he was arrested, of his
right to request consular assistance from his country, in violation of Article 36 (1) (b) of the Vienna
Convention on Consular Relations of 24April19 63, which entered into force for Guinea on

30 July 1988 and for the DRC on 14 August 1976.

The Court examines in turn whether each of these assertions is well-founded.

(a) The alleged violation of Article13 of the Covenant and Article12, paragraph4, of the
African Charter (paras. 64-74)

The Court recalls that Article 13 of the Covenant reads as follows:

“An alien lawfully in the territory of a State Party to the present Covenant may
be expelled therefrom only in pursuance of a decision reached in accordance with law
and shall, except where compelling reasons of national security otherwise require, be

allowed to submit the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority or a person or
persons especially designated by the competent authority.”

Likewise, Article12, paragraph4, of the African Charter provides that: “A non-national legally
admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue
of a decision taken in accordance with the law.”

The Court finds that it follows from the term s of the two provisions cited above that the
expulsion of an alien lawfully in the territory of a State which is a party to these instruments can
only be compatible with the international obligations of that State if it is decided in accordance
with “the law”, in other words the domestic law applicable in that respect. Compliance with

international law is to some extent dependent here on compliance with internal law. However, it is
clear that while “accordance with law” as thus defined is a necessary condition for compliance with
the above-mentioned provisions, it is not the sufficient condition. First, the applicable domestic
law must itself be compatible with the other requirements of the Covenant and the African Charter;

second, an expulsion must not be arbitrary in nature, since protection against arbitrary treatment
lies at the heart of the rights guaranteed by the international norms protecting human rights, in
particular those set out in the two treaties applicable in this case.

The Court adds that the interpretation above is fully corroborated by the jurisprudence of the
Human Rights Committee established by the Covenant to ensure compliance with that instrument
by the States parties (see for example, in this respect, Maroufidou v. Sweden, No.58/1979,

para. 9.3; Human Rights Committee, General Comme nt No. 15: The position of aliens under the
Covenant).

Since it was created, the Human Rights Co mmittee has built up a considerable body of
interpretative case law, in pa rticular through its findings in response to the individual

communications which may be submitted to it in respect of States parties to the first Optional
Protocol, and in the form of its “General Comments”.

The Court observes that although it is in no way obliged, in the exercise of its judicial

functions, to model its own interpretation of the Covenant on that of the Committee, it believes that
it should ascribe great weight to the interpretati on adopted by this independent body that was - 7 -

established specifically to supervise the application of that treaty. The point here is to achieve the
necessary clarity and the essential consistency of international law, as well as legal security, to

which both the individuals with guaranteed rights and the States obliged to comply with treaty
obligations are entitled.

Likewise, the Court notes that when it is ca lled upon, as in these proceedings, to apply a

regional instrument for the protection of human rights, it must take due account of the
interpretation of that instrument adopted by th e independent bodies which have been specifically
created, if such has been the case, to monitor the sound applicatio n of the treaty in question. In the
present case, the interpretation given above of Artic le12, paragraph4, of the African Charter is

consonant with the case law of the African Commission on Human and Peoples’ Rights established
by Article30 of the said Charte r (see, for example, Kenneth Good v. Republic of Botswana ,
No.313/05, para.204; World Organization agains t Torture and International Association of
Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v.

Rwanda, No. 27/89, 46/91, 49/91, 99/93).

The Court also notes that the interpretation by the European Court of Human Rights and the
Inter-American Court of Human Rights, respectivel y, of Article1 of Protocol No.7 to the

(European) Convention for the Protection of Human Rights and Fundamental Freedoms and
Article22, paragraph6, of the American Convention on Human Rights ⎯ the said provisions
being close in substance to those of the Covena nt and the African Charter which the Court is

applying in the present case ⎯ is consistent with what has b een found in respect of the latter
provisions in paragraph 65 of this Judgment.

According to Guinea, the decision to expel Mr.Diallo first breached Article13 of the

Covenant and Article12, para graph4, of the African Charter because it was not taken in
accordance with Congolese domestic law, for three reasons:

⎯ it should have been signed by the President of the Republic and not by the Prime Minister;

⎯ it should have been preceded by consultation of the National Immigration Board;

⎯ and it should have indicated the grounds for the expulsion, which it failed to do.

The Court is not convinced by the first of these arguments. It is true that Article15 of the
Zairean Legislative Order of 12 September 1983 con cerning immigration control, in the version in
force at the time, conferred on the President of the Republic, and not the Prime Minister, the power

to expel an alien. However, the DRC explains that since the entry into force of the Constitutional
Act of 9April1994, the powers conferred by par ticular legislative provisions on the President of
the Republic are deemed to have been transferred to the Prime Minister ⎯ even though such

provisions have not been formally amended ⎯ under Article 80 (2) of the new Constitution, which
provides that “the Prime Minister shall exercise regulatory power by means of decrees deliberated
upon in the Council of Ministers”.

The Court recalls that it is for each State, inthe first instance, to interpret its own domestic
law. The Court does not, in principle, have the power to substitute its own interpretation for that of
the national authorities, especially when that interpretation is given by the highest national courts
(see, for this latter case, Serbian Loans, J udgment No.14, 1929, P.C.I.J., SeriesA, No.20 , p.46

and Brazilian Loans, Judgment No.15, 1929, P.C.I.J., SeriesA, No.21 , p.124). Exceptionally,
where a State puts forward a manifestly incorrect interpretation of its domestic law, particularly for
the purpose of gaining an advantage in a pending case, it is for the Court to adopt what it finds to
be the proper interpretation. - 8 -

The Court finds that that is not the situation here and states that the DRC’s interpretation of
its Constitution, from which it follows that Artic le80(2) produces certain effects on the laws

already in force on the date when that Constitution was adopted, does not seem manifestly
incorrect. It goes on to explain that it has not b een contested that this interpretation corresponded,
at the time in question, to the general practice of the constitutional authorities. The DRC has
included in the case file, in this connection, a numbe r of other expulsion decrees issued at the same

time and all signed by the Prime Minister. Conseq uently, although it would be possible in theory
to discuss the validity of that interpretation, it is certainly not for the Court to adopt a different
interpretation of Congolese domestic law for the pu rposes of the decision of this case. The Court
finds that it therefore cannot be concluded that the decree expelling Mr. Diallo was not issued “in

accordance with law” by virtue of the fact that it was signed by the Prime Minister.

However, the Court is of the opinion that this decree did not comply with the provisions of
Congolese law for two other reasons.

First, the Court notes that it was not preceded by consultation of the National Immigration
Board, whose opinion is required by Article 16 of the above-mentioned Legislative Order
concerning immigration control before any expulsion measure is taken against an alien holding a

residence permit. The DRC has not contested either that Mr. Diallo’s situation placed him within
the scope of this provision, or that consultation of the Board was neglected. This omission is
confirmed by the absence in the decree of a cita tion mentioning the Boar d’s opinion, whereas all
the other expulsion decrees included in the case file specifically cite such an opinion, in accordance

with Article 16 of the Legislative Order, moreover, which concludes by stipulating that the decision
“shall mention the fact that the Board was consulted”.

Second, the Court observes that the expulsion decree should have been “reasoned” pursuant

to Article15 of the 1983Legislative Order; in other words, it should have indicated the grounds
for the decision taken. The fact is that the general, stereotyped reasoning included in the decree
cannot in any way be regarded as meeting the require ments of the legislation. The decree confines
itself to stating that the “presence and conduct [of Mr. Diallo] have breached Zairean public order,

especially in the economic, financial and monetary areas, and continue to do so”. The first part of
this sentence simply paraphrases the legal basis for any expulsion measure according to Congolese
law, since Article 15 of the 1983 Legislative Order permits the expulsion of any alien “who, by his

presence or conduct, breaches or threatens to breach the peace or public order”. As for the second
part, while it represents an addition, this is so va gue that it is impossible to know on the basis of
which activities the presence of Mr. Diallo was deemed to be a threat to public order (in the same
sense, mutatis mutandis , see Certain Questions of Mutual Assistance in Criminal Matters

(Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 231, para. 152).

The Court takes the view that the formulati on used by the author of the decree therefore
amounts to an absence of reasoning for the expulsion measure.

The Court thus concludes that in two importa nt respects, concerning procedural guarantees
conferred on aliens by Congolese law and aimed at protecting the persons in question against the
risk of arbitrary treatment, the expulsion of Mr. Diallo was not decided “in accordance with law”.

Consequently, it adds, regardless of whether that expulsion was justified on the merits, a question
to which it returns later in the Judgment, the disput ed measure violated Article 13 of the Covenant
and Article 12, paragraph 4, of the African Charter.

Furthermore, the Court considers that Guinea is justified in contending that the right afforded
by Article 13 to an alien who is subject to an expulsion measure to “submit the reasons against his
expulsion and to have his case reviewed by .. . the competent authority” was not respected in the
case of Mr. Diallo. It observes that it is indeed certain that, neither before the expulsion decree was - 9 -

signed on 31October1995, nor subsequently but before the said decree was implemented on
31 January 1996, was Mr. Diallo allowed to submit his defence to a competent authority in order to

have his arguments taken into consideration and a decision made on the appropriate response to be
given to them.

It is true, as the DRC has pointed out, that Article13 of the Covenant provides for an

exception to the right of an alien to submit hi s reasons where “compelli ng reasons of national
security” require otherwise. The Respondent ma intains that this was precisely the case here.
However, the Court notes that the DRC has not provided it with any tangible information that
might establish the existence of such “compelling reasons”. The Court goes on to assert that in

principle it is doubtless for the national authorities to consider the reasons of public order that may
justify the adoption of one police measure or anot her. But when this involves setting aside an
important procedural guarantee provided for by an in ternational treaty, it cannot simply be left in
the hands of the State in question to determine th e circumstances which, exceptionally, allow that

guarantee to be set aside. It is for the State to demonstrate that the “compelling reasons” required
by the Covenant existed, or at the very least could reasonably have been concluded to have existed,
taking account of the circumstances which surrounded the expulsion measure.

In the present case, the Court considers that no such demonstration has been provided by the
Respondent. On these grounds too, it concludes that Article13 of the Covenant was violated in
respect of the circumstances in which Mr. Diallo was expelled.

(b) The alleged violation of Article9, paragra phs1 and2, of the Covenant and Article6 of
the African Charter (paras. 75-85)

The Court first recalls that Article 9, paragraphs 1 and 2, of the Covenant provides that:

“1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty

except on such grounds and in accordance w ith such procedure as are established by
law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons

for his arrest and shall be promptly informed of any charges against him.”

It also recalls that Article 6 of the African Charter provides that:

“Every individual shall have the right to liberty and to the security of his person.

No one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.”

According to Guinea, the above-mentioned provi sions were violated when Mr.Diallo was

arrested and detained in 1995-1996 for the purpose of implementing the expulsion decree, for a
number of reasons. First, the deprivations of liberty which he suffered did not take place “in
accordance with such procedure as [is] established by law” within the meaning of Article9,
paragraph1, of the Covenant, or on the basis of “conditions previously laid down by law” within

the meaning of Article 6 of the African Charter. Second, they were “arbitrary” within the meaning
of these provisions. Third, Mr.Diallo was not info rmed, at the time of his arrests, of the reasons
for those arrests, nor was he informed of the ch arges against him, which constituted a violation of

Article 9, paragraph 2, of the Covenant.

The Court examines in turn whether each of these assertions is well-founded. - 10 -

The Court states that it is first necessary to make a general remark. The provisions of
Article 9, paragraphs 1 and 2, of the Covenant, and those of Article 6 of the African Charter, apply

in principle to any form of arrest or detention decided upon and carried out by a public authority,
whatever its legal basis and the objective being pur sued (see in this respect , with regard to the
Covenant, the Human Rights Committee’s General Comment No. 8 of 30 June 1982 concerning the
right to liberty and security of person (Human Rights Committee, CCPR General Comment No. 8:

Article 9 (Right to Liberty and Security of Person) )). It observes that the scope of these provisions
is not, therefore, confined to criminal proceedings; they also apply, in principle, to measures which
deprive individuals of their liberty that are taken in the context of an administrative procedure, such
as those which may be necessary in order to eff ect the forcible removal of an alien from the

national territory. In this latter case, it is of little importance whether the measure in question is
characterized by domestic law as an “expulsion” or a “refoulement ”. The position is only different
as regards the requirement in Article9, paragraph 2, of the Covenant that the arrested person be
“informed of any charges” against him, a requireme nt which is only meaningful in the context of

criminal proceedings.

The Court now turns to the fi rst of Guinea’s three allegations, namely, that Mr.Diallo’s
arrest and detention were not in accordance with th e requirements of the law of the DRC. It first

notes that Mr.Diallo’s arrest on 5November 1995 and his detention until 10January1996 (see
paragraph 58 of the Judgment) were for the purpose of enabling the expulsion decree issued against
him on 31October1995 to be effected. The second arrest, on 25January1996 at the latest, was

also for the purpose of implementing that decree: the mention of a “refoulement ” on account of
“illegal residence” in the notice served on Mr.Dia llo on 31January 1996, the day when he was
actually expelled, was clearly erroneous, as the DRC acknowledges.

The Court then observes that Article15 of the Legislative Order of 12September1983

concerning immigration control, as in force at the time of Mr.Diallo’s arrest and detention,
provided that an alien “who is likely to evade implementation” of an expulsion measure may be
imprisoned for an initial period of 48hours, whic h may be “extended by 48hours at a time, but

shall not exceed eight days”. The Court finds that Mr.Diallo’s arrest and detention were not in
accordance with these provisions. There is no evidence that the authorities of the DRC sought to
determine whether Mr.Diallo was “likely to evad e implementation” of the expulsion decree and,
therefore, whether it was necessary to detain him. The fact that he made no attempt to evade

expulsion after he was released on 10January1996 suggests that there was no need for his
detention. The overall length of time for which he was detained ⎯ 66days following his initial
arrest and at least six more days following the second arrest ⎯ greatly exceeded the maximum

period permitted by Article 15. In addition, it adds that the DRC has produced no evidence to show
that the detention was reviewed every 48 hours, as required by that provision.

The Court further finds, in response to the se cond allegation set out above (see paragraph 76

of the Judgment), that Mr.Diallo’s arrest and detention were arbitrary within the meaning of
Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter.

The Court acknowledges that in principle an arrest or detention aimed at effecting an

expulsion decision taken by the competent authority cannot be characterized as “arbitrary” within
the meaning of the above-mentioned provisions, even if the lawfulness of the expulsion decision
might be open to question. Consequently, the fact that the decree of 31October1995 was not
issued, in some respects, “in acco rdance with law”, as the Court has noted earlier in the Judgment

in relation to Article 13 of the C ovenant and Article 12, paragraph 4, of the African Charter, is not
sufficient to render the arrest and detention aimed at implementing that decree “arbitrary” within
the meaning of Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter. - 11 -

However, the Court considers that account should be taken here of the number and
seriousness of the irregularities tainting Mr. Diallo’s detentions. As noted above, he was held for a

particularly long time and it would appear that the authorities made no attempt to ascertain whether
his detention was necessary.

Moreover, the Court can but find not only that the decree itself was not reasoned in a

sufficiently precise way, as was pointed out above (see paragraph70), but that throughout the
proceedings, the DRC has never been able to provide grounds which might constitute a convincing
basis for Mr.Diallo’s expulsion. Allegations of “corruption” and other offences have been made
against Mr.Diallo, but no concrete evidence h as been presented to the Court to support these

claims. It notes that these accusations did not give rise to any proceedings before the courts or,
a fortiori, to any conviction. Furthermore, it is diffi cult not to discern a link between Mr. Diallo’s
expulsion and the fact that he had attempted to r ecover debts which he belie ved were owed to his
companies by, amongst others, the Zairean State or companies in which the State holds a

substantial portion of the capital, bringing cases for this purpose before the civil courts. The Court
is of the opinion that, under these circumstances, the arrest and detention aimed at allowing such an
expulsion measure, one without any defensible basis, to be effected can only be characterized as
arbitrary within the meaning of Article 9, paragraph 1, of the Covenant and Article 6 of the African

Charter.

Finally, the Court turns to the allegation relating to Article 9, paragra ph 2, of the Covenant.
It observes that, for the reasons discussed in paragraph77 of the Judgment, Guinea cannot

effectively argue that at the time of each of his arrests (in November1995 and January1996),
Mr. Diallo was not informed of the “charges against him”, as the Applicant contends is required by
Article9, paragraph2, of the C ovenant. This particular provision of Article9 is applicable only
when a person is arrested in the context of crimin al proceedings; the Court finds that that was not

the case for Mr. Diallo.

On the other hand, it adds, Guinea is justifie d in arguing that Mr.Diallo’s right to be
“informed, at the time of arrest, of the reasons for his arrest”— a right guaranteed in all cases,

irrespective of the grounds for the arrest — was breached.

The Court observes that the DRC has failed to produce a single document or any other form
of evidence to prove that Mr. Diallo was notified of the expulsion decree at the time of his arrest on

5 November 1995, or that he was in some way inform ed, at that time, of the reason for his arrest.
Although the expulsion decree itself did not give specific reasons, as pointed out above (see
paragraph 72), the notification of this decree at the time of Mr. Diallo’s arrest would have informed

him sufficiently of the reasons for that arrest for the purposes of Article9, paragraph2, since it
would have indicated to Mr.Diallo that he ha d been arrested for the purpose of an expulsion
procedure and would have allowed him, if necessary, to take the appropriate steps to challenge the
lawfulness of the decree. The Court notes, however, that no information of this kind was provided

to him; the DRC, which should be in a position to prove the date on which Mr. Diallo was notified
of the decree, has presented no evidence to that effect.

The Court takes the view that the same applies to Mr.Diallo’s arrest in January1996. On

that date, it has also not been established that Mr. Diallo was informed that he was being forcibly
removed from Congolese territory in execution of an expulsion decree. Moreover, on the day when
he was actually expelled, he was given the incorr ect information that he was the subject of a
“refoulement” on account of his “illegal residence” (see pa ragraph50). This being so, the Court

finds that the requirement for him to be informed , laid down by Article9, paragraph2, of the
Covenant, was not complied with on that occasion either. - 12 -

(c) The alleged violation of the prohibition on subjecting a detainee to mistreatment
(paras. 86-89)

The Court recalls that Guinea maintains that Mr.Diallo was subjected to mistreatment
during his detention, because of the particularly t ough conditions thereof, because he was deprived
of his right to communicate with his lawyers and with the Guinean Embassy, and because he

received death threats from the guards. The App licant invokes in this connection Article10,
paragraph1, of the Covenant, according to which: “All persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person.”

According to the Court, Article7 of the Covenant, providing that “[n]o one shall be
subjected to torture or to cruel, inhuman or de grading treatment or punishment”, and Article5 of
the African Charter, stating that “[e]very individual shall have the right to the respect of the dignity
inherent in a human being”, are also pertinent in this area. The Court states that there is no doubt,

moreover, that the prohibition of inhuman and de grading treatment is among the rules of general
international law which are binding on States in all circumstances, even apart from any treaty
commitments.

It notes, however, that Guinea has failed to demonstrate convincingly that Mr.Diallo was
subjected to such treatment during his detention. There is no evidence to substantiate the allegation
that he received death threats. It seems that Mr . Diallo was able to communicate with his relatives
and his lawyers without any great difficulty and, even if this had not been the case, such constraints

would not per se have constituted treatment prohibite d by Article 10, paragraph 1, of the Covenant
and by general international law. The question of Mr. Diallo’s communications with the Guinean
authorities is distinct from that of compliance with the provisions currently under examination and
will be addressed under the next heading, in relation to Article 36, paragraph1(b) , of the Vienna

Convention on Consular Relations. Finally, that Mr.Diallo was fed thanks to the provisions his
relatives brought to his place of detention — which the DRC does not contest — is insufficient in
itself to prove mistreatment, since access by the rela tives to the individual deprived of his liberty
was not hindered.

In conclusion, the Court finds that it has not been demonstrated that Mr.Diallo was
subjected to treatment prohibited by Article 10, paragraph 1, of the Covenant.

(d) The alleged violation of the provisions of Article36, paragraph1 (b), of the Vienna
Convention on Consular Relations (paras. 90-98)

Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations provides that:

“[I]f he so requests, the competent au thorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its consular

district, a national of that State is arr ested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention shall be forwarded
by the said authorities without delay. The said authorities shall inform the person

concerned without delay of his rights under this subparagraph.”

The Court observes that these provisions, as is clear from their very wording, are applicable
to any deprivation of liberty of whatever kind, even outside the context of pursuing perpetrators of

criminal offences. They therefore apply in the present case, which the DRC does not contest.

According to Guinea, these provisions were violated when Mr.Diallo was arrested in
November 1995 and January 1996, because he was not informed “without delay” at those times of

his right to seek assistance from the consular authorities of his country. - 13 -

At no point in the written proceedings or the first round of oral argument did the DRC
contest the accuracy of Guinea’s allegations in this respect; it did not attempt to establish, or even

claim, that the information called for by the last sentence of the quoted provision was supplied to
Mr. Diallo, or that it was supplied “without delay”, as the text requires. The Respondent replied to
the Applicant’s allegation with two arguments: that Guinea had failed to prove that Mr.Diallo
requested the Congolese authorities to notify the Guinean consular post without delay of his

situation; and that the Guinean Ambassador in Kinshasa was aware of Mr.Diallo’s arrest and
detention, as evidenced by the steps he took on his behalf. The Court notes that it was only in
replying to a question put by a judge during the h earing of 26 April 2010 that the DRC asserted for
the first time that it had “orally informed Mr. Diallo immediately after his detention of the

possibility of seeking consular assistance from his State” (written reply by the DRC handed in to
the Registry on 27April2010 and confirmed orally at the hearing of 29April, during the second
round of oral argument).

The Court points out that the two arguments put forward by the DRC before the second
round of oral pleadings lack any relevance. It a dds that it is for the authorities of the State which
proceeded with the arrest to inform on their own initiative the arrested person of his right to ask for
his consulate to be notified; the fact that the person did not make such a request not only fails to

justify non-compliance with the obligation to inform which is incumbent on the arresting State, but
could also be explained in some cases precisely by the fact that the person had not been informed
of his rights in that respect (Avena and Other Mexican Nationals (Mexico v. United States of

America), Judgment, I.C.J. Reports 2004 (I) , p. 46, para. 76). The Court considers, moreover, that
the fact that the consular authorities of the national State of the arrested person have learned of the
arrest through other channels doe s not remove any violation that may have been committed of the
obligation to inform that person of his rights “without delay”.

As for the DRC’s assertion, made in the c onditions described above, that Mr.Diallo was
“orally informed” of his rights upon his arrest, the Court can but note that it was made very late in
the proceedings, whereas the point was at issue from the beginning, and that there is not the

slightest piece of evidence to corroborate it. The Court is therefore unable to give it any credit.

Consequently, the Court finds that there was a violation by the DRC of Article36,
paragraph 1 (b), of the Vienna Convention on Consular Relations.

*

Guinea has further contended that Mr. Diallo’s expulsion, given the circumstances in which
it was carried out, violated his right to property, guaranteed by Article14 of the African Charter,
because he had to leave behind most of his assets when he was forced to leave the Congo.

In the Court’s view, this aspect of the dis pute has less to do with the lawfulness of
Mr. Diallo’s expulsion in the light of the DRC’s in ternational obligations and more to do with the
damage Mr.Diallo suffered as a result of the in ternationally wrongful acts of which he was a

victim. The Court therefore examines it later in the Judgment, within the context of the question of
reparation owed by the Respondent (see paragraphs 160-164 of the Judgment). - 14 -

III. ROTECTION OF M R. DIALLO ’S DIRECT RIGHTS AS ASSOCIÉ IN AFRICOM -Z AIRE

AND AFRICONTAINERS -ZAIRE (paras. 99-159)

The Court observes that it is especially important to clarify the issues of the legal existence
of the two sociétés privées à responsabilité limitée (private limited liability companies, hereinafter

“SPRLs”) incorporated under Zairean law, Afri com-Zaire and Africontainers-Zaire, and of
Mr. Diallo’s participation and role in them, since the Parties are in disagreement on these points.

After carefully considering the situation (p aras.99-113), the Court reaches the conclusion

that Mr. Diallo was, both as gérant and associé of the two companies, fully in charge and in control
of them, but that they nevertheless remained le gal entities distinct from him. The Court then
addresses the various claims of Guinea pertaining to the direct rights of Mr. Diallo as ass. In

doing so, it has to assess whether, under DRC law, the claimed rights are indeed direct rights of the
associé, or whether they are rather rights or obligations of the companies. As the Court has already
pointed out, claims relating to rights which are not direct rights held by Mr. Diallo as associé have
been declared inadmissible by the Judgment of 24May2007; they can therefore no longer be

entertained. In particular, this is the case of the claims relating to the contractual rights of
Africom-Zaire against the State of Zaire (DRC), and of Africontainers-Zaire against the
Gécamines, Onatra, Fina and Shell companies.

In the following paragraphs, the Court is careful to maintain the strict distinction between the
alleged infringements of the rights of the two SPR Ls at issue and the alleged infringements of
Mr.Diallo’s direct rights as associé of these latter (see I.C.J. Reports 2007(II), pp.605-606,

paras. 62-63).

Guinea’s claims relating to Mr.Diallo’s direct rights as associé pertain to the right to
participate and vote in general meetings ofthe two SPRLs, the right to appoint a gérant , and the

right to oversee and monitor the management of th e companies. Guinea also presents a claim in
relation to the right to property concerning Mr.Diallo’s parts sociales in Africom-Zaire and
Africontainers-Zaire. The Court addresses these different claims.

A. The right to take part and vote in general meetings (paras. 117-126)

Guinea maintains that the DRC, in expelli ng Mr.Diallo, deprived him of his right,

guaranteed by Article79 of the Congolese Decree of 27February1887 on commercial
corporations, to take part in ge neral meetings and to vote. It claims that under DRC law general
meetings of Africom-Zaire and Africontainers-Zaire could not be held outside the territory of the
DRC. Guinea admits that Mr.Diallo could of course have exercised his rights as associé from

another country by appointing a proxy of his choice, in accordance with Article81 of the
1887 Decree, but argues that appointing a proxy is merely an option available to the associé, whose
recognized right is clearly to have a choice whether to appoint a representative or to attend in

person. Guinea adds that, in the case of Africontainers-Zaire, it would have been impossible for
Mr.Diallo to be represented by a proxy, since Article22 of the Articles of Incorporation of the
SPRL stipulates that only an associé may be appointed proxy of another, whereas he had become
its sole associé at the time of his expulsion.

The DRC maintains that there cannot have been any violation of Mr.Diallo’s right to take
part in general meetings, as there has been no evidence that any generameetings were convened
and that Mr.Diallo was unable to attend owi ng to his removal from DRC territory. The DRC

asserts that in any case Congolese commercial law places no obligation on commercial companies
in respect of where general meetings are to be held. - 15 -

The Court observes that, under Congolese law, th e right to participate and vote in general
meetings belongs to the associés and not to the company. It then turns to the question of whether

the DRC, in expelling Mr. Diallo, deprived him of hi s right to take part in general meetings and to
vote, as guaranteed by Article79 of the Congol ese Decree of 27February1887 on commercial
corporations.

In view of the evidence submitted to it by the Parties, the Court finds that there is no proof
that Mr. Diallo, acting either as gérant or as associé holding at least one-fifth of the total number of
shares, has taken any action to convene a general meeting, either after having been expelled from
the DRC, or at any time when he was a resident in the DRC after 1980. Nor has any evidence been

provided that Mr.Diallo would have been pr ecluded from taking any acti on to convene general
meetings from abroad, either as gérant or as associé.

The Court recalls that an associé ’s right to take part and vote in general meetings may be

exercised by the associé in person or through a proxy of his choosing. There is no doubt in this
connection that a vote expressed through a proxy at a general meeting has the same legal effect as a
vote expressed by the associé himself. On the other hand, it is more difficult to infer with certainty
from the above-mentioned provisions that they est ablish the right, as Guinea maintains, for the

associé to attend general meetings in person. In the opinion of the Court, the primary purpose of
these provisions is to ensure that the general meet ings of companies can take place effectively.
Guinea’s interpretation of Congolese law might frust rate that objective, by allowing an associé to
prevent the organs of the company from operating normally. According to the Court, it is

questionable whether the Congolese legislators could have desired such an outcome, which is far
removed from the affectio societatis . In respect of Africom-Zaire and Africontainers-Zaire, the
Court does not see how the appointment of a represe ntative by Mr.Diallo could in any way have
breached in practical terms his right to take part and vote in general meetings of the two SPRLs,

since he had complete control over them.

Furthermore, with regard to Africontaine rs-Zaire, the Court finds that it cannot accept
Guinea’s argument that it would have been impossible for Mr. Diallo to be represented at a general

meeting by a proxy other than himself because he was the sole associé of that SPRL and Article 22
of Africontainers-Zaire’s Articles of Incorporation stipulates that an associé may only appoint
another associé as proxy. As the Court has already obser ved (see paragraph 110 of the Judgment),

that company has two associés , namely, Mr. Diallo and Africom-Zaire. Therefore, pursuant to the
above-mentioned Article22, Mr.Diallo, acting as associé of Africontainers-Zaire, could appoint
the “representative or agent” of Africom-Zaire as his proxy for a general meeting of
Africontainers-Zaire. Prior to the appointment of that proxy, and acting as gérant of Africom-Zaire

pursuant to Article69 of the 1887Decree (see pa ragraph135 of the Judgment), Mr.Diallo could
have appointed such a “representative or agent” of the latter company.

The Court therefore concludes that it ca nnot sustain Guinea’s cl aim that the DRC has

violated Mr.Diallo’s right to take part and vote in general meetings. The DRC, in expelling
Mr.Diallo, has probably impeded him from taking pa rt in person in any general meeting, but, in
the opinion of the Court, such hindrance does not am ount to a deprivation of his right to take part
and vote in general meetings.

B. The rights relating to the gérance (paras. 127-140)

The Court observes that, at various points in the proceedings, Guinea has made four slightly

different assertions which it has grouped under the general claim of a violation of Mr. Diallo’s right
to “appoint a gérant ”. It has contended that, by unlawfully expelling Mr.Diallo, the DRC has
committed: a violation of his alleged right to appoint a gérant, a violation of his alleged right to be

appointed as gérant , a violation of his alleged right to exercise the functions of a gérant , and a
violation of his alleged right not to be removed as gérant. - 16 -

In particular, the DRC contends that the right to appoint the gérant of an SPRL is a right of
the company, not of the associé , as it lies with the general meeting, which is an organ of the

company. It also submits that MrD . i allo did appoint MrN . ’Kanza as gérant of
Africontainers-Zaire following his expulsion.

The Court observes that the appointment and functions of gérants are governed, in

Congolese law, by the 1887Decree on commercia l corporations, and by the Articles of
Incorporation of the company in question. It begins by dismissing the DRC’s argument that
Mr. Diallo’s right to appoint a gérant could not have been violated because he in fact appointed a
gérant for Africontainers-Zaire in the person of Mr. N’Kanza. It has already concluded that this

allegation has not been proved (see paragraphs 111 and 112 of the Judgment).

As regards the first assertion put forth by Gu inea that the DRC has violated Mr.Diallo’s
right to appoint a gérant , the Court notes that the appointment of the gérant falls under the

responsibility of the company itself, without constituting a right of the associé ; accordingly, the
Court concludes that Guinea’s claim that the DRC has violated Mr.Diallo’s right to appoint a
gérant must fail.

As regards the second assertion put forward by Guinea that the DRC has violated
Mr.Diallo’s right to be appointed gérant , the Court notes in particular that this right cannot have
been violated in this instance because Mr.Di allo has in fact been appointed as gérant , and still is
the gérant of both companies in question.

As regards Guinea’s third assertion, that a right of Mr.Diallo to exercise his functions as
gérant was violated, the Court finds in particular th at while the performance of Mr. Diallo’s duties
as gérant may have been rendered more difficult by his presence outside the country, Guinea has

failed to demonstrate that it was impossible to ca rry out those duties. The Court further observes
that in fact, it is clear from various documents submitted to it that, even after Mr.Diallo’s
expulsion, representatives of Africontainers-Zaire ha ve continued to act on behalf of the company
in the DRC and to negotiate contractual clai ms with the Gécamines company. The Court

accordingly concludes that Guinea’s claim that th e DRC has violated a right of Mr.Diallo to
exercise his functions as gérant must fail.

As regards Guinea’s fourth assertion, that the D RC has violated Mr. Diallo’s right not to be

removed as gérant, the Court notes that although it may have become more difficult for Mr. Diallo
to carry out his duties as gérant from outside the DRC following his expulsion, as previously
discussed, he remained, from a legal standpoint, the gérant of both Africom-Zaire and
Africontainers-Zaire. Accordingly, it conclud es that Guinea’s claim that the DRC has violated

Mr. Diallo’s right not to be removed as gérant must fail.

In light of all the above, the Court concl udes that the various assertions put forward by
Guinea, grouped under the general claim of a viol ation of Mr.Diallo’s rights relating to the

gérance, must be rejected.

C. The right to oversee and monitor the management (paras. 141-148)

The Court considers that, even if a right to oversee and monitor the management exists in
companies where only one associé is fully in charge and in control, Mr. Diallo could not have been
deprived of the right to oversee and monitor the gérance of the two companies. While it may have

been the case that Mr.Diallo’s detentions and expulsion from the D RC rendered the business
activity of the companies more difficult, they simp ly could not have interfered with his ability to
oversee and monitor the gérance , wherever he may have been. Accordingly, the Court concludes
that Guinea’s claim that the DRC has violated Mr.Diallo’s right to oversee and monitor the

management fails. - 17 -

D. The right to property of Mr. Diallo over his parts sociales in Africom-Zaire
and Africontainers-Zaire (paras. 149-159)

The Court first observes that international la w has repeatedly acknowledged the principle of
domestic law that a company has a legal personality distinct from that of its shareholders. This
remains true even in the case of an SPRL which may have become unipersonal in the present case.

The Court states, therefore, that the rights and assets of a company must be distinguished from the
rights and assets of an associé. In this respect, it is legally untenable to consider, as Guinea argues,
that the property of the corporation merges with the property of the shareholder. Furthermore, it
must be recognized that the liabilities of the compan y are not the liabilities of the shareholder. In

the case of Africontainers-Zaire, as an SPRL, it is specifically indicated in its Articles of
Incorporation that the “liability of each associé in respect of corporate obligations shall be limited
to the amount of his/her parts sociales in the company” (Art.7; Annex1 to Guinea’s Memorial;
see also paragraphs 105 and 115 of the Judgment).

The Court recalls that it has already indicated that the DRC has not violated Mr.Diallo’s
direct right as associé to take part and vote in general meetings of the companies, nor his right to be
appointed or to remain gérant , nor his right to oversee and monitor the management (see

paragraphs 117-148 of the Judgment). The Court rea ffirms that Mr. Diallo’s other direct rights, in
respect of his parts sociales , must be clearly distinguished from the rights of the SPRLs, in
particular in respect of the property rights belo nging to the companies. It observes in this
connection that, together with its other assets, including debts receivable from third parties, the

capital is part of the company’s property, whereas the parts sociales are owned by the associés .
The parts sociales represent the capital but are distinct from it, and confer on their holders rights in
the operation of the company and also a right to receive any dividends or any monies payable in the
event of the company being liquidated. The only direct rights of Mr.Diallo which remain to be

considered are in respect of these last two matters, namely, the receipt of dividends or any monies
payable on a winding-up of the companies. There is, however, no evidence that any dividends
were ever declared or that any action was ever ta ken to wind up the companies, even less that any

action attributable to the DRC has infringed Mr. Diallo’s rights in respect of those matters.

Finally, the Court considers there to be no n eed to determine the ex tent of the business
activities of Africom-Zaire and Africontainers-Zaire at the time Mr.Diallo was expelled, or to

make any finding as to whether they were in a state of “undeclared bankruptcy”, as alleged by the
DRC.

The Court concludes from the above that Guinea’s allegations of infringement of

Mr.Diallo’s right to property over his parts sociales in Africom-Zaire and Africontainers-Zaire
have not been established.

IV. R EPARATION (paras. 160-164)

Having concluded that the Democratic Repub lic of the Congo has breached its obligations
under Articles 9 and 13 of the International Covena nt on Civil and Political Rights, Articles 6 and
12 of the African Charter on Human and Peoples’ Rights, and Article 36, paragraph 1 (b), of the

Vienna Convention on Consular Relations (see paragraphs 73, 74, 85 and 97 of the Judgment), it is
now for the Court to determine, in light of Gu inea’s final submissions, what consequences flow
from these internationally wrongful acts giving rise to the DRC’s international responsibility.

The Court recalls that “reparation must, as far as possible, wipe out all the consequences of
the illegal act and reestablish the situation which woul d, in all probability, ha ve existed if that act
had not been committed” (Factory at Chorzów, Me rits, Judgment No. 13, 1928, P.C.I.J., Series A,
No. 17, p.47). Where this is not possible, repara tion may take “the form of compensation or

satisfaction, or even both” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of - 18 -

20April2010, para.273). In the light of th e circumstances of the case, in particular the
fundamental character of the human rights obliga tions breached and Guinea’s claim for reparation

in the form of compensation, the Court is of the opi nion that, in addition to a judicial finding of the
violations, reparation due to Guinea for the injurysuffered by Mr.Diallo must take the form of
compensation.

In this respect, Guinea requested in its final submissions that the Court defer its Judgment on
the amount of compensation, in order for the Parti es to reach an agreed settlement on that matter.
Should the Parties be unable to do so “within a peri od of six months following [the] delivery of the
[present] Judgment”, Guinea also requested the Court to authorize it to submit an assessment of the

amount of compensation due to it, in order for the Court to decide on this issue “in a subsequent
phase of the proceedings” (see paragraph 14 of the Judgment).

The Court is of the opinion that the Partiesshould indeed engage in negotiation in order to

agree on the amount of compensation to be paid by the DRC to Guinea for the injury flowing from
the wrongful detentions and expulsion of Mr.Diallo in 1995-1996, including the resulting loss of
his personal belongings.

In light of the fact that the Application instituting proceedings in the present case was filed in
December1998, the Court considers that the sound administration of justice requires that those
proceedings soon be brought to a final conclusion, and thus that the period for negotiating an
agreement on compensation should be limited. Therefore, the Court concludes that, failing

agreement between the Parties within six months following the delivery of the present Judgment on
the amount of compensation to be paid by the DRC, the matter shall be settled by the Court itself in
a subsequent phase of the proceedings. Having b een sufficiently informed of the facts of the
present case, the Court finds that a single exchange of written pleadings by the Parties would then

be sufficient in order for it to decide on the amount of compensation.

V. O PERATIVE CLAUSE (para. 165)

For these reasons,

T HE COURT ,

(1) By eight votes to six,

Finds that the claim of the Republic of Guin ea concerning the arrest and detention of
Mr. Diallo in 1988-1989 is inadmissible;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Abraham, Keith,
Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya;

AGAINST : Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, Yusuf;
Judge ad hoc Mahiou;

U(na)nimously,

Finds that, in respect of the circumstances in which Mr. Diallo was expelled from Congolese
territory on 31January1996, the Democratic Re public of the Congo violated Article13 of the
International Covenant on Civil and Political Right s and Article12, paragraph4, of the African

Charter on Human and Peoples’ Rights; - 19 -

U(na)nimously,

Finds that, in respect of the circumstances in whic h Mr. Diallo was arrested and detained in
1995-1996 with a view to his expulsion, the Democr atic Republic of the Congo violated Article 9,
paragraphs 1 and 2, of the International Covenant on Civil and Political Rights and Article 6 of the

African Charter on Human and Peoples’ Rights;

(4) By thirteen votes to one,

Finds that, by not informing Mr.Diallo without delay, upon his detention in 1995-1996, of

his rights under Article36, paragraph1(b) , of the Vienna Convention on Consular Relations, the
Democratic Republic of the Congo violated the obligations incumbent upon it under that
subparagraph;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Al-Khasawneh, Simma,
Abraham, Keith, Sepúlveda-Amor, Bennouna , Skotnikov, Cançado Trindade, Yusuf,
Greenwood; Judge ad hoc Mahiou;

AGAINST : Judge ad hoc Mampuya;

(5) By twelve votes to two,

Rejects all other submissions by the Republic of Guinea relating to the circumstances in
which Mr. Diallo was arrested and detained in 1995-1996 with a view to his expulsion;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Al-Khasawneh, Simma,
Abraham, Keith, Sepúlveda-Amor, Be nnouna, Skotnikov, Yusuf, Greenwood;
Judge ad hoc Mampuya;

AGAINST : JudgeCançado Trindade; Judge ad hoc Mahiou;

(6) By nine votes to five,

Finds that the Democratic Republic of the Congo h as not violated Mr. Diallo’s direct rights
as associé in Africom-Zaire and Africontainers-Zaire;

IN FAVOUR : President Owada; Vice-President Tomka; Judges Simma, Abraham, Keith,

Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya;

AGAINST : Judges Al-Khasawneh, Bennouna, Cançado Trindade, Yusuf;
Judge ad hoc Mahiou;

U(na)nimously,

Finds that the Democratic Republic of the C ongo is under obligation to make appropriate

reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences
of the violations of international obligations referred to in subparagraphs (2) and (3) above;

(8) Unanimously,

Decides that, failing agreement between the Parties on this matter within six months from the
date of this Judgment, the question of compensa tion due to the Republic of Guinea shall be settled
by the Court, and reserves for this purpose the subsequent procedure in the case. - 20 -

Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade and Yusuf append a joint
declaration to the Judgment of the Court; Judges Al-Khasawneh and Yusuf append a joint

dissenting opinion to the Judgment of the Court; Judges Keith and Greenwood append a joint
declaration to the Judgment of the Court; Judge Bennouna appends a dissenting opinion to the
Judgment of the Court; Judge Cançado Trindade appends a separate opinion to the Judgment of the
Court; Judge ad hoc Mahiou appends a dissenting opinion to the Judgment of the Court;

Judge ad hoc Mampuya appends a separate opinion to the Judgment of the Court.

___________ Annex to Summary 2010/3

Joint declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade and Yusuf

Judges Al-Khasawneh, Simma, Bennouna, Cança doTrindade and Yusuf voted against the
first subparagraph of the operative part of the Judgment, according to which “the claim of the
Republic of Guinea concerning the arrest a nd detention of Mr.Diallo in 1988-1989 is

inadmissible”, because they believe that that claim, albeit presented belatedly, falls within the
subject of the dispute as defined in the Application instituting proceedings.

The judges regret that the majority was conten t with a formal analysis of the circumstances

of the arrests and detention of Mr. Diallo in 1988-1989 and 1995-1996, and of the legal bases for
them which have been alleged by the DRC, w ithout concern for the continuity which exists
between Mr.Diallo’s detentions and the attempts to recover the debts said to be owed to the
companies Africom-Zaire and Africontainers-Zaire by the State and by Congolese companies. In

the judges’ view, the detentions in 1988-1989 and 1995-1996 took place for the same reasons and
were of the same arbitrary character.

Furthermore, since the Democratic Republic of the Congo was informed at quite an early

stage by Guinea of the new claim concerning the facts relating to 1988-1989 and had the
opportunity to contest these during the oral argument which took place in April2010, the judges
believe that the Court had evidence before it a llowing it to pronounce on all the violations of
international law committed by the DRC upon the person of Mr.Diallo. In their view, by

adjudicating on the new claim, the Court would have met the requirements of legal security and the
good administration of justice in a case based on the exercise of diplomatic protection, the scope of
which includes internationally guaranteed human rights.

Joint dissenting opinion of Judges Al-Khasawneh and Yusuf

Judges Al-Khasawneh and Yusuf appended a joint dissenting opinion in which they outlined
their reasons for not concurring in paragraph 6 of the dispositif which states that the Court “[f]inds

that the [DRC] has not violated Mr.Diallo’s direct rights as associé in Africom-Zaire and
Africontainers-Zaire”.

“On the contrary” the two judges argued, a great injustice to Mr. Diallo, not only with regard

to his personal rights but also his rights as associé , was committed by his arrest and expulsion
which intended/or at least had the effect of causing great loss to his companies.

This injustice was all the more enormous si nce in contradistinction to Barcelona Traction he

was one and the same with his two companies being the sole associé/gérant .

This is a dangerous precedent for small inv estors unprotected by bilateral or multilateral
treaties. All a State has to do is expel the sole associé or a number of them and the company will

have no protector if it is incorporated in the same State that carried out the alleged wrongful act. In
effect this is tantamount to an indirect expropr iation without compensation, and even without the
need to show a legitimizing public interest.

Investors protected by treaties on the other hand will be shielded, and while this may be
lucky for them, it creates an unsatisfactory law where to some the reach of investment law is much
greater that what Guinea has asked for, while the customary law standard is low for the wretched of
the earth like Mr. Diallo.

BarceTloaaction on closer reading does not support the low standard of protection given
in the 2007 Judgment and the present one. Barcelona Traction contemplated a triangular
relationship (Spain, Canada, Belgium) where dipl omatic protection was never in the realm of - 2 -

fiction. Here the relationship is bilateral and there is no possibility of diplomatic protection by the
State of nationality of the company.

Moreover, the size of the company does ma tter and the relevant role of the associé and
gérant are relevant. The Court followed a one-size -fits-all approach and this has led to some
surrealistic results. The Court requires Mr.Diallo to have general mee tings before it can pass

judgment that his direct rights as associé have been violated, but why should a destitute exiled sole
associé/gérant hold a general meeting with himself?

With regard to the more central question of his right to “own his companies”. The Court did

not take into account major developments in i nvestment treaty law and human rights law that
would have provided Mr.Diallo with redress. Th e two judges explored this area of the law and
came to the conclusion that the law was much more advanced and nuanced than the Court’s
Judgment. The Court missed a chance to give just ice to Mr.Diallo and in doing so to bring the

customary law standard into line with the standard under the modern law of foreign investments.

Joint declaration of Judges Keith and Greenwood

Judges Keith and Greenwood in their joint declaration give their reasons for disagreeing with
the Court’s interpretation of the provisions of th e International Covenant on Civil and Political
Rights and the African Charter on Human and Peoples’ Rights regulating the expulsion of

non-citizens. The Court rules that those provisi ons prohibit expulsions which are arbitrary in
nature, allowing review by a court of whether the expulsion was justified on the merits. The
judges’ reasons for disagreeing with that interpre tation are based on the words of the particular
provisions which impose no such limit, the contras ting terms of the provisions of the two treaties

which do expressly place substantive arbitrariness limits on interference with the rights they affirm,
the drafting history of the provisions of the Covenant, and the views of the Human Rights
Committee and the African Commission.

Judges Keith and Greenwood emphasize that, by requiring the enactment and application of
national law regulating expulsion and, in the case of the Covenant, by requiring particular
procedural rights, the Covenant and Charter do provide important protections against arbitrary
actions. “The history of freedom, it has been wisely said, is largely the history of the observance of

procedural safeguards.” The facts of the case, in the judges’ opinion, demonstrate the force of that
proposition: the arrests and detentions preceding the expulsion were unlawful for egregious
breaches of the requirements of DRC law and the e xpulsion itself was, as well, in breach of the
procedural requirements of the Covenant. B ecause of those breaches the judges agree with the

Court’s conclusions about the arrests, detentions and expulsion.

Dissenting opinion of Judge Bennouna

Judge Bennouna believes that the arbitrary char acter of Mr.Diallo’s arrest, detention and
ultimate expulsion from the Democr atic Republic of the Congo resulted in the violation of his
direct rights as sole associé in the two companies Africom-Zaire and Africontainers-Zaire. In his

view, the Court did not accept that violation because it relapsed into a formalistic approach which
has no connection with the reality of this case, the Congolese State having forced Mr. Diallo out of
its territory so that he could no longer exercise his direct rights as sole associé in his two
companies. According to JudgeBennouna, by hindering the exercise by Mr.Diallo of his direct

rights as associé, the Democratic Republic of the Congo has thus committed wrongful acts which
engage its international responsibility. - 3 -

Separate opinion of Judge Cançado Trindade

1. In his Separate Opinion, composed of 13 parts, Judge Cançado Trindade presents the
foundations of his personal position on the matters de alt with in the present Judgment of the Court,
having supported its resolutory points 2, 3, 4, 7 and 8 of the dispositif, and dissented on points 1, 5
and 6 of the dispositif . He begins his Separate Opinion by identifying (part I) the subject of the

rights and the object of the claim in the cas d’espèce : the present case concerns, in reality, the
individual rights of Mr.A.S.Diallo, namely, his right to liberty and security of person, his right
not to be expelled from a State without a legal basis, and his individual right to information on
consular assistance in the framework of the guarantees of the due process of law.

2. His considerations then turn to the applicable law in the present case (part II), namely, the
relevant provisions of the 1966 UN Covenant on Civil and Political Rights (Articles9,

paragraphs(1) to (4), and 13), of the 1981 African Charter on Human and Peoples´ Rights
(Article6 and 12 (4)), and of the 1963 Vi enna Convention on C onsular Relations
(Article 36 (1) (b)). Judge Cançado Trindade points out that the present case is, thus, significantly,
an inter-State contentious case before the ICJ , pertaining entirely to the rights of the individual

concerned (Mr.A.S.Diallo), and the legal consequences of their alleged violation, under a
UN human rights treaty, a regional human rights treaty, and a UN codification Convention. This is
a significant feature of the present case, unique in the history of the ICJ.

3. Moreover, this is the first time in its history that the ICJ has established violations of the
two human rights treaties at issue together (the Covenant and the African Charter), as well as of the
relevant provision of the 1963 Vi enna Convention, all in the fr amework of the universality of

human rights. He then moves his analysis (from the perspective of the subject of rights ) on to
Mr. A. S. Diallo’s vindication of the protected rights (part III). These latter comprise, in his view,
the right to liberty and security of person (in respect of Mr. A. S. Diallo’s arrests and detentions of
1988-1989 as well as 1995-1996), the right not to be expelled from a State without a legal basis, the

right not to be subjected to mistreatment, and the right to information on consular assistance in the
framework of the guarantees of the due process of law.

4. Judge Cançado Trindade ponders that ours are the times of a new jus gentium , focused on
the rights of the human person, individually or coll ectively. Much to the credit of both Guinea and
the D.R. Congo, the ICJ has been called upon, in the course of the proceedings on the merits, to
settle a dispute on the basis of two human rights treaties and a relevant provision of a

UNcodification Convention. In respect of the merits (and reparation), this became a case
pertaining to human rights protection. Diplomatic protection was the means whereby the complaint
was originally lodged with the Court. Yet, once di plomatic protection, ineluctably discretionary in
character, played its instrumental role, the case before the Court became substantively one

pertaining to human rights protection.

5. The next part (IV) of his Separate Opinion is devoted to the hermeneutics of human rights

treaties (in so far as it has a beari ng on the resolution of the cas d’espèce ). While in traditional
international law there has been a marked tendency to pursue a rather restrictive interpretation, in
the International Law of Human Rights, somewhat distinctly, there has been a clear and special
emphasis on the element of the object and purpose of the treaty, so as to ensure an effective

protection (effet utile) of the guaranteed rights, without detracting from the general rule of
Article 31 of the two Vienna Conventions on the Law of Treaties (1969 and 1986). - 4 -

6. While in general international law the elem ents for the interpretation of treaties evolved
primarily as guidelines for the process of interpreta tion by States Parties themselves, human rights

treaties, in their turn, have called for an interp retation of their provisions bearing in mind the
essentially objective character of the obligations entered into by States Parties: such obligations
aim at the protection of human rights and not at the establishment of subjective and reciprocal
rights for the States Parties. Human rights treaties have propounded the autonomous interpretation

of their provisions (by reference to the respective domestic legal systems).

7. Moreover, the dynamic or evolutive interpretation of such treaties (the temporal

dimension) has been followed in the jurisprudence constante of both the European and the Inter-
American Courts of Human Rights, so as to fulfil the evolving needs of protection of human beings
(under the European and the American Conventio ns on Human Rights, respectively). General
international law itself bears witness of the principle (subsumed under the general rule of

interpretation of Article31 of the two Vienna Conventions on the Law of Treaties) whereby the
interpretation is to enable a treaty to have appropria te effects. In the present domain of protection,
International Law has been made use of in order to improve and strengthen ⎯ and never to weaken

or undermine ⎯ the safeguard of recognized human rights (in pursuance of the principle pro
persona humana, pro victima).

8. Judge Cançado Trindade adds that both the European and the Inter-American Courts of

Human Rights have rightly set limits to State voluntarism, have safeguarded the integrity of the
respective human rights Conventions and theprimacy of considerations of ordre publicover the “will”
of individual States, have set higher standards of State behaviour and established some degree of

control over the interposition of undue restrictions by States, and have reassuringly enhanced the
position of individuals as subjects of the Internat ional Law of Human Rights, with full procedural
capacity. The two international human rights Tribunals have aptly made use of the techniques of
Public International Law in order to strengthen therirespective jurisdictions of protection of the human

person. As to substantive law, the contribution of the two international human rights Courts to this
effect is illustrated by numerous examples of their respective case-law pertaining to the rights
protected under the two regional Conventions.

9. The following part (V) of his Separate Opinion dwells upon the principle of humanity .
Despite the current tendency to approach this principle in the framework of International
Humanitarian Law, in the understanding of Judge Cançado Trindade the principle of humanity in

endowed with an even wider dimension: it applies in the most distinct circumstances, both in times
of armed conflict. In the former, it applies in the relations of public power with all persons subject
to the jurisdiction of the State concerned. Th at principle has a notorious incidence when these
latter are in a situation of vulne rability, or even defencelessness , as evidenced by relevant

provisions of distinct treaties integrating the International Law of Human Rights (e.g., the 1990
International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, Article 17 (1); the 1989 UN Conventi on on the Rights of the Child, Article 37 (b) ;
the 1969 American Convention on Human Rights, Article 5; the 1981 African Charter on Human

and Peoples’ Rights, Article 5; the 1969 Conven tion on the Specific Aspects of Refugee Problems
in Africa, Article II (2); among others).

10. Judge Cançado Trindade sustains that the principle of humanity permeates the whole
corpus juris of the international protection of the rights of the human person (encompassing
International Humanitarian Law, the Interna tional Law of Human Rights, and International
Refugee Law), at global (UN) and regional levels. The principle at issue provides an illustration of

the approximations or convergences between those co mplementary branches, at hermeneutic level,
and also manifested at normative and operational levels. In respect of the present case A. S. Diallo, - 5 -

the principle of humanity underlies Article 7 of the Covenant on Civil and Political Rights, which
protects the individual’s personal integrity, agai nst mistreatment, as well as Article10 of the

Covenant (concerning detainees), which begins by stating that “[a]ll persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity of the human
person” (para.1). This comprises not only the nega tive obligation not to mistreat (Article7), but
also the positive obligation to ensure that a detainee, under the custody of the State, is treated with

humanity and due respect for his inherent dignity as a human person.

11. The principle of humanity has met with judicial recognition, ⎯ he proceeds, ⎯ as

exemplified by some Judgments of the Inter-A merican Court of Human Rights and the ad hoc
International Criminal Tribunal for the Former Yugoslavia. Furthermore, the principle at issue
orients the way one treats the others, extending to all forms of human behaviour and the totality of
the condition of human existence. In his vision, in ternational law is not at all insensitive to that,

and the principle at issue applies in any circumst ances, so as to prohibit inhuman treatment and to
secure protection to all, including those in a situation of great vulnerability. In sum, humaneness is
to condition human behaviour in all circumstances.

12. Judge Cançado Trindade then points out that the principle of humanity is in line with
natural law thinking; it underlies classic thinking on humane treatment and the maintenance of
sociable relationships, also at international le vel. Humaneness comes to the fore even more

forcefully in the treatment of persons in situation of vulnerability, or even defencelessness, such as
those deprived of their personal freedom, for what ever reason. He recalls that the jus gentium , ⎯
when it began to correspond to the law of nations, - came then to be conceived by its “founding

fathers” (F. de Vitoria, A. Gentili, F. Suárez, H. Grotius, S. Pufendorf, C. Wolff, who propounded a
jus gentium inspired by the principle of humanity lato sensu ), ⎯ as regulating the international
community constituted by human beings socia lly organized in the (emerging) States and
co-extensive with humankind, thus conforming the necessary law of the societas gentium . This

latter prevailed over the “will” of individual States, respectful of the human person, to the benefit
of the common good. He concludes on this point th at the legacy of natural law thinking, evoking
the natural law of the right human reason (recta ratio) , has never faded away, and this should be
stressed time and time again.

13. His next set of considerations (part VI) focuses on the key issue of the prohibition of
arbitrariness in the framework of the International Law of Human Rights, for the consideration of

the present case of A.S.Diallo . After reviewing the notion of “arbitrariness” in legal thinking,
Judge Cançado Trindade considers it under human rights treaties and instruments, which conform a
Law of protection (a droit de protection ), oriented towards the safegua rd of the ostensibly weaker
party, the victim. Accordingly, the prohibition of arbitrariness covers today arrests and detentions,

as well as other acts of the public power, such as expulsions. Bearing in mind the hermeneutics of
human rights treaties (supra), a merely exegetical or literal interpretation of treaty provisions would
be wholly unwarranted.

14. He then reviews and assesses the pos ition of the UN Human Rights Committee and of
the African Commission on Human and Peoples’ Rights, and the jurisprudential construction of the
Inter-American and the European Courts of Human Rights, on the matter at issue. He concludes

that they all point towards a firm prohibition of arbitrariness in distinct circumstances; that
prohibition is not restricted to the right to persona l liberty, but extends likewise to other protected
rights under the respective human rights treaties or conventions. It covers, likewise, the right not to
be expelled arbitrarily from a country, the right to a fair trial, the right to respect for private

and family life, the right to an effective remedy, or any other protected right. In - 6 -

Judge Cançado Trindade’s conception, this is, epistemologically, the correct posture in this respect,
given the interrelatedness and indivisibility of all human rights.

15. To attempt to advance a restrictive view of the prohibition of arbitrariness, or an
atomized approach to it, would be wholly unwarranted. And it would run against the outlook

correctly pursued by international human rights supervisory organs such as the UN Human Rights
Committee and the African Commission on Human a nd Peoples’ Rights, and by international
human rights tribunals such as the Inter-American and the European Courts. The letter together
with the spirit of the relevant provisions under human rights treaties, converge in pointing to the

same direction: the absolute prohibition of ar bitrariness, under the International Law of Human
Rights as a whole. In Judge Cançado Trindade’s perception, underlying this whole matter is the
imperative of access to justice lato sensu , the right to the Law (le droit au Droit, el derecho
al Derecho), the right to the realization of justice in a democratic society.

16. In the following part of his Separate Opinion (VII), he examines the material content of
the protected rights under the present Judgment (right to liberty and security of person, and right

not to be expelled from a State without a legal basis), and the interrelationship between them; as to
the right to information on consular assistance in the conceptual universe of human rights, he
devotes an entire section (part VIII) of his Separate Op inion to its jurisprudential construction. In
this respect, he dwells upon the individual right to information on consular assistance beyond the

inter-State dimension, and examines and assesses what he perceives as the process of humanization
of consular law in this connection, and what he regards as the irreversibility of such advance of
humanization.

17. Despite the fact that the right to inform ation on consular assistance was initially set forth
in a provision (Article 36 (1) (b)) of the Vienna Convention on Consular Relations) having in mind
consular relations, and celebrate d in 1963 in pursuance of an apparently predominant inter-State

optics, the fact remains that it came to be rega rded in subsequent practice as an individual right ,
within the conceptual universe of human rights. In this respect, in order to clarify the legal nature
and content of the right at issue, at the end of the public sitting of the C ourt held on 26.04.2010,
JudgeCançadoTrindade put to the two cont ending Parties in the present A.S.Diallo case, the

question whether the provision of Article 36 (1) (b) of the 1963 Vienna Convention exhausted itself
in the relations between the sending State (of nationality) and the receiving State (of residence); he
further asked them whether the sending State (of nationality), or the individual concerned, was the
subject (titulaire) of the right at issue. On the basis of the responses provided by the two

contending Parties (Guinea and the D.R. Congo), Judge Cançado Trindade concluded that it was
clearly an individual right, and that it had not been complied with in the present case.

18. He then proceeded to review and assess th e jurisprudential construction of the right at
issue to date. He recalled that, ev en before the pertinent obiter dicta of the ICJ in the LaGrand
(2001) and the Avena (2004) cases, the first and pioneering articulation of the individual ’s right to
information on consular assistance was the one developed by the Inter-American Court of Human

Rights (IACtHR) in its Advisory Opinion No.16, of 01.10.1999, on the Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law . That
Advisory Opinion of the IACtHR was expressly invoked by the contending Parties, and relied upon
mainly by the complaining States, in the LaGrand (Germany v. United States) and the Avena

(Mexico v. United States) cases before this Court. - 7 -

19. He added that the IACtHR had adopted the proper approach, in considering the matter

submitted to it within the framework of the evoluiton of the “fundamental rights of the human person”
in contemporary international law. The IACtHR sustained the view that the individual right to
information under Article 36 (1) (b)of the 1963 Vienna Convention renders effective the right to the
due process of law. The IACtHR linked the right at issue to the evolving guarantees of due process of

law, ⎯ an approach that has served as inspiration for the emerging international case-law, in statu
nascendi, on the matter. Thus, if non-compliance with Article36(1)(b) of the 1963Vienna
Convention takes place, it occurs to the detriment not only of a State Party but also of the human
beings concerned.

20. That Advisory Opinion was followed, four years later, in the same line of thinking, by
Advisory Opinion No.18 of the IACtHR, of 17.09.2003, on the Juridical Condition and Rights of

Undocumented Migrants. This latter opened new ground fo r the protection of migrants, in
acknowledging the prevalence of the rights inherentto human beings, irrespective of their migratory
status. The IACtHR made it clear that States ought to respect and ensure respect for human rights in
the light of the general and basic principle of equality and non-discri mination, and that any

discriminatory treatment with regard to the protection and exercise of human rights generates the
international responsibility of the States. In the view of the IACtHR, the fundamental principle of
equality and non-discrimination has entered into the domain of jus cogens , with corresponding
obligations erga omnes of protection (in their horizontal and vertical dimensions). This

jurisprudential construction pointed in a clear direction: consular assistance and protection became
much closer to human rights protection.

21. It so happens that consular assistance and protection have indeed undergone a process of
jurisdictionalization, integrating, in the light of the outlook advanced by the IACtHR, the enlarged
conception of the due process of law , proper of our times. This is gradually being grasped
nowadays, as while diplomatic protection remains ineluctably discretionary, pursuing an

unsatisfactory inter-State dimension, consular assistance and protection are now linked to the
obligatory guarantees of due process of law, in the framework of the International Law of Human
Rights. The ultimate beneficiaries of this evolution are the individuals facing adversity,
particularly those deprived of their personal liberty abroad.

22. Advisory Opinion No.16 (of 1999) of the IACtHR, on the Right to Information on
Consular Assistance in the Framework of the Due Process of La,wwas extensively relied upon by the

contending Parties in the proceedings (written a nd oral phases) before the ICJ in the LaGrand and
Avena cases, although the ICJ preferred to guard sile nce on that judicial precedent, and in neither
occasion referred to it. In the Avena case (Judgment of 31.03.2004), the ICJ was faced with Mexico’s

contention⎯ well in conformity with the aforementioned Advisory Opinion No.16 of 1999 of the
IACtHR (supra)⎯ that if the right at issue, under Article 36 (1) (b)of the 1963 Vienna Convention, is
infringed, it “will ipso facto produce the effect of vitiating the entire process of the criminal
proceedings conducted in violation of th is fundamental right” (para. 124).

23. The ICJ stated that it did not need to decide that question, and that, inany case, in its view
“neither the text nor the object and purpose of the Convention, nor any indication in the travaux

préparatoires, support the conclusion that Mexico draws from its contention in that regard” (para. 124).
And the ICJ promptly concluded that Mexico’s submission could not therefore be upheld (para. 125).
The present case of A. S. Dialloprovided, in Judge Cançado Trindade ’s view, a unique opportunity for
the Court to clarify and sustain its position on this patular point. After all, the point was again raised

before it. - 8 -

24. This being so, contrary to what the Court said in the Avena case, Judge Cançado Trindade
upheld, in relation to the debates raised in the present A.S.Diallo case, that the view that

Article 36 (1) (b)links the individual right at issue⎯ in the framework of human rights protection⎯
to the guarantees of the due process of law, is supported by the text of Article 36 (1) (b)of the
1963Vienna Convention, by the object and purpose of that Convention, as well as by its travaux
préparatoires. As to the text , the last phrase of Article36(1)(b) leaves no doubt that it is the

individual, and not the State, who is the titulaire of the right to be informed on consular assistance;
however intertwined may this provision be with States Parties’ obligations , this is clearly an
individual right. If this individual right is breached, th e guarantees of the due process of law will

ineluctably be affected.

25. As to the object and purpose of the 1963 Vienna Convention, ⎯

Judge Cançado Trindade proceeds, ⎯ they lie in the commonality of interests of all the States
Parties to the 1963 Vienna Convention, in the sen se that compliance by the States Parties with all
the obligations set forth thereunder, ⎯ including the obligation of compliance with the individual

right at issue, ⎯ is to be secured. Accordingly, in so far as consular assistance is concerned, the
preservation of, and compliance with, the individual right to information on it (Article36(1)(b) )
becomes essential to the fulfilment of the object and purpose of the Vienna Convention on
Consular Relations.

26. Last but not least, on this particular ma tter, Judge Cançado Trindade surveys in his
Separate Opinion the travaux préparatoires of that provision of the 1963 Vienna Convention,

finding valuable indications to the same effect, particularly in the debates of the 1963
UN Conference on Consular Relations, held in Vienna. Already at that time (three years before the
adoption of the two UN Covenants on Human Rights (on Civil and Political Rights, as well as on
Economic, Social and Cultural Rights, respectively), in the debates of 1963 at the Vienna

Conference, no less than 19 interventions pointed in the same direction, namely, that there was
already awareness among participating Delegations as to the need to insert the right to information
on consular assistance into the conceptual universe of human rights.

27. In addition to those interventions, the UN High Commissioner for Refugees submitted a
memorandum to the 1963 Vienna Conf erence, wherein it singled out that draft Article36 of the
Draft Convention was one of its two provisions that had a direct bearing upon its own work, in so

far as the protection of the rights of nationals of the sending State in the State of residence were
concerned. There was indeed an awareness of the imperative of human rights protection, even
before the adoption of the Convention on the Elimination of All Forms of Racial Discrimination
(CERD) in 1965 and of the two UN Covenants on Human Rights in 1966 , at the early stage of the

legislative phase of UN human rights treaties.

28. Such awareness, captured more than three decades later by the IACtHR in its Advisory

Opinion No.16 (1999), ⎯ consolidated by its Advisory Opinion No.18 (2003), ⎯ contributed
decisively for the process of humanization of consular law, going well beyond the inter-State
dimension. Such advance of humanization of consular law is, in J udge Cançado Trindade’s
assessment, bound to be an irreversible one. Huma n conscience, the universal juridical conscience

(as the ultimate material source of International Law), was soon awakened so as to fulfil a pressing
need to this effect, that of protection of human beings in all circumstances, including in situations
of deprivation of personal liberty abroad. - 9 -

29. It leaves no room for steps backwards, or hesitations. A clear statement from this Court in

the same direction ⎯ namely, that the right to information on consular assistance belongs to the
conceptual universe of human rights, and non-compliance with it ineluctably affects judicial
guarantees vitiating the due process of law, ⎯ would be indeed reassuring. The Court could have

done so in the present A. S. Diallocase, ⎯ since the point was raised before it in the course of the oral
phase of the proceedings in the cas d’espèce, ⎯ but it preferred to give a rather summary treatment to
the consideration of Article 36 (1) (b)of the 1963 Vienna Convention in the present Judgment.

30. In the following part (IX) of his Separate Opinion, Judge Cançado Trindade examines the
notion of “continuing situation”, in the light of th e projection of human rights violations in time,
and of the decisions of the African Commission on Human and Peoples’ Rights and the

pronouncements of the UN Human Rights Committe e on the matter, as well as the case-law of the
Inter-American and the European Courts of Human Rights in this respect. In the view of
JudgeCançado Trindade, the griefs suffered by Mr. A. S. Diallo in the present case disclose a
factual nexus between the arrests and detentions of 19 88-1989 and those of 1995-1996, prior to his

expulsion from the country of residence in 1996. Those griefs, extended in time , were in breach of
the applicable law in the presen t case (Articles9 and 13 of the Covenant on Civil and Political
Rights, Articles6 and 12(4) of the African Charter on Human and Peoples’ Rights,
Article 36 (1) (b) of the Vienna Convention on Consular Relations), as interpreted in pursuance of

the hermeneutics of human rights treaties (supra).

31. At the time of his arrests and detention, Mr. A. S. Diallo was not informed of the charges

against him, nor could he have availed himself without delay of his right to information on consular
assistance. His griefs were surrounded by arbitrar iness on the part of State authorities. Moreover,
there was a chain of causation, a causal nexus , in that continuity of occurrences, to be borne in
mind (with a direct incidence on the reparation due to Mr. A. S. Diallo), which the Court’s majority

regrettably failed to consider. Th e projection of human rights in time also raises the issue of the
prolonged lack of access to justice.

32. This causal nexus could at least have been consider ed as evidence put before the Court,
but was simply discarded by the Court’s majority . The Court could at least have taken into
account ⎯ in his view it should have ⎯ the circumstances of the arrests and detention in
1988-1989 in its consideration of the arrests and detention of 1995-1996, prior to Mr. A. S. Diallo’s

expulsion from the D.R. Congo in 1996. Keeping the aforementioned factual nexus and causal
nexus in mind, ⎯ Judge Cançado Trindade concludes on this point, - it could hardly be denied that
there was a continuing situation of breaches of Mr.A.S.Diallo’s individual rights, in the period

extending from 1988 to 1996.

33. The next line of his reflections (part X) peratins to the individual concerned as victim and as

titulaireof the right to reparation. As resolutory poitns 7 and 8 (duty to make appropriate reparation)
of the dispositif of the Court’s Judgment in the present A.S.Diallo case, were adopted with his
concurring vote, Judge Cançado Trindade feels obliged, in addition, to express his concern that the
provision of adequate reparation is still to wait further, till the Court eventually decides later on this

aspect (pursuant to resolutory point 7), in case the contending Parties fail to reach an agreement on
this issue within the forthcoming six months. To hi s mind, this resembles an arbitral, rather than a
truly judicial procedure, and looks somewhat disquieting to him. - 10 -

34. This is particular so, if one bears in mind the prolonged length of time that the handling

of this case by the Court has taken (almost 12 years, from the end of December 1998 to this end of
November 2010), for reasons not attributable to the C ourt itself. In any case, such delays are to be
avoided, particularly when reparation for human rights breaches is at stake . The further extension
of the determination of repara tion, for another period of up to six months, does not appear

reasonable, as the subject (titulaire) of the rights breached in the present case is not the applicant
State, but the individual concerned, Mr.A.S.Di allo, who is also the ultimate beneficiary of the
reparations due.

35. It is thus all too proper to keep in mind the individual ’s right to reparation in the light of
the applicable law in the cas d’espèce , the International Law of Human Rights. This issue
takes one beyond the domain of international procedural law, into that of juridical

epistemology, encompassing one’s own conception of international law in our times. In
JudgeCançadoTrindade’s conception, in the present case A.S.Diallo , the applicant State is the
claimant, but the victim is the individual. The applicant State claims for reparation, but the titulaire
of the right to reparation is the individual, who se rights have been breached. The applicant State

suffered no damage at all, it rather incurred into costs and expenses, in espousing the cause of its
national abroad. The damage was suffered by the individual himself (subjected to arbitrary arrests
and detention, and expulsion from the State of residence), not by his State of nationality.

36. The individual concerned is at the beginning and at the end of the present case, and his
saga has not yet ended, as a result also of the unr easonable prolongation of the proceedings before
this Court. It is about time for this Court ⎯ he adds ⎯ to overcome an undue reliance on the old

Vattelian fiction, revived by the PCIJ in the Mavrommatis fiction (not a principle, simply a largely
surpassed fiction). The ICJ can no longer keep on re asoning within the hermetic parameters of the
exclusively inter-State dimension. The recogn ition of the damage suffered by the individual
(para. 98 of the Judgment) has rendered unsustainable the old theory of the State’s assertion of its

“own rights” (droits propres), with its underlying voluntarist approach.

37. The titulaire of the right to reparation is the individual, who suffered the damage, and

State action in diplomatic protection is to secure the reparation due to the individual concerned.
Such action in diplomatic protection aims at reparation for a damage, usually already
consummated, to the detriment of the individual; consular assistance and protection, much closer
nowadays to human rights protection, are exercised in a rather preventive way, so as to avoid a

probable or a new damage to the individual concer ned. This affinity of contemporary consular
assistance and protection with human rights protection is largely due to the historical rescue of the
individual, of the human person, as subject of international law.

38. Had the Court pursued the hermeneutics of the human rights treaties, invoked by the
contending States throughout the whole of its proceedings, in the whole Judgment, this latter, in
Judge Cançado Trindade’s assessment, would have been entirely a much more consistent and

satisfactory one. As for the determination of an appropriate reparation for the breaches of the
rights under the Covenant suffered by the vi ctim, it may ultimately amount to a proper
compensation (in the unlikelihood of restitutio in integrum ), ⎯ among other forms of reparation

(such as satisfaction, public apology, rehabilita tion of the victim, guarantees of non-repetition of
the harmful acts, among others), ⎯ for the violations of the rights thereunder, that is, for material
and moral damages, fixed to some extent on the basis of considerations of equity. - 11 -

39. In cases of the kind, such reparations ar e to be granted from the perspective of the
victims, human beings (their original claims, needs a nd aspirations), and not States. This discloses

a wider horizon in the matter of re parations, when human rights are at stake. Article2 of the
UNCovenant on Civil and Political Rights sets forth a general obligation on the States Parties,
which is added to the specific obligations in rela tion to each of the rights guaranteed thereunder.
The aforementioned general formula allows for flexibility, in the determination of the measures of

compensation or other forms of reparation to th e victim(s) concerned. The ultimate aim is,
naturally, whenever possible, the restitutio in integrum, but, when that is not possible, recourse is to
be made to the provision of other adequate forms of reparation.

40. In any case, and whatever the circumstan ces might be, it is to be borne in mind, ⎯
Judge Cançado Trindade further ponders, ⎯ that the duty to make reparation reflects a

fundamental principle of general international la w, promptly captured by the Permanent Court of
International Justice (PCIJ), early in its case-law, and endorsed by the case-law of the ICJ. That
obligation to make reparation is governed by internaotinal law in all its aspects(such as, e.g., its scope,
forms and characteristics, and the determination of the beneficiaries). Accordingly, compliance with it

cannot be made subject to modification or suspensioni,n any circumstances, by any respondent States,
through the invocation of provisions (or difficlties) of their owndomestic law.

41. In the following part (XI) of his Separa te Opinion, Judge Cançado Trindade contends

that the present A. S. Diallo case shows that diplomatic protectio n was initially resorted to herein,
keeping in mind property rights or investments, but the case, at the stage of its merits, underwent a
metamorphosis, and it reassuringly turned out to be a case, ultimately, of human rights protection,

of the rights inherent to the human person, concerning his or her liberty and legal security. The
handling of each case in the course of internationa l adjudication has a dynamics of its own. Yet,
the outcome of the cas d’espèce is reassuring, in so far as the rights protected are concerned, and it
contains a couple of lessons that cannot here pass unnoticed.

42. To start with, attempts to revitalize traditi onal diplomatic protection, with its ineluctable
discretionary nature, should not be undertaken underestimating human rights protection. In

Judge Cançado Trindade’s understanding, the greatest legacy of the international legal thinking of
the XXth century, to that of this new century, li es in the historical rescue of the human person as
subject of rights emanating directly from the law of nations (the droit des gens ), as a true subject
(not only “actor”) of contemporary international la w. The emergence of the International Law of

Human Rights has considerably enriched contempor ary international law, at both substantive and
procedural levels.

43. In order to provide adequate reparation to the victims of violated rights, one has to move

into the domain of the International Law of Human Rights, one cannot at all remain in the strict and
short-sighted confines of diplomatic protection, as a result of not only its ineluctable discretionary
nature, but also its static inter-State dimension. Reparations, here, require an understanding of the

conception of the law of nations centred on the human person (pro persona humana) . Human
beings, ⎯ and not the States, ⎯ are indeed the ultimate beneficiaries of reparations for human
rights breaches to their detriment.

44. Judge Cançado Trindade ponders that the Vattelian fiction of 1758 (expressed in the
formula ⎯ “Quiconque maltraite un citoyen offense i ndirectement l´État, qui doit protéger ce
citoyen”) has already played its role in the histor y and evolution of inte rnational law. The

challenge faced today by the World Court is of a different nature, going well beyond such
inter-State dimension. It requires from the Court preparedness to explore the ways of - 12 -

incorporating, in its modus operandi ⎯ starting with its own reasoning, ⎯ the acknowledgement of
the consolidation of the interna tional legal personality of individu als, and the gradual assertion of

their international legal capacity, ⎯ to vindicate rights which are theirs and not their own
State’s, ⎯ as subjects of rights and bearers of duties em anating directly from international law, in
sum, as true subjects of international law.

45. In this perspective, and as a starting-point in this direction, ⎯ Judge Cançado Trindade
adds in his concluding observations (part XII), ⎯ in its present Judgment in the A.S.Diallo case

the Court was right in concentrating its attention, in particular, in the breaches found of Articles 9
and 13 of the UN Covenant on Civil and Political Rights, and of Articles6 and 12(4) of the
African Charter of Human and Peoples’ Rights, as well as of Article36(1)(b) of the Vienna

Convention on Consular Relations. They concern the rights of Mr. A. S. Diallo as an individual, as
a human person. The breaches of his individual rights as associé of the two companies come to the
fore by way of consequence, having been likewise affected.

46. The subject of the rights breached in the present case is Mr. A. S. Diallo, an individual.
The procedure for the vindication of the claim or iginally utilized (by the applicant State) was
originally that of diplomatic protection, but the substantive law applicable in the present case is the
International Law of Human Rights. This latter applies in the framework of intra-State relations

(such as, in the present case, the relations between the D.R. Congo and Mr.A.S.Diallo). In
properly interpreting and applying human rights treaties, the Court is thereby giving its contribution
to the development of the aptitude of international law to regulate relations at intra-State, as well as

inter-State, levels.

47. Judge Cançado Trindade argues that the f act that the contentious procedure before the

ICJ keeps on being exclusively an inter-State one, ⎯ not by an intrinsic necessity, nor by a
juridical impossibility of being of another form, ⎯ does not mean that the reasoning of the Court
ought to develop within an essentially and exclusively inter-State optics, above all when it is called
to pronounce, in the peaceful settlement of th e corresponding disputes, on questions which go

beyond the interests of the contending States, and which pertain to the fundamental rights of the
human person, and even to the international community as a whole.

48. The relations governed by contemporary international law, in distinct domains of
regulation, transcend to a large extent the purely inter-State dimension (e.g ., in the international
protection of human rights, in the international protection of the environment, in international
humanitarian law, in international refugee law, in the law of international institutions, among

others), and the ICJ, called upon to pronounce upon those relations, is not bound to restrain itself to
an anachronistic inter-State optics. The anachr onism of its mechanism of operation ought not to,
and cannot, condition its reasoning , so as to enable it to exert fait hfully and fully its functions of
principal judicial organ of the United Nations in our times.

49. The present Judgment, in so far as resolu tory points2, 3, 4 and 7 of its dispositif are
concerned, with which Judge Ca nçado Trindade concurs, constitutes in his view a valuable

contribution of the Court’s case-law to the settleme nt of disputes originated at intra-State level,
when human rights are at stake. The fact that a human rights case has at last been decided by the
ICJ itself is particularly significant to him. It further shows that contemporary international law has
notably developed to such an extent that States themselves see it fit to make use of a contentious

procedure of the kind, originally devised in 1920 and confirmed in 1945 for their own and - 13 -

exclusive utilization, in order to obtain from th e Court its decision on human rights, on rights

inherent to the human person, ontologically anterior a nd superior to the State itself. This is in line
with the evolving international law fo r the human person (pro persona humana) , the new
jus gentium of this beginning of the XXIst century.

50. Having endeavoured to identify the lessons extracted from the present A. S. Diallo case,
Judge Cançado Trindade concludes his Separate Opinion with a brief epilogue (part XIII) on its
historical transcendence. The case just resolved by the ICJ had as claimant a State, and as

victim ⎯ and beneficiary of reparation ⎯ an individual. He reiterates that this is the first time in
its history that the World Court has resolved a case on the basis of the applicable law conformed by
two human rights treaties together, one at universal level (the UN Covenant on Civil and Political
Rights) and the other at regional level (the A frican Charter on Human and Peoples’ Rights), in

addition to the relevant provision (Article36(1)(b) ) of the Vienna Convention on Consular
Relations, situated also in the domain of the international protection of human rights.

51. It is reassuring that, due originally to the exercise of diplomatic protection, the cause of
Mr.A.S.Diallo reached this Court. This was as far as diplomatic protection, a traditional
instrument, went, and could go. One cannot expect more from it than what it can provide. It is,
after all, as traditional as the rationale of the procedure before the ICJ. Individuals keep suffering a

capitis diminutio, as they still need to rely on that traditi onal instrument to reach this Court, whilst
they already have locus standi in judicio , or even jus standi , before other contemporary
international tribunals. This shows that there is epistemologically no impediment for individuals to
have either locus standi or jus standi before the World Court as well; what is lacking is the animus

to render that possible.

52. Notwithstanding, there is something both reassuring and novel in the present case

A. S. Diallo now resolved by this Court: as from the proceedings on the merits (written and oral
phases), the case of A.S.Diallo has been to a large extent h eard, and adjudicated upon, in the
conceptual framework of the International Law of Human Rights. It is this latter, and not
diplomatic protection, that is apt to safeguard the rights of persons under adversity, or socially

marginalized or excluded, or in situations of the utmost vulnerability. This reflects a great
challenge to international justice today, a challenge that can effectively be faced only in the realm
of the International Law of Human Rights, beyond the purely inter-State dimension.

53. Moreover, this is the first time in its history that the World Court has expressly taken into
account the contribution of the case-law of two in ternational human rights tribunals, the European
and the Inter-American Courts (para.68), to th e perennial struggle of human beings against

arbitrariness (para. 65), encompassing the prohibition of arbitrary expulsion. This discloses a new
mentality in relation to another relevant issue. The co-existence of multiple international tribunals,
fostering access to international justice on th e part of a growing number of justiciables around the
world in distinct domains of human activity, bear s evidence of the way contemporary international

law has developed in the old search for the reali zation of international justice. Contemporary
international tribunals have much to learn from each other.

54. Article92 of the UN Charter states that this Court, the ICJ, is “the principal judicial
organ of the United Nations”. In addition, Article95 of the UN Charter leaves the door open to
member States to entrust the solution of their di fferences to “other tribunals by virtue of
agreements already in existence or which may be concluded in the future”. Ours has become the - 14 -

age of international tribunals, and this is a highly positive phenomenon, as what ultimately matters
is the enlarged or expanded access to justice, lato sensu, comprising the realization of justice.

55. This is another lesson that can be extr acted from the adjudication of the present case
A. S. Diallo, and it is indeed reassuring that the ICJ has disclosed a new vision of this particular

issue, in so far as international human rights tribunals are concerned. This is particularly important
at a time when States rely, in their submissions to this Court, on relevant provisions of human
rights conventions, as both Guinea and the D.R. Congo have done in the present case.
JudgeCançado Trindade deems it reassuring that States begin to rely on human rights treaties

before the ICJ, heralding a move towards an era of possible adjudication of human rights cases by
the ICJ itself. The international juridical conscience has at last awakened to the fulfilment of this
need.

56. The ICJ, in the exercise of its contentious as well as advisory functions in recent years,
has referred either to relevant provisions of a human rights treaty such as the Covenant on Civil and
Political Rights, or to the work of its supervisor y organ, the Human Rights Committee. The Court,

in its Judgment in the present case of A.S.Diallo , 30November2010, has gone much further,
beyond the United Nations system, in acknowledging the contribution of the jurisprudential
construction of two other interna tional tribunals, the Inter-American and the European Courts of
Human Rights. It has also dwelt upon the contribution of an international human rights supervisory

organ, the African Commission on Human and Peoples’ Rights. The three regional human rights
systems operate within the framework of the universality of human rights.

57. Judge Cançado Trindade concludes that contemporary international tribunals should
pursue their common mission ⎯ the realization of international justice ⎯ in a spirit of respectful
dialogue, learning from each other. By cultivating this dialogue, attentive to each other’s work in
pursuance of a common mission, contemporary international tribunals will provide avenues not

only for States, but also for human beings, everywhere, and in respect of distinct domains of
international law, to recover their faith in hum an justice. They will thus be enlarging and
strengthening the aptitude of contemporary international law to resolve disputes occurred not only
at inter-State level, but also at intra -State level. And they will thus be striving towards securing to

States, as well as to human beings, what they are after: the realization of justice.

Dissenting opinion of Judge ad hoc Mahiou

While subscribing to many of the conclusions reached by the Court in the present case, I
nevertheless remain unconvinced by both the c onclusions adopted and the reasoning relied on to
justify them in respect of the two most important points, those concerning, first, the admissibility of

the claim relating to Mr.Diallo’s arrest and de tention in 1988-1989 and, second, the violation of
Mr.Diallo’s rights as associé in Africom-Zaire and Africontainers-Zaire. My reasons for being
unable to join the Court on these points therefore call for a summary explanation.

As for the claim regarding the arrests and detentions in 1988-1989, there is no difference
between them and those in 1995-1996 in respect of either the legal form they took or their purpose
(to prevent Mr.Diallo from recovering debts ow ed by certain Congolese public or private
organizations). It is true that the claim was raised late, but under the Court’s jurisprudence, as we

know, all new claims are not ipso facto inadmissible, since “the mere fact that a claim is new is not
in itself decisive for the issue of admissibility”; a new claim is admissible thereunder if it satisfies
either of the following two conditions: it is implicit in the Application or it arises directly out of
the question which is the subject-matter of the Application. In my view, the claim in respect of the

arrests and detentions in 1988-1989 meets one or the other condition and even both; these were in - 15 -

fact merely the first in a series of actions taken by the Congolese authorities in a continuum of
unlawful acts which should have been declared admissible by the Court.

As for Mr.Diallo’s direct rights, the Court considers that, while the arbitrary expulsion he
suffered did give rise to certain impediments, th ese neither hindered nor prevented the exercise of
those rights. This analysis and the conclusions to which it has led can be criticized for having

failed to take account of the specific context of th is case, in which changes in the factual situation
over time resulted in a single individual coming to be the sole shareholder in the two companies,
which he managed and operated to such a point as to become one with them. Thus, any constraint
imposed on the various rights of the associé , such as the rights to take part in general meetings, to

be gérant of the companies, to oversee and monitor the operation and management of the
companies, and to liquidate them and realize the residual assets, results in preventing the exercise
of these rights and ultimately in infringing them.

Accordingly, while the Court rightly recognizes that Mr.Diallo’s human rights have been
violated and provides for reparation in this connection, it should also have found at least some, if
not all, of the violations of Mr. Diallo’s direct rights and have provided for compensation for them.

Separate opinion of Judge ad hoc Mampuya

Before setting out my views on the substantive positions taken in the Judgment, I express my

more general reservations in respect of certain ques tions raised by the Judgment. First of all, in
respect of an issue of international adjective la w, I note that, while the Court appeared to have
turned its back on its traditional jurisprudence on the subject by agreeing to adjudicate the case
even though no dispute had arisen beforehand betw een Guinea and the Democratic Republic of the

Congo, the two States concerned, over the matte rs referred to the Court, the situation has
fortunately been rectified in the practice between pa rties. As evidence, I cite Russia’s preliminary
objection in the pending case between it and Georgi a concerning Application of the International
Convention on the Elimination of All Forms of Racial Discrimination , wherein Russia is

challenging the admissibility of Georgia’s Application and arguing that “the Court can exercise its
jurisdiction in contentious proceedings only when a dispute genuinely exists between the
parties . . .” and that there was no inter-State dispute over the facts concerning the interpretation or
application of the Convention on the Elimination of All Forms of Racial Discrimination, to which

the two States are parties. I then set out my reser vations in respect of certain language used by the
Court in evaluating the conduct of the Congolese authorities, and of certain judgments made by the
Court on that subject, language which appears hi ghly prejudicial to the honour of the Congolese
State. Without showing this to be the case, the majority insinuates, as in the Judgment on the

preliminary objections, that the Congo deliberatel y issued a notice of “refoulement” rather than
expulsion for the purpose of making it impossible to appeal against its decision, or that it must be
shown that there was “a link between Mr. Diallo’s expulsion and the fact that he had attempted to
recover debts... bringing cases for this purpose be fore the civil courts” (para.82). While one

might expect to hear such serious accusations from the Applicant, the World Court cannot rely on
an unfounded presumption to take them to be true.

On the substance, I explain my reasons for ha ving voted with the majority of the Court on

the violations by the Congo of Article9, paragra phs1 and 2, and Article13, paragraph4, of the
International Covenant on Civil and Political Rights and of Articles 6 and 12 of the African Charter
on Human and Peoples’ Rights in connection with Mr.Diallo’s arrest, detention and expulsion,

especially given that these measures were taken in violation of Congolese law itself. However, my
interpretation of the meaning of these Articles di ffers from that of the Court where the Judgment
imposes an additional requirement, one not laid down, on top of that of the formal propriety of the
expulsion: it adds that the expulsion must be not only in accordance with the law but also “not

arbitrary” in nature. This is not to say that such a measure may be arbitrary, but only that the
provisions applicable here do not impose such a re quirement. Article13 merely requires that the - 16 -

decision to expel have been taken “in accordance w ith the law” and that the individual concerned
have been allowed “to submit the reasons against his expulsion” to “the competent authority or a

person or persons especially designated by the co mpetent authority”. The same is true of
Article12, paragraph4, of the African Charter, wh ich states that an alien “legally admitted in a
territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision
taken in accordance with the law”. The Court’s interpretation treats these provisions like Article 9

of the Covenant, which links this requirement not to the expulsion but to the arrest and detention.
There is no justification for such treatment, notw ithstanding the “jurisprudence” cited by the Court
on the basis of United Nations Human Rights Committee practice, it too concerned in its entirety
with arrest and detention, not expulsion. Further, I find on the basis of Article1, paragraph2, of

Protocol No.7 to the European Convention for the Protection of Human Rights that territorial
authorities are recognized to enjoy a certain la titude in exercising a prerogative of such a
discretionary nature as that of a State in deciding to allow or bar entry, in accordance with its law,
by aliens into its territory; and implicit limita tions cannot be placed on the exercise of this

prerogative, even by implying that it is “arbitrary”.

On the other hand, I do not join in finding the Democratic Republic of the Congo responsible
for the alleged violation of Article 36, paragraph 1 (b), of the Vienna Convention on Consular

Relations, which lays down an obligation to inform an arrested or detained alien of his right to
contact with the consular authorities of his national State. My view is that the Court has omitted to
take into consideration its own prior conclusions (in the LaGrand and Avena cases): that

Article 36, paragraph 1 (b) contains three “interrelated” elements; and that “[t]he legal conclusions
to be drawn from that interrelationship necessarily depend upon the facts of each case”; or that this
provision “contains three separate but interrelated el ements”; and that “[i]t is necessary to revisit
the interrelationship of the three subparagraphs of Article36, para graph1, in the light of the

particular facts and circumstances of the present case ”. Had it done this, it would have applied a
teleological interpretation and would have found that, unlike in the two above-mentioned cases, the
facts and circumstances of the present case show that the Democratic Republic of the Congo’s
alleged omission to inform Mr. Diallo of his rights did not prevent Guinea from exercising the right

conferred upon it by Article 36, paragraph 1. When the question is seen from this angle, being that
of the purpose underlying the obligation, i.e., to enable the national State to perform its consular
function, one cannot ignore the facts that the Guin ean authorities were indisputably aware of the
situation and, more importantly, that, as they them selves admit, they were able to perform their

consular function. Thus, the failure to inform could not have rendered Guinea unable to exercise
its rights to afford consular protection to its national. In the light of all this, I could not subscribe to
the majority’s finding that the Democratic Republic of the Congo violated this provision of the
Vienna Convention on Consular Relations. In a ny case, in all logic I voted in favour of the

operative subparagraph of the Judgment concerning the reparation owed to Guinea by the Congo,
while regretting that the Court has not provided help ful clarification of the judicially formulated
principle that the injury ⎯ one exclusively non-pecuniary and non-material ⎯ found in respect of

the claimed violation by the Respondent of the obligation under Article36(1)(b) of the Vienna
Convention on Consular Relations ⎯ a violation which gave rise to no material injury ⎯ calls only
for “declaratory”, non-material, and non-pecuniary relief.

Finally, while agreeing with the Court’s findi ng that the Democratic Republic of the Congo
has not violated Mr.Diallo’s direct rights as associé , I have considered it necessary to set out my
reasoning, which differs from the majority’s. The majority has confined itself to asserting that the
Guinean national’s expulsion did not breach his rights as associé “as such”, yet it seems to me that

it would have been helpful and legally correct to state that, beyond the interpretation of the facts,
which may be open to criticism or challenge, there ar e legal principles justifying that conclusion.
An associé’s direct rights come into being, take effect and are exercised in regard to the operation
of the company and in the relations between the company and its associés. As a result, they may be

asserted, and are therefore operable, only against th e company and it alone. Accordingly, a third - 17 -

party’s acts can violate these rights “as such” only if those acts amount to interference by the third
party in the operation of the company or in its relations with its associés; thus, these acts, aimed as

they, like the arrest, detention and expulsion, were exclusively at Mr.Diallo in his individual
capacity, could not have infringed his rights as associé “as such”.

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