Jump to Content Jump to Main Navigation
Case Concerning Ahmadou Sadio Diallo, Guinea v Congo, the Democratic Republic of the, Judgment, ICGJ 428 (ICJ 2010), 30th November 2010, United Nations [UN]; International Court of Justice [ICJ]

Case Concerning Ahmadou Sadio Diallo, Guinea v Congo, the Democratic Republic of the, Judgment, ICGJ 428 (ICJ 2010), 30th November 2010, United Nations [UN]; International Court of Justice [ICJ]

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 November 2019

Parties:
Guinea
Congo, the Democratic Republic of the
Judges/Arbitrators:
Hisashi Owada (President); Peter Tomka (Vice-President); Awn Shawkat Al-Khasawneh; Bruno Simma; Ronny Abraham; Kenneth Keith; Bernardo Sepúlveda-Amor; Mohamed Bennouna; Leonid Skotnikov; Antônio A Cançado Trindade; Abdulqawi Ahmed Yusuf; Christopher Greenwood; Ahmed Mahiou (Judge ad hoc); Auguste Mampuya Kanunk'a Tshiabo (Judge ad hoc)
Procedural Stage:
Judgment
Subject(s):
Diplomacy and consular relations — Detention — Right to property — Expulsion — Corporations — Property — Compensation — Due process — Admissibility — Reparation
Core Issue(s):
Whether Mr Diallo’s detention and expulsion from Congolese territory in 1996 violated his rights under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Vienna Convention on Consular Relations.
Whether Mr Diallo’s detention and expulsion from Congolese territory in 1996 violated his direct rights as a shareholder and managing partner of two companies based in the Democratic Republic of the Congo.
Whether any reparation was due to Guinea for the violation of Mr Diallo’s rights.
Date of Report: 11 July 2011

Decision - full text

Paragraph numbers have been added to this decision by OUP

. On 28 December 1998, the Government of the Republic of Guinea (hereinafter “Guinea”) filed in the Registry of the Court an Application instituting proceedings against the Democratic Republic of the Congo (hereinafter the “DRC”, named Zaire between 1971 and 1997) in respect of a dispute concerning “serious violations of international law” alleged to have been committed “upon the person of a Guinean national”. The Application consisted of two parts, each signed by Guinea’s Minister for Foreign Affairs. The first part, entitled “Application” (hereinafter the “Application (Part One)”), contained a succinct statement of the subject of the dispute, the basis of the Court’s jurisdiction and the legal grounds relied on. The second part, entitled “Memorial of the Republic of Guinea” (hereinafter the “Application (Part Two)”), set out the facts underlying the dispute, expanded on the legal grounds put forward by Guinea and stated Guinea’s claims.

In the Application (Part One), Guinea maintained that:

“Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality, was unjustly imprisoned by the authorities of the Democratic Republic of the Congo, after being resident in that State for thirty-two (32) years, despoiled of his sizable investments, businesses, movable and immovable property and bank accounts, and then expelled.”

Guinea added: “[t]his expulsion came at a time when Mr. Ahmadou Sadio Diallo was pursuing recovery of substantial debts owed to his businesses by the State and by oil companies established in its territory and of which the State is a shareholder”. Mr. Diallo’s arrest, detention and expulsion constituted, inter alia, according to Guinea, violations of

“the principle that aliens should be treated in accordance with ‘a minimum standard of civilization’, [of] the obligation to respect the freedom and property of aliens, [and of] the right of aliens accused of an offence to a fair trial on adversarial principles by an impartial court”.

To found the jurisdiction of the Court, Guinea invoked in the Application (Part One) the declarations whereby the two States have recognized the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court.

. Pursuant to Article 40, paragraph 2, of the Statute, the Application was immediately communicated to the Government of the DRC by the Registrar; and, in accordance with paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.

. By an Order of 25 November 1999, the Court fixed 11 September 2000 as the time-limit for the filing of a Memorial by Guinea and 11 September 2001 as the time-limit for the filing of a Counter-Memorial by the DRC. By an Order of 8 September 2000, the President of the Court, at Guinea’s request, extended the time-limit for the filing of the Memorial to 23 March 2001; in the same Order, the time-limit for the filing of the Counter-Memorial was extended to 4 October 2002. Guinea duly filed its Memorial within the time-limit as thus extended.

. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each of them availed itself of its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Guinea chose Mr. Mohammed Bedjaoui and the DRC Mr. Auguste Mampuya Kanunk’a-Tshiabo. Following Mr. Bedjaoui’s resignation on 10 September 2002, Guinea chose Mr. Ahmed Mahiou.

. On 3 October 2002, within the time-limit set in Article 79, paragraph 1, of the Rules of Court as adopted on 14 April 1978, the DRC raised preliminary objections in respect of the admissibility of Guinea’s Application. In accordance with Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were then suspended. By an Order of 7 November 2002, the Court, taking account of the particular circumstances of the case and the agreement of the Parties, fixed 7 July 2003 as the time-limit for the presentation by Guinea of a written statement of its observations and submissions on the preliminary objections raised by the DRC. Guinea filed such a statement within the time-limit fixed, and the case thus became ready for hearing on the preliminary objections.

. The Court held hearings on the preliminary objections raised by the DRC from 27 November to 1 December 2006. In its Judgment of 24 May 2007, the Court declared the Application of the Republic of Guinea to be admissible “in so far as it concerns protection of Mr. Diallo’s rights as an individual” and “in so far as it concerns protection of [his] direct rights as associé in Africom-Zaire and Africontainers-Zaire”. On the other hand, the Court declared the Application of the Republic of Guinea to be inadmissible “in so far as it concerns protection of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire and Africontainers-Zaire”.

. By an Order of 27 June 2007, the Court fixed 27 March 2008 as the time-limit for the filing of the Counter-Memorial of the DRC. That pleading was duly filed within the time-limit thus prescribed.

. By an Order of 5 May 2008, the Court authorized the submission of a Reply by Guinea and a Rejoinder by the DRC, and fixed 19 November 2008 and 5 June 2009 as the respective time-limits for the filing of those pleadings. The Reply of Guinea and the Rejoinder of the DRC were duly filed within the time-limits thus prescribed.

. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided that, after ascertaining the views of the Parties, copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.

10 . Owing to the difficulties in the air transport sector following the volcanic eruption in Iceland during April 2010, the public hearings which, according to the schedule originally adopted, were due to be held from 19 to 23 April 2010 took place on 19, 26, 28 and 29 April 2010. At those hearings, the Court heard the oral arguments and replies of:

For Guinea: Mr. Mohamed Camara,

Mr. Luke Vidal,

Mr. Jean-Marc Thouvenin,

Mr. Mathias Forteau,

Mr. Sam Wordsworth,

Mr. Daniel Müller,

Mr. Alain Pellet.

For the DRC: Mr. Tshibangu Kalala.

11 . At the hearings, Members of the Court put questions to the Parties, to which replies were given orally and in writing, in accordance with Article 61, paragraph 4, of the Rules of Court.

12 . In the Application (Part Two), the following requests were made by Guinea:

As to the merits: To order the authorities of the Democratic Republic of the Congo to make an official public apology to the State of Guinea for the numerous wrongs done to it in the person of its national Ahmadou Sadio Diallo;

To find that the sums claimed are certain, liquidated and legally due;

To find that the Congolese State must assume responsibility for the payment of these debts, in accordance with the principles of State responsibility and civil liability;

To order the Congolese State to pay to the State of Guinea on behalf of its national Ahmadou Sadio Diallo the sums of US$31,334,685,888.45 and Z14,207,082,872.7 in respect of the financial loss suffered by him;

To pay also to the State of Guinea damages equal to 15 per cent of the principal award, that is to say US$4,700,202,883.26 and Z2,131,062,430.9;

To award to the applicant State bank and moratory interest at respective annual rates of 15 per cent and 26 per cent from the end of the year 1995 until the date of payment in full;

To order the said State to return to the Applicant all the unvalued assets set out in the list of miscellaneous claims;

To order the Democratic Republic of the Congo to submit within one month an acceptable schedule for the repayment of the above sums;

In the event that the said schedule is not produced by the date indicated or is not respected, to authorize the State of Guinea to seize the assets of the Congolese State wherever they may be found, up to an amount equal to the principal sum due and such further amounts as the Court shall have ordered.

To order that the costs of the present proceedings be borne by the Congolese State.” (Emphasis in the original.)

13 . In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Guinea,

in the Memorial:

“The Republic of Guinea has the honour to request that it may please the International Court of Justice to adjudge and declare:

  1. (1)  that, in arbitrarily arresting and expelling its national, Mr. Ahmadou Sadio Diallo; in not at that time respecting his right to the benefit of the provisions of the [1963] Vienna Convention on Consular Relations; in subjecting him to humiliating and degrading treatment; in depriving him of the exercise of his rights of ownership and management in respect of the companies founded by him in the DRC; in preventing him from pursuing recovery of the numerous debts owed to him — to himself personally and to the said companies — both by the DRC itself and by other contractual partners; in not paying its own debts to him and to his companies, the Democratic Republic of the Congo has committed internationally wrongful acts which engage its responsibility to the Republic of Guinea;

  2. (2)  that the Democratic Republic of the Congo is accordingly bound to make full reparation on account of the injury suffered by the Republic of Guinea in the person of its national;

  3. (3)  that such reparation shall take the form of compensation covering the totality of the injuries caused by the internationally wrongful acts of the Democratic Republic of the Congo including loss of earnings, and shall also include interest.

The Republic of Guinea further requests the Court kindly to authorize it to submit an assessment of the amount of the compensation due to it on this account from the Democratic Republic of the Congo in a subsequent phase of the proceedings in the event that the two Parties should be unable to agree on the amount thereof within a period of six months following delivery of the Judgment.”

in the Reply:

“On the grounds set out in its Memorial and in the present Reply, the Republic of Guinea requests the International Court of Justice to adjudge and declare:

  1. . that, in carrying out arbitrary arrests of its national, Mr. Ahmadou Sadio Diallo, and expelling him; in not at that time respecting his right to the benefit of the provisions of the 1963 Vienna Convention on Consular Relations; in submitting him to humiliating and degrading treatment; in depriving him of the exercise of his rights of ownership, oversight and management in respect of the companies which he founded in the DRC and in which he was the sole associé; in preventing him in that capacity from pursuing recovery of the numerous debts owed to the said companies both by the DRC itself and by other contractual partners; in expropriating de facto Mr. Diallo’s property, the Democratic Republic of the Congo has committed internationally wrongful acts which engage its responsibility to the Republic of Guinea;

  2. . that the Democratic Republic of the Congo is accordingly bound to make full reparation on account of the injury suffered by Mr. Diallo or by the Republic of Guinea in the person of its national;

  3. . that such reparation shall take the form of compensation covering the totality of the injuries caused by the internationally wrongful acts of the Democratic Republic of the Congo, including loss of earnings, and shall also include interest.

    The Republic of Guinea further requests the Court kindly to authorize it to submit an assessment of the amount of the compensation due to it on this account from the Democratic Republic of the Congo in a subsequent phase of the proceedings in the event that the two Parties should be unable to agree on the amount thereof within a period of six months following delivery of the Judgment.”

On behalf of the Government of the DRC,

in the Counter-Memorial:

“In the light of the arguments set out above and of the Court’s Judgment of 24 May 2007 on the preliminary objections, in which the Court declared Guinea’s Application to be inadmissible in so far as it concerned protection of Mr. Diallo in respect of alleged violations of rights belonging to Africom-Zaire and Africontainers-Zaire, the Respondent respectfully requests the Court to adjudge and declare that:

  1. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal rights;

  2. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire;

  3. . accordingly, the Application of the Republic of Guinea is unfounded in fact and in law.”

in the Rejoinder:

“While expressly reserving the right to supplement and expand on its grounds in fact and in law and without admitting any statement that might be prejudicial to it, the Respondent requests the Court to adjudge and declare that:

  1. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal rights;

  2. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as associé in Africontainers-Zaire or alleged associé in Africom-Zaire;

  3. . accordingly, the Application of the Republic of Guinea is unfounded in fact and in law.”

14 . At the oral proceedings, the following final submissions were presented by the Parties:

On behalf of the Government of Guinea,

at the hearing of 28 April 2010:

  1. . On the grounds set out in its Memorial, its Reply and the oral argument now being concluded, the Republic of Guinea requests the International Court of Justice to adjudge and declare:

    1. (a)  that, in carrying out arbitrary arrests of its national, Mr. Ahmadou Sadio Diallo, and expelling him; in not at that time respecting his right to the benefit of the provisions of the 1963 Vienna Convention on Consular Relations; in submitting him to humiliating and degrading treatment; in depriving him of the exercise of his rights of ownership, oversight and management in respect of the companies which he founded in the DRC and in which he was the sole associé; in preventing him in that capacity from pursuing recovery of the numerous debts owed to the said companies both by the DRC itself and by other contractual partners; and in expropriating de facto Mr. Diallo’s property, the Democratic Republic of the Congo has committed internationally wrongful acts which engage its responsibility to the Republic of Guinea;

    2. (b)  that the Democratic Republic of the Congo is accordingly bound to make full reparation on account of the injury suffered by Mr. Diallo or by the Republic of Guinea in the person of its national;

    3. (c)  that such reparation shall take the form of compensation covering the totality of the injuries caused by the internationally wrongful acts of the Democratic Republic of the Congo, including loss of earnings, and shall also include interest.

  2. . The Republic of Guinea further requests the Court kindly to authorize it to submit an assessment of the amount of the compensation due to it on this account from the Democratic Republic of the Congo in a subsequent phase of the proceedings in the event that the two Parties should be unable to agree on the amount thereof within a period of six months following delivery of the Judgment.”

On behalf of the Government of the DRC,

at the hearing of 29 April 2010:

“In the light of the arguments referred to above and of the Court’s Judgment of 24 May 2007 on the preliminary objections, whereby the Court declared Guinea’s Application to be inadmissible in so far as it concerned protection of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire and Africontainers-Zaire, the Respondent respectfully requests the Court to adjudge and declare that:

  1. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal rights;

  2. . the Democratic Republic of the Congo has not committed any internationally wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire;

  3. . accordingly, the Application of the Republic of Guinea is unfounded in fact and in law and no reparation is due.”

∗ ∗ ∗

. General Factual Background

15 . The Court will begin with a brief description of the factual background to the present case, as previously recalled in its Judgment on preliminary objections of 24 May 2007 (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), pp. 590–591, paras. 13–15). It will return to each of the relevant facts in greater detail when it comes to examine the legal claims relating to them.

16 . Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC in 1964. There, in 1974, he founded an import-export company, Africom-Zaire, a société privée à responsabilité limitée (private limited liability company, hereinafter “SPRL”) incorporated under Zairean law and entered in the Trade Register of the city of Kinshasa. In 1979 Mr. Diallo took part, as gérant (manager) of Africom-Zaire, in the founding of a Zairean SPRL specializing in the containerized transport of goods, Africontainers-Zaire. This company was entered in the Trade Register of the city of Kinshasa and Mr. Diallo became its gérant (see paragraphs 105–113 below).

17 . At the end of the 1980s, Africom-Zaire and Africontainers-Zaire, acting through their gérant, Mr. Diallo, instituted proceedings against their business partners in an attempt to recover various debts. The various disputes between Africom-Zaire or Africontainers-Zaire, on the one hand, and their business partners, on the other, continued throughout the 1990s and for the most part remain unresolved today (see paragraphs 109, 114, 136 and 150 below).

18 . On 25 January 1988, Mr. Diallo was arrested and imprisoned. On 28 January 1989, the public prosecutor in Kinshasa ordered the release of Mr. Diallo after the case was closed for “inexpediency of prosecution”.

19 . On 31 October 1995, the Zairean Prime Minister issued an expulsion decree against Mr. Diallo. On 5 November 1995, Mr. Diallo was arrested and placed in detention with a view to his expulsion. After having been released and rearrested, he was finally expelled from Congolese territory on 31 January 1996 (see paragraphs 50–60 below).

20 . Having, in its Judgment of 24 May 2007, declared the Application of the Republic of Guinea to be admissible “in so far as it concerns protection of Mr. Diallo’s rights as an individual” and “in so far as it concerns protection of [his] direct rights as associé in Africom-Zaire and Africontainers-Zaire” (see paragraph 6 above), the Court will in turn consider below the questions of the protection of Mr. Diallo’s rights as an individual (see paragraphs 21–98) and of the protection of his direct rights as associé in Africom-Zaire and Africontainers-Zaire (see paragraphs 99–159). In the light of the conclusions it comes to on these questions, it will then examine the claims for reparation made by Guinea in its final submissions (see paragraphs 160–164).

II . Protection of Mr. Diallo’s Rights As An Individual

21 . In its arguments as finally stated, Guinea maintains that Mr. Diallo was the victim in 1988–1989 of arrest and detention measures taken 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.

22 . The DRC maintains that the claim relating 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.

23 . The Court must therefore 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 will then need to consider the merits of the grievances relied upon by Guinea in support of its claim concerning the events in 1995–1996, the admissibility of which is no longer at issue in this phase of the proceedings.

. The claim concerning the arrest and detention measures taken against Mr. Diallo in 1988–1989

24 . After asserting that it was only in the Reply that Guinea first set out arguments in respect of the events in 1988–1989, the DRC in the Rejoinder challenged the admissibility of the claim in question as follows:

“The Applicant is clearly seeking to put forward a new claim by means of the Reply and consequently to amend the Application at an inappropriate stage of the proceedings. This new claim, which is not in any way linked to the main claim concerning the events of 1995 to 1996 forming the basis of this dispute, entitles the [Respondent] to raise the objection of failure to exhaust the local remedies available in the Congolese legal system with respect to the arrest and detention of 1988–1989.”

The DRC reiterated this objection in like terms during the oral proceedings.

25 . Thus enunciated, the Respondent’s objection amounts to a challenge to the admissibility of the claim concerning the events of 1988–1989 on two separate grounds: first, Guinea is alleged to have raised the claim at a stage in the proceedings such that it was late, in view of the lack of a sufficient connection between it and the claim advanced in the Application instituting proceedings; second, this claim is alleged to be barred in any case by an objection based on Mr. Diallo’s failure first to exhaust the remedies available in the Congolese legal system.

26 . The Court must commence by considering the first of these two grounds of inadmissibility. If it concludes that the claim was in fact late and must therefore be rejected without any consideration on the merits, there will be no need for the Court to proceed any further. If, on the other hand, it concludes that the claim was not asserted belatedly, it will need to consider whether the DRC is entitled to raise, at this stage of the proceedings, the objection of non-exhaustion of local remedies and, if so, whether that objection is warranted.

27 . 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.

28 . 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.

Granted, it is stated under the heading “Subject of the Dispute” as defined in the Application that Mr. Diallo was “unjustly imprisoned … despoiled … and then expelled”. But it is clear from the document annexed to the Application (the Application (Part Two), see paragraph 1 above) that the “imprisonment” in question began on 5 November 1995 and, according to Guinea, ended after a brief interruption with Mr. Diallo’s physical expulsion on 31 January 1996 at Kinshasa airport. Nowhere in the Application proper or in the annex to it is there any reference to Mr. Diallo’s arrest and detention in 1988–1989.

29 . Nor are these facts mentioned in the Memorial Guinea filed pursuant to Article 49, paragraph 1, of the Rules of Court on 23 March 2001. That Memorial contains an extensive discussion of the facts which have given rise to the dispute. In respect of those corresponding to “arrest” and “detention”, the events of 1995–1996 are described in detail, in the section “The salient facts”, whereas no mention is made of any detention suffered by Mr. Diallo in 1988–1989. True, the Court is requested in the final “submissions” in the Memorial to declare that, “in arbitrarily arresting and expelling … Mr. Diallo” [“en procédant à l’arrestation arbitraire et à l’expulsion de … M. Diallo”], the DRC committed acts engaging its international responsibility, without any further specification as to the date and nature of the “arbitrary arrest” [“l’arrestation arbitraire”] in question. But it is usual for the facts not to be treated in any detail in the “submissions” which a Memorial is required to contain pursuant to Article 49, paragraph 1, of the Rules of Court, because the submissions follow the statement of facts, which the same provision of the Rules of Court also requires, and they must be read in the light of that statement. In the case at hand, the “arbitrary arrest” referred to in the submissions in Guinea’s Memorial can only be the arrest Mr. Diallo suffered, according to the Applicant, in 1995–1996 in view of the carrying out of the expulsion decree issued against him in October 1995, not Mr. Diallo’s alleged arrest in 1988–1989, of which there is no mention.

30 . It was not until the Applicant filed its Written Observations on the preliminary objections raised by the Respondent on 7 July 2003 that Mr. Diallo’s arrest and detention in 1988–1989 were referred to for the first time. But it is to be observed that the reference appears only in the first chapter, entitled “The salient facts”, solely in the context of the refusal of the Zairean authorities to pay sums to Africom-Zaire, and no further mention is made of these events in the later chapters devoted to the discussion from the legal perspective of the DRC’s objections to admissibility.

31 . 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. The purpose of those observations was to respond to the DRC’s objections in respect of admissibility, in accordance with the requirements of Article 79, paragraph 5, of the Rules of Court, in the 1978 version applicable to these proceedings. As these were preliminary objections, having been raised by the DRC within the time-limit for the filing of its Counter-Memorial, the proceedings on the merits had been suspended upon receipt by the Registry of the document setting them out, in accordance with Article 79, paragraph 3, of the Rules of Court, in the version applicable to the present proceedings. That is why Guinea confined itself in its Written Observations of 7 July 2003 to submitting at the end that the Court should “[r]eject the Preliminary Objections” and “[d]eclare the Application … admissible”. As those were incidental proceedings 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 them. Accordingly, the “Written Observations” of 7 July 2003 cannot be interpreted as having introduced an additional claim by the Applicant into the proceedings. And it would have been especially difficult for the Respondent to have so interpreted them, given the object of the incidental proceedings. It is hardly surprising then that the DRC did not refer, either in the oral proceedings on the preliminary objections or in its Counter-Memorial, to the facts alleged by Guinea in respect of 1988–1989.

32 . Guinea first presented its claim in respect of the events in 1988–1989 in its Reply, filed on 19 November 2008, after the Court had handed down its Judgment on the preliminary objections. 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 which 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. Tellingly, whereas in the final submissions in the Memorial Guinea asked the Court to adjudge “that, in arbitrarily arresting and expelling … Mr. Ahmadou Sadio Diallo … the Democratic Republic of the Congo has committed … acts which engage its responsibility” [in the original French: “qu’en procédant à l’arrestation arbitraire et à l’expulsion de … M. Ahmadou Sadio Diallo … la République démocratique du Congo a commis des faits … qui engagent sa responsabilité” (emphasis added)], the submissions in the Reply are worded identically with the sole exception that the singular term emphasized above is replaced by the plural: “arbitrary arrests” [“des arrestations arbitraires”].

33 . In response to the DRC’s objection based on the belated assertion of the claim in question, Guinea gave no explanation as to why this claim was introduced at such an advanced stage of the proceedings. It pointed out however that the Court stated in paragraph 45 of its Judgment of 24 May 2007 on the Respondent’s preliminary objections in the present case:

“in its Memorial on the merits, Guinea described in detail the violations of international law allegedly committed by the DRC against Mr. Diallo. Among those cited is the claim that Mr. Diallo was arbitrarily arrested and detained on two occasions, first in 1988 and then in 1995.” (I.C.J. Reports 2007 (II), p. 600, para. 45.)

34 . The quoted passage erroneously refers to the arrest and detention in 1988 as included among the facts set out in the Memorial. This error of fact had no effect on the conclusion reached by the Court in 2007, namely, that Guinea’s Application was admissible in so far as it was aimed at exercising diplomatic protection of Mr. Diallo in respect of alleged violations of his rights as an individual. Guinea has not argued that the reference to the year 1988 in paragraph 45 of the 2007 Judgment has any binding effect on the Court at the present stage of the proceedings, and it clearly has no such effect, since the operative part of the Judgment would have been no different even if the error had not appeared in the quoted paragraph.

35 . Having determined exactly when the claim 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 Judgment handed down on 24 May 2007 on the DRC’s preliminary objections does not prevent the Respondent from now raising the objection that the additional claim was presented belatedly, since the claim was introduced, as just stated, after delivery of the 2007 Judgment.

36 . On the subject of additional claims introduced — by an Applicant — in the course of proceedings, the Court has developed a jurisprudence which is now well settled and is based on the relevant provisions of the Statute and the Rules of Court, specifically Article 40, paragraph 1, of the former and Article 38, paragraph 2, and Article 49, paragraph 1, of the latter.

37 . Article 40, paragraph 1, of the Statute of the Court provides:

. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.” (Emphasis added.)

Article 38, paragraph 2, of the Rules of Court states:

. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.” (Emphasis added.)

Article 49, paragraph 1, of the Rules of Court reads:

. A Memorial shall contain a statement of the relevant facts, a statement of law, and the submissions.” (Emphasis added.)

38 . The Court has deemed these provisions “essential from the point of view of legal security and the good administration of justice” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69). It has further observed that they were already, in substance, part of the text of the Statute of the Permanent Court of International Justice, adopted in 1920, and of the text of the first Rules of that Court, adopted in 1922 (ibid.).

39 . From these provisions, the Court has concluded that additional claims formulated in the course of proceedings 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). In this respect, it is the Application which is relevant and the Memorial, “though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69, citing the Order of the Permanent Court of 4 February 1933 in the case concerning Prince von Pless Administration (Order of 4 February 1933, P.C.I.J., Series A/B, No. 52, p. 14)). A fortiori, a claim formulated subsequent to the Memorial, as is the case here, cannot transform the subject of the dispute as delimited by the terms of the Application.

40 . The Court has however also made clear that “the mere fact that a claim is new is not in itself decisive for the issue of admissibility” and that:

“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 Certain Phosphate Lands in Nauru (Nauruv. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 265–266, para. 65.)

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

In this regard the Court has also had the occasion 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).

Drawing upon earlier cases, the Judgment handed down in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), (Preliminary Objections, Judgment, I.C.J. Reports 1992) formulated two alternative tests.

Either the additional claim must be implicit in the Application (as was the case of one of the Applicant’s final submissions in the case concerning Temple of Preah Vihear (Cambodia v. Thailand) (see the Judgment on the merits, I.C.J. Reports 1962, p. 36)) or it must arise directly out of the question which is the subject-matter of the Application (as was the case of one of Nicaragua’s final submissions in the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), cited above, paragraph 114).

42 . These are the tests the Court now has to apply in the present case to determine whether Guinea’s claim in respect of the events in 1988–1989, which is “formally new” vis-à-vis the initial claim, is admissible.

43 . The Court finds itself unable to consider this claim as being “implicit” in the original claim as set forth in the Application. Leaving aside the alleged violations of rights belonging to the companies owned by Mr. Diallo, in respect of which the Application was held inadmissible in the Judgment rendered on the preliminary objections, and the violations of Mr. Diallo’s direct rights as associé, to be dealt with below, 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 1995–1996. 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 was carried out as part of a criminal investigation into fraud opened by the Prosecutor’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.

44 . The 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 objections have to be submitted, under Article 79 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 force 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 rule 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. This 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.

45 . Thus, it cannot be said that the additional claim in respect of the events in 1988–1989 was “implicit” in the initial Application.

46 . For similar reasons, the Court sees no possibility of finding that the new claim “arises directly out of the question which is the subject-matter of the Application”. Obviously, the mere fact that two questions are closely related in subject-matter, in that they concern more or less comparable facts and similar rights, does not mean that one arises out of the other. Moreover, as already observed, the facts involved in Mr. Diallo’s detentions in 1988–1989 and in 1995–1996 are dissimilar in nature, the domestic legal framework is different in each case and the rights guaranteed by international law are far from perfectly coincident. 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 Application 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 concerning the alleged violation of Mr. Diallo’s individual rights) was presented.

47 . 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.

48 . In light of the above finding, there is no need for the Court 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.

. The claim concerning the arrest, detention and expulsion measures taken against Mr. Diallo in 1995–1996

. The facts

49 . Some of the facts relating to the arrest, detention and expulsion measures taken against Mr. Diallo between October 1995 and January 1996 are acknowledged by both Parties; others, in contrast, are in dispute.

50 . The facts on which the Parties are in agreement are as follows.

An expulsion decree was issued against Mr. Diallo on 31 October 1995. This decree, signed by the Prime Minister of Zaire, stated that: “[the] presence and personal conduct [of Mr. Diallo] have breached Zairean public order, especially in the economic, financial and monetary areas, and continue to do so”.

On 5 November 1995, further to the above-mentioned decision and with a view to its implementation, Mr. Diallo was arrested and placed in detention in the premises of the immigration service.

On 10 January 1996, Mr. Diallo was released.

On 31 January 1996, Mr. Diallo was expelled to Abidjan, on a flight from Kinshasa airport. He was served with a notice, drawn up that day, indicating that he was the subject of a “refoulement on account of unauthorized residence”.

51 . However, the Parties disagree markedly concerning, on the one hand, Mr. Diallo’s situation between 5 November 1995, 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: he is thus said to have been detained for 66 consecutive days. In contrast, the DRC contends that Mr. Diallo was released on 7 November 1995 — two days after his arrest — and placed under surveillance. According to the DRC, having resumed his activities in breach of public order, he was rearrested on an unspecified date, but in any event not earlier than 2 January 1996. He is then said to have been released for a second time on 10 January 1996, because the immigration service could not find a flight leaving for Conakry within the eight-day legal time-limit following his latest arrest. During the first period in question, therefore, 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 10 January to 31 January 1996, Guinea maintains that Mr. Diallo was rearrested on 14 January 1996, 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 17 days. On the other hand, the DRC asserts that Mr. Diallo remained at liberty from 10 January to 25 January 1996, on which date he was arrested prior to being expelled a few days later, on 31 January.

52 . The Parties also differ as to how Mr. Diallo was treated during the periods when he was deprived of his liberty, although on this aspect of the dispute the disagreement relates less to the facts themselves than to their characterization. According to Guinea, Mr. Diallo was held in dire and difficult conditions; he was only able to receive food because of the visits from his next of kin; and he was subjected to death threats from the persons responsible for guarding him. The DRC contests this final point; for the rest, it maintains that the conditions of Mr. Diallo’s detention did not amount to inhuman and degrading treatment in breach of international law.

53 . 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.

54 . As a general rule, it is for the party which alleges a fact in support of its claims to prove 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 20 April 2010, para. 162).

However, it would be wrong to regard 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.

55 . In particular, where, as in these proceedings, it is alleged that a person has not been afforded, by a public authority, 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 generally 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 normally imply that written documents are drawn up, while others do not. The time which has elapsed since the events must also be taken into account.

56 . 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, when it comes to establishing facts such as those which are at issue in the present case, neither party is alone in bearing the burden of proof.

57 . It is on the basis of the considerations set out above that the Court will now pronounce on the facts which remain in dispute between the Parties.

58 . The Court is not convinced by the DRC’s allegation that Mr. Diallo was released as early as 7 November 1995 and then only rearrested at the beginning of January 1996, before being freed again on 10 January. The Court’s assessment is based on the following reasons.

There are two documents in the case file which prove that Mr. Diallo was imprisoned on 5 November 1995 and freed again on 10 January 1996: these are the committal note (billet d’écrou) bearing the first of these two dates and the release document (billet de mise en liberté) which bears the second. If it were true, as the DRC claims, that between these two dates Mr. Diallo was released for the first time and then rearrested, it is hardly comprehensible that the Respondent has been unable to produce any administrative documents — or any other piece of evidence — to establish the reality of those events. It is true that on 30 November 1995 — a date when Mr. Diallo was at liberty according to the DRC’s version of the facts, whereas according to Guinea’s allegations, he was in prison —he wrote a letter to the Zairean Prime Minister and Minister of Finance transmitting to them the files concerning the debts claimed by his companies, in which he makes no reference to his detention. But the existence of this correspondence far from proves, contrary to the assertions of the DRC, that Mr. Diallo was at liberty on that date. It is a fact that, during the periods when he was deprived of his liberty, Mr. Diallo was largely able to communicate with the outside world, and that he was not prevented from engaging in written correspondence. The letter of 30 November 1995 is therefore in no way conclusive.

59 . Accordingly, the Court concludes that Mr. Diallo remained in continuous detention for 66 days, from 5 November 1995 to 10 January 1996.

60 . On the other hand, the Court does not accept the Applicant’s assertion that Mr. Diallo was rearrested on 14 January 1996 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; the Court also observes that, in the written proceedings, Guinea stated the date of this alleged arrest to be 17 and not 14 January. The Court therefore cannot regard the second period of detention claimed by the Applicant, lasting 17 days, as having been established. However, since the DRC has acknowledged that Mr. Diallo was detained, at the latest, on 25 January 1996, the Court will take it as established that he was in detention between 25 and 31 January 1996.

61 . Nor can the Court accept the allegations 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.

62 . As regards the question of compliance of the authorities of the DRC with their obligations under Article 36 (1) (b) of the Vienna Convention on Consular Relations, the relevant facts will be examined at a later stage, when the Court deals with that question (see paragraphs 90–97 below).

. Consideration of the facts in the light of the applicable international law

63 . Guinea maintains that the circumstances in which Mr. Diallo was arrested, detained and expelled in 1995–1996 constitute in several respects a breach by the DRC of its international obligations.

First, the expulsion of Mr. Diallo is said to have breached Article 13 of the International Covenant on Civil and Political Rights (hereinafter the “Covenant”) of 16 December 1966, 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 27 June 1981, which entered into force for Guinea on 21 October 1986, and for the DRC on 28 October 1987.

Second, Mr. Diallo’s arrest and detention are said to have violated Article 9, paragraphs 1 and 2, of the Covenant, and Article 6 of the African Charter.

Third, Mr. Diallo is said to have suffered conditions 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 24 April 1963, which entered into force for Guinea on 30 July 1988 and for the DRC on 14 August 1976.

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

(a)  The alleged violation of Article 13 of the Covenant and Article 12, paragraph 4, of the African Charter

64 . 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, Article 12, paragraph 4, 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.”

65 . It follows from the terms 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.

66 . 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 Comment No. 15: The position of aliens under the Covenant).

Since it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular 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”.

Although the Court 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 interpretation adopted by this independent body that was 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.

67 . Likewise, when the Court is called 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 the independent bodies which have been specifically created, if such has been the case, to monitor the sound application of the treaty in question. In the present case, the interpretation given above of Article 12, paragraph 4, of the African Charter is consonant with the case law of the African Commission on Human and Peoples’ Rights established by Article 30 of the said Charter (see, for example, Kenneth Good v. Republic of Botswana, No. 313/05, para. 204; World Organization against 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).

68 . The Court also notes that the interpretation by the European Court of Human Rights and the Inter-American Court of Human Rights, respectively, of Article 1 of Protocol No. 7 to the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and Article 22, paragraph 6, of the American Convention on Human Rights — the said provisions being close in substance to those of the Covenant and the African Charter which the Court is applying in the present case — is consistent with what has been found in respect of the latter provisions in paragraph 65 above.

69 . According to Guinea, the decision to expel Mr. Diallo first breached Article 13 of the Covenant and Article 12, paragraph 4, 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.

70 . The Court is not convinced by the first of these arguments. It is true that Article 15 of the Zairean Legislative Order of 12 September 1983 concerning 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 9 April 1994, the powers conferred by particular 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, in the 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, Judgment No. 14, 1929, P.C.I.J., Series A, No. 20, p. 46 and Brazilian Loans, Judgment No. 15, 1929, P.C.I.J., Series A, 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.

71 . That is not the situation here. The DRC’s interpretation of its Constitution, from which it follows that Article 80 (2) produces certain effects on the laws already in force on the date when that Constitution was adopted, does not seem manifestly incorrect. It has not been 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 number of other expulsion decrees issued at the same time and all signed by the Prime Minister. Consequently, 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 purposes of the decision of this case. 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.

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

First, 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 citation mentioning the Board’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 expulsion decree should have been “reasoned” pursuant to Article 15 of the 1983 Legislative 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 requirements 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 vague 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 formulation used by the author of the decree therefore amounts to an absence of reasoning for the expulsion measure.

73 . The Court thus concludes that in two important 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, regardless of whether that expulsion was justified on the merits, a question to which the Court will return later in this Judgment, the disputed measure violated Article 13 of the Covenant and Article 12, paragraph 4, of the African Charter.

74 . 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 is indeed certain that, neither before the expulsion decree was signed on 31 October 1995, 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 Article 13 of the Covenant provides for an exception to the right of an alien to submit his reasons where “compelling reasons of national security” require otherwise. The Respondent maintains that this was precisely the case here. However, it has not provided the Court with any tangible information that might establish the existence of such “compelling reasons”. 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 another. But when this involves setting aside an important procedural guarantee provided for by an international treaty, it cannot simply be left in the hands of the State in question to determine the 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, no such demonstration has been provided by the Respondent.

On these grounds too, the Court concludes that Article 13 of the Covenant was violated in respect of the circumstances in which Mr. Diallo was expelled.

(b)  The alleged violation of Article 9, paragraphs 1 and 2, of the Covenant and Article 6 of the African Charter

75 . Article 9, paragraphs 1 and 2, of the Covenant provides that:

. 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 with such procedure as are established by law.

. 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.”

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.”

76 . According to Guinea, the above-mentioned provisions 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 Article 9, paragraph 1, 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 informed, at the time of his arrests, of the reasons for those arrests, nor was he informed of the charges against him, which constituted a violation of Article 9, paragraph 2, of the Covenant.

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

77 . First of all, it is 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 pursued (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))). 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 effect 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 Article 9, paragraph 2, of the Covenant that the arrested person be “informed of any charges” against him, a requirement which is only meaningful in the context of criminal proceedings.

78 . The Court now turns to the first of Guinea’s three allegations, namely, that Mr. Diallo’s arrest and detention were not in accordance with the requirements of the law of the DRC. It should first be noted that Mr. Diallo’s arrest on 5 November 1995 and his detention until 10 January 1996 (see paragraph 58 above) were for the purpose of enabling the expulsion decree issued against him on 31 October 1995 to be effected. The second arrest, on 25 January 1996 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. Diallo on 31 January 1996, the day when he was actually expelled, was clearly erroneous, as the DRC acknowledges.

79 . Article 15 of the Legislative Order of 12 September 1983 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 48 hours, which may be “extended by 48 hours 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 evade 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 10 January 1996 suggests that there was no need for his detention. The overall length of time for which he was detained — 66 days 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, the DRC has produced no evidence to show that the detention was reviewed every 48 hours, as required by that provision.

80 . The Court further finds, in response to the second allegation set out above (see paragraph 76 above), 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.

81 . Admittedly, 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 31 October 1995 was not issued, in some respects, “in accordance with law”, as the Court has noted above in relation to Article 13 of the Covenant 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.

82 . However, 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 paragraph 70), 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 has been presented to the Court to support these claims. These accusations did not give rise to any proceedings before the courts or, a fortiori, to any conviction. Furthermore, it is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed 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. 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.

83 . Finally, the Court turns to the allegation relating to Article 9, paragraph 2, of the Covenant.

For the reasons discussed above (see paragraph 77), Guinea cannot effectively argue that at the time of each of his arrests (in November 1995 and January 1996), Mr. Diallo was not informed of the “charges against him”, as the Applicant contends is required by Article 9, paragraph 2, of the Covenant. This particular provision of Article 9 is applicable only when a person is arrested in the context of criminal proceedings; that was not the case for Mr. Diallo.

84 . On the other hand, Guinea is justified 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 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 informed, 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 Article 9, paragraph 2, since it would have indicated to Mr. Diallo that he had 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. However, 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.

85 . The same applies to Mr. Diallo’s arrest in January 1996. 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 incorrect information that he was the subject of a “refoulement” on account of his “illegal residence” (see paragraph 50 above). This being so, the requirement for him to be informed, laid down by Article 9, paragraph 2, of the Covenant, was not complied with on that occasion either.

(c)  The alleged violation of the prohibition on subjecting a detainee to mistreatment

86 . Guinea maintains that Mr. Diallo was subjected to mistreatment during his detention, because of the particularly tough 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.

87 . The Applicant invokes in this connection Article 10, paragraph 1, 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.”

Article 7 of the Covenant, providing that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, and Article 5 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.

There is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments.

88 . The Court 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 prohibited 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, paragraph 1 (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 relatives to the individual deprived of his liberty was not hindered.

89 . 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 Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations

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

“[I]f he so requests, the competent authorities 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 arrested 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.”

91 . 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.

92 . 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.

93 . 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.

94 . It was only in replying to a question put by a judge during the hearing 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 27 April 2010 and confirmed orally at the hearing of 29 April, during the second round of oral argument).

95 . The Court notes that the two arguments put forward by the DRC before the second round of oral pleadings lack any relevance. 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). Moreover, the fact that the consular authorities of the national State of the arrested person have learned of the arrest through other channels does not remove any violation that may have been committed of the obligation to inform that person of his rights “without delay”.

96 . As for the DRC’s assertion, made in the conditions 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.

97 . Consequently, the Court finds that there was a violation by the DRC of Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.

98 . 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 Article 14 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 dispute has less to do with the lawfulness of Mr. Diallo’s expulsion in the light of the DRC’s international obligations and more to do with the damage Mr. Diallo suffered as a result of the internationally wrongful acts of which he was a victim. The Court will therefore examine it later in this Judgment, within the context of the question of reparation owed by the Respondent (see paragraphs 160–164 below).

III . Protection of Mr. Diallo’s Direct Rights As Associé in Africom-Zaire and Africontainers-Zaire

99 . Africom-Zaire and Africontainers-Zaire are two corporate entities incorporated under Zairean law in the form of sociétés privées à responsabilité limitée (SPRLs) and entered in the Trade Register of the city of Kinshasa. Because the SPRL, as a form of commercial company, is specific to civil-law systems and has no precise equivalent in common-law systems, the Court will use certain French terms of DRC law in the English version of the present Judgment, namely, parts sociales, associé, gérant, gérance and gérant associé. The capital of an SPRL is divided into equal parts sociales. Under Article 36 of the Decree of the Independent State of Congo of 27 February 1887 on commercial corporations, as amended by the Decree of 23 June 1960 (hereinafter: “the 1887 Decree”), the parts are nominative and not freely transferable. They are also “uniform”, i.e., they confer identical rights upon their holders (called associés: see, e.g., Articles 43, 44, 45 and 51 of the 1887 Decree). Management (the gérance) of an SPRL is entrusted to an agent, called the gérant, who may also be an associé (in which case there is a gérant associé).

100 . In its Judgment of 24 May 2007, the Court stated that it did not have “to determine, at [the preliminary objections] stage …, which specific rights appertain to the status of associé and which to the position of gérant of an SPRL under Congolese law”, but that it was

“at the merits stage, as appropriate, that [it] will have to define the precise nature, content and limits of these rights. It is also at that stage of the proceedings that it will be for the Court, if need be, to assess the effects on these various rights of the action against Mr. Diallo.” (I.C.J. Reports 2007 (II), p. 606, para. 66.)

101 . In its final submissions, Guinea asked the Court to find that, on the issue of Mr. Diallo’s direct rights as associé, the DRC had committed several internationally wrongful acts which engage its responsibility towards Guinea. Specifically, Guinea contended that the DRC had breached its international obligations by:

“depriving [Mr. Diallo] of the exercise of his rights of ownership, oversight and management in respect of the companies which he founded in the DRC and in which he was the sole associé; [by] preventing him in that capacity from pursuing recovery of the numerous debts owed to the said companies both by the DRC itself and by other contractual partners; and [by] expropriating de facto Mr. Diallo’s property”.

102 . In contrast, the DRC reiterated in its final submissions that it had committed no internationally wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire.

103 . Before addressing the various claims made by the Parties in this regard, it is necessary for the Court to clarify matters relating to the legal existence of the two companies and to Mr. Diallo’s role and participation in them. Indeed, as the Court found in its Judgment of 24 May 2007, the rights of associés are “their direct rights in relation to a legal person” (I.C.J. Reports 2007 (II), p. 606, para. 64; emphasis added). In other words, direct rights as associé exist because companies have “juridical personalities distinct from those of the associés” (as stated in Article 1 of the Congolese Decree of 27 February 1887 on commercial corporations), and they are rights of the associés in their relationship with the company whose parts they hold. In the present case, it is especially important to clarify the issues of the legal existence of the companies and of Mr. Diallo’s participation and role in them, since Guinea claims that he was the sole gérant and also, directly or indirectly, the sole associé of the two companies. As mentioned by the Court in its Judgment of 24 May 2007, Guinea maintains that “in fact and in law it was virtually impossible to distinguish Mr. Diallo from his companies” (I.C.J. Reports 2007 (II), p. 604, para. 56). The DRC, for its part, considers that the number of parts held by Mr. Diallo in Africom-Zaire has never been indisputably established; it adds that the two companies are still formally in existence and are therefore to be distinguished from Mr. Diallo as associé. Moreover, the DRC contends that, for lack of any commercial activity, the two SPRLs were in a state of “undeclared bankruptcy” for many years before Mr. Diallo’s expulsion.

104 . In order to determine Mr. Diallo’s legal rights as associé in Africom-Zaire and Africontainers-Zaire, and whether those rights have been infringed, the Court will have to examine in the first instance the existence and structure of those companies under DRC law. As the Court stated in the Barcelona Traction case:

“In this field international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field … All it means is that international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law.” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, pp. 33–34, para. 38.)

In the Judgment of 24 May 2007, the Court has already found that Mr. Diallo’s direct rights as associé “are defined by the domestic law” of the DRC, being the State of incorporation of the companies (I.C.J. Reports 2007 (II), p. 606, para. 64), and that the Congolese Decree of 27 February 1887 on commercial corporations must in particular be referred to “in order to establish the precise legal nature of Africom-Zaire and Africontainers-Zaire” (ibid., p. 605, para. 62).

105 . In its Judgment of 24 May 2007, the Court observed that, under the Decree of 27 February 1887, SPRLs are companies “which are formed by persons whose liability is limited to their capital contributions; which are not publicly held companies; and in which the parts sociales, required to be uniform and nominative, are not freely transferable” (Article 36 of the Decree of 27 February 1887 on commercial corporations; I.C.J. Reports 2007 (II), p. 594, para. 25; see paragraph 99 above). The Court also stated that

“Congolese law accords an SPRL independent legal personality distinct from that of its associés, particularly in that the property of the associés is completely separate from that of the company, and in that the associés are responsible for the debts of the company only to the extent of the resources they have subscribed. Consequently, the company’s debts receivable from and owing to third parties relate to its respective rights and obligations. As the Court pointed out in the Barcelona Traction case: ‘So long as the company is in existence the shareholder has no right to the corporate assets.’ (I.C.J. Reports 1970, p. 34, para. 41.) This remains the fundamental rule in this respect, whether for an SPRL or for a public limited company.” (I.C.J. Reports 2007 (II), p. 606, para. 63.)

106 . It is not disputed that Africom-Zaire, an import-export company, was founded in 1974 by Mr. Diallo, and that he has been the gérant of that company for many years. As mentioned below (see paragraph 110), it was in that capacity that Mr. Diallo took part in the creation of Africontainers-Zaire. Guinea contends that he was also the sole associé of Africom-Zaire. This has however been questioned by the DRC in the course of the proceedings. In particular, the DRC contends that the number of parts held by Mr. Diallo in Africom-Zaire has never been duly documented and that Guinea has not established that he was still an associé of that company at the time of his expulsion.

107 . Because the record before the Court does not includeAfricom-Zaire’s Articles of Incorporation, the Court is unable to determine precisely the nature and extent of Mr. Diallo’s holding in that company at the time it was formed. Nevertheless, as DRC law requires that an SPRL be formed by more than one associé — as seen in the relevant Articles of the 1887 Decree, including Article 36, cited above (“[a]n [SPRL] is a company formed by persons” (emphasis added)) and Article 78, which refers to the general meeting “of the associés” — and since neither of the Parties has contested the fact that Africom-Zaire was duly formed as an SPRL under the 1887 Decree, the conclusion is inescapable that, at the very first stage of its existence, Africom-Zaire must have had, besides Mr. Diallo, at least one other associé.

108 . As the Court has not been provided with minutes of general meetings of Africom-Zaire, it is unable to conclude whether Mr. Diallo has become the sole associé of that SPRL and, if so, when this occurred. In the opinion of the Court, that factual issue is however of no legal consequence to the issue under consideration here, since it has not been established that, under DRC law, an SPRL automatically ceases to exist as a legal person when all its parts sociales come to be owned by a single person. Moreover, it is clear that in practice, the business activities of Africom-Zaire in the DRC were not in any way impaired by the fact that it may have become a unipersonal SPRL. This is shown by the commercial relationship established by Africom-Zaire with the authorities of Zaire (and later the DRC), in which no questions or objections were advanced as to the legal nature of Africom-Zaire and the fact that it may have become a company with a sole associé. The DRC has stated that by the mid-1980s, Africom-Zaire had ceased all commercial activity and for that reason had been struck off the Trade Register. However, the DRC did not argue that that administrative measure amounted to the ending of the distinct legal personality of the SPRL. The Court thus concludes that, notwithstanding the fact that Mr. Diallo may have become its sole associé, Africom-Zaire kept its distinct legal personality. This SPRL thus remains governed by the 1887 Decree, in the absence of Congolese legislation specifically regulating companies whose parts sociales are owned by a single associé, or which, de facto, are fully controlled by the gérant associé.

109 . On the question of the number of shares held by Mr. Diallo in Africom-Zaire, the Court notes that the DRC has not contested that he was an associé in the company, as it has conceded that he was the gérant associé, within the meaning of Article 67 of the Decree of 27 February 1887 (see paragraph 138 below), of Africontainers-Zaire and of Africom-Zaire. Moreover, and even if it is impossible to quantify precisely the extent of his holding in Africom-Zaire, the Court considers that all the evidence submitted to it suggests that Mr. Diallo held such a significant part of the parts sociales in the company that he controlled it and could have prevented any other associés acting in a general meeting (see paragraph 120 below on the DRC law relating to the right of the associés to request that a general meeting be convened) from challenging his management, including in particular his decision to contract with the public authorities and to initiate and pursue proceedings against the State of Zaire in domestic courts (see paragraph 114 below). Having thus concluded that Mr. Diallo was a major associé in Africom-Zaire, the Court considers that it is for the DRC to prove that Mr. Diallo might have ceased to be an associé in Africom-Zaire at the time of his expulsion, as it suggests (see paragraph 106 above). In the opinion of the Court, this has not however been established. The Court considers therefore that a very large part of the parts sociales of Africom-Zaire, if not all of them, were owned by Mr. Diallo throughout the years over which the current dispute extends, allowing him to be fully in charge and in control of that company, both as gérant and as associé. Establishing the precise holding of Mr. Diallo in Africom-Zaire as associé would only be necessary if the company were liquidated, so as to transfer to Mr. Diallo, in due proportion to his capital ownership, the net value of the company’s assets.

110 . On 18 September 1979, as gérant of Africom-Zaire, Mr. Diallo took part in the creation of another SPRL, Africontainers-Zaire, which specialized in transporting goods in containers. The notarial act of 18 September 1979 constituting Africontainers-Zaire’s Articles of Incorporation was submitted by Guinea as part of the documents included with its Memorial. The capital in the new company was held as follows: 40 per cent by Mr. Kibeti Zala, a Zairean national; 30 per cent by Ms Colette Dewast, a French national, and 30 per cent by Africom-Zaire. Mr. Zala and Ms Dewast withdrew from Africontainers-Zaire in 1980. From that time onwards, the capital in Africontainers-Zaire was held as follows: 60 per cent by Africom-Zaire and 40 per cent by Mr. Diallo. At the same time Mr. Diallo became gérant of Africontainers-Zaire for an indefinite period, thus replacing Mr. Alain David, who had been appointed the first gérant in the Articles of Incorporation. The Court concludes that since Mr. Diallo was, as established above (see paragraph 109), fully in charge and in control of Africom-Zaire, he was also, directly or indirectly, fully in charge and in control of Africontainers-Zaire.

111 . Relying on documents submitted to the Court, the DRC alleges that, following his expulsion, Mr. Diallo appointed a new gérant for Africontainers-Zaire, Mr. N’Kanza. The DRC notes in this regard that it was Mr. N’Kanza who made the inventory of Africontainers’ property and represented the company in the negotiations with Gécamines in 1997, over one year after Mr. Diallo’s expulsion. Guinea argues that, contrary to the assertion by the DRC, Mr. Diallo did not appoint Mr. N’Kanza as a new gérant for Africontainers-Zaire. First, it draws attention to the lack of evidence establishing that an extraordinary general meeting was ever held at which Mr. N’Kanza might have been appointed gérant of Africontainers-Zaire. Secondly, Guinea cites the decision of the Cour d’Appel of Kinshasa/Gombe of 20 June 2002, in which Mr. Diallo is referred to as the gérant associé of Africontainers-Zaire. Finally, Guinea observes that in documents relating to Africontainers-Zaire submitted to the Court, Mr. N’Kanza is not referred to as gérant, but rather as “Directeur d’exploitation”, and that Mr. Diallo signed his letters to the DRC as “gérant of Africontainers-Zaire”.

112 . The Court observes that the DRC has failed to establish, by means of relevant corporate documents, that Mr. N’Kanza was appointed gérant of Africontainers-Zaire. In particular, no general meeting appointing Mr. N’Kanza as gérant took place (see paragraphs 129 and 133 below on the appointment of the gérant under Article 65 of the 1887 Decree). The Court therefore concludes that the only gérant acting for either of the companies, both at the time of Mr. Diallo’s detentions and after his expulsion, was Mr. Diallo himself.

113 . The Court is moreover of the view that Africom-Zaire and Africontainers-Zaire have not ceased to exist. In the absence of a judicial liquidation, the dissolution of a company, according to the 1887 Decree, “can only be decided by a general meeting” (Art. 99). Once the dissolution has been decided upon, the company goes into a process of liquidation. The Court notes that there is however no evidence before it indicating that a judicial liquidation took place or that a general meeting of either of the two companies was held for the purposes of their dissolution or liquidation.

114 . Having reached 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 legal entities distinct from him, the Court will now address the various claims of Guinea pertaining to the direct rights of Mr. Diallo as associé. In doing so, the Court will have 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 24 May 2007; 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.

115 . In the following paragraphs, the Court is careful to maintain the strict distinction between the alleged infringements of the rights of the two SPRLs 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). The Court understands that such a distinction could appear artificial in the case of an SPRL in which the parts sociales are held in practice by a single associé. It is nonetheless well-founded juridically, and it is essential rigorously to observe it in the present case. Guinea itself accepts this distinction in the present stage of the proceedings, and most of its arguments are indeed based on it. The Court has to deal with the claims as they were presented by the Applicant.

116 . Guinea’s claims relating to Mr. Diallo’s direct rights as associé pertain to the right to participate and vote in general meetings of the two SPRLs, the right to appoint a gérant, and the right to oversee and monitor the management of the 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 will now address those different claims.

. The right to take part and vote in general meetings

117 . Guinea maintains that the DRC, in expelling Mr. Diallo, deprived him of his right, guaranteed by Article 79 of the Congolese Decree of 27 February 1887 on commercial corporations, to take part in general 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 Article 81 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 Article 22 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.

118 . 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 general meetings were convened and that Mr. Diallo was unable to attend owing 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.

119 . Article 79 of the Congolese Decree of 27 February 1887 on commercial corporations stipulates that: “[n]otwithstanding any provision to the contrary, all associés shall have the right to take part in general meetings and shall be entitled to one vote per share”. The Court observes that it follows from the terms of this provision that the right to participate and vote in general meetings belongs to the associés and not to the company. This is consistent with the Court’s conclusion in the Barcelona Traction case, where it pointed out that “[i]t is well known” that the right to participate and vote in general meetings is a right “which municipal law confers upon the [shareholders] distinct from those of the company” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 36, para. 47).

120 . The Court now turns to the question of whether the DRC, in expelling Mr. Diallo, deprived him of his right to take part in general meetings and to vote, as guaranteed by Article 79 of the Congolese Decree of 27 February 1887 on commercial corporations.

121 . According to Article 83 of the Congolese Decree of 27 February 1887, while the decision to convene a general meeting is incumbent upon the gérant or the auditors (paragraph 1), associés also have the right to request that a general meeting be convened if they hold a fifth of the total number of shares (paragraph 2). 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, not even for the purposes of annually “consider[ing] and decid[ing] on the balance sheet and profit and loss account and on the allocation of profits”, as required by the 1887 Decree (see Article 96). In the opinion of the Court, the right of Mr. Diallo to take part in general meetings and to vote could only have been breached if general meetings had actually been convened after his expulsion from the DRC. The Court notes in this respect that, even assuming that Article 1 of Legislative Order No. 66-341 of 7 June 1966 were to oblige corporations having their administrative seat in the DRC to hold their general meetings on Congolese territory, no evidence has been provided that Mr. Diallo would have been precluded from taking any action to convene general meetings from abroad, either as gérant or as associé.

122 . The Court will now turn to the question of whether Mr. Diallo has been deprived of his right to take part and vote in any general meetings because, as Guinea argues, after his expulsion he could only have exercised that right through a proxy, whereas Congolese law afforded him the right to choose between appointing a representative or attending in person.

123 . According to Article 81 of the Congolese Decree of 27 February 1887, “[a]ssociés may always be represented by a proxy of their choice, subject to compliance with the conditions set forth in the statutes”. According to Article 80 of the Congolese Decree, “[u]nless the statutes provide otherwise, associés may express their votes in writing or by any other means that guarantees the authenticity of the will expressed”. The Court has noted that the Parties have provided it with the Articles of Incorporation of Africontainers-Zaire, but have not communicated to it those of Africom-Zaire (see paragraphs 107 and 110 above). Article 22, paragraph 2, of the Articles of Incorporation of Africontainers-Zaire reads as follows: “Associés may arrange to be represented either by a proxy chosen from amongst the associés, or by a representative or agent of any associé that is a legal person, if such is the case.” Article 21 of the Articles of Incorporation of Africontainers-Zaire states that “[r]esolutions of the general meeting shall be passed by a majority of three quarters of the votes irrespective of the number of shares owned by the members present or represented at the meeting” (emphasis added).

124 . It follows from these provisions 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 establish 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 meetings of companies can take place effectively. Guinea’s interpretation of Congolese law might frustrate that objective, by allowing an associé to prevent the organs of the company from operating normally. It is questionable whether the Congolese legislators could have desired such an outcome, which is far removed from the affectio societatis. Moreover, in respect of Africom-Zaire and Africontainers-Zaire, the Court does not see how the appointment of a representative 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.

125 . Furthermore, with regard to Africontainers-Zaire, the Court 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 observed above (see paragraph 110), that company has two associés, namely, Mr. Diallo and Africom-Zaire. Therefore, pursuant to the above-mentioned Article 22, 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 Article 69 of the 1887 Decree (see paragraph 135 below), Mr. Diallo could have appointed such a “representative or agent” of the latter company.

126 . Therefore, the Court cannot sustain Guinea’s claim 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 part in person in any general meeting, but, in the opinion of the Court, such hindrance does not amount to a deprivation of his right to take part and vote in general meetings.

. The rights relating to the gérance

127 . 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.

128 . 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. Furthermore, the DRC affirms that because, under the 1887 Decree, a gérant who has not been appointed in the Articles of Incorporation is appointed by the general meeting, the right invoked by Guinea to appoint a gérant is indistinguishable from the right of the associé to take part in the general meetings. According to the DRC, Guinea has failed to show that a general meeting was convened and that the DRC intervened with the other associés to prevent Mr. Diallo from participating in the appointment of a new gérant, or from being represented by another person of his choice. The DRC submits that Mr. Diallo did appoint Mr. N’Kanza as gérant of Africontainers-Zaire following his expulsion.

129 . The Court observes that the appointment and functions of gérants are governed, in Congolese law, by the 1887 Decree on commercial corporations, and by the Articles of Incorporation of the company in question.

130 . Under Article 64 of the 1887 Decree:

“A private limited company shall be managed by one or more persons, who may or may not be associés, called gérants.”

The appointment of gérants is governed by Article 65 of the 1887 Decree, which provides:

Gérants shall be appointed either in the instrument of incorporation or by the general meeting, for a period which may be fixed or indeterminate.”

In addition, Article 69 of the 1887 Decree provides that:

“The statutes, the general meeting or the gérance may entrust the day-to-day management of the company and special powers to agents or other proxies, whether associés or not.”

131 . Furthermore, Article 14 of Africontainers-Zaire’s Articles of Incorporation provides, inter alia, that:

“The company shall be managed by one or more gérants, who may or may not be associés, appointed by the general meeting.

Where more than one gérant is appointed, the general meeting shall decide whether they shall exercise their powers separately or jointly.”

Article 17, for its part, is couched in the following terms:

“The gérance may delegate to one of the associés or to third parties or confer on one of its managers any powers necessary for the performance of daily managerial duties. It shall determine the powers to be conferred and, where necessary, the remuneration of such agents; delegated powers may be revoked at any time.”

132 . The Court will begin 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 above).

133 . As regards the first assertion put forth by Guinea that the DRC has violated Mr. Diallo’s right to appoint a gérant, the Court recalls Article 65 of the 1887 Decree, which provides that “[g]érants shall be appointed either in the instrument of incorporation or by the general meeting”. The Court observes that, under this provision, every SPRL is required to be managed by at least one gérant. In principle, the appointment of the gérant takes place at the point when the SPRL is founded. It can also take place at a later stage, by decision of the general meeting. In that case, one organ of the company (the general meeting) exercises its power in respect of another (the gérance). The appointment of the gérant therefore 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.

134 . 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 that, in its 2007 Judgment on preliminary objections, it observed that:

“The DRC … agrees with Guinea on the fact that, in terms of Congolese law, the direct rights of associés are determined by the Decree of the Independent State of Congo of 27 February 1887 on commercial corporations. The rights of Mr. Diallo as associé of the companies Africom-Zaire and Africontainers-Zaire are therefore theoretically as follows: ‘the right to dividends and to the proceeds of liquidation’, ‘the right to be appointed manager (gérant)’, ‘the right of the associé manager (gérant) not to be removed without cause’, ‘the right of the manager to represent the company’, ‘the right of oversight [of the management]’ and ‘the right to participate in general meetings’.” (I.C.J. Reports 2007 (II), p. 603, para. 53.)

It is clear that an associé has a right to be appointed gérant. However, this right cannot have been violated in this instance because Mr. Diallo has in fact been appointed as gérant, and still is the gérant of both companies in question. In this regard, the Court recalls its finding in its 2007 Judgment “that Mr. Diallo, who was associé in Africom-Zaire and Africontainers-Zaire, also held the position of gérant in each of them” (ibid., p. 606, para. 66). This finding is confirmed in evidence put before the Court by the Parties in the present stage of the proceedings, in particular by evidence submitted by Guinea itself. Accordingly, the Court concludes that there is no violation of Mr. Diallo’s right to be appointed gérant.

135 . The Court notes that, thirdly, Guinea has claimed that a right of Mr. Diallo to exercise his functions as gérant was violated. In this regard, Guinea has argued in its Reply that:

“following [Mr. Diallo’s] detention and expulsion by the Zairean authorities, it became impossible for him, in practical terms, to perform the role of ‘gérant’ from Guinea, because he was outside the country”.

The Court cannot accept this line of reasoning, and refers in this regard to Article 69 of the 1887 Decree, which provides that “the gérance may entrust the day-to-day management of the company and special powers to agents or other proxies, whether associés or not”. Moreover, with respect to Africontainers-Zaire, the Court also refers to Article 16 of its Articles of Incorporation, which provides that the “gérance is entitled to establish administrative bases in the Republic of Zaire and branches, offices, agencies, depots or trading outlets in any location whatsoever, whether in the Republic of Zaire or abroad”. 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 carry out those duties. In addition, Guinea has not shown that Mr. Diallo attempted to appoint a proxy, who could have acted within the DRC on his instructions.

136 . In fact, it is clear from various documents submitted to the Court that, even after Mr. Diallo’s expulsion, representatives of Africontainers-Zaire have continued to act on behalf of the company in the DRC and to negotiate contractual claims with the Gécamines company.

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

138 . Finally, the Court observes that, fourthly, Guinea has claimed that the DRC has violated Mr. Diallo’s right not to be removed as gérant, referring to Article 67 of the 1887 Decree, which provides that:

“Unless the statutes provide otherwise, gérants associés appointed for the life of the company can be removed only for good cause, by a general meeting deliberating under the conditions required for amendments to the statutes.

Other gérants can be removed at any time.”

With reference to this provision, Guinea argues that Mr. Diallo was deprived of his right not to be removed as a gérant as long as the company was in existence. The Court observes, however, that no evidence has been provided to it that Mr. Diallo was deprived of his right to remain gérant, since no general meeting was ever convened for the purpose of removing him, or for any other purpose. There was therefore no possibility of having him removed “for good cause”. 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 discussed above, he remained, from a legal standpoint, the gérant of both Africom-Zaire and Africontainers-Zaire. Accordingly, the Court concludes that Guinea’s claim that the DRC has violated Mr. Diallo’s right not to be removed as gérant must fail.

139 . The Court may add that, even if it were established that Mr. Diallo had been appointed gérant associé as long as the company was in existence and that he had been removed as gérant without good cause, the claim of Guinea would still stand on very weak ground. The right established by Article 67 of the 1887 Decree is a right of a combined gérant associé, not a simple right of an associé. To the extent that it is a right of the gérant, who is an organ of the company, the claim would be precluded by paragraph 98 (3) (c) of the Court’s 2007 Judgment.

140 . In light of all the above, the Court concludes that the various assertions put forward by Guinea, grouped under the general claim of a violation of Mr. Diallo’s rights relating to the gérance, must be rejected.

. The right to oversee and monitor the management

141 . Guinea submits that, in detaining and expelling Mr. Diallo, the DRC deprived him of his right to oversee and monitor the actions of management and the operations of Africom-Zaire and Africontainers-Zaire, in violation of Articles 71 and 75 of the 1887 Decree. Referring to those provisions, Guinea contends that the right to oversee and monitor the actions of management is a right attaching to the status of associé, not a right of the company, especially where there are five or fewer associés. It argues that because Mr. Diallo was the sole associé of both companies, he enjoyed all the rights and powers of the commissaire or auditor under Article 75 of the 1887 Decree. It adds that those rights are also recognized by Article 19 of Africontainers-Zaire’s Articles of Incorporation.

142 . The DRC submits that under Articles 71 and 75 of the 1887 Decree, as well as Article 19 and Article 25, paragraph 3, of Africontainers-Zaire’s Articles of Incorporation, the task of overseeing and monitoring the gérance of an SPRL is entrusted not to an associé individually, but to financial experts known as “statutory auditors” [commissaires aux comptes]. In the view of the DRC, the right of the associé is limited to participating in the appointment of one or more such auditors at the general meeting. The DRC acknowledges that, under certain conditions, Congolese law accords associés the right to oversee and monitor the management of the company, but it argues that Guinea has failed to demonstrate that the DRC had ordered Africontainers-Zaire not to permit Mr. Diallo to monitor its operations.

143 . Article 71 of the 1887 Decree provides as follows:

Article 71 

“Oversight of the management shall be entrusted to one or more administrators, who need not be associés, called ‘auditors’.

If there are more than one of these, the statutes or the general meeting may require them to act on a collegiate basis.

If the number of associés does not exceed five, the appointment of auditors is not compulsory, and each associé shall have the powers of an auditor.”

144 . Article 75 of that Decree is couched in the following terms:

Article 75 

“The auditors’ task shall be to oversee and monitor, without restriction, all the actions performed by the management, all the company’s transactions and the register of associés.”

145 . Article 19 of Africontainers-Zaire’s Articles of Incorporation provides:

“Each of the associés shall exercise supervision over the company. Should the company consist of more than five associés, supervision shall be exercised by at least one auditor appointed by the general meeting, which shall fix his/her term of office and remuneration.”

146 . The Court concludes from the wording of Article 71, third paragraph, as cited above, that since both Africom-Zaire and Africontainers-Zaire had fewer than five associés, Mr. Diallo was permitted to act as auditor. However, the question arises of whether, under Congolese law, this provision applies in the case of a company where there is only one associé who is fully in charge and in control of it.

147 . 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 DRC rendered the business activity of the companies more difficult, they simply could not have interfered with his ability to oversee and monitor the gérance, wherever he may have been.

148 . Accordingly, the Court concludes that Guinea’s claim that the DRC has violated Mr. Diallo’s right to oversee and monitor the management fails.

. The right to property of Mr. Diallo over his parts sociales in Africom-Zaire and Africontainers-Zaire

149 . Guinea claims that Mr. Diallo, no longer enjoying control over, or effective use of, his rights as associé, has suffered the indirect expropriation of his parts sociales in Africom-Zaire and Africontainers-Zaire because his property rights have been interfered with to such an extent that he has been lastingly deprived of effective control over, or actual use of, or the value of those rights.

150 . Guinea states that the acts of interference by the DRC with Mr. Diallo’s property rights in the parts sociales date back to 1988, when he was first placed in detention. Those acts allegedly resulted in the debts owed to the companies not being recovered and, by way of consequence, Mr. Diallo’s investment in the companies falling in value. According to Guinea, the interference by the DRC continued consequent to the Congolese authorities’ decision in 1995 to stay enforcement of the judgment for the plaintiff handed down in Africontainers v. Zaire Shell, which resulted in reducing the value of Mr. Diallo’s parts sociales in the company. Guinea claims that the interference by the DRC culminated in the re-arrest and expulsion of Mr. Diallo who, as a result, was prevented from managing his companies and from participating in any way in the activities of their corporate organs and was deprived of any possibility of controlling and using his parts sociales. Guinea asserts that the indirect expropriation of Mr. Diallo’s rights constitutes an internationally wrongful act giving rise to the DRC’s international responsibility.

151 . The essence of Guinea’s argument is that there is a factual element specific to this case, namely:

“that Mr. Diallo is the sole associé in the two companies, that is to say, the only owner of the parts sociales in Africom[-Zaire] and Africontainers[-Zaire]. As a consequence, even though officially they have separate legal personalities, the very special characteristics of the relationship between Mr. Diallo and his companies means that, from the factual perspective, which is the perspective of expropriation (expropriation is a question of fact), the property of the two companies merges with his. Thus, in expropriating his companies, the DRC infringed Mr. Diallo’s ownership rights in his parts sociales.”

152 . For its part, the DRC claims that there cannot have been any violation of any rights attaching to ownership of the parts sociales. In particular, as regards the right to dividends, it alleges that, even on the assumption that any have actually been distributed by the companies, Guinea would still have to show that Mr. Diallo was unable to receive them on account of the decision to remove him from Congolese territory or of another wrongful act attributable to the DRC. The DRC argues in this respect that Guinea has not established that Mr. Diallo could not directly receive his dividends abroad or that he was prevented from doing so by an act attributable to the DRC.

153 . The DRC contends as well that it cannot be accused of having impeded the exercise of rights held by Mr. Diallo as owner of his parts sociales. Specifically, the DRC at no time ordered Africontainers-Zaire not to make payments in respect of Mr. Diallo’s parts sociales in the annual dividend allocation. With regard to Africom-Zaire, the DRC notes that Guinea has failed to provide evidence showing that Mr. Diallo was still an associé in this company at the time of his expulsion and, if so, how many parts sociales he held (see paragraph 106 above).

154 . The DRC finally asserts that the value of Mr. Diallo’s parts sociales is unrelated to his presence in its territory. It rejects Guinea’s arguments that acts attributable to the DRC were at the origin of the loss of value of his parts sociales and, in general, the economic demise of his companies. On this subject, the DRC claims that both Africom-Zaire and Africontainers-Zaire had been in a state of “undeclared bankruptcy” for several years before Mr. Diallo’s expulsion, not having engaged in any commercial activity since, at least, 1991.

155 . The Court observes that international law 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. Therefore, 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 company 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” (Article 7; see also paragraphs 105 and 115 above).

156 . The Court, in the Barcelona Traction case, recognized that “a wrong done to the company frequently causes prejudice to its shareholders” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 35, para. 44). But, it added, damage affecting both company and shareholder will not mean that both are entitled to claim compensation: “whenever a shareholder’s interests are harmed by an act done to the company, it is to the latter that he must look to institute appropriate action; for although two separate entities may have suffered from the same wrong, it is only one entity whose rights have been infringed” (ibid.). This principle was reaffirmed when the Court, responding to a Belgian contention, established a

“distinction between injury in respect of a right and injury to a simple interest … Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected.” (Ibid., p. 36, para. 46.)

157 . The Court 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 above). As the Court has just reaffirmed, 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 belonging to the companies. The Court recalls 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 taken 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.

158 . Finally, the Court considers there to be no need to determine the extent 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. As the Court has already found in the Barcelona Traction case:

“a precarious financial situation cannot be equated with the demise of the corporate entity …: the company’s status in law is alone relevant, and not its economic condition, nor even the possibility of its being ‘practically defunct’” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 41, para. 66).

159 . 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 . Reparation

160 . Having concluded that the Democratic Republic of the Congo has breached its obligations under Articles 9 and 13 of the International Covenant 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 above), it is for the Court now to determine, in light of Guinea’s final submissions, what consequences flow from these internationally wrongful acts giving rise to the DRC’s international responsibility.

161 . The Court recalls that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47). Where this is not possible, reparation may take “the form of compensation or satisfaction, or even both” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para. 273). In the light of the circumstances of the case, in particular the fundamental character of the human rights obligations breached and Guinea’s claim for reparation in the form of compensation, the Court is of the opinion that, in addition to a judicial finding of the violations, reparation due to Guinea for the injury suffered by Mr. Diallo must take the form of compensation.

162 . In this respect, Guinea requested in its final submissions that the Court defer its Judgment on the amount of compensation, in order for the Parties to reach an agreed settlement on that matter. Should the Parties be unable to do so “within a period 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 above).

163 . The Court is of the opinion that the Parties should 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.

164 . In light of the fact that the Application instituting proceedings in the present case was filed in December 1998, 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, 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 in a subsequent phase of the proceedings. Having been 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.

∗ ∗ ∗

165 . For these reasons,

The Court,

  1. (1)  By eight votes to six,

    Finds that the claim of the Republic of Guinea 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;

  2. (2)  Unanimously,

    Finds that, in respect of the circumstances in which Mr. Diallo was expelled from Congolese territory on 31 January 1996, the Democratic Republic of the Congo violated Article 13 of the International Covenant on Civil and Political Rights and Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights;

  3. (3)  Unanimously,

    Finds that, in respect of the circumstances in which Mr. Diallo was arrested and detained in 1995–1996 with a view to his expulsion, the Democratic 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. (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 Article 36, paragraph 1 (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. (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, Bennouna, Skotnikov, Yusuf, Greenwood; Judge ad hoc Mampuya;

    AGAINST: Judge Cançado Trindade; Judge ad hoc Mahiou;

  6. (6)  By nine votes to five,

    Finds that the Democratic Republic of the Congo has 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;

  7. (7)  Unanimously,

    Finds that the Democratic Republic of the Congo 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. (8)  Unanimously,

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

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this thirtieth day of November, two thousand and ten, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Guinea and the Government of the Democratic Republic of the Congo, respectively.

(Signed) Hisashi Owada,

President.

(Signed) Philippe Couvreur,

Registrar.

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.

(Initialled) H. O.

(Initialled) Ph. C.

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

Awn Shawkat Al-Khasawneh, Bruno Simma, Mohamed Bennouna, Antônio A. Cançado Trindade and Abdulqawi Ahmed Yusuf

[English Original Text]

Admissibility of an additional claim — Subject of the dispute — Legal security and good administration of justice — Continuity between the arrest and detention of Mr. Diallo in 1988–1989 and 1995–1996, and their connection with the attempts to recover the debts.

. With regret, we were obliged to vote against the first subparagraph of the operative part of the Judgment, according to which “the claim of the Republic of Guinea concerning the arrest and detention of Mr. Diallo in 1988–1989 is inadmissible”. We are convinced that this claim, albeit presented belatedly, during the proceedings, falls within the subject of the dispute as indicated in the Application instituting proceedings, pursuant to Article 40 of the Statute of the Court. Our analysis is based on an approach which was set forth with clarity by the Permanent Court of International Justice and has since been reiterated many times by this Court: “The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law.” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)

. It follows that, first of all, the claim relating to the events of 1988–1989 cannot be rejected solely because it was only presented by Guinea for the first time in its Written Observations of 7 July 2003, in response to the objections in respect of inadmissibility raised by the Democratic Republic of the Congo, and, subsequently, in more detail in its Reply of 19 November 2008 (Judgment, paragraphs 31 and 32).

. The question which then arises is not whether the Applicant may add to the facts at issue in the context of the subject of the dispute, which it described in its Application, since according to Article 38, paragraph 2, of the Rules of Court, the latter “shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based”. At that stage, therefore, it is not a matter of being exhaustive as regards the facts concerned. It is accepted, moreover, that the Parties may amend their submissions up to the end of the oral proceedings, and Guinea was consequently able to refer, in its final submissions, to “arbitrary arrests” in the plural, instead of to the single arrest mentioned in the submissions in its Application. It is true, however, that there are limits to “the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings”, since “the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character” (Société commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173).

. In our opinion, what matters as regards the admissibility of a formally new claim is that it should fall within the subject of the dispute which has been brought before the Court, while complying with the Statute and the Rules of Court. Otherwise, “the subject of the dispute on which [the Court] would ultimately have to pass [judgment] would be necessarily distinct from the subject of the dispute originally submitted to it in the Application” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 68). And such a situation would necessarily be incompatible with the requirements of “legal security and the good administration of justice” (ibid., p. 267, para. 69).

. The Court accepts that the evaluation of additional claims essentially involves asking whether these would have the effect of “transform[ing] the subject of the dispute originally brought before it under the terms of the Application”, referring to the case concerning 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). But it does not apply that test, as such, in order to determine the admissibility of Guinea’s claim in respect of the events of 1988–1989. The Court indeed loses sight of this in the course of its argument, which it bases solely on the two criteria that have emerged from the jurisprudence specifically for assessing the connection between a new claim and the subject of the dispute: either that it is implicit in the Application, or that it arises directly out of it. These criteria are intended to make it possible to answer the central question, namely whether the additional claim falls within the subject of the dispute which has been brought before the Court, or whether it introduces a new dispute. Unfortunately, the Court does not answer that question, since it has chosen to embark on a purely formal analysis of the claim in respect of the events of 1988–1989, referring in turn to the two criteria mentioned above. It thus concludes that those events are not implicit in the Application because they concern “arrest and detention measures, taken at a different time and in different circumstances”, and that “the legal bases for [the] arrests … were completely different” (Judgment, paragraph 43). This formal line of argument is used again by the Court in order to conclude that it sees no possibility of finding that the new claim arises directly out of the question which is the subject-matter of the Application (Judgment, paragraph 46).

. We observe that, in the light of this reasoning, the majority has been content to draw a simple comparison between the formal circumstances of the arrests and detention of Mr. Diallo, and between the legal bases for them which have been alleged by the DRC, without concern for the real continuity between the events of 1988–1989 and those of 1995–1996, and without qualifying the matters of form in municipal law, as advocated by the jurisprudence of the Court.

. In terms of substance, however, the arbitrary arrests which Mr. Diallo suffered in 1988–1989 and 1995–1996 reflect the continuity of the action taken against him by the Democratic Republic of the Congo whenever he brought more pressure to bear on the authorities in order to recover the debts owed by that State and Congolese companies to his two companies (of which he had become the sole associé). On 25 January 1988, Mr. Diallo was arrested and imprisoned for a year, on the order of the Prime Minister of the DRC, after he had tried in vain to recover the debts owed by the Congolese State to the Africom-Zaire company in the “listing paper” affair, even though the Finance Minister had acknowledged the debts in question. The accusation of fraud against Mr. Diallo was not made in any judicial context, but simply formulated by the government authorities of the DRC. The same Prime Minister of the DRC who ordered Mr. Diallo’s arrest for fraud had written to the Finance Minister on 14 January 1988 asking him not to settle the debts owed to Africom-Zaire. In 1996, Mr. Diallo was once again arrested and then expelled, after he had sought implementation of the judgment given in favour of the Africontainers-Zaire company. For the DRC authorities, it was obviously a matter of removing Mr. Diallo from Congolese territory once and for all, so that he could no longer pursue the debts owed to his companies by the State and Congolese companies.

. Furthermore, the Court itself correctly pointed out that:

“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 has been presented to the Court to support these claims. These accusations did not give rise to any proceedings before the courts or, a fortiori, to any conviction. Furthermore, it is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed 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.” (Judgment, paragraph 82.)

. We can only regret that the majority failed to apply this analysis to the question of admissibility. That would necessarily have resulted in a clear finding that the arrest in 1988–1989 formed a continuity with that of 1995–1996, since it took place for the same reasons, and that it was of the same arbitrary character. The only difference is that in 1995–1996, it was decided to expel Mr. Diallo from the DRC, whereas previously, in 1988–1989, he was detained for almost a year!

10 . Therefore, in our opinion, the events of 1988–1989 are quite clearly connected with the subject of the dispute as set forth in Guinea’s Application dated 23 December 1998:

“Mr. Diallo Ahmadou Sadio, a businessman of Guinean nationality, was unjustly imprisoned by the authorities of the Democratic Republic of the Congo, after being resident in that State for thirty-two (32) years, despoiled of his sizable investments, businesses, movable and immovable property and bank accounts, and then expelled from the country.

This expulsion came at a time when Mr. Diallo Ahmadou Sadio was taking proceedings to recover substantial debts owed to his businesses by the State and by the oil companies established on its territory and of which the said State is a shareholder.

After vain attempts to arrive at an out-of-court settlement, the State of Guinea is filing an Application with the International Court of Justice with a view to obtaining a finding that the Democratic Republic of the Congo is guilty of serious violations of international law committed upon the person of a Guinean national.”

11 . Hence, whether they are regarded as implicit in that Application or arising out of its subject-matter, the events of 1988–1989 are connected with the subject of the dispute described in the Application, since they involve an unjust arrest of Mr. Diallo linked to the spoliation of his assets by the DRC.

12 . We therefore cannot understand how the majority has declared Guinea’s claim in respect of those events to be inadmissible, taking a formalistic approach which is inappropriate to a long and costly international dispute, Guinea having brought this case before the Court nearly 12 years ago. It would appear that the Democratic Republic of the Congo was informed at quite an early stage of the addition by Guinea of the facts relating to 1988–1989 and that it had the opportunity to contest them, as indeed it did not refrain from doing during the oral argument (CR 2010/3, pp. 16–17, paras. 11–13 (Kalala)). The Court thus had evidence before it allowing it to pronounce on all the violations of international law committed by the DRC upon the person of Mr. Diallo. If the Court had done so, it would genuinely have met the requirements of “legal security and the good administration of justice”. Those requirements must take account, in this case originally based on the exercise of diplomatic protection, the scope of which includes “internationally guaranteed human rights” (case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 599, para. 39), of the individual rights of Mr. Diallo, who has on two occasions been a victim of arbitrary measures by the authorities of the host State, and for the same reasons.

(Signed) Awn Shawkat Al-Khasawneh.

(Signed) Bruno Simma.

(Signed) Mohamed Bennouna.

(Signed) Antônio Augusto Cançado Trindade.

(Signed) Abdulqawi Ahmed Yusuf.

Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf

Awn Shawkat Al-Khasawneh and Abdulqawi Ahmed Yusuf

Unable to accept point 6 of dispositif — Violation of Diallo’s rights as sole associé — Causal link between expulsion and violations to rights as associé — Dangerous precedent for foreign investors — Difference with treaty protected investors — Modern developments in area of foreign investments — Unsatisfactory state of law — Distinction between corporate personality and personality of the shareholder — Inherent in limited liability concept — However not absolute — Distinctions with Barcelona Traction — Triangular relation — State of nationality of company same State whose responsibility is invoked — Considerations of equity — Barcelona Traction overtaken by events — 2007 Judgment is res judicata — Concept of direct rights of associé does not detract from res judicata — Includes right of ownership — Importance of company size and persons running the company — By not accepting Diallo’s rights Court missed a chance to provide redress — Also to take account of modern developments in investment laws and in human rights.

We are, regrettably, unable to concur in paragraph 6 of the dispositif according to which the Court: “Finds that the Democratic Republic of the Congo has not violated Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire”; nor are we persuaded by the reasoning and considerations on which this finding is based.

Quite the contrary, we feel that by arresting and detaining Mr. Diallo twice, first in 1988–1989 (which the Court found inadmissible) and a second time in 1995–1996 when his incarceration was followed by expulsion from the territory of the DRC, a grave injustice was committed against Mr. Diallo not only as a person but also as sole associé and gérant of his two companies; an injustice compounded by the horrendous delay in deciding this case, i.e., 12 years after the filing by the Republic of Guinea of its Application.

This injustice begins with the Court’s acknowledgment of the illicit nature of Mr. Diallo’s treatment at the hands of the DRC authorities in 1995–1996 (Judgment, paragraph 165 (2) (3) (4)) and of the arbitrariness of the “arrest and detention aimed at [the] expulsion measure”, as well as the Court’s recognition — in what may be this part of the Judgment’s only concession to reality — that

“it is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed 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 civil courts” (Judgment, paragraph 82).

Nevertheless, the Judgment refuses to draw the manifest and inescapable conclusion that ought, in our respectful opinion, to have been drawn from the Court’s aforementioned findings. It is plain that the expulsion of Mr. Diallo was not an end in itself. Its intended consequence was, in all probability, to frustrate Mr. Diallo’s attempts to recover his debts. At the very least it had that effect, something that the DRC authorities knew or ought to have known.

The enormity of the injustice committed against Mr. Diallo may also be measured in another way. Mr. Diallo was not one of a multitude of shareholders “[s]eparated from the company by numerous barriers” and therefore “[could not] be identified with it” as paragraph 41 of the Barcelona Traction Judgment contemplated (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 34, para. 41). He was for all intents and purposes one and the same with the two companies. Nor were his parts sociales a small amount of his wealth, they were practically all his wealth with the result that, as a consequence of the actions taken by the DRC authorities against him, he was reduced to destitution.

But this injustice will not, in light of the Judgment, be confined to Mr. Diallo. Instead it could become a dangerous precedent for foreign investors. A State seeking to expropriate the assets of a unipersonal company (the term unipersonal is used here to include a societé privée à responsabilité limitée which has evolved to have only one associé gérant and allowed to do business as such, or one composed of a small number of associés) would only have to expel the associé from its territory. If that expropriating State also happens to be the State of nationality of the company and hence in theory the protector State, there would be no possibility of redress whatsoever for the investor. In other words the net result would be an indirect expropriation without compensation or the need to show a justifying public interest.

Luckily, those foreign investors whose investments in foreign States are protected by bilateral or multilateral investment treaties would be shielded from such a risk. These treaties typically go much further than what Guinea has asked for in this case, namely in affording protection through well-established techniques such as compulsory arbitration, dispensing with the need to exhaust local remedies, broadening the scope of the term “investment”, incorporating in the State of nationality of shareholders or in a third State, etc. These developments in the field of foreign investments have led to the wholesale abandonment of the distinction between the corporate personality of the company on the one hand and that of the shareholders on the other, resulting in a wide discrepancy between the customary international law standard and the standard contained in most investment treaties, with the customary law standard (if at all represented by what is contained in Barcelona Traction) being significantly lower than the one existing in the realm of investment treaties. The least that can be said about the state of customary international law given this discrepancy is that it is unsatisfactory.

The underlying motif of the 24 May 2007 Judgment on Preliminary Objections and of the present one is that the distinction between the rights of the company on the one hand and the “mere interests of the shareholders” on the other, is inherent in and flows from the very nature of the limited liability companies whether they be private or public. Thus the argument goes that just as shareholders are protected in municipal law (from which the concept was transposed by analogy into international law) from risk extending to all their assets, they must, by the same logic, be ready to accept loss confined to that part of their wealth which had been separately incorporated, Fortuna being a capricious Goddess whose moods the law cannot guarantee, but can at best regulate through limited liability. In the language of paragraph 42 of Barcelona Traction: “the shareholders’ rights in relation to the company and its assets remain limited, this being, moreover, a corollary of the limited nature of their liability” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 34, para. 42; emphasis added).

This may indeed be true as a general proposition. However, in the realm of municipal law from which the concept of limited liability emanated, shareholders were never denied the protection which Judge Sir Gerald Fitzmaurice, in his separate opinion in Barcelona Traction, explained balances what he called the “hegemony” of the company (p. 68, para. 8). In that celebrated opinion, Judge Fitzmaurice analysed why, in municipal law, an action cannot be brought by shareholders on behalf of the rights of the company notwithstanding that injury to the company may recoil or repercuss onto the shareholder:

“The true rationale (outside but underlying the law) of denying to the shareholder the possibility of action in respect of infringements of company rights is that, normally, he does not need this. The company will act and, by so doing, will automatically protect not only its own interests but those of the shareholders also. That is the assumption; namely that the company is both capable of acting and will do so unless there are cogent reasons why, in the interests of the company and, hence, indirectly of the shareholders, it should refrain.” (Separate opinion of Judge Sir Gerald Fitzmaurice, p. 68, para. 10.)

10  This assumption does not hold in the sphere of international law. A State of nationality of a company retains discretion whether to act on behalf of the company or not. It would be recalled that Judge Fitzmaurice’s remarks were addressed to the facts of Barcelona Traction where Canada, the protecting State, though it acted at times on behalf of the company, refrained for the most part from doing so.

11  This situation is a priori even more applicable in the circumstances of the present case where the State of nationality of the two companies Africom-Zaire and Africontainers-Zaire was the same State accused of wrongdoing.

12  Elsewhere in his separate opinion Judge Fitzmaurice contemplated this very situation:

It seems that, actually, in only one category of situation is it more or less definitely admitted that intervention by the government of foreign shareholders is allowable, namely where the company concerned has the nationality of the very State responsible for the acts or damage complained of, and these, or the resulting circumstances, are such as to render the company incapable de facto of protecting its interests and hence those of the shareholders. Clearly in this type of case no intervention or claim on behalf of the company as such can, in the nature of things, be possible at the international level, since the company has local not foreign nationality, and since also the very authority to which the company should be able to look for support or protection is itself the author of the damage. Consequently, the normal rule of intervention only on behalf of the company by the company’s government becomes not so much inapplicable as irrelevant or meaningless in the context. The efficacity of the corporate entity and its capability of useful action has broken down, and the shareholders become as it were substituted for the management to protect the company’s interests by any method legally open to them. If some of them have foreign nationality, one such way is to invoke the intervention of their government, and in the circumstances this must be regarded as admissible.” (Barcelona Traction, Light and Power Company, Limited) (Belgium v. Spain, Second Phase, Judgment, I.C.J. Reports 1970; separate opinion of Judge Sir Gerald Fitzmaurice, p. 72, para. 14; emphasis added.)

13  In support of this assertion Judge Fitzmaurice cited Paul De Visscher1:

“From this it necessarily results that if the rational justification for the mechanism of the corporate entity is brought to a collapse by the act of the very State whose law governs the status and allegiance of the corporate entity, its personality is no longer anything but a fiction void of all meaning, in which there can now be seen nothing but a bundle of individual rights.”

14  It may be said that this is but a separate opinion and that the main Judgment in Barcelona Traction did not adopt this line of thinking. This is demonstrably not the case.

15  It is important to recall that in Barcelona Traction, the Court was dealing with what it called a “triangular relationship” (ibid., p. 42, para. 69) with Canada, Spain and Belgium each representing an apex in that relationship. Reviewing the contacts between the three Governments the Court came to the conclusion that:

“In sum, the record shows that from 1948 onwards the Canadian Government made to the Spanish Government numerous representations which cannot be viewed otherwise than as the exercise of diplomatic protection in respect of the Barcelona Traction company. Therefore this was not a case where diplomatic protection was refused or remained in the sphere of fiction.” (Ibid., p. 43, para. 76; emphasis added.)

16  Notwithstanding the fact that the Court was concerned primarily with a triangular relationship, it nevertheless contemplated a situation where, as a matter of equity, the State of nationality of the shareholders could take up their protection when the State whose responsibility is invoked is the same State of nationality of the company. The Court had the following to say:

“It is quite true that it has been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which has been the victim of a violation of international law. Thus a theory has been developed to the effect that the State of the shareholders has a right of diplomatic protection when the State whose responsibility is invoked is the national State of the company. Whatever the validity of this theory may be, it is certainly not applicable to the present case, since Spain is not the national State of Barcelona Traction.

On the other hand, the Court considers that, in the field of diplomatic protection as in all other fields of international law, it is necessary that the law be applied reasonably. It has been suggested that if in a given case it is not possible to apply the general rule that the right of diplomatic protection of a company belongs to its national State, considerations of equity might call for the possibility of protection of the shareholders in question by their own national State. This hypothesis does not correspond to the circumstances of the present case.

In view, however, of the discretionary nature of diplomatic protection, considerations of equity cannot require more than the possibility for some protector State to intervene, whether it be the national State of the company, by virtue of the general rule mentioned above, or, in a secondary capacity, the national State of the shareholders who claim protection.” (Ibid., p. 48, paras. 92–94; emphasis added.)

17  To be sure, the Court went on to speak of practical considerations that might argue against basing the right of protection on considerations of equity especially when there are numerous investors from different nationalities and with minority shareholdings. But the Court never precluded, as a matter of principle, the operation of diplomatic protection of shareholders when there is no protecting State. We cannot think of a situation where considerations of equity would have been more appropriate than in the present case, all the more so since there was no danger of “confusion and insecurity in international economic relations” as a result of “opening the door to competing diplomatic claims” (ibid., p. 49, para. 96).

18  Moreover the Court, in Barcelona Traction, was careful to stress that its conclusion (as to the separate corporate personality from that of the shareholders) was confined to the particular circumstances of Barcelona Traction. It stated that “[f]or the above reasons, the Court is not of the opinion that in the particular circumstances of the present case, jus standi is conferred on the Belgian Government by considerations of equity” (ibid., p. 50, para. 101; emphasis added), thereby acknowledging that the locus standi in judicio could a contrario be conferred as a matter of equity (equity infra legum) in other cases.

19  It is also significant that those judges who supported the conclusions regarding lack of standing of the shareholders state in Barcelona Traction were motivated, in large part, by a practical and what may be a legitimate apprehension that opening the door for protection of shareholders by their national State would lead to abuse by capital-exporting countries and the creation of economic neo-colonization2. Thus Judge Ammoun cited, inter alia, the work of the Institut de droit international in the following words:

“As for the Institut de droit international, at its Nice session in 1967 it had to study the problem of investment in developing countries. The jurists of the Afro-Asian group who took part in the proceedings of that session expressed the opinion of their group by replying in the negative to the question whether ‘shareholders are entitled to ask for diplomatic protection of their State in cases in which the company in which they have invested cannot or will not ask for it itself, as against the developing country.’” (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970; separate opinion of Judge Ammoun, p. 329, para. 39.)

20  The irony of the foregoing is that those concerns were overtaken by events. The proliferation of bilateral and multilateral investment treaties, and the assertion by some States of a right, sometimes expressed in legislation3, of intervention to protect the interests of national shareholders in foreign companies, together with a parallel development in the field of human rights, to which we shall return later, have all meant that the low standard of protection of shareholders under customary law is now confined to the wretched of the earth like Mr. Diallo. Such a result could not have been contemplated by those judges whose uppermost concern was, in the words of Professor Rolin:

“to encourage investments for the developing countries, by giving guarantees on both sides, both to those countries themselves in order to avoid a form of economic neo-colonialism, which would bring about their subjection to the rich countries, and in order to put investors out of reach of certain risks” (cited by Judge Ammoun, ibid., p. 330, footnote 83).

21  Be this as it may, it was a narrow and, in our respectful opinion, an unwarranted interpretation of Barcelona Traction that found its way into the 2007 Judgment on Preliminary Objections where the Court upheld the DRC objection “in so far as it concerns protection of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire and Africontainers-Zaire” (para. 1 (b) of the operative paragraphs). This conclusion is now fortified by the force of res judicata.

22  However the 2007 Judgment rejected the DRC objection “in so far as it concerns protection of Mr. Diallo’s rights as associé in Africom-Zaire and Africontainers-Zaire” (para. 1 (a) of the operative paragraphs). It is to those rights untouched by res judicata that we shall now turn.

23  It would be recalled that Barcelona Traction drew a distinction between the rights of the company and the interests of the shareholders on the one hand4 (para. 46), and the rights of the company and the direct rights of the shareholders, on the other (para. 47).

“The situation is different if the act complained of is aimed at the direct rights of the shareholder as such. It is well known that there are rights which municipal law confers upon the latter distinct from those of the company, including the right to any declared dividend, the right to attend and vote at general meetings, the right to share in the residual assets of the company on liquidation. Whenever one of his direct rights is infringed, the shareholder has an independent right of action. On this there is no disagreement between the Parties. But a distinction must be drawn between a direct infringement of the shareholder’s rights, and difficulties or financial losses to which he may be exposed as the result of the situation of the company.” (Ibid., para. 47.)

24  In the event, the Court did not pursue the consequences of this distinction because: “[t]he Belgian Government did not base its claim on an infringement of the direct rights of the shareholders. Thus it [was] not open to the Court to go beyond the claim as formulated by the Belgian Government.” (Ibid., p. 37, para. 49.)

25  By contrast, in the present case, Guinea did (re)formulate its claim in terms of the infringement of the direct rights of Mr. Diallo as an associé (para. 13 of the Judgment). Further, since the enumeration of those rights was non-exhaustive (evidenced through the use of the word “including”), Guinea added to the three rights mentioned in the Barcelona Traction Judgment, a fourth set of rights, namely, the rights “of ownership and management in respect of the companies founded by him in the DRC”, and in which he was the sole associé; the rights of “pursuing recovery of the numerous debts owed to him — to himself personally and to the said companies — both by the DRC itself and by other contractual partners”; and the right to be free from de facto expropriation.

26  Those rights and their infringements cannot be measured by a single criterion regardless of the size of the company concerned, or the centrality of the role played by certain persons, in running such a company. In Barcelona Traction — where the individual shareholder was “[s]eparated from the company by numerous barriers, [and where] the shareholder [could not] be identified with it” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, I.C.J. Reports 1970, p. 34, para. 41; emphasis added) — it would have made perfect sense to speak of the right to hold general meetings and to appoint a gérant.

27  The present case undoubtedly differs from Barcelona Traction in that regard. The two companies had become one-man companies which operated as such in the DRC — a fact which is not contested by the Parties — and where the sole associé was also the gérant. To require the associé to hold general meetings or to invoke his failure to do so as justification for the assertion that his rights to participate and vote in general meetings, or to appoint a gérant, or to monitor the management of the companies, were not violated is quite surrealistic (an exiled destitute associé/gérant participating in a general meeting with himself?)

28  Paragraph 115 of the present Judgment is patently apologetic. It is worth quoting in full:

“In the following paragraphs, the Court is careful to maintain the strict distinction between the alleged infringements of the rights of the two SPRLs 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). The Court understands that such a distinction could appear artificial in the case of an SPRL in which the parts sociales are held in practice by a single associé. It is nonetheless well-founded juridically, and it is essential rigorously to observe it in the present case. Guinea itself accepts this distinction in the present stage of the proceedings, and most of its arguments are indeed based on it. The Court has to deal with the claims as they were presented by the Applicant.”

29  Of course Guinea had to accept this distinction in view of the res judicata of the 2007 Judgment. However, we believe it was well within the Court’s power to take cognizance of the reality of the situation, in particular that where there is in effect one associé/gérant the infringement of the company rights is ipso facto infringement of the direct rights of the owner.

30  By insisting on a dogmatic application of a one-size-fits all approach, Barcelona Traction (or rather on a narrow interpretation of Barcelona Traction that did not take account of the absence of a protecting State), the Court missed a chance to provide redress to Mr. Diallo as a matter of equity without at the same time detracting from the formal force of its 2007 Judgment. Equally importantly, the Court missed a chance to bring into line the standard of protection of investors like Mr. Diallo with the standard now found in jurisprudence emanating from regional courts and arbitratal tribunals. This latter standard, as had been previously alluded to, has arguably become an international minimum standard to which even those investors not covered by bilateral or multilateral investment treaties may be entitled.

31  It is to those pertinent developments that we shall now turn in the remainder of this joint dissenting opinion with the aim of ascertaining the current state of the law.

32  We start however by stressing that when we speak of modern developments we do not imply a paucity in older authorities, such as Delagoa Bay Railway Company case; Mexican Eagle Co. case, Romano-Americana case5; El Triunfo Award of 8 May 19026; Deutsche Amerikanische Petroleum Gesellschaft Oil Tankers Award of 5 August 19267.

33  There are, we believe, three developments in the modern law regulating States’ treatment of foreign investments which, taken cumulatively, may justify revisiting the Barcelona Traction rule on standing. These are: protection against indirect expropriation; diplomatic protection of shareholders against the national State of the company and the reach coverage of bilateral investment treaties.

34  Thus in respect of indirect expropriation, the Iran-US Claims Tribunal defined expropriation as occurring “where the State interferes with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated” (Iran-US Claims Tribunal, 122, p. 154). Similarly in Tecmed v. United Mexican States, Award of 29 May 2003 (ICSID)8, the Award spoke of expropriation [occurring] if the claimant “was radically deprived of the economical use and enjoyment of its investments, as if the rights related thereto … had ceased to exist” (p. 43, para. 115).

35  Such injury is the one suffered by Mr. Diallo’s companies, caused by his (unarguably wrongful) expulsion. In Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre9, also dealing with the expulsion of the central figure of unipersonal company (though incorporated as a company with limited liability), the Tribunal based itself on the central role of Mr. Biloune in promoting, financing and managing MDCL, to determine that his expulsion from the country effectively prevented MDCL from further pursuing the project. Such prevention would constitute constructive expropriation of MDCL’s contractual rights in the project and, accordingly, the expropriation of the value of Mr. Biloune’s interest in MDCL, unless the Respondent can establish by persuasive evidence sufficient justification for those events.

36  With respect to the protection of shareholders in international law, it suffices to recall that paragraph 92 of the Barcelona Traction Judgment may, and has been read, for example by the International Law Commission, as not passing negative judgment on the theory that had been developed to the effect that “the State of the shareholders has a right of diplomatic protection when the State whose responsibility is invoked is the national State of the company”10. The Court merely noted that “[w]hatever the validity of this theory may be, it is certainly not applicable to the present case, since Spain is not the national State of Barcelona Traction” (I.C.J. Reports 1970, p. 48, para. 92). With regard to bilateral investment treaties, it should be noted that the scope of protection afforded to the covered investments is significantly more extensive than the protection sought by Guinea in the present case. Indeed, investment treaties extend their protection to cases where the shareholder and the corporation are not as closely identified as they were in the case of Mr. Diallo and his two companies, by inter alia extending it to minority shareholders, and to shareholders whose corporation is incorporated in a third State (as was the case in Barcelona Traction).

37  Lastly we wish to point briefly to the impact of developments in the field of human rights on the right to be free from indirect or direct expropriation. Thus the European Court of Human Rights has accepted that the sole owner of a company may claim to be a “victim” (within the meaning of Article 34 of the 1950 Rome Convention for the Protection of Human Rights and Fundamental Freedoms) of measures taken against his company, because in the case of a single shareholder company, there is no risk of differences of opinion among shareholders or between shareholders, and the board of directors, as to the fact of infringements of the rights protected under the Convention or concerning the most appropriate way of reacting to such infringement (see Ankarcrona v. Sweden (dec.), No. 35178/97, 27 June 2000; Dyrwold v. Sweden, No. 12259/86, Commission decision, 7 September 1990). In the recent case of Nosov v. Russia (dec.), No. 30877/02, 20 October 2005, the Court decided that disregarding a company’s legal personality as per the question of the shareholder being a victim will be justified only in exceptional circumstances, such as where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or — in the event of liquidation or bankruptcy — through the liquidators or trustee in bankruptcy.

38  In sum, the finding by the Court that Mr. Diallo’s direct rights as associé have not been violated by the DRC authorities, should not have been adopted by the Court for a number of cogent reasons. First, the clear causal link which existed between the DRC authorities actions culminating in Mr. Diallo’s incarceration and eventual expulsion and the resultant loss of his rights of ownership in his companies amounted to an undeclared expropriation. Secondly, the finding is based on a narrow and unwarranted reading of Barcelona Traction, which is in any case distinguishable from the present case, in that Barcelona Traction contemplated a triangular relationship while in the present case, the State of nationality of the companies (the DRC) was the same State accused of wrongdoing.

39  Thirdly, we believe that this case sets a dangerous precedent for foreign investors unprotected by bilateral investment treaties. The low standard of protection outside BITs is in stark contrast to the wide reach of modern foreign investment law, which goes far beyond what Guinea had asked for in the present case. The Court missed a chance to do justice to Mr. Diallo, and at the same time, to bring the standard of protection of customary international law up to the standard of modern investment law.

(Signed) Awn S. Al-Khasawneh.

(Signed) Abdulqawi A. Yusuf.

Joint Declaration of Judges Keith and Greenwood

Kenneth Keith and Christopher Greenwood

. While, as our votes indicate, we agree with the Court’s conclusions, we do not agree with one of the reasons the Court gives in support of its conclusion that the arrests and detentions of Mr. Diallo in 1995–1996 violated the Covenant and the African Charter (Judgment, paragraph 165 (3)). That reason is that the arrests and detentions preceding his expulsion were arbitrary and in breach of Article 9 (1) of the Covenant and Article 6 of the African Charter because the decision to expel Mr. Diallo was made without any defensible basis (Judgment, paragraph 82). While the Judgment reaches that conclusion when addressing the arbitrariness of the arrest and detention in terms of the provisions regulating those matters, that reasoning must be related to the Court’s interpretation of the provisions concerned with expulsion.

. According to that interpretation, the expulsion provisions, Article 13 of the Covenant and Article 12 (4) of the African Charter, prohibit expulsions which are “arbitrary in nature” (Judgment, paragraph 65), allowing review by a court of whether the “expulsion was justified on the merits” (Judgment, paragraph 73). In this declaration we consider the question whether those provisions impose a general substantive non-arbitrariness limit on the power of expulsion over and above the procedural guarantees which they contain. For the reasons which follow we conclude that they do not.

. The immediately relevant provisions of the Covenant and the African Charter read as follows:

Article 12 of the Covenant

. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

. Everyone shall be free to leave any country, including his own.

. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

. No one shall be arbitrarily deprived of the right to enter his own country.”

Article 13

“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.”

Article 12 of the African Charter

. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.

. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.

. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions.

. 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 mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”

. Both Article 13 of the Covenant and Article 12 (4) of the African Charter require, in the first place, compliance with national law — a non-national may be expelled only under a decision reached in accordance with that law. Both require that a decision be taken relating to the particular non-national. Accordingly, mass expulsions are prohibited, as Article 12 (5) of the African Charter makes explicit and as the Human Rights Committee has stated in respect of Article 13 of the Covenant in its General Comment 15, paragraph 10 (see para. 10 below). National law will, in the normal course, determine who is to make the decision, the procedure the decision-maker is to follow and the grounds for expulsion; it may also provide for challenges to expulsion. Article 13 of the Covenant expressly requires two procedural protections: the right of the individual to submit reasons against expulsion and to have the case reviewed by, and be represented before, the competent authority or someone designated by it. These procedural requirements are not, of course, an end in themselves. They should help ensure the quality of the decision and should help protect the non-national against arbitrary expulsion.

. What substantive limits do the provisions impose in addition to the prohibition on mass expulsions? No others are expressed in the two articles but may arise from other provisions of the two treaties, notably the guarantee of equality before the law or the prohibition on discrimination, in Articles 2 (1) and 26 of the Covenant and Articles 2 and 3 of the African Charter, as again the Human Rights Committee has stated in respect of the Covenant in General Comment No. 15, paragraphs 9 and 10. To state the obvious, the expulsion articles do not expressly prohibit arbitrary expulsions.

. That absence of an express arbitrariness limit on the exercise of State power is the more striking when the particular provisions of the Covenant and Charter are read in context. Article 12 (3) and (4) of the Covenant and Article 12 (2) of the African Charter do allow substantive limits to be placed on the rights of movement and residence they state. Article 12 (4), the provision immediately preceding Article 13 of the Covenant, in allowing for a limit on the rights of nationals to return to their own country, uses non-arbitrariness as the test. Other provisions of both treaties, to go to a slightly wider context, expressly prohibit arbitrary action: the right to life (Article 6 of the Covenant and Article 4 of the African Charter); arrest and detention (Article 9 of the Covenant and Article 6 of the African Charter); and the right to privacy (Article 17 of the Covenant). Also to be contrasted are the provisions of Article 32 of the 1951 Convention on the Status of Refugees, on which the drafting of Article 13 of the Covenant drew in part (see para. 8 below). While paragraph 2 of that Article incorporates procedural protections comparable to those in Article 13 of the Covenant, paragraph 1 of Article 32, by contrast to Article 13, also circumscribes the State’s power by allowing expulsion of a refugee only on grounds of national security or public order. The same contrast appears from Article 31 of the Convention relating to the Status of Stateless Persons 1954.

. The ordinary meaning of the terms of Articles 13 and 12 (4), read in context, does not appear to allow the implication of prohibition on arbitrary expulsion. But does the object and purpose of the provisions? Undoubtedly, the insistence on compliance with national law and with the specific procedural requirements of Article 13 has as purposes the making of better informed decisions and the protection of the individual’s opportunities to present the case against expulsion. In that respect they provide, by way of due process, a safeguard against arbitrary decisions.

. That emphasis on fair procedure as the primary (even the sole) means of preventing arbitrary expulsions is to be seen throughout the drafting history of Article 13. The United Nations Secretariat prepared valuable Annotations on the Draft Covenants on Human Rights in 1955 (UNGAOR (X) Ann., Agenda item 28, A/2929). The annotation to draft Article 13, the text of which remained unchanged through its later drafting stages, began with this paragraph:

61 . Discussion of article 13 has centred on the nature and extent of the protection which should be accorded to aliens against expulsion, having regard to the desire of States to safeguard themselves against undesirable aliens in their territories.”

And after a reference to asylum and extradition, it continued as follows:

“Protection of Aliens Against Arbitrary Expulsion

  1. 63 . It was proposed that the article should state that the grounds for expulsion of aliens lawfully in the territory of a State must have a legal basis; it should also provide that the procedure to be followed in cases of expulsion must be prescribed by law. The principle that the grounds for expulsion must be in accordance with the law was not questioned, but there was some objection that such a provision might be difficult to apply and might in some cases, even be inadvisable for reasons of national security. It was agreed that a decision to expel an alien was a most serious matter and should not be taken arbitrarily. Aliens must be afforded some protection against arbitrary action.

  2. 64 . The nature of the safeguards which should be provided for the individual was discussed, and it was said that the article should be so drafted as to make countries which did not already provide for appeal against a decision of expulsion, adopt legislation to that effect. Some were opposed to including any specific provisions in the article, being of the view that States could in their own discretion expel aliens and decide on the procedures and safeguards they wished to establish. The majority, however, believed that the article should strike a proper balance between the interests of the State and the protection of the individual. Article 32 of the Convention relating to the Status of Refugees of 28 July 1951 was considered to provide the proper basis for action by the authorities with the adequate and specific safeguards in respect of the exercise of such action. Article 13, as adopted, was based on this article of the Convention.”

. That emphasis on procedural protections rather than on substantive limits as the protection against arbitrary expulsions also appears from various steps in the drafting process. While a proposal adopted by the Human Rights Commission in 1947 would have prohibited “arbitrary expulsion” (UN doc. E/CN.4/SR.37, p. 15), by the next year the draft required only that the expulsion be in “in accordance with procedure prescribed by law” (UN doc. E/CN.4/95, Art. 12; E/800, Ann. B, Art. 11). A proposal to include a reference to “established legal grounds” was not retained, and in 1952 the text took its final form, with the earlier reference to “procedure” being deleted (M. J. Boussuyt, Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights, 1987, pp. 267–269).

10 . That it is primarily through procedural protections that arbitrary expulsions are to be prevented is also the position adopted by the Human Rights Committee, as it made clear in 1986 in its General Comment No. 15:

10 . Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out ‘in pursuance of a decision reached in accordance with law’, its purpose is clearly to prevent arbitrary expulsions. On the other hand, it entitles each alien to a decision in his own case and, hence, article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions. This understanding, in the opinion of the Committee, is confirmed by further provisions concerning the right to submit reasons against expulsion and to have the decision reviewed by and to be represented before the competent authority or someone designated by it. An alien must be given full facilities for pursuing his remedy against expulsion so that his right will in all the circumstances of his case be an effective one. The principles of article 13 relating to appeal against expulsion and the entitlement to review by a competent authority may only be departed from when ‘compelling reasons of national security’ so require. Discrimination may not be made between different categories of aliens in the application of article 13.”

11 . The views of the Human Rights Committee in Maroufidou v. Sweden, mentioned by the Court in support of its conclusion (Judgment, paragraph 66), address only the question of compliance with national law and the extent to which the Committee can properly go in reviewing decisions of national authorities which have applied their national law. The Committee says nothing at all about a distinct arbitrariness limit imposed by international law, as this passage makes clear:

9.3  The reference to ‘law’ in Article 13 is to the domestic law of the State party concerned, which in the present case is Swedish law, though of course the relevant provisions of domestic law must in themselves be compatible with the provisions of the Covenant. Article 13 requires compliance with both the substantive and the procedural requirements of the law.

10.1  Anna Maroufidou claims that the decision to expel her was in violation of article 13 of the Covenant because it was not ‘in accordance with the law’. In her submission it was based on an incorrect interpretation of the Swedish Aliens Act. The Committee takes the view that the interpretation of domestic law is essentially a matter for the courts and authorities of the State party concerned. It is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly in the case before it under the Optional Protocol, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power.

10.2  In the light of all written information made available to it by the individual and the explanations and observations of the State party concerned, the Committee is satisfied that in reaching the decision to expel Anna Maroufidou the Swedish authorities did interpret and apply the relevant provisions of Swedish law in good faith and in a reasonable manner and consequently that the decision was made ‘in accordance with law’ as required by article 13 of the Covenant.” (CCPR/C/12/D/58/1979, 8 April 1981.)

12 . The Court refers to two decisions of the African Commission on Human and Peoples’ Rights. The first in time, Organisation Mondiale Contre La Torture … v. Rwanda (Judgment, paragraph 67), concerned in part the mass expulsion of Burundian refugees on the basis of their nationality. The Commission, in its brief ruling of October 1996, said that that expulsion constituted a clear violation of Article 12 (5) (para. 3 above). Its only other reference to Article 12 was as follows:

“This provision should be read as including a general protection of all those who are subject to persecution, that they may seek refuge in another state. Article 12.4 prohibits the arbitrary expulsion of such persons from the country of asylum. The Burundian refugees in this situation were expelled in violation of Articles 2 and 12 of the African Charter.”

The second African Commission decision, in Kenneth Good v. Botswana, communication 313/05 (May 2010) EX. CL/600 (XVII), so far as it relates to Article 12 (4) of the African Charter, is concerned essentially with compliance with the immigration law of Botswana:

203 . In addressing this issue the first point that has to be dwelled on is, what does the phrase ‘in accordance with the law’ under Article 12 (4) of the Charter refer to? It refers to the domestic laws of State Parties to the African Charter. Under this provision, each and every State Party has the power to expel non-nationals who are legally admitted into their territory. However, in doing so the Charter imposes an obligation on State Parties to have laws which regulate such matters and expects them to follow it strictly. This contributes towards making the process predictable and also helps to avoid abuse of power.

204 . Botswana accordingly has a law in place which regulates immigration matters including deportation of non-nationals who are legally admitted into its territory. To this extent therefore Botswana has met its obligations under Article 12 (4) of the Charter. But the mere existence of the law by itself is not sufficient; the law has to be in line with not only the other provisions of the Charter but also other international human rights agreements to which Botswana is a party. In other words, Botswana has the obligation to make sure that the law (in this case the Botswana immigration Act) does not violate the rights and freedoms protected under the African Charter or any other international instrument to which Botswana is a signatory.

205 . In this regard, the Commission in Modise v Botswana ruled that ‘while the decision as to who is permitted to remain in a country is a function of the competent authorities of that country, this decision should always be made according to careful and just legal procedures, and with due regard to the acceptable international norms and standards.’ International human rights norms and standards require states to provide non-nationals with the necessary forum to exercise their right to be heard before deporting them.”

The Commission, earlier in its decision, had determined that Botswana was in breach of Mr. Good’s rights under Article 7 (1) (a) of the Charter to have access to a court to determine his rights. The Commission held Botswana to be in breach of its procedural obligations.

13 . It follows that we do not see the interpretations given to the two treaties by their monitoring bodies as questioning in any way the ordinary meaning of the provisions which results from the reading of the texts in context and in the light of their purpose, a meaning confirmed by the drafting history of the Covenant. Their interpretations indeed support the meaning given above. So too do the commentaries on the Covenant (see M. Nowak, United Nations Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed., 2005, pp. 290–291; S. Joseph, J. Schultz and M. Castan (eds.), The International Covenant on Civil and Political Rights: Cases, Materials and Commentary , 2nd ed., 2005, pp. 377–378).

14 . The Court refers to jurisprudence of the European and Inter-American Human Rights Courts as supporting its conclusion relating to the expulsion provisions of the Covenant and the African Charter (Judgment, paragraph 68). It does not however cite any relevant decisions from either Court and those which we have consulted and which have held respondent States in breach are cases where the State had failed to observe procedural guarantees, had not followed its own law, or where the expulsion was collective (e.g. Bolat v. Russia, Application No. 14139/03, Decision of 5 October 2006, paras. 81–83 and Lupsa v. Romania, Application No. 10337/04, Decision of 8 June 2006, paras. 54–61; Situations of Haitians in the Dominican Republic, Inter-American Commission on Human Rights, Annual Report 1991, 14 February 1992, Chap. V). Commentaries to the European Convention confirm that the expulsion provision confers procedural protection but no protection on substance (see R. White and C. Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, 5th ed., 2010, pp. 544–545; D. Harris, M. O’Boyle, E. Bates and C. Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 2nd ed., 2009, pp. 747–748).

15 . To conclude on this question of law, we emphasize again that by requiring that national law regulating expulsion be enacted and complied with and, in the case of the Covenant, that certain procedural rights be required, the treaties do provide important protections against arbitrary expulsion, as both the 1955 Secretariat annotations and the Human Rights Committee in its 1986 General Comment say (paras. 8 and 10 above). The history of freedom, it has been wisely said, is largely the history of the observance of procedural safeguards.

16 . The facts in this case clearly demonstrate the force of that proposition. Here the DRC in making and carrying out the order to expel Mr. Diallo clearly breached the rights conferred on him by its own law:

  1. . by not consulting the National Immigration Board, receiving its recommendation and reciting that fact in the order;

  2. . by not providing Mr. Diallo with adequate reasons for the expulsion order;

  3. . by detaining Mr. Diallo pending the expulsion when it provides no evidence that that was necessary and for periods grossly in excess of those allowed by its law;

and also conferred on Mr. Diallo by the Covenant:

  1. . by not giving Mr. Diallo the opportunity to submit the reasons against his expulsion; and

  2. . by not allowing him to have his case reviewed by, and be represented for the purpose before, the competent authority or a person designated by that authority.

The egregious breaches by the DRC authorities of their law in making the arrests and detentions would in themselves, in our opinion, provide a sufficient reason for holding those actions to be arbitrary under the arrest and detention provisions of the Covenant and African Charter, with no reference at all to the purpose of the expulsion.

17 . Given the manifest illegality of the expulsion for those reasons, the Court, in our view, would have had no need to consider the merits of the expulsion and its substantive arbitrariness, even if that course were available to it.

18 . Although we need not consider the facts in detail, we add that we are not persuaded that the limited evidence before the Court provides a sufficient basis for the Court’s statement that the expulsion order had no defensible basis because of a possible link between the expulsion and Mr. Diallo’s attempts to recover the debts which he believed were owed to his companies (Judgment, paragraph 82). Those features of the expulsion order lead the Court to the conclusion that the arrests and detentions aimed at allowing the expulsion to be effected can only be characterized as arbitrary.

19 . We begin with the recovery of debts owed to Africom-Zaire. The record before the Court shows no action after 1989 by that company in respect of debts allegedly owed to it by the State. The other Africom-Zaire issue related to a dispute with its lessor, but so far as the record shows the company was a judgment debtor following the Court of Appeal judgment of 1994 and the company’s appeal to the Supreme Court was still pending as late as 2002.

Africontainers-Zaire made claims against five bodies in the course of the 1980s. It will be recalled that its trading activities had ceased by 1990. Two of the claims were against State corporations, Onatra, which operated ports and other transport facilities, and Gécamines, a State mining company. The record shows a settlement of the Onatra claim in 1990, its repudiation by Africontainers-Zaire later in the year, a follow-up letter on that matter from the company’s attorney in July 1991, the rejection by Onatra of the repudiation, a rejection it repeated in February and September 1991, and correspondence relating to two containers in the course of 1991. On 14 June 1991, the company wrote in more comprehensive terms relating to 211 containers and claimed a specific amount. The final relevant document appears to be a letter of 31 July 1992 from the company to Onatra about alleged misuse of 479 containers from 1986–1989. The company expressed its willingness to negotiate the claims, without specifying any amount, in order to spare Onatra legal costs.

In the early 1990s there were exchanges with Gécamines about the loss of, damage to, and immobilization of some containers — about 20 or 30 in total. The record is silent from March 1993 to 1 June 1995 when at a meeting the company produced a list of 32 containers to which should be added, it said, another two; it also asserted the continuing validity of the claim for US$30 million it had made in 1992. On 5 February 1996, a few days after Mr. Diallo was expelled, a Bailiff served a formal demand on Gécamines, now for US$14 billion, or nearly 500 times as much as it had claimed just seven months earlier. There followed in 1996–1997 exchanges and negotiations between Gécamines and the company and the other freight forwarders in which Gécamines acknowledged that it was indebted and in which details were exchanged, as in the early 1990s, about the number of containers.

20 . The company’s claims against the three oil companies, Zaire Shell, Zaire Fina and Zaire Mobil, related to the alleged loss of, damage to, and non-use of, the company’s containers and the oil companies’ alleged breach of the exclusivity clauses in their agreements with the company. The record shows court proceedings against Zaire Shell and Zaire Fina. On 3 July 1995, Zaire Shell was ordered to pay in excess of US$13 million, in August the appeal court upheld the decision, in mid-September the Vice-Minister of Justice ordered the Bailiff not to execute the judgment but 15 days later that order was in effect revoked. On the following day the company wrote to Shell Zaire forwarding a debit note, dated 9 September 1995, in respect of its activities between 1982 and 1990. The adjusted amount was now in excess of US$1.8 billion or well over 100 times larger than the judgment it had obtained in July. On 6 October 1995 the Bailiff seized three vans and office equipment, but on 13 October another Bailiff “Sur ordre de la Hiérarchie [not identified]” returned the property. On 20 June 2002, the Court of Appeal allowed Shell’s appeal and substituted a judgment against Shell for about US$1,500.

The limited evidence on the Zaire Fina case indicates that the company’s claim was upheld in part but that judgment was reversed on appeal and the company’s cross appeal was dismissed in February 1994. The record before this Court of that litigation ends with the April 1995 submissions of the Public Prosecutor recommending that the Appeal Court judgment should be quashed and that a ruling should be made in that Court on the company’s cross appeal. On 2 November 1995, after the making of the expulsion order, the company sent a debit note to Zaire Fina based on a recalculation of the claim which it said now amounted to US$2.6 billion.

No legal proceedings appear to have been brought against Zaire Mobil. Also on 2 November 1995, the company sent it a debit note including a recalculation of the invoices addressed to the oil company between 1983 and 1990. The adjusted amount was over US$1.6 billion.

It is true that on 15 November 1995, Zaire Mobil and Zaire Fina wrote to the Prime Minister of the DRC calling attention to the fact that in June 1995 “Mr. Diallo sued Zaire Shell and was awarded US$13 million” and to the “fictitious” claims (which totalled more than US$4 billion) he now threatened against them, expressing their fear that his greed may imperil their very existence, by endangering their commercial activities and the job security of their employees, and seeking government intervention to warn the courts and tribunals of Mr. Ahmadou Sadio Diallo’s activities in his campaign to destabilize trading companies. But that letter can have had no part in the making of the expulsion order fully two weeks earlier.

21 . To summarize in respect of the litigation, as at the time the DRC made the expulsion order against Mr. Diallo, Africontainers-Zaire did not have a judgment against Zaire Fina and, while it had a judgment against Zaire Shell in respect of which execution had been interrupted, it had issued it with a new debit note for a very much larger sum. Similar debit notes were issued to Zaire Fina and Zaire Mobil after the expulsion order was made.

22 . The above account of the specific actions taken in respect of the companies’ debts is to be put in the context of the huge challenges facing the Zairean Government in the mid 1990s. The evidence before the Court includes, in addition to the expulsion orders against another 194 non-nationals, an extract from the report of the Central Bank of the Congo on the Zairean economy in 1993. The profound desequilibria which had characterized the economy for more than a decade had persisted in 1993. These unfavourable developments were combined with the pillaging of January 1993, the weakness of the banking system, socio-political instability, and erratic changes in prices and rates of exchange. Production had continued to fall, by 8.4 per cent in 1991, 10.5 per cent in 1992 and 16.2 per cent in 1993. In the production of goods the negative performance was to be seen in several areas, including mining (-36.4 per cent in 1992 and -22.1 per cent in 1993). Gécamines faced significant difficulties. Those difficulties, along with the January pillaging, had reduced the level of internal production and with the excessive creation of liquidity the inflation rate of almost 3,000 per cent in 1992 had risen to 4,600 per cent by the end of 1993. The drop in public receipts was explained notably by the absence of contributions by Gécamines, fraud and tax evasion and the granting of inopportune tax concessions. Exports of commodities in general continued to fall, by 12.5 per cent in 1993 by reason principally of the weakness of the level of production.

23 . To repeat, against that record, we would be reluctant to find it established that the decision to expel Mr. Diallo had no defensible basis and in that sense was arbitrary.

24 . To summarize, we consider that the Court’s finding about the arbitrary character of the expulsion is unnecessary, wrong in law and difficult to support on the facts.

(Signed) Kenneth Keith.

(Signed) Christopher Greenwood.

Dissenting Opinion of Judge Bennouna

Mohamed Bennouna

[English Original Text]

Link between the arrest, detention and expulsion of Mr. Diallo and the violation of his direct rights as associé — Recovery of debts — Sole associé — Constraints on the exercise of rights — Exercising the functions assigned to the general meetings of the companies — Right to take part and vote in general meetings — Right to exercise the functions of a gérant — Right to oversee and monitor the management of the companies — Usus and fructus of the right to property over the parts sociales.

. I voted against subparagraph (6) of the operative part of the Judgment, which “[f]inds that the Democratic Republic of the Congo has not violated Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire”, since I believe that the unlawful and arbitrary character of Mr. Diallo’s arrest, detention and expulsion (subparagraphs (2) to (4) of the operative part) resulted in the violation of his direct rights as associé in the two companies.

. In its Judgment of 24 May 2007 on preliminary objections (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 606, para. 66), the Court left it until the merits stage to assess “the effects on these various rights [as associé and gérant] of the action against Mr. Diallo”. It has clearly emerged at the merits stage of this case that when Mr. Diallo was twice detained, in 1988–1989 and 1995–1996, and then finally expelled from the DRC, it was not simply at the whim of the authorities of that country, but because, on each occasion, he had attempted to recover the debts which were allegedly owed to his companies by the State or by companies in which the State holds a significant portion of the capital. The debts owed by the State to Africom-Zaire in the “listing paper” affair were acknowledged by the Finance Minister, who issued bills of exchange to settle them, but payment was then stopped on the order of the Prime Minister on 14 January 1988, Mr. Diallo having been accused of “fraud”. On 25 January 1988, he was detained and imprisoned on the order of the Prime Minister for almost a year, without being brought to trial and without the State settling its debt to Africom-Zaire.

. Mr. Diallo was to meet with similar difficulties when he brought legal proceedings to recover the debts owed by oil corporations in the DRC to Africontainers-Zaire. On 13 June 1995, he obtained a judgment from the Kinshasa Tribunal de grande instance ordering Zaire Shell to pay the sum of US$13 million to Africontainers-Zaire, that decision being enforceable. However, he was never to succeed in enforcing it; having been the subject of an expulsion decree issued by the Prime Minister on 31 October 1995, he was arrested on 5 November and expelled from the DRC on 31 January 1996. In the meantime, on 15 November 1995, the Zaire Fina and Zaire Mobil Oil companies wrote to the Prime Minister concerning the “[a]ttempted fraud and destabilization of oil companies by Diallo Amadou Sadio”. The two companies drew the Prime Minister’s attention to the fact that “in June 1995 Mr. Diallo Amadou Sadio, a Guinean subject, sued Zaire Shell and was awarded US$13,000,000” and that “[e]ncouraged by his success in these proceedings, Mr. Diallo is now threatening Zaire Mobil Oil and Zaire Fina” on the basis of “claims [which] are fictitious and out of all proportion”. They added that they “fear that Diallo’s greed may imperil their very existence, by endangering their commercial activities and the job security of their employees”, concluding “[t]hat is why we seek government intervention to warn the courts and tribunals of Mr. Diallo Amadou Sadio’s activities in his campaign to destabilize trading companies”.

. This letter, sent to the Prime Minister by public corporations in the DRC in which the State holds a substantial portion of the capital, reveals the true reason for the detention and expulsion of Mr. Diallo, namely the legal proceedings which he brought to recover the debts owed to Africontainers-Zaire by Congolese companies. It is of little significance that the letter is dated after the expulsion decree, since it is based on the judgment given against Zaire Shell on 13 June 1995 by the Kinshasa Tribunal de grande instance.

. Furthermore, the Court has itself pointed out that

“it is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed 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” (Judgment, paragraph 82).

But the Court has not drawn the consequences in terms of the infringements of Mr. Diallo’s direct rights as associé that were to result from the expulsion.

. The DRC authorities therefore clearly wished to force Mr. Diallo out of the territory of their country, so that he could no longer exercise his direct rights as associé and gérant of Africom-Zaire and Africontainers-Zaire. It is thus difficult to understand how the Court can find (in subparagraph (6) of the operative part) that the DRC has not violated these rights, when the very purpose of the expulsion of Mr. Diallo was to prevent him from taking care of his companies. This is tantamount to acknowledging that the authorities of that country were able to get rid of Mr. Diallo in this way and keep him from managing his affairs — which swiftly went into decline — without committing any breach at all of international law, which allows Mr. Diallo’s State of nationality to raise the issue of the DRC’s responsibility for wrongful acts that infringed Mr. Diallo’s direct rights as associé.

. Such is the extent to which the findings of the majority on this point may represent a serious precedent, if they are perceived as giving “carte blanche” for ploys designed to neutralize foreign investors by expelling them from the territory in which they are carrying on their activities. A situation of this kind is all the more troubling because it is accepted, in this case, that Mr. Diallo did in fact become the sole associé of the two companies, and that since he was “fully in charge and in control of Africom-Zaire, he was also, directly or indirectly, fully in charge and in control of Africontainers-Zaire” (Judgment, paragraph 110).

. It is true that, according to the Barcelona Traction jurisprudence, there is a distinction between the rights of shareholders and those of the company, so that an infringement of the latter does not necessarily involve a breach of the former (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 36, para. 46). However, a forced separation between the sole associé and his company is likely to result in a violation of the rights of both. Since that associé has been prevented from exercising his rights, the company will be like a ship without a rudder and will inevitably founder; that was to be the case with Africom-Zaire and Africontainers-Zaire.

. Mr. Diallo’s direct rights, as claimed by Guinea, pertain to the right to participate and vote in general meetings, the right to be appointed gérant and to exercise that function, the right to oversee and monitor the management of the companies, and the right to property over the parts sociales (Judgment, paragraph 116).

10 . On the right to take part and vote in general meetings, the Court observes that there is no evidence of a general meeting of either company being held before or after the expulsion of Mr. Diallo, a necessary condition for him to participate in such a meeting. It therefore asks whether Mr. Diallo was deprived of the right to convene a general meeting, which must be held on Congolese territory, and concludes that such was not the case (Judgment, paragraph 121). The Court further adds that Mr. Diallo could have had himself represented by a proxy.

11 . Such reasoning, based on the purely formal aspect of Mr. Diallo’s direct right to convene general meetings of his companies, which must be held in the DRC, takes no account whatsoever of the nature of his connection with them. It can readily be understood that, as the sole associé, Mr. Diallo himself directly exercised the powers vested in the general meeting, for example the allocation of profits, and that in reality the issue which arose following his expulsion was not so much the right to convene a general meeting as that of exercising the functions assigned to it. Clearly, he was the only person able to do that, and he was prevented from doing so as a result of his expulsion.

12 . The majority, noting that Mr. Diallo could appoint a proxy for Africom-Zaire, though not for Africontainers-Zaire, has taken the formalistic approach almost to the point of caricature, stating that “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” (Judgment, paragraph 125).

13 . On the basis of the fact that Mr. Diallo is a partner with Africom-Zaire (of which he is the sole associé) in Africontainers-Zaire, the majority took the view that, by appointing a proxy from the former company, he would no longer be debarred by the provisions of Article 22 of the Articles of Incorporation of Africontainers-Zaire. Formal contortions of this kind are surprising, especially when the issue is ultimately the same, namely, that Mr. Diallo was prevented from genuinely exercising the functions assigned to the general meeting of either of the companies, in which he is the sole associé.

14 . If it is accepted, as the Court noted in its 2007 Judgment on jurisdiction, that “Mr. Diallo, who was associé in Africom-Zaire and Africontainers-Zaire, also held the position of gérant in each of them”, there remains the question of whether his right to exercise the functions of that position was violated by the DRC. In its Judgment on the merits, the Court considers that “[w]hile 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 carry out those duties” (Judgment, paragraph 135). But how could that be demonstrated? Was it not sufficient to look back at the context of the expulsion of Mr. Diallo, who had been blacklisted by the Congolese authorities, which had accused him of corruption and of having “breached Zairean public order, especially in the economic, financial and monetary areas” (expulsion decree of 31 October 1995), in order for the Court to conclude that it had become impossible for him ipso facto to perform his duties as gérant, since he was no longer able to liaise with his Congolese discussion partners, in particular the public services involved with the debts owed to his companies?

15 . The Court next turns to Mr. Diallo’s right to oversee and monitor the actions of management, and observes that “[w]hile it may have been the case that Mr. Diallo’s detentions and expulsion from the DRC rendered the business activity of the companies more difficult, they simply could not have interfered with his ability to oversee and monitor the gérance, wherever he may have been” (Judgment, paragraph 147). Here again, the Court goes no further than a statement of principle which has no connection with the reality at issue, especially when it is appreciated to what extent such monitoring requires an actual presence in the country concerned of the person responsible for it, who in this case is the sole associé, even if the latter succeeds in appointing local collaborators in the DRC.

16 . As regards Mr. Diallo’s right to property over his parts sociales, including his right to receive any dividends or any monies payable in the event of the companies being liquidated, the Court confines itself to stating that “[t]here is … no evidence that any dividends were ever declared or that any action was ever taken to wind up the companies” (Judgment, paragraph 157). And yet Mr. Diallo lived well on the income from his companies while he was resident in the DRC!

17 . As for the power to decide on the dissolution of the company, which lies with the general meeting (Article 99 of the 1887 Decree), this is in theory a collective act which must be voted for by the associés, but in the present case, the decision lay with Mr. Diallo. Having been expelled, it was impossible for him in practice to carry out the winding-up and liquidation of his companies and to realize the remainder of their assets, leaving aside the fact that those companies, neglected and deprived of income from the debts owed to them by the Congolese State, had in the meantime totally collapsed. It may be true that Mr. Diallo was not formally deprived of his right to property over his parts sociales, but the fact is that he was completely deprived of the usus and fructus of that right, since he could neither draw dividends from them nor actually do with them as he wished.

18 . In this case, the hindrance to the exercise of Mr. Diallo’s rights, as a result of his expulsion, amounted in my view to the DRC depriving him of his direct rights as associé, thereby committing wrongful acts which engage its international responsibility. By distinguishing, in its Judgment of 24 May 2007 on preliminary objections, between the rights of associés and those of the companies, the Court sought to take into account the legal structure of the latter; in its Judgment of 30 November 2010 on the merits, by refusing to take account of Mr. Diallo’s right to exercise his rights as associé, the Court has left those rights devoid of any real scope.

(Signed) Mohamed Bennouna.

Separate Opinion of Judge Cançado Trindade

Antônio A. Cançado Trindade

. This is the first time in its history, to the best of my knowledge, that the International Court of Justice has established violations of the two human rights treaties at issue, together, namely, at universal level, the 1966 UN Covenant on Civil and Political Rights and, at regional level, the 1981 African Charter on Human and Peoples’ Rights both in the framework of the universality of human rights: I fully concur with the Court’s decision in this respect, as well as in respect of the established breach of the 1963 Vienna Convention on Consular Relations (Article 36 (1) (b)), as set forth in the resolutory points 2, 3 and 4 of the dispositif of the present Judgment.

. Yet, pursuing a distinct rationale, the Court’s majority came to an entirely different conclusion in other aspects of the present case (resolutory points 1, 5 and 6 of the dispositif). In relation to these other aspects, I regret not to be able to concur with the conclusions of the Court’s majority. In this connection, a point has already been made in a Joint Declaration of five Members of the Court11, appended to the present Judgment, as to the right to liberty and to security of person (added to the right not to be expelled from a State without a legal basis).

. In addition thereto, and in relation to other matters dealt with in the present Judgment of the Court in the A.S. Diallo case (Guinea versus D.R. Congo), I thus feel it my duty to present, in this Separate Opinion, the foundations of my own personal position on them. Before embarking on this presentation, I shall preliminarily draw attention briefly to one significant feature — as I perceive it — of the cas d’espèce, as presented to the Court by the contending parties themselves, in relation to the subject of the rights and the object of the claim in the cas d’espèce.

. Prolegomena: The Subject of the Rights and the Object of the Claim.

. The present case A.S. Diallo, opposing the Republic of Guinea to the Democratic Republic of the Congo, concerns, in reality, the individual rights of Mr. A. S. Diallo, as set forth in the 1966 UN Covenant on Civil and Political Rights and in the 1981 African Charter on Human and Peoples’ Rights, namely, and mainly, the right to liberty and security of person, and the right not to be expelled from a State without a legal basis12. It further concerns his individual right to information on consular assistance in the framework of the guarantees of the due process of law, as enshrined into the 1963 Vienna Convention on Consular Relations. The violations complained of are those of the rights set forth in Articles 9, paragraphs (1) to (4), and 13, of the Covenant, and in Articles 6 and 12 (4) of the African Charter, and in Article 36 (1) (b) of the 1963 Vienna Convention.

. The two contending States are both Parties to the aforementioned treaties: Guinea is Party to the Covenant on Civil and Political Rights since 24.01.1978, and to the African Charter since 16.02.1982, and the D.R. Congo is Party to the Covenant since 01.11.1976, and to the African Charter since 20.07.1987. They are both, likewise, Parties to the 1963 Vienna Convention: Guinea is Party to it since 30.06.1988, and the D.R. Congo since 15.07.1976. 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.

. Once identified the subject of the rights and the object of the claim in the cas d’espèce, I purport, in the paragraphs that follow, to address, in logical sequence, some interrelated points. First, I shall focus on the identification of the applicable law in the cas d’espèce, with particular attention to the invocation and the incidence of the relevant provisions of the 1966 UN Covenant on Civil and Political Rights and of the 1981 African Charter on Human and Peoples’ Rights, in addition to the relevant provision of the 1963 Vienna Convention on Consular Relations.

. Secondly, I shall turn attention to the saga of the subject of rights (Mr. A. S. Diallo) in the cas d’espèce. I shall concentrate my considerations on the vindication of the protected rights under those three treaties, namely, the right to the liberty and security of person, 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.

. Thirdly, I shall dwell upon the hermeneutics of human rights treaties (in so far as it has a bearing on the resolution of the cas d’espèce), and, fourthly, I shall then concentrate my attention on the principle of humanity, as I understand it, in its wide dimension. Fifthly, my next set of considerations will focus on the key issue of the prohibition of arbitrariness in the International Law of Human Rights, wherein I shall review and assess the position 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.

. Sixthly, in sequence, I shall examine 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), as well as the jurisprudential construction of the right to information on consular assistance in the conceptual universe of human rights. In respect of this latter, I shall dwell upon the individual right to information on consular assistance beyond the inter-State dimension, and examine and assess the process of humanization of consular law in this connection (as I perceive it), and what I consider the irreversibility of such advance of humanization.

10 . Seventhly, I shall examine the notion of “continuing situation”, in the light of the projection of human rights violations in time. This will be followed, eighthly, by my reflections on the individual as victim and titulaire of the right to reparation, and, ninthly, by a brief presentation of my outlook of international law for the human person, beyond the inter-State dimension. The path will then have been paved for the presentation of my concluding observations, and a brief epilogue on the move — as I perceive it — towards a new era of international adjudication of human rights cases by the ICJ.

II . Reflections on the Applicable Law in the Cas d’Espèce.

. Invocation and Incidence of the 1966 UN Covenant on Civil and Political Rights.

11 . Throughout the whole proceedings of the present case A.S. Diallo (Guinea v. D.R. Congo) , the relevant provisions of the 1966 UN Covenant on Civil and Political Rights marked presence, at the written and oral phases, and formed object of the submissions of the contending parties. This remarkable feature of the cas d’espèce before the International Court of Justice is not to be underestimated. Already in its Application Instituting Proceedings (of 28 December 1998), the applicant State contended that under the Covenant on Civil and Political Rights, together with the 1948 Universal Declaration of Human Rights, “no one may be arrested or detained unless proved guilty according to law by an impartial tribunal acting with regard for the presumption of innocence and the rights of the defence” (p. 29 in fine).

12 . In its Memorial (of 23.03.2001), Guinea invoked the “relevant principles” applicable in case of “arbitrary arrest and detention and expulsion”, as enshrined in Articles 9 (1) and 13 of the Covenant on Civil and Political Rights (paras. 3.6 and 3.33). On its part, the respondent State, the D.R. Congo, in its Counter-Memorial (of 27.03.2008), addressed the point at issue (para. 1.03), challenging the alleged breaches of Articles 9 and 13 of the Covenant (paras. 1.24–1.31). Shortly afterwards, in its Reply (of 19.11.2008), Guinea dwelt upon the point at issue, at greater length, elaborating further on its submissions of violations — on the part of the D.R. Congo — of Articles 9 (1) to (4) of the Covenant.

13 . This occurred, in Guinea’s view, on account of the arrests and detentions of Mr. A. S. Diallo in 1988–1989 and in 1995–1996, expressly referred to (paras. 1.17-1.48), which Guinea regarded as arbitrary, as the alleged victim was not informed of the reasons for his arrests and detentions and the charges against him, nor brought before a judge or a court to decide on their lawfulness within a reasonable time. Furthermore, Guinea sustained that the expulsion of the original complainant from the D.R. Congo in 1996 was effected not in conformity with the Covenant on Civil and Political Rights (Article 12 (4)), nor with the African Charter on Human and Peoples’ Rights (Article 12 (2)) (paras. 1.60–1.90).

14 . On its part, in its Rejoinder (of 05.06.2009), the D.R. Congo controverted the applicant State’s submission that it had breached Article 9 (1) to (4) of the Covenant (paras. 1.18–1.35 and 1.39), also expressly referring to Mr. A. S. Diallo’s arrests and detentions of 1988–1989 as well as of 1995–1996 (paras. 1.07–1.49). The two contending Parties dwelt further upon their points in the course of the oral phase of the proceedings before the Court. Thus, in its pleadings of 19.04.2010, Guinea again invoked Articles 9 and 13 of the Covenant, in combination with Article 6 of the African Charter, and Article 36 (1) (b) of the 1963 Vienna Convention on Consular Relations (cf. infra)13.

15 . Guinea concentrated attention particularly on Article 9 (1) to (5) of the Covenant14. For its part, the D.R. Congo, in its pleadings of 26.04.2010, argued that there had been no breach, on its part, of Articles 9 and 13 of the Covenant (on account of Mr. A. S. Diallo’s expulsion of 31.01.1996)15. The controversies between Guinea and the D.R. Congo were, thus, sustained by them throughout the whole proceedings of the present case before the Court, in their written and oral phases.

16 . The important point here to be retained and singled out, in my perception, is precisely that, in the present case of A.S. Diallo (Guinea v. D.R. Congo), the two contending Parties clearly relied on, as the applicable law in the cas d’espèce, mainly the UN Covenant on Civil and Political Rights, and also the African Charter on Human and Peoples’ Rights. It is highly significant — perhaps a sign of the new times — that the ICJ is here called upon, by the contending Parties themselves, to determine whether there has been a breach, or some breaches, by the respondent State, of the relevant provisions of the Covenant and the African Charter, in addition to the relevant provision of the 1963 Vienna Convention.

17 . It may well be that the present case has undergone a certain metamorphosis, since the early days of the Application Instituting Proceedings (of 28.12.1998) and the Court’s Judgment on Preliminary Objections (of 24.05.2007), followed by the subsequent proceedings till the present Judgment on the Merits (of 30.11.2010). Earlier on, much emphasis was placed on property rights and diplomatic protection, but enthusiasts of those two traditional issues seemed gradually to lose some or much of their interest (still dreaming of, or longing for, Barcelona Traction added to the Mavrommatis fiction remindful of Vattel), as the dynamics of the present case has fortunately taken a new course, in the written and oral phases concerning the merits (and reparation).

18 . To my mind, the truth is that, along the proceedings on the merits (written and oral phases), the present case has taken the form — as it should — of a clear case of human rights protection. After all, since the days of Ulpiano (circa 170–228 of our era), honeste vivere comes first. Vivere itself comes before habere, and dignitatem vivere surely stands above property rights. Well above discretionary diplomatic protection, this has become a case of human rights protection, and one with far greater interest, in my view, for the jus gentium of our times. Each case has a dynamics of its own, and this development in the cas d’espèce should not pass unnoticed.

19 . It is indeed remarkable that a Court, such as the ICJ, which is entrusted with the settlement of inter-State disputes, is at last requested, in the exercise of its function in contentious matters, to settle a dispute on the basis of two human rights treaties (one of the most important UN human rights treaties, the 1966 Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights), in addition to the relevant provision of the 1963 Vienna Convention on Consular Relations. The submissions of the contending Parties before the Court have been based, on those three treaties, which the two contending States themselves came to identify as the applicable law in the cas d’espèce.

20 . At least one basic lesson can be extracted there from. This lesson is far more important than the already acknowledged impact of International Human Rights Law even upon a voluntarist, inter-State mechanism, such as diplomatic protection. Beyond the restricted confines of discretionary diplomatic protection, we can nowadays reckon that we have before us as essentially a human rights case, a case pertaining to the international protection of human rights. It is lodged with this Court within the confines of an inter-State mechanism, the one envisaged by the Committee of Jurists which originally devised the PCIJ Statute in 1920, which became, mutatis mutandis, the ICJ Statute in 1945.

21 . The fact that the mechanism remains a strictly inter-State one, rather anachronistically, as if attempting to defy the ineluctable passing of time, does not mean that the reasoning of the ICJ should nowadays remain also one developed on a strictly inter-State perspective, a reasoning which can only behold States (cf. paras. 203–205, infra). We have before us a human rights case, a case concerning the rights of Mr. A. S. Diallo under the UN Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights (in addition to the 1963 Vienna Convention), in respect of the arrests and detentions he was subjected to in 1988–1989 and 1995–1996, prior to his expulsion from the country of his long-time residence in 1996. Despite its inter-State procedure, the Court is called upon to pronounce on the rights of a human person, beyond the inter-State straightjacket.

22 . Ours are the times of a new jus gentium , focused on the rights of the human person, individually or collectively, which the “droit d’étatistes” of the legal profession insist on refusing to reckon, or rather on refusing or failing to understand, willingfully or not. Much to the credit of both Guinea and the D.R. Congo, the ICJ is now called upon to settle a dispute brought into its cognizance, in the course of the proceedings on the merits, on the basis of two human rights treaties (the 1966 Covenant on Civil and Political Rights and the 1981 African Charter on Human and Peoples’ Rights) which have a prominent place in the contemporary corpus juris of the International Law of Human Rights, in addition to the 1963 Vienna Convention on Consular Relations.

23 . In respect of the merits (and reparation), this is indeed and clearly a case pertaining to human rights protection, rather than diplomatic protection. This latter was the means (or the tool) whereby the complaint was lodged with the Court, once the cause of Mr. A. S. Diallo was espoused by his State of origin or nationality. But diplomatic protection, ineluctably discretionary in character, has already played its instrumental role, and the case now before the Court is substantively one pertaining to human rights protection.

. Invocation and Incidence of the 1981 African Charter on Human and Peoples’ Rights.

24 . Both the D.R. Congo and Guinea focused their pleadings, — which I have taken the care to review in the present Separate Opinion, — on the UN Covenant on Civil and Political Rights, in so far as the fate of Mr. A. S. Diallo as an individual is concerned; yet, as already indicated, two other treaties were referred to, namely, the 1981 African Charter on Human and Peoples’ Rights, and the 1963 Vienna Convention on Consular Relations, also in respect of Mr. A. S. Diallo’s fate as an individual. I shall likewise review their pleadings in relation to these three treaties.

25 . In so far as the African Charter on Human and Peoples’ Rights is concerned, in the consideration of the present case A.S. Diallo, it was brought into the picture only at a late stage of the written phase of the proceedings before the Court. It was not until its Reply (of 10.11.2008) that Guinea invoked Article 12 (4) of the African Charter, in connection with the corresponding Article 13 of the UN Covenant on Civil and Political Rights, in its argument on the limits imposed by international law on the expulsion of aliens (paras. 1.60–1.71). The Rejoinder (of 05.06.2009) of the D.R. of Congo did not touch on this point, and concentrated its views, at that stage, only on the alleged unlawfulness of the arrests and detentions of Mr. Diallo in 1988–1989 and 1995–1996, not on his expulsion.

26 . In its oral arguments, in addressing the arrests and detentions of Mr. A. S. Diallo, Guinea sustained breaches of “Article 9 of the 1966 Covenant on Civil and Political Rights, to which might be added Article 6 of the African Charter on Human and Peoples’ Rights16. Neither Guinea nor the D.R. Congo dwelt much further upon the African Charter in the course of the proceedings, but this did not impede the Court to develop, as it rightly did, its own reasoning to determine the breaches of the relevant provisions of both human rights treaties.

27 . In the circumstances of the case, the ICJ was, in my view, perfectly entitled to do so, even motu proprio, in so far as the African Charter (in combination with the aforementioned Covenant) is concerned. It may be added that, in Article 60, on “Applicable Principles”, the African Charter discloses a wide horizon for the exercise of its hermeneutics, in providing that its application (by the African Commission — and nowadays also the African Court — on Human and Peoples’ Rights) is to:

“draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the [then] Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the specialized agencies of the United Nations of which the Parties to the present Charter are members”17.

28 . The ICJ, as “the principal judicial organ of the United Nations” (Article 92 of the UN Charter), was perfectly entitled, in the cas d’espèce to proceed, sponte sua, to the legal construction it undertook to determine the breach of Article 6 of the African Charter together with Article 9 (1) of the UN Covenant on Civil and Political Rights (paras. 74–79). The Court further referred to the relationship between Article 5 of the African Charter and Article 7 of the aforementioned Covenant, in respect of the African Charter’s provision on “the right to the respect of the dignity inherent in a human being” (cit. in para. 84).

. Invocation and Incidence of the 1963 Vienna Convention on Consular Relations.

29 . Besides the relevant provisions of the Covenant and of the African Charter (supra), the contending parties also invoked, throughout the whole proceedings of the present case before the Court, the 1963 Vienna Convention on Consular Relations, and in particular its Article 36 (1) (b). Guinea and the D.R. Congo thus acknowledged such provisions of those three treaties as conforming the applicable law in the cas d’espèce. As for Article 36 (1) (b) of the 1963 Vienna Convention, it was Guinea which first invoked and dwelt upon it, at some length, in its Memorial (of 23.03.2001).

30 . On the basis of the case-law of the ICJ on the matter, Guinea identified, in its Memorial, the right of the individual under that provision of the 1963 Vienna Convention (to be informed of consular assistance and to avail himself of it if he so wished), and the corresponding obligations of the States Parties (to secure that consular assistance be provided) under that Convention, — none of which had in its view been complied with in the present case (paras. 3.11–3.12, 3.30.2, 4.4 and 5.1.1). In its Counter-Memorial (of 27.03.2008), the D.R. Congo challenged the submission of Guinea of a breach of Article 36 (1) (b) of that Convention, by arguing that “Guinea’s Ambassador in Kinshasa was aware of Mr. Diallo’s arrest and detention in anticipation of his deportation to Conakry” (para. 1.20, and paras. 1.18–1.19 and 1.21–1.23).

31 . In its Reply (of 19.11.2008), Guinea contended that “the facts establishing the elements of the violation of the 1963 Vienna Convention” were, in its view, “unquestionable” (para. 1.7). In reiterating, and insisting on, its position (paras. 3.3.1 and 4.1.1), Guinea stated:

“At no time in either 1988–1989 or 1995–1996 was Mr. Diallo, a Guinean national, informed of his rights under Article 36, paragraph 1(b), of the Vienna Convention on Consular Relations. (…) The DRC should have read all three sentences in Article 36, paragraph 1(b), of the 1963 Convention. As stated in the third sentence, the competent authorities of the receiving State ‘shall inform the person concerned without delay of his rights under this subparagraph’. This third element cannot be ignored. (…) In the present case Zaire therefore bore an obligation under the 1963 Convention to ‘inform the person concerned without delay of his rights’ at the time of his arrest in 1988, and his arrests in 1995 and 1966. This was not done, and it constitutes a further violation of Mr. Diallo’s rights.” (Paras. 1.49 and 1.51–1.53.)

32 . In the course of the oral arguments of 19.04.2010 before the Court, Guinea reiteratedly invoked Article 36 (1) (b) of the Vienna Convention on Consular Relations in support of its views18. In its turn, the D.R. Congo argued, in the public sitting of 26.04.2010, that there had been no breach on its part of that provision of the 1963 Vienna Convention. In its argument, the D.R. Congo pursued the matter from a strict inter-State outlook, referring to the contacts (and a letter) between the Ambassador of Guinea in Kinshasa and the authorities of the Congolese government19. The debates between the two contending parties, by no means ended in respect of the three treaties invoked in general before the Court: they were to continue in relation to the specific rights thereunder that were at stake, — which I shall now turn my attention to.

III . The Saga of the Subject of the Rights: Considerations on the Vindication of the Protected Rights.

33 . The individual rights vindicated in the present case were alleged to have been breached in the factual context to the arrests, detentions and expulsion to which Mr. A. S. Diallo was subjected, in the period ranging from 1988 to 1996. Such rights comprised the right to liberty and to security of person (Articles 9 (1) to (4) of the UN Covenant on Civil and Political Rights), the right not to be expelled from a State without a legal basis (Article 13 of the Covenant), the right not to be subjected to mistreatment (Articles 7 and 10 of the Covenant), added to the right to information on consular assistance in the framework of the guarantees of the due process of law (Article 36 (1) (b)) of the 1963 Convention on Consular Relations.

34 . The question may be asked why this latter is listed herein, as an individual right, provided for in a Convention having in mind consular relations, and celebrated in 1963 in pursuance of a predominantly inter-State optics. I shall address this question, characterizing the right to information on consular assistance as an individual right, within the conceptual universe of human rights, in a subsequent section (VIII, infra) of the present Separate Opinion, so as to clarify the point and discard any doubts that might still subsist as to the characterization of the right to information on consular assistance. Before embarking on such clarification, may I proceed to examine the aforementioned rights, one by one, in the subsequent paragraphs.

. The Right to Liberty and Security of Person.

(a)  The Arrests and Detention of 1988-1989.

35 . The first right invoked in the present case was Mr. A. S. Diallo’s right to liberty and security of person, under Article 9 (1) to (4) of the Covenant. The right is asserted in relation to his arrests and detention in the D.R. Congo in 1988–1989 and in 1995. The contending Parties did not dispute the fact that Mr. A. S. Diallo was arrested on 25.01.1988, nor did they disagree that he was placed in detention on 27.01.1988, in the Makala prison, and one year later released, on 03.01.1989, due to a Presidential pardon granted to him, after intervention by Guinea’s Ambassador20.

36 . Guinea argued that Mr. A. S. Diallo’s arrest and detention in 1988–1989 were arbitrary, as the sole reason for his imprisonment in January 1988 lay in the fact that the Zairean State was greatly in debt to his company Africom-Zaire21. That was in breach, in the view of Guinea, of the D.R. Congo’s obligations arising under Article 9 of the Covenant22. For its part, the D.R. Congo argued that “Mr. Diallo had been imprisoned in 1988 pursuant to a judicial investigation opened by law officers in the Prosecutor’s Office of Kinshasa into acts of fraud of which he had, rightly or wrongly, been accused”23. The D.R. of Congo did not challenge Guinea’s factual allegations with regard to Mr. A. S. Diallo’s arrest and detention in 1988–1989, but considered it to be a new claim24.

37 . The relevant provisions of the Covenant to the present line of consideration of the cas d’espèce, are those enshrined into Article 9 (on the right to liberty and security of person), which states:

. 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 with such procedure as established by law.

. 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.

. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

38 . As to the first point to be herein considered, as to whether there has been a violation by the D.R. Congo of the conditions for permissive deprivation of liberty (principle of legality, prohibition of arbitrariness — Article 9 (1) of the Covenant), it ensues, from the evidence produced in the present case, that the Zairian judicial authorities did not issue any arrest warrant in 1988. This can surely be regarded, under the relevant provisions of the Covenant on Civil and Political Rights, as an indication of an arbitrary arrest. This is in line with the notion of arbitrariness under the Covenant, which I subsequently review in this Separate Opinion (section VI, infra). Moreover, there was no decision by the competent authorities as to the extension of Mr. A. S. Diallo’s detention awaiting trial (détention preventive). The fact remains that Mr. A. S. Diallo remained one year in detention without any further judicial proceedings or investigation, charging him of any criminal offense.

39 . The D.R. Congo did not provide any evidence that Mr. A. S. Diallo was arrested and imprisoned, as alleged, in the context of a true judicial investigation opened against him for alleged acts of fraud. In this regard, the Human Rights Committee has stated that arrests and detentions effected without charges constitute a violation of Article 9 (1) of the Covenant25. There is no indication that he was charged with a criminal offense at any time. In the absence of any relevant State party information, it can be concluded, — as the Court correctly did (para. 79), — that Mr. A. S. Diallo’s deprivation of liberty was arbitrary and in violation of article 9 (1) of the Covenant.

40 . Moving on to the right (of the arrested or detained person) to be informed of the reasons for the arrest or detention and the corresponding charges (Article 9(2) of the Covenant), Guinea claimed that Mr. A. S. Diallo was never specifically informed, either of the purported acts constituting the alleged offence, or of the provisions under which the accusation was brought against him26. According to Guinea, the only information given to Mr. A. S. Diallo by the judicial authority before which he was brought during his detention was that his arrest was “related to the Prime Minister’s communiqué27. The judicial authority therefore had no file, no indictment, nothing to show to Mr. A. S. Diallo authorizing his arrest and imprisonment, other than the Prime Minister’s communiqué.

41 . The D.R. Congo, on its part, acknowledged that Mr. A. S. Diallo was brought to the office of the Judicial Inspector, who told him that his arrest was related to the Prime Minister’s press release (about his being accused of fraud)28. It thus appears established that a press release of Prime Minister accused Mr. A. S. Diallo of fraud29, and that this accusation was made public on radio and television channels on 20.01.1988, as well as by the press30. There is no evidence that, at the moment of Mr. A. S. Diallo’s arrest, Congolese authorities informed him of the reasons for his arrest, nor is there any evidence that they informed him of the charges against him.

42 . The UN Human Rights Committee, on its turn, has stated that the resulting obligation is not merely one of form. Not only must the individual concerned be informed at the time of arrest, but the information given must also be sufficiently specific31, so that he knows exactly the reason of the arrest. In the Committee’s own words,

“[T]he Committee is of the opinion that article 9(2) of the Covenant requires that anyone who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the reasons given are invalid or unfounded. It is the view of the Committee that it was not sufficient simply to inform Adolfo Drescher Caldas that he was being arrested under the prompt security measures without any indication of the substance of the complaint against him.”

In the present case A.S. Diallo, in the absence of relevant and precise information from the D.R. Congo, Mr. A. S. Diallo’s arrest and detention in 1988 have amounted to a violation of Article 9 (2) of the Covenant.

43 . Turning now to the next point, as to rights of persons in custody and pre-trial detention, it may be recalled that Article 9 (3) of the Covenant, — already quoted, — stipulates that “anyone arrested or detained on a criminal charge “shall be brought promptly before a judge” or other judicial officer and “shall be entitled to trial within a reasonable time or to release”; it adds that it “shall not be the general rule that persons awaiting trial shall be detained in custody”, but release may be subject to “guarantees to appear for trial” and, should occasion arise, “for execution of the judgment”.

44 . In this provision, what does “promptly” (“dans le plus court délai”) exactly mean? The Covenant itself has left it open, and so have the corresponding provisions of the European Convention of Human Rights (Article 5 (3)) and the American Convention on Human Rights (Article 7 (5)), which have given rise to a considerable case-law. However, the Human Rights Committee, in its general comment No. 8 (of 1982), on Article 9, has emphasized that, in no event, this may last longer than “a few days” (para. 2)32. In interpreting the requirement that a person be brought before a judge or another legal officer “authorized by law to exercise judicial power”, one may recall the criteria developed by the ECtHR in the Schiesser v. Switzerland case (1979, under Article 5 (3) of the ECHR) for the interpretation of that provision (para. 30), to the effect that:

“Such a judicial officer must be independent of the executive, personally hear the person concerned and be empowered to direct pre-trial detention or to release the person arrested.”

45 . This case-law has been confirmed by the Human Rights Committee in the case Kulomin v. Hungary (1996), wherein the Committee pondered that:

“It is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with.”33

In the circumstances of the Kulomin v. Hungary case, the Committee was not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an officer authorized to exercise judicial power within the meaning of Article 9 (3) of the Covenant. This provision enshrines the principle that pre-trial detention cannot become the general rule, and is thus to be limited to essential reasons34, and should anyway be as short as possible.

46 . It should not pass unnoticed that the Covenant regards pre-trial detention, not surprisingly, as an exceptional measure. In the cas d’espèce, it is not disputed that Mr. A. S. Diallo was taken on 25.01.1988, the day of his arrest, to the office of the Judicial Inspector, where he was told by the Inspector that his arrest was related to the First State Commissioner’s press release. However, Guinea considered that the Judicial Inspector assigned to the Prosecutor’s Office, before which Mr. A. S. Diallo was brought, could not be characterized as an officer authorized by law within the meaning of Article 9 (3) of the Covenant35. Guinea added that the aforementioned judicial inspector was obeying the direct orders of the First State Commissioner36.

47 . The D.R. Congo asserted that the Covenant does not state that the authority referred to must be independent of the Executive37. However, the D.R. Congo has not provided any evidence of a written arrest warrant or a minute of the first interrogation. Neither was Mr. A. S. Diallo brought before a judge or other officer authorized by law to exercise judicial power, according to the obligation set out in Article 9 (3) of the Covenant, under which anyone arrested or detained on a criminal charge must be brought promptly before a judge or another officer authorized by law to exercise judicial power. During his entire stay in the prison of Makala (from 27.02.1988 to 03.02.1989), Mr. A. S. Diallo did not see any judge38. Therefore, it so appears that the D.R. Congo has incurred into a breach of Article 9(3) of the Covenant.

48 . Next, the question may be asked whether the D.R. Congo has breached the right (of an arrested or detained person) to habeas corpus (Article 9 (4) of the Covenant)39. This right, to have the detention reviewed in court without delay, exists irrespective of whether deprivation of liberty is unlawful. The Human Rights Committee has stated that the person deprived of liberty must have access to a lawyer40. In the present case, Mr. A. S. Diallo has not been presented any arrest warrant when he was detained, and thus did not have the opportunity to obtain a ruling on the lawfulness or otherwise of his detention. It thus appears that the D.R. Congo has incurred into a breach also of Article 9(4) of the Covenant.

49 . As can be seen from the preceding paragraphs, the contending parties — unlike the Court — have taken into account Article 9 of the Covenant as a whole, as they should. I have also taken into account Article 9 of the Covenant as a whole, comme il faut, in the circumstances of the present case. The Court, however, took into account only paragraphs (1) and (2) of Article 9, as the arguments on paragraphs (3) and (4) of Article 9 pertained to the arrests and detention of Mr. A. S. Diallo of 1988–1989, which the Court excluded from the scope of its considerations in the present case. As I have dissented from that part of the Court’s decision (corresponding to resolutory point No. 1 of the dispositif), I feel it my duty to pronounce on the breach of Article 9 of the Covenant as a whole.

(b)  The Arrests and Detention of 1995-1996.

50 . The contending parties agreed that Mr. A. S. Diallo was arrested and detained more than once in late 1995 and early 1996, but that was as far as they did agree41. They disagreed on the duration of the periods in detention (cf. infra)42. Guinea maintained that Mr. A. S. Diallo was placed in detention on 05.11.1995 and that he remained imprisoned first for two months, before being released on 10 January 1996, “further to intervention by the [Zairean] President himself”43. Mr. A. S. Diallo was, according to Guinea, then rearrested and imprisoned for two more weeks before being expelled44. Mr. A. S. Diallo is thus said to have been detained for 75 days in all45.

51 . The D.R. Congo, in dismissing these allegations by Guinea, argued that the duration and conditions of Mr. A. S. Diallo’s detention during the expulsion process were in conformity with Zairean law; in particular, it contended that the statutory maximum of eight days’ detention was not exceeded. According to the D.R. Congo, Mr. A. S. Diallo was arrested on 05.11.1995 and then released two days later46. At a date not provided by the D.R. Congo (but allegedly within eight days before 10.01.1996), Mr. A. S. Diallo was rearrested with a view to expulsion, and then he was released on 10.01.1996 because the Government had been unable to find an aircraft leaving for Conakry within the statutory period of no more than 8 days of detention47. The D.R. Congo claimed at last that Mr. A. S. Diallo was under arrest in Kinshasa on 25.01.1996 (6 days at least before being expelled), but it did not say since when48.

52 . It so appears that the respondent State did not provide evidence for all its assertions. In this regard, the only proven facts, not contested by the contending Parties, are the fact that Mr. A. S. Diallo was arrested on 05.11.199549, as well as his release on 10.01.199650. However, the D.R. Congo did not prove its assertion that he was released in between those dates; nor did it specify exactly when was Mr. A. S. Diallo incarcerated after 10.01.1996, before he was deported51.

53 . Article 9 of the Covenant on Civil and Political Rights refers, in general terms, to every type of deprivation of liberty52, whether pursuant a judicial investigation, or following an administrative decision. Article 9 of the Covenant thus applies to the arrests and detentions of Mr. A. S. Diallo in 1995–1996. Article 9(1) of the Covenant provides that any deprivation of liberty can only be effected in accordance with a procedure established by law. In the present case, the D.R. Congo did not produce any evidence that Mr. Diallo was likely to evade decisions taken by Zairian authorities and flee away. Nor did it produce any evidence that Mr. A. S. Diallo was released between 05.11.1995 and 10.01.1996. Nor did it provide the decisions extending the detention beyond the first 48 hours53. In any event, the periods of arrests altogether exceeded the statutory period of 8 days54.

54 . Moreover, the D.R. Congo did not explain why, or whether, it was “absolutely necessary” to incarcerate again Mr. A. S. Diallo on 17.01.199655; nor did it ever demonstrate that it was absolutely necessary to extend Mr. A. S. Diallo’s detention. In conclusion, Mr. A. S. Diallo’s arrest and detention in 1995–1996 appears, in the light of the aforementioned, arbitrary and unlawful, and thus in breach of Article 9(1) of the CCPR, as the Court rightly concluded (Judgment, paragraph 79).

55 . Next, as to Article 9(2) of the Covenant, in the present case Mr. A. S. Diallo was neither informed of the reasons for the arrests nor promptly informed of the charges against him. He was not even informed of the adoption of the decree of 31.10.199556. The D.R. Congo itself admits that, between 31.10.1995, when the expulsion decree was adopted, and 31.01.1996, when Mr. A. S. Diallo was actually deported, he did not know that there was already an expulsion order against him57. It thus appears that, by not informing Mr. A. S. Diallo of the reasons for his arrests and detentions in 1995–1996, the D.R. Congo incurred in breach of Article 9 (2) of the Covenant, as the Court rightly determined (Judgment, paragraph 82).

. The Right Not to be Expelled from a State without a Legal Basis.

56 . Another right vindicated in the framework of the cas d’espèce, was the right not to be expelled from a State without a legal basis, set forth in Article 13 of the Covenant, which states:

“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.”

57 . In the present case, the fact was not disputed that, on 31.10.1995, the Prime Minister of Zaire issued an expulsion order against Mr. A. S. Diallo58, with the following reason: Mr. A. S. Diallo’s “presence and conduct have breached public order in Zaire, especially in the economic, financial and monetary areas, and continue to do so”59. It was also common ground between the contending Parties that, on 05.11.1995, Mr. A. S. Diallo was placed under arrest with a view to his deportation. However, the parties contested each other’s arguments as regards the duration and conditions of the periods of arrest60 (cf. supra), as well as in respect of the facts related to the specific circumstances of Mr. A. S. Diallo’s arrest, detention and expulsion (cf. supra).

58 . Guinea claimed that Mr. A. S. Diallo’s expulsion contravened some international and domestic rules framing the power to expel, namely: a) the respondent State did not fulfil the obligation to state reasons for the expulsion; b) the jurisdictional, formal and procedural rules were deliberately evaded; c) the refusal-of-entry procedure was intentionally and arbitrarily misused to effect an expulsion; and, at last, d) Mr. A. S. Diallo was at no time afforded the opportunity to submit the reasons against his expulsion and to have his case reviewed by the competent authority. All these elements show that the measure taken against Mr. Diallo was wholly arbitrary.

59 . There are two different phases in the expulsion of Mr. A. S. Diallo: first, the expulsion decree of 31.10.1995; and secondly, the notice of refusal of entry of 31.01.1996. As for the grounds for expulsion, the lack of statement of reasons (in the legal sense of the term) makes the decree of expulsion vague. In this respect, the African Commission on Human and Peoples’ Rights found, in the case of Amnesty International v. Sudan (1999), that:

“It is not enough for an arrest to be carried out under a legal provision to satisfy the requirements of Article 6: the law must comply with accepted standards. Thus a decree allowing for arrests for vague reasons, and upon suspicion rather than proven acts, was not in conformity with the African Charter [on Human and Peoples’ Rights].”61

60 . As already pointed out, Mr. A. S. Diallo was neither informed of the reasons for the arrests nor promptly informed of the charges against him; he was not even informed of the adoption of the 31.10.1995 decree for his deportation62 . This fact has been admitted by the D.R. Congo63 . For that reason, Mr. A. S. Diallo could not submit any reason against the expulsion, nor could he have had his case reviewed by the competent authority, as provided for by Article 13 of the Covenant. The decree of expulsion was thus not in conformity Article 13 of the Covenant.

61 . There is, furthermore, a disagreement between the contending parties as to the form of expulsion of Mr. A. S. Diallo. The D.R. Congo acknowledged that Mr. A. S. Diallo was indeed expelled, and that the notice signed by the immigration officer “inadvertently” referred to “refusal of entry” (refoulement), instead of “expulsion”. Guinea sustained, on its part, that Mr. A. S. Diallo was the subjected to a “refusal of entry”64. It may here be pointed out that the UN Human Rights Committee, in its general comment No. 15, of 1986, on the position of aliens under the Covenant on Civil and Political Rights, made it clear that the guarantee of Article 13 of the Covenant relates to any form of “obligatory departure” of aliens, irrespective of how this was described under domestic law65 (cf. infra). Accordingly, although Article 13 refers to expulsion, it applied likewise to the refusal of entry of Mr. A. S. Diallo.

62 . Article 13 of the Covenant states that the individual subject to expulsion must be “allowed to submit the reasons against his expulsion”. Furthermore, the possibility must be afforded “to plead [his] case before the competent national courts”, according to the African Commission on Human and Peoples’ Rights66. However, Mr. A. S. Diallo was not given due notice of the decision to expel him before it was carried out, and was not able therefore to oppose any reason against it67. Mr. A. S. Diallo should have been enabled to have had his case reviewed by the competent authority.

63 . In the leading case of Hammel vs. Madagascar (1987)68, the UN Human Rights Committee decided against the respondent State because the expellee had not been “indicted nor brought before a magistrate on any charge”, and because “he was not afforded an opportunity to challenge the expulsion order prior to his expulsion” (para. 18.2). The Committee added that the victim “was not given an effective remedy to challenge his expulsion”, and that the State concerned did not show that there were “compelling reasons of national security” to deprive him of that remedy (para. 19.2).

64 . In formulating its views on the Hammel vs. Madagascar case (1987), the Human Rights Committee also took into account its general comment No. 15(27), on the position of aliens under the Covenant, and pointed out in particular that:

“an alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one” (para. 19.2).

In the present case A.S. Diallo, the victim did not enjoy either, the right of access to justice (comprising legal assistance) in the context of Article 13 of the Covenant. This Court rightly determined a breach of Article 13 of the Covenant in respect of the circumstances surrounding the expulsion of Mr. A. S. Diallo (para. 74).

. The Right Not to Be Subjected to Mistreatment.

65 . There are two other provisions of the UN Covenant on Civil and Political Rights which are pertinent to the consideration of the present case, namely, Articles 7 and 10 of the Covenant. Article 7 stipulates that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

And, in addition, Article 10 (1) of the Covenant provides that:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

66 . In this connection, the Human Rights Committee has stressed, in its general comment No. 29 (on derogations during a state of emergency), of 2001, that Article 10 of the Covenant:

“expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between Articles 7 and 10” (para. 13.a)69.

67 . In its Memorial70, Guinea claimed that Mr. A. S. Diallo was mistreated during his imprisonment and expulsion. Guinea asserted, on this point, that, in carrying out the deportation order, the law enforcement authorities took Mr. A. S. Diallo away, on 05.11.1995, and secretly placed him in detention in an Immigration Service lock-up, without any form of judicial process or even examination, and that he remained imprisoned there without receiving any visit from his lawyers or officials from the Guinean Embassy until 10.01.1996, i.e., for 75 days.

68 . He is alleged to have been incarcerated under dire conditions and to have received no food from the Congolese authorities. In particular, Guinea argued that during “the first four days of [his] detention [he] was kept secretly in a mosquito-infested cell that was permanently illuminated by a very bright light and (…) was deprived of food”71 . Being kept in a cell under those conditions is completely incompatible with Article 10 of the Covenant, according to which “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”72.

69 . Guinea further asserted that Mr. A. S. Diallo’s arrests and expulsion were in violation of the minimum standard of protection owed to aliens73. Moreover, Guinea claimed that this treatment was in breach of such minimum standard and, specifically, of the minimum rules for the treatment of prisoners adopted by ECOSOC in 195574, whose value was reaffirmed by the UN General Assembly in 199075.

70 . The D.R. Congo dismissed these claims and asserted that Mr. Diallo was held in a well-appointed facility through which passed all aliens undergoing deportation, there have been no production of evidence to the contrary76. It added that at no time did Guinea’s Ambassador in Kinshasa, who followed Mr. A. S. Diallo’s case very closely, complain that their national was subjected to inhuman conditions.

71 . In the view of the D.R. Congo, had Guinea presented the Court with evidence that Mr. A. S. Diallo was kept secretly in a mosquito-infested cell that was permanently illuminated by a very bright light and that he was deprived of food — which it did not, — such treatment would not amount automatically to a breach of Article 10 of the Covenant. The D.R. Congo concluded that Guinea had not proved the consequence of the alleged inhuman treatment (physical or mental effects of the circumstances of Mr. Diallo’s incarceration), and there had thus been no breach of Article 10 (1) of the Covenant.

72 . In its present Judgment, the Court has found that “it has not been demonstrated that Mr. Diallo was subjected to treatment prohibited by Article 10, paragraph 1, of the Covenant” (para. 89). And the Court’s majority then rejected Guinea’s submissions in this respect (resolutory point 5 of the dispositif). Unlike in relation to the previous findings of the Court concerning provisions of the Covenant on Civil and Political Rights (supra), on this particular point I regret not to be able to follow the Court’s majority on this particular point.

73 . The fact remains that it has not been demonstrated that Article 10 (1) has been complied with either. The Court’s majority seems to have taken a somewhat hurried decision on this particular point, applying the presumption in favour of the respondent State. In human rights cases of the kind, presumptions apply in favour of the ostensibly weaker party, the individual, the alleged victim. In the circumstances of the present case, the burden of proof cannot fall upon the applicant State; it is the respondent State that knows — or is supposed to know — the conditions of detention, and it is, accordingly, upon it that the burden of proof lies.

74 . After all, it is the receiving State (of residence), rather than the sending State (of nationality), that is supposed to know what is going on in its own prisons, how are detainees under its custody being treated. The conditions of living, or of surviving, in the prisons of the world, — in all continents, anywhere in the world, — have been a matter of concern which has, for a long time, transcended legal thinking. Already in the second half of the XIXth century, a universal writer, F.M. Dostoievski, aptly pondered, in his Souvenirs de la maison des morts (1862), on the basis of his own personal experience, that the degree of civilization attained by any human society could be assessed by visiting its prisons. This remains so nowadays, anywhere in the world.

. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law.

75 . Another right vindicated and protected in the framework of the present case A.S. Diallo, is the individual right to information on consular assistance, set forth in Article 36 (1) (b) of the Vienna Convention on Consular Relations, which significantly provides that:

“If the [national of the sending State] so requests, the competent authorities 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 arrested 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.”

76 . Guinea claimed that Mr. A. S. Diallo was not informed of his right under Article 36 (1) (b) of the Vienna Convention, — neither in 1988 nor in 1995–1996. The D.R. Congo limited itself to asserting that various documents demonstrated that Mr. A. S. Diallo’s case “was known not only to the Guinean consulate in Kinshasa but also to the President of the Republic and the Minister for Foreign Affairs of Guinea”77. This Court has held, on previous occasions, that Article 36 (1) (b) of the 1963 Vienna Convention requires the competent authorities of a State Party to advise, without delay, a national of another State party whom such authorities arrest or detain, of his right to the consular assistance guaranteed by that Article (the tryad of the Breard, LaGrand, and Avena cases).

77 . In this respect, in order to clarify the legal nature and content of the right at issue, I deemed it fit, at the end of the public sitting of the Court held on 26.04.2010, to put to the two contending Parties the following question78:

“À votre avis, est-ce que les dispositions de l’article 36, paragraphe 1, alinéa (b), de la Convention de Vienne sur les relations consulaires de 1963 s’épuisent dans les relations entre l’État d’envoi ou de nationalité et l’État de résidence? Est-ce que M. Diallo lui-même a été informé, aussitôt après sa détention, sur l’assistance consulaire? Qui est le sujet du droit à l’information sur l’assistance consulaire? L’État d’envoi ou bien de nationalité ou l’individu?”79.

78 . In its written answer to my question, handed to the Court’s Registry on 27.04.2010, the respondent State contended that: a) article 36 (1) (b) of the 1963 Vienna Convention creates an “individual right” (Court’s Judgment in the LaGrand case, 2001, para. 77), which is, however, inextricably linked to the sending State’s right to communicate with its nationals through consular officers; b) although it is an individual right, it remains closely linked to the rights of the State itself; c) they are interdependent rights (Court’s Judgment in the Avena case, 2004, para. 40), involving relation between the individual and the sending and the receiving States; d) Guinea was aware of Mr. Diallo’s situation, and the purpose of the right to information on consular assistance was thus achieved; e) if that right had not been violated in respect of the sending State, it could not have been so in respect of its national; f) Mr. Diallo had “verbally” been informed by the D.R. of Congo, shortly after his detention, of the “possibility of seeking consular assistance from his State”; and g) the individual and his sending State (or State of nationality) hold the right to information in an interdependent way80.

79 . Nevertheless, the D.R. Congo did not produce any evidence in support of its assertion that Mr. A. S. Diallo had been “verbally” informed promptly, shortly after his detention, of the possibility to count on consular assistance from Guinea. The D.R. Congo did not actually prove that it had duly informed Mr. A. S. Diallo himself, without any delay, of his right under Article 36 (1) (b) of the 1963 Vienna Convention, having thus had its international responsibility engaged in that respect.

80 . On its part, Guinea, in its reply to my question, stated, in its oral arguments of 28.04.2010, that: a) the State of residence has a duty to inform the individual concerned of his right to consular assistance; b) it is the individual who has the right to information, as indicated in Article 36 (1) (b) in fine of the 1963 Vienna Convention on Consular Relations; c) there is a certain interdependence between the individual right and the rights of the State (Court’s Judgment in the Avena case, 2004, para. 40), but under Article 36 (1) (b) these latter are subordinated to the former; d) the information by one State to another is not sufficient, and, in the present case, Mr. Diallo was not informed (by the State of residence) about consular assistance, neither shortly after his detention nor later on; e) the assertion by the D.R. Congo in this regard was not accompanied by any proof, and the fact is that Mr. Diallo was not informed of his rights; and f) even if the sending State (of nationality) takes cognizance of the situation by other means, there is an international illicit fact on the part of the State of residence81.

81 . It should not pass unnoticed, in this connection, that, even before the aforementioned obiter dicta of this Court 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 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. It 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, as we shall see subsequently (Section VIII, infra) in the present Separate Opinion.

IV . The Hermeneutics of Human Rights Treaties.

82 . The invocation, by the contending parties before the ICJ, of such human rights treaties as the 1996 UN Covenant on Civil and Political Rights and the 1981 African Charter on Human and Peoples’ Rights, and the vindication of some rights protected there under, — in addition to Article 36 (1) (b) of the 1963 Vienna Convention on Consular Relations in the conceptual universe of human rights, — brings to the fore the issue of the proper interpretation of human rights treaties. These latter go beyond the realm of purely inter-State relations. When one comes to the interpretation of treaties, one is inclined to resort, at first, to the general provisions enshrined in Articles 31–33 of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986, respectively), and in particular to the combination under Article 31 of the elements of the ordinary meaning of the terms, the context, and the object and purpose of the treaties at issue.

83 . One then promptly finds that, in practice, while in traditional International Law there has been a marked tendency to pursue a rather restrictive interpretation which gives as much precision as possible to the obligations of States Parties, 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. In effect, whilst in general International Law the elements for the interpretation of treaties evolved primarily as guidelines for the process of interpretation by States Parties themselves, human rights treaties, in their turn, have called for an interpretation 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.

84 . Hence the special emphasis on the element of the object and purpose of human rights treaties, of which the jurisprudence constante of the European and Inter-American Courts of Human Rights has given eloquent testimony in the last couple of decades. The interpretation and application of human rights treaties have indeed been guided by considerations of a superior general interest or ordre public which transcend the individual interests of Contracting Parties. As indicated by the jurisprudence constante of the two aforementioned international human rights tribunals, those treaties are distinct from treaties of the classic type which incorporate restrictively reciprocal concessions and compromises; human rights treaties, in turn, prescribe obligations of an essentially objective character, implemented collectively, and are endowed with mechanisms of supervision of their own. The rich case-law on methods of interpretation of human rights treaties has enhanced the protection of the human person at international level and has enriched International Law under the impact of the International Law of Human Rights.

85 . The converging case-law to this effect has generated the common understanding, in the regional systems of human rights protection, that human rights treaties, moreover, are endowed with a special nature (as distinguished from multilateral treaties of the traditional type); that human rights treaties have a normative character and that their terms are to be autonomously interpreted; that in their application one ought to ensure an effective protection (effet utile) of the guaranteed rights; and that permissible restrictions (limitations and derogations) to the exercise of guaranteed rights are to be restrictively interpreted. The work of the European and Inter-American Courts of Human Rights (more recently joined by the African Court on Human and Peoples’ Rights) has indeed contributed to the creation of an international ordre public based upon the respect for human rights in all circumstances82; it has established limits to excessive State voluntarism, and fostered the vision of the relations between public power and the human being whereby the State exists for the human being, and not vice-versa.

86 . Furthermore, they have propounded the autonomous interpretation of provisions of human rights treaties, by reference to the respective domestic legal systems. Such autonomous meaning of the terms of human rights treaties (as distinct from their meaning, e.g., in domestic law) has been also endorsed, e.g., by the Human Rights Committee, under the UN Covenant on Civil and Political Rights, for example, in the adoption of its views in the Van Duzen v. Canada case (in 1982). Moreover, the dynamic or evolutive interpretation of the respective human rights Conventions (the temporal dimension) has been followed by both the European83 and the Inter-American84 Courts, so as to fulfil the evolving needs of protection of the human being.

87 . Thus, in its pioneering Advisory Opinion No. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999), which has inspired the international case-law in statu nascendi on the matter, the Inter-American Court clarified that, in its interpretation of the norms of the American Convention on Human Rights, it should extend protection in new situations (such as that concerning the observance of the right to information on consular assistance) on the basis of pre-existing rights. The same vision has been propounded by that Court in its subsequent and forward-looking Advisory Opinion No. 18, on the Juridical Condition and Rights of Undocumented Migrants (2003).

88 . The European Court of Human Rights has likewise reiteratedly pronounced to that effect85; in the Loizidou v. Turkey case (Preliminary Objections, 1995), for example, the ECtHR expressly discarded undue restrictions which would not only “seriously weaken” its role in the discharge of its functions but “would also diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)”86. There is, thus, a converging case-law of the Inter-American and European Courts of Human Rights — and indeed of other human rights international supervisory organs — on the fundamental issue of the proper interpretation of human rights treaties, naturally ensuing from the overriding identity of the object and purpose of those treaties.

89 . General international law itself bears witness of the principle (subsumed under the general rule of interpretation of Article 31 of the two Vienna Conventions on the Law of Treaties) whereby the interpretation is to enable a treaty to have appropriate 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 rights87 (in pursuance of the principle pro persona humana , pro victima ). The specificity of the International Law of Human Rights finds expression not only in the interpretation of human rights treaties in general but also in the interpretation of specific provisions of those treaties88.

90 . 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 the primacy of considerations of ordre public over 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 International Law of Human Rights, with full procedural capacity. In so far as the basis of their jurisdiction in contentious matters is concerned, eloquent illustrations can be found of their firm stand in support of the integrity of the mechanisms of protection of the two respective regional Conventions89.

91 . The two international human rights Tribunals, by correctly resolving basic procedural issues raised in the aforementioned cases, have aptly made use of the techniques of Public International Law in order to strengthen their respective jurisdictions of protection of the human person. They have decisively safeguarded the integrity of the mechanisms of protection of the American and European Conventions on Human Rights, whereby the juridical emancipation of the human person vis-à-vis her own State is achieved. They have, furthermore, achieved a remarkable jurisprudential construction on the right of access to justice (and of obtaining reparation) at international level.

92 . 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. The European Court has a vast and remarkable case-law, for example, on the right to the protection of liberty and security of person (Article 5 of the European Convention), and the right to a fair trial (Article 6). The Inter-American Court has a significant case-law on the fundamental right to life, comprising also the conditions of living, as from its decision in the paradigmatic case of the so-called “Street Children” (Villagrán Morales and Others v. Guatemala, Merits, 1999); it has also a rich case-law on distinct forms of reparations.

. The Principle of Humanity in Its Wide Dimension.

93 . The previous considerations on the hermeneutics of human rights treaties lead me now to address the principle of humanity in its wide dimension. When one refers to the principle of humanity, there is a tendency to consider it in the framework of International Humanitarian Law. Thus, for example, it is beyond doubt that, in this framework, civilians and persons hors de combat are to be treated with humanity. The principle of humane treatment of civilians and persons hors de combat is provided for in the 1949 Geneva Conventions on International Humanitarian Law (common Article 3, and Articles 12 (1)/12 (1)/13/5 and 27 (1)), and their Additional Protocols I (Article 75 (1)) and II (Article 4 (1)). Such principle, moreover, is generally regarded as one of customary International Humanitarian Law.

94 . My own understanding is in the sense that the principle of humanity in endowed with an even wider dimension: it applies in the most distinct circumstances, both in times of armed conflict and in times of peace, in the relations between public power with all persons subject to the jurisdiction of the State concerned. That principle has a notorious incidence when these latter are in a situation of vulnerability, or even defencelessness, as evidenced by relevant provisions of distinct treaties integrating the International Law of Human Rights. Thus, for example, at UN level, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides, inter alia, in its Article 17 (1), that:

“Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity.”

95 . Likewise, the 1989 UN Convention on the Rights of the Child stipulates (Article 37 (b)) that: “States Parties shall ensure that [e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.(…)”. Provisions of the kind can also be found in human rights treaties at regional level.

96 . To recall but a couple of examples, the 1969 American Convention on Human Rights, in providing for the right to humane treatment (Article 5), determines inter alia that “[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person” (para. 2). Likewise, the 1981 African Charter on Human and Peoples’ Rights disposes inter alia that “[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status” (Article 5).

97 . And the 1969 Convention on the Specific Aspects of Refugee Problems in Africa sets forth, inter alia, that “[t]he grant of asylum to refugees is a peaceful and humanitarian act (…)” (Article II (2)). And the examples to the same effect multiply. The point I wish to make here is 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 International Law of Human Rights, and International Refugee Law), at global (UN) and regional levels.

98 . In respect of the present case A.S. Diallo (Guinea v. D.R. Congo), in particular, it may be pointed out that the principle of humanity underlies Article 7 of the UN Covenant on Civil and Political Rights, which protects the individual’s personal integrity, against mistreatment, as well as Article 10 of the Covenant (concerning persons under detention), 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 negative obligation not to mistreat (Article 7), 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.

99 . The principle of humanity, in effect, underlies the two general comments , No. 9 (of 1982, para. 3) and No. 21 (of 1992, para. 4) on Article 10 of the Covenant (humane treatment of persons deprived of their liberty). The principle of humanity, usually invoked in the domain of International Humanitarian Law, thus extends itself also to that of International Human Rights Law. And, as the Committee rightly stated in its general comment No. 31 (of 2004), “both spheres of Law are complementary, not mutually exclusive” (para. 11).

100 . The principle of humanity has met with judicial recognition. It is not my intention here, within the confines of the present Separate Opinion in the A.S. Diallo case, to review the international case-law to this effect, as I have done so elsewhere90. Suffice it here to recall but one selected illustration, on the basis of my own experience. The jurisprudence constante of the Inter-American Court of Human Rights has properly warned that the principle of humanity, inspiring the right to humane treatment (Article 5 of the American Convention on Human Rights), applies even more forcefully when a person is unlawfully detained, and kept in an “exacerbated situation of vulnerability” (Judgments in the cases of Maritza Urrutia v. Guatemala, of 27.11.2003, para. 87; of Juan Humberto Sánchez v. Honduras, of 07.06.2003, para. 96; Cantoral Benavides v. Peru, of 18.08.2000, para. 90; and cf. Bámaca Velásquez v. Guatemala, of 25.11.2000, para. 150).

101 . In my Separate Opinion in the Judgment in the case of the Massacre of Plan de Sánchez (of 29.04.2004), concerning Guatemala, I devoted a whole section (III, paras. 9–23) of it to the judicial acknowledgement of the principle of humanity in the recent case-law of that Court as well as of the ad hoc International Criminal Tribunal for the Former Yugoslavia. Furthermore, I therein expressed my understanding that the principle of humanity, orienting the way one treats the others (el trato humano), “encompasses all forms of human behavior and the totality of the condition of the vulnerable human existence” (para. 9).

102 . International law is not at all insensitive to that, and the principle at issue applies in any circumstances, so as to prohibit inhuman treatment, by reference to humanity as a whole, so as to secure protection to all, including those in a situation of great vulnerability (paras. 17–20). Humaneness is to condition human behaviour in all circumstances, in times of peace as well as of disturbances and armed conflict.

103 . The principle of humanity permeates the whole corpus juris of protection of the human person, providing one of the illustrations of the approximations or convergences between its distinct and complementary branches (International Humanitarian Law, the International Law of Human Rights, and International Refugee Law), at the hermeneutic level, and also manifested at the normative and the operational levels. In faithfulness to my own conception, I have, in this Court likewise, deemed it fit to develop some reflections on the basis of the principle of humanity lato sensu, in my Dissenting Opinion91 in the case of the Obligation to Prosecute or Extradite ((Belgium v. Senegal), Request for Provisional Measures, Order of 28.05.2009), as well as in my Dissenting Opinion92 in the case of Jurisdictional Immunities of the State (Counter-Claim, (Germany v. Italy), Order of 06.07.2010).

104 . And, in the Court’s recent Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo , I devoted one entire section (XIII(4)) of my Separate Opinion expressly to the “fundamental principle of humanity” (paras. 196–211) in the framework of the law of nations93 itself. I saw it fit to recall that the “founding fathers” of international law (F. de Vitoria, A. Gentili, F. Suárez, H. Grotius, S. Pufendorf, C. Wolff) propounded a jus gentium inspired by the principle of humanity lato sensu (paras. 73–74).

105 . It may here be pointed 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 level. Humaneness came to the fore even more forcefully in the treatment of persons in situation of vulnerability, or even defenselessness, such as those deprived of their personal freedom, for whatever reason.

106 . The jus gentium, when it began to correspond to the law of nations, came then to be conceived by its “founding fathers” as regulating the international community constituted by human beings socially 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 good94. The precious 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, particularly in face of the indifference and pragmatism of the “strategic” droit d’étatistes, so numerous in the legal profession in our days.

VI . The Prohibition of Arbitrariness in the International of Human Rights.

107 . For the consideration of the present case A.S. Diallo, a proper understanding of the prohibition of arbitrariness, in the framework of the International Law of Human Rights, assumes a central importance. To that end, I shall, next, review the notion of arbitrariness, consider the position of the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights, as well as the jurisprudential construction of the Inter-American and European Courts of Human Rights on the matter. I shall then present my general assessment of this key issue.

. The Notion of Arbitrariness.

108 . The adjective “arbitrary”, derived from the Latin “arbitrarius”, originally meant that which depended on the authority or will of the arbitrator, of a legally recognized authority. With the passing of time, however, it gradually acquired a different connotation; already in the mid-XVIIth century, it had been taken to mean that which appeared uncontrolled (arbitrary) in the exercise of will, amounting to capriciousness or despotism. The qualification “arbitrary” came thus to be used in order to characterize decisions grounded on simple preference or prejudice, defying any test of “foresee-ability”, ensuing from the entirely free will of the authority concerned, rather than based on reason, on the conception of the rule of law in a democratic society, on the criterion of reasonableness and the imperatives of justice, on the fundamental principle of equality and non-discrimination.

109 . As human rights treaties and instruments conform a Law of protection (a droit de protection), oriented towards the safeguard of the ostensibly weaker party, the victim, it is not at all surprising that the prohibition of arbitrariness (in its modern and contemporary sense) covers arrests and detentions, as well as other acts of the public power, such as expulsions. Bearing in mind the hermeneutics of human rights treaties, as outlined above, a merely exegetical or literal interpretation of treaty provisions would be wholly unwarranted (cf. infra).

110 . Such has in fact been the understanding of international supervisory organs of human rights protection, as we shall see next. I shall take as illustrations the positions of two supervisory organs (the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights), as well as the jurisprudential constructions of two international human rights tribunals (the Inter-American and the European Courts of Human Rights).

111 . Preliminarily, as to the determination of the breach of the right not to be deprived arbitrarily of one’s liberty (principle of legality, prohibition of arbitrariness — Article 9 (1) of the UN Covenant on Civil and Political Rights), may it be recalled that the UN Working Group on Arbitrary Detention95 has expressed that view that deprivation of liberty is to be regarded as arbitrary “when it manifestly cannot be justified on any legal basis” (such as, e.g., continued detention after the sentence has been served)96. The UN Human Rights Committee (HRC), — the supervisory organ of the Covenant on Civil and Political Rights, — has dwelt further upon the matter.

. The Position of the UN Human Rights Committee.

112 . To start with, there are decisions which reveal the position taken by the HRC on the matter at issue. For example, in the Mukong v. Cameroon case (1994), the HRC interpreted “arbitrary” in a broad sense, as meaning inappropriate, unjust, unpredictable and inconsistent with legality97. More generally, the HRC pondered, in the subsequent Jalloh vs. The Netherlands case (2002), that “arbitrary” ought to be understood as covering “unreasonable action”98; in any event, action ought to be deemed appropriate and proportional in the circumstances of the case at issue99.

113 . In the aforementioned Mukong v. Cameroon case, the Committee expressly observed that:

“The drafting history of Article 9(1) confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. (…) This means that remand on custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Remand in custody must further be necessary in all the circumstances.” (Para. 9.8.)

114 . By means of its Views on communications, the Committee has further interpreted the Covenant to deal with crucial issues, such as, for example, that of non-derogable rights and states of emergency100. It has made it quite clear, in respect of the issue of arbitrariness of public authorities, that one is to avoid equating arbitrariness only with the expression “against the law”. Thus, in the Marques de Morais v. Angola case (2005), inter alia, it gave arbitrariness a broader interpretation, so as to encompass elements of injustice, lack of due process of law, inappropriateness, and lack of predictability.

115 . In the same line of reasoning, earlier on, in the case of R.Mojica v. Dominican Republic (1994) and in the case of Tshishimbi v. Zaire case (1996), the Committee warned that an interpretation that would allow States Parties “to tolerate, condone or ignore” threats made by public authorities to the personal liberty and security of non-detained individuals under the jurisdiction of the States Parties concerned “would render ineffective the guarantees of the Covenant101. Likewise, in the case of L. Rajapakse v. Sri Lanka (2006), the Committee again pondered that personal security was to be safeguarded in distinct circumstances, also beyond the context of formal deprivation of liberty (para. 9.7)

116 . The HRC’s concerns to ensure protection to individuals against arbitrariness on the part of State authorities is not restricted to the right to personal liberty, but extends to other rights protected under the Covenant as well. It is present in some of its Views on communications concerning expulsions, under Article 13 of the Covenant (on the right of aliens not to be expelled arbitrarily). The test of bona fides or prohibition of abus de pouvoir on the part of those authorities was applied by the HRC in the A. Maroufidou v. Sweden case (1981); and in the E. Hammel v. Madagascar case (1987) the HRC upheld the right to an effective (domestic) remedy in such cases of expulsion.

. The Position of the African Commission on Human and Peoples’ Rights.

117 . There are several decisions of the African Commission on Human and Peoples’ Rights (AfComHPR) determining the occurrences of breaches of Article 6 of the African Charter on Human and Peoples’ Rights102, in so far as the prohibition of arbitrary arrests or detentions is concerned. In one of those cases in which the AfComHPR established a breach of the kind, namely, the case of L. Zegveld and M. Ephrem v. Eritrea (2003), the AfComHPR stated quite clearly that, by means of its Article 6:

“The African Charter specifically prohibits arbitrary arrests and detentions.

Evidence before the African Commission indicates that the 11 persons have been held incommunicado and without charge since they were arrested in September 2001 (…). The African Commission notes that to date it has not received any information or substantiation from the respondent State demonstrating that the 11 persons were being held in appropriate detention facilities and that they had been produced before courts of law.

Incommunicado detention is a gross human rights violation (…). The African Commission is of the view that all detentions must be subject to basic human rights standards (…). Furthermore, every detained person must have prompt access to a lawyer and to their families and their rights with regard to physical and mental health must be protected as well as entitlement to proper conditions of detention.”103

118 . In stressing, in its decision in the same L. Zegveld and M. Ephrem case, the prohibition of arbitrary arrests and detentions under the African Charter (Article 6), the AfComHPR warned that arbitrariness affected the right of access to justice itself. In the words of the AfComHPR,

“the lawfulness and necessity of holding someone in custody must be determined by a court of other appropriate judicial authority. The decision to keep a person in detention should be open to review periodically (…). Persons suspected of committing any crime must be promptly charged with legitimate criminal offences and the State should initiate legal proceedings that should comply with fair trial standards as stipulated by the African Commission in its [1992] Resolution on the Right to Recourse and Fair Trial and elaborated upon in its [2003] Guidelines on the Right to Fair Trial and Legal Assistance in Africa.”104

119 . The practice of the African Commission in respect of the prohibition of arbitrariness is not restricted to Article 6, on the prohibition of arbitrary arrests and detentions. It extends, naturally, to other rights protected under the African Charter, such as the right not to be expelled arbitrarily from a country, as provided in Article 12 (4) of the Charter: “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.” In this connection, in the case of the Organisation Mondiale contre la Torture, Association Internationale des Juristes Democrates, Commission Internationale des Juristes and Union Interafricaine des Droits de l’Homme v. Rwanda (1996)105, the African Commission clarified that:

“This provision should be read as including a general protection of all those who are subject to persecution, that they may seek refuge in another State. Article 12(4) prohibits the arbitrary expulsion of such persons from the country of asylum. (…).” (Para. 31.)106

120 . In a case lodged with the Commission by the Union Inter-Africaine des Droits de l’Homme, Fédération Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, and Organisation Nationale des Droits de l’Homme au Sénégal107, on behalf of certain West African nationals expelled from Angola in 1996, the AfComHPR, in deciding in favour of the complainants on 11.11.1997, pondered, after invoking Article 12 (4) of the Charter (para. 14), that:

“African States in general and the Republic of Angola in particular are faced with many challenges, mainly economic. In the face of such difficulties, States often resort to radical measures aimed at protecting their nationals and their economics from non-nationals. Whatever the circumstances may be, however, such measures should not be taken at the detriment of human rights. (…) By deporting the victims, thus separating some of them from their families, the defendant State has violated and violates the letter of this text.” (Paras. 16–17.)108

121 . Warnings of the kind have been made by the African Commission in its decisions also in the cases of Modise v. Botswana (2000, paras. 83–84), Rencontre Africaine pour la Défense des Droits de l’Homme vs. Zambia (1997, paras. 30–31), K. Good v. Botswana (2010, paras. 206–208), Institute for Human Rights and Development in Africa v. Angola (2008, paras. 65 and 69–70). In the aforementioned case of the Rencontre Africaine pour la Défense des Droits de l’Homme, the Commission held that the deportations at issue breached Articles 2, 7 and 12 of the African Charter, after pondering that “none of the deportees had the opportunity to seize the Zambian courts to challenge their detention or deportation”109. And in the aforementioned Modise case, the Commission pondered that the decision as to who is permitted to remain in a country “should always be made according to careful and just legal procedures” (para. 83). In other words, it is not sufficient that State authorities proceed in accordance with the law, as this latter must be in conformity with the African Charter, and reflect the basic requirements of justice.

122 . In the case of Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, and Association of Members of the Episcopal Conference of East Africa v. Sudan (1999), concerning the situation prevailing in Sudan between 1989 and 1993, the AfComHPR observed that Article 6 ought to be interpreted in such a way as to effect arrests “only in the exercise of powers normally granted to the security forces in a democratic society”. In its view, the wording of the decree at issue allowed for individuals to be arrested for “vague reasons, and upon suspicion, not proven acts”, and that was “not in conformity with the spirit of the