Question put by Judge Cançado Trindade at the end of the hearing of 26 April 2010: reply of the Democratic Republic of the Congo (translation)

Replies of the Democratic Republic of the Congo to the questions put
by Judge Cançado Trindade at the end of the hearing held

on 26 April 2010 at 10 a.m.

[Translation]

By Professor Tshibangu Kalala
Co-Agent of the Democratic Republic of the Congo

First question

“In your opinion, do the prov isions of Article36, paragraph1 (b), of the 1963Vienna
Convention on Consular Relations apply solely to relations between the sending State or State of
nationality and the receiving State?”

Reply

then LaGrand case, the Court found that Article36, paragraph 1 (b) and (c) , of the
1963Vienna Convention creates “individual rights” ( Germany v. United States of America ,
Judgment of 27 June 2001, para. 77).

The DRC does not intend to call into question that well-established jurisprudence. The DRC
will restrict itself to pointing out that, while the right to information is an “individual” right, it is
nevertheless inextricably linked to the sending State’s right to communicate with its nationals
through consular officers. Indeed, Article36, paragraph1, states that the purpose of that right to

information is to facilitate the exercise of consul ar functions relating to nationals of the sending
State.

That purpose confirms that it is indeed a matt er of individual rights, but that these remain

closely linked to the rights of the State itself.

In other words, the DRC believes that the sending State’s right to information and that of the
arrested or detained alien are interdependent rights. This interdependence between the rights of the

State and those of the individual was also confirmed by the Court in the case concerning Avena and
Other Mexican Nationals, in which the Court found that “viola tions of the rights of the individual
under Article 36 may entail a violation of the rights of the sending State, and that violations of the
rights of the latter may entail a violation of the rights of the individual” (Mexico v. United States of

America), Judgment of 31 March 2004, para. 40).

In the DRC’s view, it thus follows that these ri ghts do not apply solely to relations between
the sending State or State of nationality and the receiving State, nor do they apply solely to

relations between the individual and the receiving State.

In the present case, no matter what the answer to the second question, which divides the
Parties, it has been established that Guinea was aw are of Mr.Diallo’s situation and that it made

diplomatic approaches to the Congolese authorities on behalf of its national well before his
expulsion. That is sufficient to establish that the purpose of the right to information was achieved.
Consequently, the DRC cannot be found to have viol ated the right to information of either Guinea
or Mr. Diallo.

Moreover, it follows from the interdependen ce between the right to information of the
sending State or State of nationality and the right to information of the arrested or detained alien
that, if that right has not been violated in respect of the State— here, Guinea— it cannot have - 2 -

been so in respect of its national, Mr.Diallo , who did not object— quite the opposite— to his
State being informed of his situation.

This conclusion is even more compelling if one takes account of the fact that neither
Mr. Diallo nor Guinea has suffered the slightest inju ry because of the alleged violation of the right
to information enshrined in Article 36, paragraph 1 (b), of the 1963 Convention.

Second question

“Was Mr.Diallo himself informed about consular assistance immediately after his

detention?”

Reply

The DRC verbally informed Mr. Diallo immediately after his detention of the possibility of
seeking consular assistance from his State. Furthe rmore, it is clear from the record that such
assistance was indeed obtained.

Third question

“Who is the holder of the right to informati on regarding consular assi stance: the sending

State or State of nationality, or the individual?”

Reply

For the same reasons as those given in the an swer to the first question, both the individual
and the sending State or State of nationality hold the right to information, these rights being
interdependent.

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