Ahmadou Sadio Diallo v Democratic Republic of the Congo

• Jurisdiction: Derecho Internacional
• Judge: Owada,Koroma,Higgins,Yusuf,Greenwood,Bennouna,Ranjeva,Tomka,Donoghue,Keith,Buergenthal,Skotnikov,Gaja,Mahiou,Sebutinde,Cançado Trindade,Simma,Mampuya,Xue,Abraham,Sepúlveda-Amor,Al-Khasawneh,Shi
• Date: 19 June 2012
• Court: International Court of Justice

International Court of Justice

(Higgins, President;Al-Khasawneh, Vice-President;Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna and Skotnikov, Judges;Mahiou and Mampuya, Judges ad hoc)

(Owada, President;Tomka, Vice-President;Al-Khasawneh, Simma, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov, Canado Trindade, Yusuf and Greenwood, Judges;Mahiou and Mampuya, Judges ad hoc)

(Tomka, President;Seplveda-Amor, Vice-President;Owada, Abraham, Keith, Bennouna, Skotnikov, Canado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja and Sebutinde, Judges;Mahiou and Mampuya, Judges ad hoc)

Ahmadou Sadio Diallo

Republic of Guinea

and

Democratic Republic of the Congo1

Claims Admissibility Diplomatic protection Local remedies Claim by Guinea on behalf of Guinean national Whether Guinea lacking standing Whether remedies under Congolese law exhausted Claim concerning arrest, detention and expulsion measures taken by Democratic Republic of Congo against Guinean citizen in 19956 Additional claim concerning arrest and detention measures taken by Democratic Republic of Congo against Guinean citizen in 19889 Whether additional claim implicit in or arising directly out of question which was subject matter of Application Guinea claiming violation of Guinean citizen's rights by Democratic Republic of Congo Claim as individual Claim on behalf of company Whether DRC violating its obligations under international treaties Whether compensation due

Human rights Right to liberty and security of person Rights in relation to arrest and detention Rights in relation to expulsion Nature of rights Rights as individual Rights as shareholder in companies Rights on behalf of individual by substitution for companies Whether violation of rights Whether circumstances of Mr Diallo's arrest, detention and expulsion constituting breach by DRC of its international law obligations International Covenant on Civil and Political Rights, 1966, Articles 9(1), 9(2) and 13 African Charter on Human and Peoples' Rights, 1981, Articles 6 and 12(4) Vienna Convention on Consular Relations, 1963, Article 36(1)(b) International jurisprudence Whether compensation due

Diplomatic relations Guinea seeking to exercise diplomatic protection of its national for violation of his rights Whether requirements met for exercise of diplomatic protection Whether Mr Diallo national of Guinea Whether Mr Diallo having exhausted local remedies available in Democratic Republic of Congo Individual personal rights Direct rights as associ in companies Whether exception to general legal regime of diplomatic protection for natural or legal persons Rights of companies by substitution Guinean national arrested, detained and expelled by DRC authorities Whether measures taken by DRC violating International Covenant on Civil and Political Rights, 1966 and African Charter on Human and Peoples' Rights, 1981 Whether DRC violating Article 36(1) (b) of the Vienna Convention on Consular Relations, 1963 Whether compensation due

Treaties Interpretation Human rights treaties International Covenant on Civil and Political Rights, 1966, Articles 9(1), 9(2) and 13 African Charter on Human and Peoples' Rights, 1981, Articles 6 and 12(4) International Court of Justice applying regional instruments for protection of human rights Whether circumstances of Mr Diallo's arrest, detention and expulsion in 19956 constituting breach by DRC of its international law obligations under human rights treaties Whether detention in 19956 constituting breach by DRC of Vienna Convention on Consular Relations, 1963, Article 36(1)(b)

Consular relations Treaties Vienna Convention on Consular Relations, 1963, Article 36(1)(b) Right to request consular assistance Right to be informed without delay upon arrest of right to request consular assistance Whether DRC violating Article 36(1)(b) of the Vienna Convention on Consular Relations, 1963 Whether compensation due

Aliens Alien lawfully in territory of Democratic Republic of Congo Expulsion of alien Whether DRC violating rights of alien in contravention of international agreements International Covenant on Civil and Political Rights, 1966, Article 13 African Charter on Human and Peoples' Rights, 1981, Article 14(4) Whether decision to expel in accordance with Congolese law Compatibility of Congolese law with Covenant and African Charter Whether DRC violating international law obligations

Relationship of international law and municipal law Treaties International Covenant on Civil and Political Rights, 1966 African Charter on Human and Peoples' Rights, 1981 Arrest, detention and expulsion of alien lawfully in Democratic Republic of Congo Whether DRC violating international treaties Whether in accordance with Congolese law Compatibility of Congolese law with Covenant and African Charter International jurisprudence

International Court of Justice Merits phase Disagreement between Parties on facts Burden of proof Subject matter Nature of dispute Evidence produced by Parties Court to decide upon facts Compensation Amount of compensation Practice in other international tribunals

Damages Compensation Reparation Non-material or moral injury Material injury Loss of personal property Loss of professional remuneration Deprivation of potential earnings Whether Guinea suffering injury Whether injury consequence of DRC's wrongful conduct Amount of compensation due Judgments of other international tribunals

Summary:2The facts:Mr Diallo, a Guinean citizen, settled in the Democratic Republic of the Congo (the DRC)3 in 1964. He founded two companies there in 1974 and 1978, Africom-Zaire, an importexport company, and then Africontainers-Zaire, which specialized in the containerized transport of goods (the companies). Both were socits prives responsabilit limite (private limited liability companies or SPRLs)4 incorporated under Congolese law.5 Mr Diallo was the grant (manager) and associ (a shareholder) in the two SPRLs.6 Following ongoing disputes with their business partners towards the end of the 1980s, the two companies initiated steps, including judicial steps, to recover alleged debts acting through Mr Diallo, their grant (manager).

On 31 October 1995 the Prime Minister of Zaire issued an expulsion Order against Mr Diallo on the ground that his presence and conduct threatened public order in Zaire, especially in the economic, financial and monetary areas. On 5 November 1995 he was arrested and detained and on 10 January 1996 he was released. He was arrested for a second time on 25 January 1996. On 31 January 1996 Mr Diallo was deported from Zaire and returned to Guinea by air, having been served with a notice of refusal of entry (refoulement) into Zaire on account of unauthorized residence on that same day. The Parties disagreed on the facts concerning Mr Diallo's situation

between 5 November 1995, when he was first arrested, and his release on 10 January 1996, and also on his situation from 10 January 1996 until his actual expulsion on 31 January 1996.7 At the time of Mr Diallo's arrest and detention, the Legislative Order of 12 September 1983 (the Legislative Order) concerning immigration control was in force in the DRC

In its Application8 the Republic of Guinea (Guinea) instituted proceedings against the DRC in respect of disputes between Africom-Zaire and Africontainers-Zaire, on the one hand, and their private and public business partners, on the other. It claimed that the DRC was liable for the debts owed to the companies and to Mr Diallo for which it sought payment.

Guinea also sought to exercise its diplomatic protection on behalf of Mr Diallo, its national, for the violation of his rights, which allegedly arose from his arrest, detention and expulsion and constituted an internationally wrongful act by the DRC giving rise to its responsibility. It sought protection with respect to three categories of rights: Mr Diallo's individual personal rights, his direct rights as associ in the companies, and his rights as a shareholder of companies which were victims of wrongful acts committed by the DRC under whose law they were incorporated (i.e. rights of the companies by substitution). Guinea sought a finding that the DRC was guilty of serious violations of international law committed upon Mr Diallo's person and reparation in the form of compensation for the injury suffered by Guinea in the person of its national.

Judgment on Preliminary Objections (24 May 2007)

While accepting that the Court had jurisdiction under the declarations made by the Parties under Article 36(2) of the Statute, the DRC raised two preliminary objections to the admissibility of Guinea's Application. It claimed that Guinea lacked standing since the rights it sought to protect belonged to Congolese companies rather than to its national, Mr Diallo. It also maintained that neither the companies nor Mr Diallo had exhausted local remedies available in the Congolese legal system to obtain reparation for the injuries claimed by Guinea.

Held:Guinea's Application was admissible in so far as it concerned protection of Mr Diallo's rights as an individual and his direct rights as associ in the companies, but inadmissible in so far as it concerned the rights of the companies themselves.

A. Rights as an individual

(1) (unanimously) Guinea's Application was admissible in so far as it concerned protection of Mr Diallo's rights as an individual. The DRC's

preliminary objection to admissibility on account of non-exhaustion by Mr Diallo of local remedies was rejected

(a) Under customary international law, as reflected in Article 1 of the International Law Commission's (ILC's) draft Articles on Diplomatic Protection, diplomatic protection consisted of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that was a national of the former State. International law had developed in respect of rights accorded to...