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The COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. 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”) in respect of a dispute concerning “serious
violations of international law” allegedly 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:
“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 are alleged to constitute,
inter alia, 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.
2. 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.
3. 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.
4. 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.
5. 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 of 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.
6. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the
pleadings and documents annexed would be made accessible to the public on
the opening of the oral proceedings.
7. Public sittings were held from 27 November 2006 to 1 December 2006, at
which the Court heard the oral arguments and replies of:
For the DRC: H.E. Mr. Jacques Masangu-a-Mwanza, Maître Tshibangu Kalala, Mr.
André Mazyambo Makengo Kisala.
For Guinea: Mr. Mohammed Camara, Mr. Mathias Forteau, Mr. Samuel Wordsworth,
Mr. Alain Pellet, Mr. Jean-Marc Thouvenin.
8. A Member of the Court put a question at the hearing on 28 November 2006,
which the Parties answered orally, in accordance with Article 61, paragraph
4, of the Rules of Court.
9. By a letter dated 1 December 2006, the Court, acting pursuant to Article
62, paragraph 1, of the Rules of Court, asked the DRC to furnish it with
certain additional documents.
10. In the Application (Part Two), the following requests were made by
Guinea:
“As to the form: To admit the present Application.
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.)
11. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Guinea, in the Memorial on the merits:
“The Republic of Guinea has the honour to request that it may please the
International Court of Justice to adjudge and declare:
(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) 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) 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 preliminary objections: “The
Democratic Republic of the Congo respectfully requests the Court to adjudge
and declare that the Application of the Republic of Guinea is inadmissible,
(1) on the ground that the Republic of Guinea lacks standing to exercise
diplomatic protection in the present proceedings, since its Application
seeks essentially to secure reparation for injury suffered on account of the
alleged violation of rights of companies not possessing its nationality;
(2) on the ground that, in any event, neither the companies in question nor
Mr. Diallo have exhausted the available and effective local remedies
existing in Zaire, and subsequently in the Democratic Republic of the
Congo.”
On behalf of the Government of Guinea,
in the written statement containing its observations and submissions on the
preliminary objections raised by the DRC:
“For the reasons set out above, the Republic of Guinea kindly requests the
Court to:
1. Reject the preliminary objections raised by the Democratic Republic of
the Congo, and
2. Declare the Application of the Republic of Guinea admissible.”
12. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of the DRC,
at the hearing of 29 November 2006:
“The Democratic Republic of the Congo respectfully requests the Court to
adjudge and declare that the Application of the Republic of Guinea is
inadmissible,
(1) on the ground that the Republic of Guinea lacks standing to exercise
diplomatic protection in the present proceedings, since its Application
seeks essentially to secure reparation for injury suffered on account of the
violation of rights of companies not possessing its nationality;
(2) on the ground that, in any event, neither the companies in question nor
Mr. Diallo have exhausted the available and effective local remedies
existing in the Democratic Republic of the Congo.”
On behalf of the Government of Guinea,
at the hearing of 1 December 2006:
“For the reasons set out in its Observations of 7 July 2003 and in oral
argument, the Republic of Guinea kindly requests the International Court of
Justice:
(1) to reject the preliminary objections raised by the Democratic Republic
of the Congo;
(2) to declare the Application of the Republic of Guinea admissible; and
(3) to fix time-limits for the further proceedings.”
13. The Court will begin with a brief description of the factual background
to the present case.
14. As set out in their written pleadings, the Parties are in agreement as
to the following facts. Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled
in the DRC (called “Congo” between 1960 and 1971 and “Zaire” between 1971
and 1997) in 1964. There, in 1974, he founded an import-export company,
Africom-Zaire, a société privée à responsabilité limitée (private limited
liability company, hereinafter “SPRL”) incorporated under Zairean law and
entered in the Trade Register of the city of Kinshasa, and he became its
gérant (manager). In 1979 Mr. Diallo expanded his activities, taking part,
as gérant of Africom-Zaire and with backing from two private partners, in
the founding of another Zairean SPRL, specializing in the containerized
transport of goods. The capital in the new company, Africontainers-Zaire,
was held as follows: 40 per cent by Mr. Zala, a Zairean national; 30 per
cent by Ms Dewast, a French national; and 30 per cent by Africom-Zaire. It
too was entered in the Trade Register of the city of Kinshasa. In 1980
Africom-Zaire’s two partners in Africontainers-Zaire withdrew. The parts
sociales (see paragraph 25 hereunder) in Africontainers-Zaire were then held
as follows: 60 per cent by Africom-Zaire and 40 per cent by Mr. Diallo. At
the same time Mr. Diallo became the gérant of Africontainers-Zaire. Towards
the end of the 1980s, Africom-Zaire’s and Africontainers-Zaire’s
relationships with their business partners started to deteriorate. The two
companies, acting through their gérant, Mr. Diallo, then initiated various
steps, including judicial ones, in an attempt to recover alleged debts. The
various disputes between Africom-Zaire or Africontainers-Zaire, on the one
hand, and their business partners, on the other, continued throughout the
1990s and for the most part remain unresolved today. Thus, Africom-Zaire
claims payment from the DRC of a debt (acknowledged by the DRC) resulting
from default in payment for deliveries of listing paper to the Zairean State
between 1983 and 1986. Africom-Zaire is involved in another dispute,
concerning arrears or overpayments of rent, with Plantation Lever au Zaire
(“PLZ”). Africontainers-Zaire is in dispute with the companies Zaire Fina,
Zaire Shell and Zaire Mobil Oil, as well as with the Office National des
Transports (“ONATRA”) and Générale des Carrières et des Mines (“Gécamines”).
For the most part these differences concern alleged violations of
contractual exclusivity clauses and the lay-up, improper use or destruction
or loss of containers.
15. The Court considers the following facts also to be established. On 31
October 1995, the Prime Minister of Zaire issued an expulsion Order against
Mr. Diallo. The Order gave the following reason for the expulsion: Mr.
Diallo’s “presence and conduct have breached public order in Zaire,
especially in the economic, financial and monetary areas, and continue to do
so”. On 31 January 1996, Mr. Diallo, already under arrest, was deported from
Zaire and returned to Guinea by air. The removal from Zaire was formalized
and served on Mr. Diallo in the shape of a notice of refusal of entry (refoulement)
on account of “illegal residence” (séjour irrégulier) that had been drawn up
at the Kinshasa airport on the same day. *
16. Throughout the proceedings Guinea and the DRC have continued to differ
on a number of other facts.
17. In respect of the specific circumstances of Mr. Diallo’s arrest,
detention and expulsion, Guinea maintains that Mr. Diallo was “secretly
placed in detention, without any form of judicial process or even
examination” on 5 November 1995. He allegedly remained imprisoned first for
two months, before being released on 10 January 1996, “further to
intervention by the [Zairean] President himself”, only then to be
“immediately rearrested and imprisoned for two [more] weeks” before being
expelled. Mr. Diallo is thus said to have been detained for 75 days in all.
Guinea adds that he was mistreated while in prison and was “deprived of the
benefit of the 1963 Vienna Convention on Consular Relations”. According to
Guinea, Mr. Diallo has been without means of support since his expulsion and
he has been unable to fulfil his functions as executive officer (dirigeant)
of, or exercise his rights as shareholder in, Africom-Zaire and
Africontainers-Zaire.
18. Guinea further maintains that Mr. Diallo’s arrest, detention and
expulsion were the culmination of a DRC policy to prevent him from
recovering the debts owed to his companies, including judgment debts. Guinea
claims that, before arresting Mr. Diallo and expelling him in January 1996,
the Congolese authorities repeatedly interfered in the affairs of his
companies. Guinea contends that Mr. Diallo had already suffered one year of
imprisonment, in 1988, after trying to recover debts owed to Africom-Zaire
by the Zairean State. Guinea also cites certain steps taken by the DRC in
the course of 1995 “arbitrarily to stay the domestic proceedings for the
enforcement of decisions handed down in favour of Mr. Diallo’s companies”.
It thus explains: “Enforcement of the judgment [by the Kinshasa Tribunal de
grande instance] in the Africontainers[-Zaire] v. Zaire Shell case was
stayed, on 13 September [1995], by order of the [Zairean Vice-] Minister of
Justice, without any legal basis.” After the stay was lifted, property
belonging to Zaire Shell was attached but “the attachments were once again
revoked on 13 October [1995], this time permanently, on ‘oral instructions’
from the Minister of Justice and outside the law”. Guinea adds that Mr.
Diallo’s arrest, detention and expulsion took place just as Zaire Shell, for
its part, and Zaire Fina and Zaire Mobil Oil, for theirs, approached Zaire’s
Minister of Justice, by letters dated 29 August 1995 and 15 November 1995,
respectively, “seeking the intervention of the Government to warn the courts
and tribunals about Mr. Amadou Sadio Diallo’s conduct in his campaign to
destabilize commercial companies”.
19. The DRC rejects these allegations by Guinea and argues that the duration
and conditions of Mr. Diallo’s detention during the expulsion process were
in conformity with Zairean law. In particular, it contends that the
statutory maximum of eight days’ detention was not exceeded. The DRC adds
that the decision expelling Mr. Diallo was justified by his “manifestly
groundless” and increasingly exaggerated financial claims against Zairean
public undertakings and private companies operating in Zaire and by the
disinformation campaign he had launched there “aimed at the highest levels
of the Zairean State, as well as very prominent figures abroad”. The DRC
notes that “the total sum claimed by Mr. Diallo as owed to the companies run
by him came to over 36 billion United States dollars . . ., which represents
nearly three times the [DRC’s] total foreign debt”. It adds: “the Zairean
authorities also discovered that Mr. Diallo had been involved in currency
trafficking and that he was moreover guilty of a number of attempts at
bribery”. Mr. Diallo’s actions thus allegedly threatened seriously to
compromise not only the operation of the undertakings concerned but also
public order in Zaire.
20. The DRC further claims not to have interfered in the affairs of
Africom-Zaire and Africontainers-Zaire or to have expelled Mr. Diallo with a
view to preventing the companies from completing the legal proceedings they
had brought to recover monies owed them. The DRC does not deny that in
September 1995 the Minister of Justice ordered a stay of execution of the
judgment rendered by the Kinshasa Tribunal de grande instance in the
Africontainers-Zaire v. Zaire Shell case. It nevertheless explains that,
“when the enforcement of a judicial decision is liable to . . . lead to
serious public disorder”, Zairean law allows the Minister of Justice to
“stay its execution and request the Inspectorat général des services
judiciaires (Inspectorate-General of Courts) to review it for legality”. It
adds that procedures of this type, “found . . . in a number of African
States”, are “in no way contrary to the principle of separation of powers,
as it is understood in that part of the world”. The DRC points out that the
stay of execution of the judgment in question “was of very short duration”,
because a few days after the stay took effect the Minister of Justice
“requested the president of the Court of Appeal to ‘take the necessary
measures to execute’ the judgment . . . [on the ground that] ‘there had been
no manifest error’”. The DRC moreover stresses that Mr. Diallo should not be
confused with Africom-Zaire and Africontainers-Zaire, that the companies are
separate legal entities and that the actions taken against Mr. Diallo cannot
be equated with actions against the companies. Specifically, the companies
remained completely free, after Mr. Diallo’s expulsion, to pursue any and
all legal proceedings they had begun and did in fact do so, according to the
DRC.
21. At the hearings the DRC made reference to various problems said to exist
in connection with Africom-Zaire. Thus, in response to the question put by
Judge Bennouna at the end of the first round of oral argument, seeking
clarification from both Parties as to “whether the legislation of the
Democratic Republic of the Congo or the jurisprudence of the courts of the
country authorizes the creation of a sociéte privée à responsabilité limitée
with a single shareholder and by one person” (see paragraph 8 above), the
DRC explained that “Congolese legislation in force does not permit the
incorporation of a société privée à responsabilité limitée by just one
person” and that, contrary to Guinea’s contention, Mr. Diallo could not
therefore be the sole associé in Africom-Zaire.
22. The DRC next argued, for the first time, that in reality Mr. Diallo was
not an associé at all in Africom-Zaire. In support it cited, and produced at
the hearing, the articles of incorporation of a company called “Africom”,
claiming to have discovered them just a few days earlier in the files of the
Trade Register of the city of Kinshasa. After the oral proceedings had
closed, the Court, acting pursuant to Article 62 of the Rules of Court,
asked the DRC to provide it with the articles of incorporation of
“Africom-Zaire”. In response, the DRC, by a letter of 20 December 2006,
transmitted to the Registry a document identical to the one it had produced
at the hearings, accompanied by a note stating that it had been unable to
find any reference to Africom-Zaire in the Trade Register of the city of
Kinshasa. After Guinea submitted observations on the letter and its annexes,
the DRC communicated to the Court, by a letter of 31 January 2007, comments
in reply, in which it acknowledged that Africom-Zaire had indeed existed and
been registered in the Trade Register of the city of Kinshasa but explained
that the company had ceased all activity in the mid-1980s. The DRC stated in
that letter that “under Congolese law, a commercial company in such a
situation [of inactivity] is automatically struck off the Trade Register as
having ceased trading”, so that it was “highly possible that [the
Africom-Zaire] file was removed from the files, lost or destroyed by the
[Congolese] administrative staff”.
23. While admitting that Congolese legislation does not allow for the
incorporation of an SPRL by one person, Guinea, in answering the question
put by Judge Bennouna (see paragraphs 8 and 21 above), rejected the DRC’s
argument that Mr. Diallo could not be the sole shareholder in Africom-Zaire.
It maintained that “the fact of not being able to create a one-person
company in no way prevents . . . a company becoming unipersonal
subsequently” and in support cited the Decree of 6 March 1951 establishing
Zaire’s trade register, which “does not mention a company’s becoming
unipersonal as a case necessitating the cancellation of its registration in
the trade register”.
24. Guinea further stated that the document referred to by the DRC at the
hearing and provided to the Court concerns another company, one “not
connected with Mr. Diallo’s company”. As proof thereof, it pointed out that
the registered office addresses, registration numbers in the Trade Register
and gérants of the two companies are different, as are their corporate
purposes and dates of incorporation. Guinea argued that “the existence of
[the] company [Africom-Zaire] and its articles of incorporation is beyond
dispute”. In this connection it pointed out that the validity of the filing
of the company’s articles of incorporation had been confirmed by the public
prosecutor before the Supreme Court of Justice of the DRC, and it cited
“many official documents issued by Zairean authorities” recognizing “Mr.
Diallo to be the gérant of Africom-Zaire”. Finally, Guinea maintained that
the DRC had acknowledged not only the existence of the two companies in
question but also the fact that Mr. Diallo had “become, in fact, the sole
executive officer of these two companies incorporated under the laws of
Zaire”.
25. The Court notes at the outset that Africom-Zaire and
Africontainers-Zaire are sociétés privées à responsabilité limitée (SPRLs)
incorporated under Congolese law, i.e. 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 (shares),
required to be uniform and in registered form, are not freely transferable”
(Article 36 of the Decree of 27 February 1887 on commercial companies).
Under Congolese law, holders of parts sociales (“not freely transferable”
shares) in SPRLs, like Mr. Diallo, are termed “associés” (see, e.g.,
Articles 43, 44, 45, and 51 of the Decree of 27 February 1887). In their
written pleadings and at the hearings, the Parties have however often
employed the generic term “shareholder” in referring to Mr. Diallo’s status
as associé in the two companies. In light of the foregoing, “associé” will
be the term primarily used by the Court in the present Judgment, except
where it is referring to the Parties’ arguments and when they themselves
used the generic term “shareholder”.
26. The Court observes that the dispute between Guinea and the DRC comprises
many aspects and that the Parties have focused on the one or the other of
these at different stages in the proceedings.
27. Thus, the greater part of Guinea’s Application concerns the disputes
between Africom-Zaire and Africontainers-Zaire, on the one hand, and their
public and private business partners, on the other. Specifically, Guinea
devotes a lengthy part of its Application to describing the debts allegedly
owed to the companies and Mr. Diallo, as well as to expounding the legal
grounds on which the DRC is alleged to be liable for all these debts. The
claims put forward by Guinea in its Application (Part Two) are also aimed
for the most part at obtaining payment of the debts (see paragraph 10
above).
28. Guinea nevertheless also states in its Application that it seeks to
exercise its diplomatic protection on behalf of Mr. Diallo “with a view to
obtaining [from the Court] a finding that the [DRC] is guilty of serious
violations of international law committed upon [his] person”. It asserts
that the DRC has violated “the principle that aliens should be treated in
accordance with ‘a minimum standard of civilization’, the obligation to
respect the freedom and property of aliens, [and] the right of aliens
accused of an offence to a fair trial on adversarial principles by an
impartial court”. In support of these claims, Guinea cites “numerous
international agreements concerning the treatment of aliens and the free
movement of goods and persons”, including in particular the Universal
Declaration of Human Rights of 10 December 1948 and the International
Covenant on Civil and Political Rights of 19 December 1966. It states that
“these various violations of human rights must be construed as breaches of
norms of jus cogens”.
29. In its Memorial on the merits, Guinea continues to devote considerable
attention to the issue of the debts allegedly owed to Africom-Zaire and
Africontainers-Zaire and to Mr. Diallo. But Guinea also places renewed
emphasis on the exercise of its diplomatic protection on behalf of Mr.
Diallo and states that it “is taking up the cause of one of its nationals,
and is acting to enforce his direct rights as an individual and as
shareholder and executive officer of companies which he founded . . . and of
which he is the sole or principal owner, to the exclusion of distinct rights
which these companies may have against the DRC”. It divides Mr. Diallo’s
rights which it seeks to protect into two separate categories, according to
their nature. In the first, it places Mr. Diallo’s rights as an individual,
including, in addition to those referred to in the Application, Mr. Diallo’s
right not to be subjected to inhuman and degrading treatment and his right
to the benefit of the provisions of the 1963 Vienna Convention on Consular
Relations, both of which rights were allegedly violated at the time of his
arrest, detention and expulsion. In the second category of rights which
Guinea seeks to protect it places the “direct rights” allegedly enjoyed by
Mr. Diallo as a shareholder (rights also sometimes called by Guinea
“shareholder’s rights”) in Africom-Zaire and Africontainers-Zaire,
specifically his right to oversee, control and manage the companies.
30. Guinea further states in its Application that it is seeking to protect,
in addition to Mr. Diallo, “the companies which he founded and owns”. In its
Memorial on the merits, it makes clear that it seeks to exercise its
diplomatic protection on behalf of Mr. Diallo by “substitution” for
Africom-Zaire and Africontainers-Zaire. Guinea explains that by
“substitution” or “protection by substitution” it means the right of a State
to exercise its diplomatic protection on behalf of nationals who are
shareholders in a foreign company whenever the company has been a victim of
wrongful acts committed by the State under whose law it has been
incorporated. Thus Guinea does not confine itself to exercising protection
of Mr. Diallo in respect of the violations of his direct rights as
shareholder in Africom-Zaire and Africontainers-Zaire but seeks to protect
him “in respect of the injuries suffered by [these] companies [themselves]”.
31. In sum, Guinea seeks through its action to exercise its diplomatic
protection on behalf of Mr. Diallo for the violation, alleged to have
occurred at the time of his arrest, detention and expulsion, or to have
derived therefrom, of three categories of rights: his individual personal
rights, his direct rights as associé in Africom-Zaire and
Africontainers-Zaire and the rights of those companies, by “substitution”.
**
32. To establish the jurisdiction of the Court, Guinea relies on the
declarations made by the Parties under Article 36, paragraph 2, of the
Statute. The DRC acknowledges that the declarations are sufficient to found
the jurisdiction of the Court in the present case. The DRC nevertheless
challenges the admissibility of Guinea’s Application and raises two
preliminary objections in doing so. First of all, according to the DRC,
Guinea lacks standing to act in the current proceedings since the rights
which it seeks to protect belong to Africom-Zaire and Africontainers-Zaire,
Congolese companies, not to Mr. Diallo. Guinea, it is argued, is further
precluded from exercising its diplomatic protection on the ground that
neither Mr. Diallo nor the companies have exhausted the remedies available
in the Congolese legal system to obtain reparation for the injuries claimed
by Guinea before the Court.
33. The Court will now examine the preliminary objections to admissibility
raised by the DRC, in respect of each of the various categories of rights
alleged by Guinea to have been violated in the present case. **
34. The Court will first address the question of the admissibility of
Guinea’s Application in so far as it concerns protection of Mr. Diallo’s
rights as an individual.
35. According to the DRC, Guinea’s claims in respect of Mr. Diallo’s rights
as an individual are inadmissible because he “[has not] exhausted the
available and effective local remedies existing in Zaire, and subsequently
in the Democratic Republic of the Congo”. While this objection, presented by
the DRC in its written pleadings and at the hearings, is very broadly
worded, in the course of the present proceedings the DRC elaborated on only
a single aspect of it: that concerning his expulsion from Congolese
territory.
36. On this subject the DRC maintains that its domestic legal system
provided for available, effective remedies which Mr. Diallo should have
exhausted before his cause could be espoused by Guinea. It first observes
that, contrary to Guinea’s contention, Mr. Diallo’s expulsion from the
territory was lawful. The DRC acknowledges that the notice signed by the
immigration officer “inadvertently” refers to “refusal of entry”
(refoulement) instead of “expulsion”. Further, it does not challenge
Guinea’s assertion that Congolese law provides that refusals of entry are
not appealable. The DRC nevertheless maintains that “despite this error, it
is indisputable . . . that this was indeed an expulsion and not a refusal of
entry”. According to the DRC, calling the action a refusal of entry was
therefore not intended to deprive Mr. Diallo of a remedy; on the contrary,
“if Mr. Diallo had appealed to the Congolese authorities for permission to
return to the DRC, that appeal would have had some prospect of success”. The
DRC cites the general principle of Congolese law that reconsideration of a
decision can in all cases be requested from the authority having taken it
and, if necessary, from that authority’s superior. It maintains that Mr.
Diallo never asked the competent authorities to reconsider their position
and to allow him to return to the DRC. According to the DRC, such a request
would have had a good chance of success, especially after the change in
régime in the country in 1997. The effectiveness of requests for redress in
respect of expulsion decisions in the DRC is alleged to be confirmed
moreover by a substantial practice, the DRC citing in this regard two
applications made by foreign nationals appealing their removal from Zairean
territory, each of which led to withdrawal of the removal Order.
37. Guinea responds that “[a]fter eight years of proceedings the DRC has
shown itself to be incapable of invoking so much as a single real remedy
that would have been available to Mr. Diallo” in respect of the violation of
his rights as an individual. On the subject of Mr. Diallo’s expulsion from
the Congolese territory, Guinea states that there were no effective remedies
first in Zaire, nor in the later DRC, against this measure, recalling in
this regard that the expulsion Order against Mr. Diallo was carried out by
way of an action denominated “refusal of entry” and that,
“under Article 13 of the Legislative Order of 12 September 1983 concerning
immigration control [in Zaire]; ‘[a] measure refusing entry shall not be
subject to appeal’”. Guinea adds that the possibility Mr. Diallo had to
approach the Zairean authority having issued the expulsion Order “is not [,
in any event,] a remedy within the meaning of the local remedies rule”. It
asserts that, on the contrary, this is merely an “extra-legal procedure that
may be characterized as an appeal to the indulgence of the governmental
authorities”. And, according to Guinea, “[a]dministrative or other remedies
which are neither judicial nor quasi-judicial and are discretionary in
nature are not . . . taken into account by the local remedies rule”. Guinea
observes moreover that the two instances of remedies against expulsion cited
by the DRC in support of its position are not germane since one case
involved expulsion on grounds of illegal immigration, in respect of which a
remedy of grace (recours gracieux) is available, and the other involved a
“decision on grounds of undesirability” the reason for which is not
specified in the Order revoking the decision.
38. Guinea further contends that, even though some remedies may in theory
have been available to Mr. Diallo in the Congolese legal system, they would
in any event have offered him no reasonable possibility of protection at the
time. Guinea thus notes that the objective in expelling Mr. Diallo was
precisely to prevent him from pursuing legal proceedings and argues that “if
a State deliberately chooses to remove an alien from its territory . . .
because that alien is seeking local redress, that State can no longer
reasonably demand that the alien seek redress only through legal avenues
available in its territory”. Lastly, it notes that any action taken by Mr.
Diallo would have been doomed to fail owing to the personal animosity
towards him harboured by certain members of the Congolese Government. *
39. The Court will recall that under customary international law, as
reflected in Article 1 of the draft Articles on Diplomatic Protection of the
International Law Commission (hereinafter the “ILC”),
“diplomatic protection consists of the invocation by a State, through
diplomatic action or other means of peaceful settlement, of the
responsibility of another State for an injury caused by an internationally
wrongful act of that State to a natural or legal person that is a national
of the former State with a view to the implementation of such
responsibility” (Article 1 of the draft Articles on Diplomatic Protection
adopted by the ILC at its Fifty-eighth Session (2006), ILC Report, doc.
A/61/10, p. 24).
Owing to the substantive development of international law over recent
decades in respect of the rights it accords to individuals, the scope
ratione materiae of diplomatic protection, originally limited to alleged
violations of the minimum standard of treatment of aliens, has subsequently
widened to include, inter alia, internationally guaranteed human rights.
40. In the present case Guinea seeks to exercise its diplomatic protection
on behalf of Mr. Diallo in respect of the DRC’s alleged violation of his
rights as a result of his arrest, detention and expulsion, that violation
allegedly constituting an internationally wrongful act by the DRC giving
rise to its responsibility. It therefore falls to the Court to ascertain
whether the Applicant has met the requirements for the exercise of
diplomatic protection, that is to say whether Mr. Diallo is a national of
Guinea and whether he has exhausted the local remedies available in the DRC.
41. To begin with, the Court observes that it is not disputed by the DRC
that Mr. Diallo’s sole nationality is that of Guinea and that he has
continuously held that nationality from the date of the alleged injury to
the date the proceedings were initiated. The Parties have however devoted
much argument to the issue of exhaustion of local remedies.
42. As the Court stated in the Interhandel (Switzerland v. United States of
America) case,
“[t]he rule that local remedies must be exhausted before international
proceedings may be instituted is a well-established rule of customary
international law; the rule has been generally observed in cases in which a
State has adopted the cause of its national whose rights are claimed to have
been disregarded in another State in violation of international law. Before
resort may be had to an international court in such a situation, it has been
considered necessary that the State where the violation occurred should have
an opportunity to redress it by its own means, within the framework of its
own domestic legal system.” (I.C.J. Reports 1959, p. 27.)
43. The Parties do not question the local remedies rule; they do however
differ as to whether the Congolese legal system actually offered local
remedies which Mr. Diallo should have exhausted before his cause could be
espoused by Guinea before the Court.
44. In matters of diplomatic protection, it is incumbent on the applicant to
prove that local remedies were indeed exhausted or to establish that
exceptional circumstances relieved the allegedly injured person whom the
applicant seeks to protect of the obligation to exhaust available local
remedies (see Elettronica Sicula S.p.A. (ELSI) (United States of America v.
Italy), I.C.J. Reports 1989, pp. 43-44, para. 53). It is for the respondent
to convince the Court that there were effective remedies in its domestic
legal system that were not exhausted (see ibid., p. 46, para. 59). Thus, in
the present case, Guinea must establish that Mr. Diallo exhausted any
available local remedies or, if not, must show that exceptional
circumstances justified the fact that he did not do so; it is, on the other
hand, for the DRC to prove that there were available and effective remedies
in its domestic legal system against the decision to remove Mr. Diallo from
the territory and that he did not exhaust them.
45. The Court will recall at this stage that, 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. It states that he suffered inhuman and degrading
treatment during those periods in detention and adds that his rights under
the 1963 Vienna Convention on Consular Relations were not respected. The
Court observes however that Guinea has not, in any way, developed the
question of the admissibility of the claims concerning this inhuman and
degrading treatment or relating to the 1963 Vienna Convention on Consular
Relations. As the Court has already noted (see paragraph 36), the DRC has
for its part endeavoured in the present proceedings to show that remedies to
challenge the decision to remove Mr. Diallo from Zaire are institutionally
provided for in its domestic legal system. By contrast, the DRC did not
address the issue of exhaustion of local remedies in respect of Mr. Diallo’s
arrest, his detention or the alleged violations of his other rights, as an
individual, said to have resulted from those measures, and from his
expulsion, or to have accompanied them. In view of the above, the Court will
address the question of local remedies solely in respect of Mr. Diallo’s
expulsion.
46. The Court notes that the expulsion was characterized as a “refusal of
entry” when it was carried out, as both Parties have acknowledged and as is
confirmed by the notice drawn up on 31 January 1996 by the national
immigration service of Zaire. It is apparent that refusals of entry are not
appealable under Congolese law. Article 13 of Legislative Order No. 83-033
of 12 September 1983, concerning immigration control, expressly states that
the “measure [refusing entry] shall not be subject to appeal”. The Court
considers that the DRC cannot now rely on an error allegedly made by its
administrative agencies at the time Mr. Diallo was “refused entry” to claim
that he should have treated the measure as an expulsion. Mr. Diallo, as the
subject of the refusal of entry, was justified in relying on the
consequences of the legal characterization thus given by the Zairean
authorities, including for purposes of the local remedies rule.
47. The Court further observes that, even if this was a case of expulsion
and not refusal of entry, as the DRC maintains, the DRC has also failed to
show that means of redress against expulsion decisions are available under
its domestic law. The DRC did, it is true, cite the possibility of
requesting reconsideration by the competent administrative authority (see
paragraph 36 above). The Court nevertheless recalls that, while the local
remedies that must be exhausted include all remedies of a legal nature,
judicial redress as well as redress before administrative bodies,
administrative remedies can only be taken into consideration for purposes of
the local remedies rule if they are aimed at vindicating a right and not at
obtaining a favour, unless they constitute an essential prerequisite for the
admissibility of subsequent contentious proceedings. Thus, the possibility
open to Mr. Diallo of submitting a request for reconsideration of the
expulsion decision to the administrative authority having taken it ⎯ that is
to say the Prime Minister ⎯ in the hope that he would retract his decision
as a matter of grace cannot be deemed a local remedy to be exhausted.
48. Having established that the DRC has not proved the existence in its
domestic legal system of available and effective remedies allowing Mr.
Diallo to challenge his expulsion, the Court concludes that the DRC’s
objection to admissibility based on the failure to exhaust local remedies
cannot be upheld in respect of that expulsion.
49. The Court now turns to the question of the admissibility of Guinea’s
Application in so far as it concerns protection of Mr. Diallo’s rights as
associé of the two companies Africom-Zaire and Africontainers-Zaire. The DRC
raises two objections to admissibility regarding this aspect of the
Application: it contests Guinea’s standing, and it suggests that Mr. Diallo
has not exhausted the local remedies that were available to him in the DRC
to assert his rights. The Court will deal with these objections in turn,
beginning with that relating to Guinea’s standing. *
50. The DRC accepts that under international law the State of nationality
has the right to exercise its diplomatic protection in favour of associés or
shareholders when there is an injury to their direct rights as such. It
nonetheless contends that “international law allows for [this] protection .
. . only under very limited conditions which are not fulfilled in the
present case”.
51. The DRC maintains first of all that Guinea is not seeking, in this case,
to protect the direct rights of Mr. Diallo as associé. It takes the view
that Guinea “identifies an attack on company rights, resulting in damage to
shareholders, with the violation of their direct rights” or, more
specifically, that it identifies a violation of the rights of Africom-Zaire
and Africontainers-Zaire with a violation of the rights of Mr. Diallo. The
DRC states as proof that “in several passages in its written pleadings,
Guinea considers claims held by Africom-Zaire and Africontainers-Zaire to be
claims held by Mr. Diallo”. Such confusion between the rights of the
companies and the rights of the shareholders is described by the DRC not
only as “contrary to positive international law” but also as “contrary to
the logic itself of the institution of diplomatic protection”; it is said to
have been expressly “rejected by the Court in the Barcelona Traction case”.
52. The DRC further asserts that, in any event, action to protect the direct
rights of shareholders as such applies to only very limited cases. Since
shareholders “can claim to derive their shareholders rights [only from the
company]”, “by definition, what is envisaged here can only be the rights of
shareholders in their relations with the company”. According to the DRC:
“[t]his interpretation is confirmed by the list of examples provided by the
Court [in the Barcelona Traction case]: the right to dividends, the right to
attend and vote at general meetings, and the right to share in the residual
assets of the company on liquidation are rights which by definition the
shareholder can invoke only against the company, subject to certain
conditions and in accordance with certain procedures laid down in the
company’s articles and in the commercial law of the legal order concerned”.
The only acts capable of violating the direct rights of shareholders would
consequently be “acts of interference in relations between the company and
its shareholders”. For the DRC, therefore, the arrest, detention and
expulsion of Mr. Diallo could not constitute acts of interference on its
part in relations between the associé Mr. Diallo and the companies
Africom-Zaire and Africontainers-Zaire. As a result, they could not injure
Mr. Diallo’s direct rights.
53. The DRC agrees, as suggested by Guinea, that “the rights listed in the
1970 Judgment [in the Barcelona Traction case] are no more than examples,
and that the rights in question must be sought in the domestic legislation
of the States concerned”. The DRC also 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”. However, the DRC notes that
in practice, Mr. Diallo “was unable to exercise . . . the right of oversight
of the two companies” since “the statutory oversight is oversight of the
management [(gérance)]” and “such oversight cannot be entrusted to an
individual who is already manager [(gérant)]”. The DRC further maintains
that, contrary to what is claimed by Guinea, none of the other rights
accorded to Mr. Diallo could have been affected by his expulsion. Hence it
points out that the right of “being paid dividends and liquidation bonuses
does not require as a condition of its enjoyment that the holder live in the
Congo”. Likewise, “the functional rights [of the associé] . . . are not such
as to be essentially affected by the physical absence of the holder from the
headquarters of the company”. Mr. Diallo could very well have exercised them
from foreign territory. He would have had every opportunity of “delegating
executive tasks to local administrators, including through the appointment
of a new manager”. The DRC also notes on this subject “that Mr. Diallo
himself continued to run Africontainers[-Zaire] and pursued recovery of the
debts owed to that company well after his expulsion . . . [by appointing]
representatives and lawyers to act on his behalf and on his instructions”.
54. In support of its diplomatic protection claim on behalf of Mr. Diallo as
associé, Guinea refers to the Judgment in the Barcelona Traction case,
where, having ruled 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” (I.C.J. Reports 1970, p. 36, para.
46), the Court added that “[t]he situation is different if the act
complained of is aimed at the direct rights of the shareholder as such”
(ibid., p. 36, para. 47). Guinea further claims that this position of the
Court was taken up in Article 12 of the ILC’s draft Articles on Diplomatic
Protection, which provides that: “To the extent that an internationally
wrongful act of a State causes direct injury to the rights of shareholders
as such, as distinct from those of the corporation itself, the State of
nationality of any such shareholders is entitled to exercise diplomatic
protection in respect of its nationals.”
55. According to Guinea, the direct rights of Mr. Diallo as a shareholder of
Africom-Zaire and Africontainers-Zaire are essentially determined by the
Decree of 27 February 1887 on commercial corporations. This text is said to
confer on him firstly a series of “property rights”, including the right to
dividends from these companies, and secondly a series of “functional
rights”, including the right to control, supervise and manage the companies.
Guinea claims that the Congolese investment code also affords Mr. Diallo
certain additional rights as shareholder, for example “the right to a share
of the profits of his companies” and “a right of ownership in his companies,
in particular in respect of his shares”. Guinea thus takes the view that it
is confining itself, in its claim, to the violation of the rights enjoyed by
Mr. Diallo in respect of the companies, including his rights of supervision,
control and management, and that it is therefore not confusing his rights
with those of the company.
56. Guinea also points out that, in SPRLs, the parts sociales “are not
freely transferable”, which “considerably accentuates the intuitu personae
character of these companies, very different in this respect from public
limited companies”. It argues that this character is seen as even more
marked in the case of Africom-Zaire and Africontainers-Zaire, since Mr.
Diallo was their “sole manager (gérant) and sole associé (directly or
indirectly)”. According to Guinea, “in fact and in law it was virtually
impossible to distinguish Mr. Diallo from his companies”.
57. Guinea considers that the arrest, detention and expulsion of Mr. Diallo
not only had the effect “of preventing him from continuing to administer,
manage and control any of the operations of the companies Africom-Zaire and
Africontainers-Zaire”, but were specifically motivated by the intent to
prevent him from exercising these rights, from pursuing the legal
proceedings brought on behalf of the companies, and thereby from recovering
their debts. Such intent is said to emerge from the text of the Order of 31
October 1995, which refers to “[Mr. Diallo,] whose presence and conduct have
breached Zairean law and order, especially in the economic, financial and
monetary areas, and continue to do so”. These measures, moreover, are said
to have followed on from moves by the Zairean authorities seeking a stay of
execution on a judgment of the Tribunal de Grande Instance of Kinshasa
ordering Zaire Shell to pay compensation to Africontainers-Zaire.
58. Finally, Guinea maintains that, contrary to what is claimed by the DRC,
Mr. Diallo could not validly exercise his direct rights as shareholder from
his country of origin. Consequently, “[e]ven if he had been in a position to
appoint a new ‘gérant’ and a ‘commissaire’ ⎯ and he was not, given his lack
of funds ⎯ he was still being deprived of the right to appoint the
management of his choice in violation of . . . the 1887 Decree, and he could
not be expected to confer or abandon the management to some third party”.
Guinea adds that it is unrealistic to claim, as the DRC does, that Mr.
Diallo could have exercised, from abroad, his rights of supervision and
control, or indeed convoked, taken part in and voted at the general
meetings. *
59. The Court begins by noting the existence of a disagreement between the
Parties on the circumstances surrounding the establishment of Africom-Zaire
and the conduct of its activities, on the continuation of those activities
after the 1980s, and on the consequences these questions may have under
Congolese law. It nonetheless takes the view that this disagreement
essentially relates to the merits and that it has no bearing on the question
of the admissibility of Guinea’s Application as challenged in the Congo’s
objections.
60. The Court notes that the Parties have referred frequently to the case
concerning the Barcelona Traction, Light and Power Company, Limited (Belgium
v. Spain). This involved a public limited company whose capital was
represented by shares. The present case concerns SPRLs whose capital is
composed of parts sociales (see paragraph 25 above).
61. As the Court recalled in the Barcelona Traction case, “[t]here is . . .
no need to investigate the many different forms of legal entity provided for
by the municipal laws of States” (I.C.J. Reports 1970, p. 34, para. 40).
What matters, from the point of view of international law, is to determine
whether or not these have a legal personality independent of their members.
Conferring independent corporate personality on a company implies granting
it rights over its own property, rights which it alone is capable of
protecting. As a result, only the State of nationality may exercise
diplomatic protection on behalf of the company when its rights are injured
by a wrongful act of another State. In determining whether a company
possesses independent and distinct legal personality, international law
looks to the rules of the relevant domestic law.
62. The Court, in order to establish the precise legal nature of
Africom-Zaire and Africontainers-Zaire, must refer to the domestic law of
the DRC and, in particular, to the Decree of 27 February 1887 on commercial
corporations. This text states, in Article 1, that “commercial corporations
recognized by law in accordance with this Decree shall constitute legal
persons having a personality distinct from that of their members”.
63. 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 a SPRL or for a public limited
company.
64. The exercise by a State of diplomatic protection on behalf of a natural
or legal person, who is associé or shareholder, having its nationality,
seeks to engage the responsibility of another State for an injury caused to
that person by an internationally wrongful act committed by that State.
Ultimately, this is no more than the diplomatic protection of a natural or
legal person as defined by Article 1 of the ILC draft Articles; what amounts
to the internationally wrongful act, in the case of associés or
shareholders, is the violation by the respondent State of their direct
rights in relation to a legal person, direct rights that are defined by the
domestic law of that State, as accepted by both Parties, moreover. On this
basis, diplomatic protection of the direct rights of associés of a SPRL or
shareholders of a public limited company is not to be regarded as an
exception to the general legal régime of diplomatic protection for natural
or legal persons, as derived from customary international law.
65. Having considered all of the arguments advanced by the Parties, the
Court finds that Guinea does indeed have standing in this case in so far as
its action involves a person of its nationality, Mr. Diallo, and is directed
against the allegedly unlawful acts of the DRC which are said to have
infringed his rights, particularly his direct rights as associé of the two
companies Africom-Zaire and Africontainers-Zaire.
66. The Court notes that Mr. Diallo, who was associé in Africom-Zaire and
Africontainers-Zaire, also held the position of gérant in each of them. An
associé of an SPRL holds parts sociales in its capital, while the gérant is
an organ of the company acting on its behalf. It is not for the Court to
determine, at this stage in the proceedings, which specific rights appertain
to the status of associé and which to the position of gérant of an SPRL
under Congolese law. It is at the merits stage, as appropriate, that the
Court 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. There is no need for the Court to rule on these
substantive matters in order to be able to dispose of the preliminary
objections raised by the Respondent.
67. In view of the foregoing, the Court concludes that the objection of
inadmissibility raised by the DRC due to Guinea’s lack of standing to
protect Mr. Diallo cannot be upheld in so far as it concerns his direct
rights as associé of Africom-Zaire and Africontainers-Zaire. *
68. The DRC further claims that Guinea cannot exercise its diplomatic
protection for the violation of Mr. Diallo’s direct rights as associé of
Africom-Zaire and Africontainers-Zaire in so far as he has not attempted to
exhaust the local remedies available in Congolese law for the alleged breach
of those specific rights.
69. The DRC points out that Guinea “does not dispute . . . that there are
procedures and machinery for redress, judicial or otherwise, within the
legal system of the DRC which would have enabled the companies in question
or Mr. Diallo himself to safeguard their rights”. It adds that “[i]n the
circumstances of the present case, however, there is nothing . . . to
warrant the conclusion that it was impossible for Mr. Diallo to avail
himself of the machinery and procedures offered by Congolese law which would
have enabled him to safeguard his rights”.
70. The DRC thus submits first that “Mr. Diallo’s absence from Congolese
territory was not an obstacle [in Congolese law] to the proceedings already
initiated when Mr. Diallo was still in the Congo” or for him to bring other
proceedings. Mr. Diallo could also have “giv[en] one or more representatives
power of attorney to act in legal proceedings instituted” or to “institute
fresh proceedings in other disputes”. In that connection, the DRC observes
that in reality the “proceedings already set in motion by Mr. Diallo on
behalf of the companies of which he was managing director were not
interrupted because of his removal from the national territory”. It also
notes that “the alleged ‘extreme poverty’ of Mr. Diallo and his finding it
‘materially impossible to initiate further . . . proceedings’ [, as claimed
by Guinea] . . . are affirmations lacking in credibility and quite without
evidential value”. In any event, poverty does not constitute “a new
exception to the fundamental principle of the prior exhaustion of local
remedies”.
71. The DRC also asserts that the existing remedies available in the
Congolese legal system are effective. It emphasizes in that respect the fact
that “the ‘effectiveness’ of a remedy in no way implies that the plaintiff
wins the case”, adding that “there can clearly be no question of contesting
the effectiveness of local remedies simply because Mr. Diallo’s initial
claims were not upheld in full or were subsequently rejected”. It also
points out that in fact “the local remedies available within the Congolese
legal system have been shown to be effective with respect to the disputes
submitted to the ordinary Congolese courts by the companies
Africontainers-Zaire and Africom-Zaire” in which those companies obtained
rulings in their favour. Moreover, the DRC considers that, given “the
particular situation in which the Democratic Republic of the Congo . . .
found itself for some years”, it does not appear that the duration of
proceedings before its domestic courts was unreasonable.
72. For its part, Guinea alleges that “the Congolese State deliberately
chose to deny access to its territory to Mr. Diallo because of the legal
proceedings that he had initiated on behalf of his companies”. It maintains
that “[i]n these circumstances, to accuse Mr. Diallo of not having exhausted
the remedies would not only be manifestly ‘unreasonable’ and ‘unfair’, but
also an abuse of the rule regarding the exhaustion of local remedies”.
Guinea adds that the circumstances of Mr. Diallo’s expulsion also precluded
him from pursuing local remedies on his own behalf or on that of his
companies. It recalls that Mr. Diallo was first arrested and imprisoned in
1988, then in 1995 and finally expelled from the territory of the Congo for
having “ventured . . . to bring administrative and legal claims”. The threat
weighing on Mr. Diallo and his exclusion from Congolese territory
constituted, according to Guinea, “a factual denial of access to local
remedies”. The expulsion of Mr. Diallo from Congolese territory is also said
to have put him in a financial position in which it was “materially
impossible for him to pursue any remedy whatsoever in Zaire”. As for the
possibility referred to by the DRC of appointing another gérant or giving
someone else power of attorney to pursue the proceedings already initiated
or institute fresh proceedings, Guinea points out that, in the circumstances
of the case, “no one could be called upon to take over so dangerous a
managerial post” and that “[t]he possible successor . . . would have had
good reason to think that he was ‘manifestly precluded from pursuing local
remedies’”.
73. Guinea further emphasizes that the existing remedies in the Congolese
legal system must, in any event, be regarded as ineffective in view, inter
alia, of the excessive delays of the Congolese judicial authorities in the
settlement of the cases brought before them and the “unlawful administrative
practices” allegedly inherent in the Congolese legal system, particularly
the obstacles placed by the Government authorities to impede the enforcement
of court rulings. Guinea notes in support of these arguments that there has
still been no final ruling in two of the cases brought before the Congolese
courts by Africom-Zaire and Africontainers-Zaire 14 and 13 years ago
respectively. According to Guinea such “excessive lengths were general and
probably not exceptional”; they demonstrate, it is claimed, “the futility of
the remedies which Mr. Diallo’s companies, or indeed he himself, might have
done their utmost to seek”. Guinea also recalls that, irrespective of the
duration of proceedings before Congolese courts, “at the time of the events,
the enforcement of legal decisions depended solely on the government’s
goodwill”. It illustrates its argument by referring to “the interference by
the Zairean Government in the legal proceedings brought by Mr. Diallo’s
companies” and more particularly the repeated stays of execution on the
ruling of the Kinshasa Tribunal de Grande Instance in the case between
Africontainers-Zaire and Zaire Shell. According to Guinea, “[t]he upshot of
this is that any legal action that Mr. Diallo or his companies might have
brought against the government could only result in a decision by that
government based on political considerations”.
74. The Court notes that the alleged violation of Mr. Diallo’s direct rights
as associé was dealt with by Guinea as a direct consequence of his expulsion
given the circumstances in which that expulsion occurred. The Court has
already found above (see paragraph 48), that the DRC has not proved that
there were effective remedies, under Congolese law, against the expulsion
Order against Mr. Diallo. The Court further observes that at no time has the
DRC argued that remedies distinct from those in respect of Mr. Diallo’s
expulsion existed in the Congolese legal system against the alleged
violations of his direct rights as associé and that he should have exhausted
them. The Parties have indeed devoted discussion to the question of the
effectiveness of local remedies in the DRC but have confined themselves in
it to examining remedies open to Africom-Zaire and Africontainers-Zaire,
without considering any which may have been open to Mr. Diallo as associé in
the companies. Inasmuch as it has not been argued that there were remedies
that Mr. Diallo should have exhausted in respect of his direct rights as
associé, the question of the effectiveness of those remedies does not in any
case arise.
75. The Court concludes from the foregoing that the objection as to
inadmissibility raised by the DRC on the ground of the failure to exhaust
the local remedies against the alleged violations of Mr. Diallo’s direct
rights as associé of the two companies Africom-Zaire and
Africontainers-Zaire cannot be upheld.
76. The Court will now consider the question of the admissibility of
Guinea’s Application as it relates to the exercise of diplomatic protection
with respect to Mr. Diallo “by substitution” for Africom-Zaire and
Africontainers-Zaire and in defence of their rights. Here too the DRC raises
two objections to the admissibility of Guinea’s Application, derived
respectively from Guinea’s lack of standing and the failure to exhaust local
remedies. The Court will again address these issues in turn, beginning with
Guinea’s standing. *
77. The DRC contends that Guinea cannot invoke, as it does in the present
case, “‘considerations of equity’ in order to justify ‘the right to exercise
its diplomatic protection [in favour of Mr. Diallo and by substitution for
Africom-Zaire and Africontainers-Zaire] independently of the violation of
the direct rights [of Mr. Diallo]’” on the ground that the State whose
responsibility is at issue is also the State of nationality of the companies
concerned. It recalls that the institution of diplomatic protection is based
on the premise “whereby any violation of the rights of a foreign national is
also a violation of the rights of his State of nationality”. “It is this
circumstance, and this circumstance alone, which justifies recourse to
diplomatic protection.” And the DRC emphasizes that “[c]onversely, if no
right of its nationals is violated then no right of the State is violated
and, in consequence, that State can in no circumstances have standing”. The
diplomatic protection “by substitution” proposed by Guinea is thus said to
go “far beyond what positive international law provides”.
78. The DRC adds that “contrary to what Guinea says, neither the Court’s
jurisprudence nor State practice recognizes the possibility of diplomatic
protection by substitution”. It explains that, although it touched upon this
possibility in the Barcelona Traction case, the Court nevertheless did not
“conclude that such a possibility existed under positive international law”.
On the contrary, the DRC contends that certain judges were “fiercely opposed
to it”. The DRC submits that “Guinea vainly seeks acceptance of the notion
of a customary basis for such protection [by substitution] by relying in
turn on: arbitral awards; decisions of the European Commission of Human
Rights; the requirements of Article 25 of the Washington Convention; ICSID
jurisprudence; and bilateral treaties for the promotion and protection of
investments”. According to the DRC, the arbitral awards to which Guinea
refers are of no relevance, on the one hand, because of their age and, on
the other, because, in each of the cases concerned, the issue of the right
to claim on behalf of the shareholders had been settled in a convention
enabling the arbitrators to adjudicate without limiting themselves to the
application of general international law and which also contained a waiver
by the respondent State of any right to raise an objection preventing the
tribunal from ruling on the merits. The decisions of the European Commission
of Human Rights, “given within a quite specific institutional and
conventional framework, applicable at regional level, [are said to be no
more] . . . relevant to the circumstances of the present case”. As for the
ICSID Convention, bilateral and multilateral treaties for the promotion and
protection of investments and, ICSID decisions, they are also said to lack
relevance, as they “do not constitute the direct application of the
principles and rules governing diplomatic protection”.
79. According to the DRC, Guinea is in reality asking the Court to authorize
it to exercise its diplomatic protection in a manner contrary to
international law. In this connection, the DRC referred to the Judgment
delivered by a Chamber of the Court in the case concerning Frontier Dispute
(Burkina Faso/Republic of Mali), and observed that, since the Parties had
not, in the present case, requested a decision ex aequo et bono under
Article 38, paragraph 2, of the Statute, the Court must “also dismiss any
possibility of resorting to equity contra legem” (I.C.J. Reports 1986, p.
567, para. 28). The DRC adds that none of the particular circumstances of
the case warrants calling that conclusion into question.
80. The DRC further contends that, even supposing that the Court agreed to
take account of the considerations of equity relied on by Guinea, Guinea has
not demonstrated that protection of the shareholder “in substitution” for
the company which possesses the nationality of the respondent State would be
justified in the present case. In this connection, the DRC contends first
that it has not been established that the solution advocated by Guinea is
equitable in principle. On the contrary, the DRC suggests that such
protection by substitution would in fact lead to a discriminatory régime of
protection, resulting as it would in the unequal treatment of the
shareholders. Some shareholders, such as Mr. Diallo in this case, might
enjoy the protection of their national State by virtue of their alien status
and of the good relations which they enjoy with their national authorities,
whereas the other shareholders, either because they have the same
nationality as the companies, or because their country of origin does not
wish to exercise diplomatic protection in respect of them, could have
recourse only to domestic law and domestic courts to assert their rights.
According to the DRC, such a difference in treatment lacks any objective and
reasonable basis and thus constitutes true discrimination.
81. Lastly, the DRC maintains that “even assuming that ‘protection by
substitution’ were accepted as justified, application of this principle to
the case of Mr. Diallo would prove fundamentally inequitable”. According to
the DRC, “Mr. Diallo’s personality and the conduct adopted by him since the
start of this case are far from irreproachable”. Moreover, the DRC alleges
that it was those “activities [of Mr. Diallo], fraudulent and detrimental to
public order, which motivated his removal from Zairean territory”. It adds
that Mr. Diallo’s refusal to exhaust the available local remedies would also
render diplomatic protection by substitution inequitable in this case.
82. For its part, Guinea observes that it is not asking the Court to resort
to equity contra legem to decide the present case when invoking Mr. Diallo’s
protection by substitution for Africom-Zaire and Africontainers-Zaire.
Rather, Guinea contends that, in the Barcelona Traction case, the Court
referred, in a dictum, to the possibility of an exception, founded on
reasons of equity, to the general rule of the protection of a company by its
national State, “when the State whose responsibility is invoked is the
national State of the company”. In this connection, it quotes the following
passage from the Judgment, which it considers apposite:
“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.” (I.C.J. Reports 1970, . 48, para.
93.)
According to Guinea, the equity concerned in this case is equity infra
legem. The alleged purpose of such recourse is to permit “‘a reasonable
application’ . . . of the rules relating to diplomatic protection”, in order
“not to deprive foreign shareholders in a company having the nationality of
the State responsible for the internationally wrongful act of all
possibility of protection”. Guinea recognizes that the Court did not
definitively settle the question of the existence of diplomatic protection
by substitution in the Barcelona Traction case. It nevertheless considers
that the text of the Judgment, read in the light of the opinions of the
Members of the Court appended to it, leads one “to believe that a majority
of the Judges regarded the exception as established in law”.
83. Guinea contends that the existence of the rule of protection by
substitution and its customary nature are confirmed by numerous arbitral
awards establishing “that the shareholders of a company can enjoy the
diplomatic protection of their own national State as regards the national
State of the company when that State is responsible for an internationally
wrongful act against it”. Further, according to Guinea, “[s]ubsequent
practice [following Barcelona Traction], conventional or jurisprudential . .
. has dispelled any uncertainty . . . on the positive nature of the
‘exception’”. Guinea thus refers to certain decisions of the European
Commission of Human Rights, to the Washington Convention establishing the
ICSID, to the latter’s jurisprudence and to the jurisprudence of the
Iran/United States Claims Tribunal.
84. In Guinea’s view, the application of protection by substitution is
particularly appropriate in this case. Guinea again emphasizes that
Africom-Zaire and Africontainers-Zaire are SPRLs, which have a marked
intuitu personae character and which, moreover, are statutorily controlled
and managed by one and the same person. Further, it especially points out
that Mr. Diallo was bound, under Zairean legislation, and in particular
Article 1 of the Legislative Order of 7 June 1966 concerning the registered
office and the administrative seat of companies “whose main centre of
operations is situated in the Congo”, to incorporate the companies in Zaire.
In this regard, Guinea refers to Article 11, paragraph (b), of the draft
Articles on Diplomatic Protection adopted in 2006 by the ILC, providing that
the rule of protection by substitution applies specifically in situations
where the shareholders in a company have been required to form the company
in the State having committed the alleged violation of international law.
Under Article 11, paragraph (b):
“A State of nationality of shareholders in a corporation shall not be
entitled to exercise diplomatic protection in respect of such shareholders
in the case of an injury to the corporation unless:
..................................................................
(b) the corporation had, at the date of injury, the nationality of the State
alleged to be responsible for causing the injury, and incorporation in that
State was required by it as a precondition for doing business there.”
85. Guinea also submits that the accusations made by the DRC against Mr.
Diallo are not supported by any facts. On the contrary, it describes Mr.
Diallo as “a shrewd and serious investor and businessman”, who has never
been accused of not honouring his own commitments to the Zairean State and
private companies, and who has rendered great services to the economic
development of Zaire by making substantial investments there. Lastly, Guinea
rejects as not only inaccurate but also irrelevant in the present context
the allegation that Mr. Diallo refused to exhaust all the remedies available
in the DRC, this being a claim concerning a condition for admissibility
different from that which is here examined. *
86. The Court recalls that, as regards diplomatic protection, the principle
as emphasized in the Barcelona Traction case, is that:
“Not a mere interest affected, but solely a right infringed involves
responsibility, so that an act directed against and infringing only the
company’s rights does not involve responsibility towards the shareholders,
even if their interests are affected.” (I.C.J. Reports 1970, p. 36, para.
46.)
87. Since its dictum in the Barcelona Traction case (ibid., p. 48, para. 93)
(see paragraph 82 above), the Court has not had occasion to rule on whether,
in international law, there is indeed an exception to the general rule “that
the right of diplomatic protection of a company belongs to its national
State” (ibid., p. 48, para. 93), which allows for protection of the
shareholders by their own national State “by substitution”, and on the reach
of any such exception. It is true that in the case concerning Elettronica
Sicula S.p.A. (ELSI) (United States of America v. Italy), the Chamber of the
Court allowed a claim by the United States of America on behalf of two
United States corporations (who held 100 per cent of the shares in an
Italian company), in relation to alleged acts by the Italian authorities
injuring the rights of the latter company. However, in doing so, the Chamber
based itself not on customary international law but on a Treaty of
Friendship, Commerce and Navigation between the two countries directly
granting to their nationals, corporations and associations certain rights in
relation to their participation in corporations and associations having the
nationality of the other State. The Court will now examine whether the
exception invoked by Guinea is part of customary international law, as
claimed by the latter.
88. The Court is bound to note that, in contemporary international law, the
protection of the rights of companies and the rights of their shareholders,
and the settlement of the associated disputes, are essentially governed by
bilateral or multilateral agreements for the protection of foreign
investments, such as the treaties for the promotion and protection of
foreign investments, and the Washington Convention of 18 March 1965 on the
Settlement of Investment Disputes between States and Nationals of Other
States, which created an International Centre for Settlement of Investment
Disputes (ICSID), and also by contracts between States and foreign
investors. In that context, the role of diplomatic protection somewhat
faded, as in practice recourse is only made to it in rare cases where treaty
régimes do not exist or have proved inoperative. It is in this particular
and relatively limited context that the question of protection by
substitution might be raised. The theory of protection by substitution seeks
indeed to offer protection to the foreign shareholders of a company who
could not rely on the benefit of an international treaty and to whom no
other remedy is available, the allegedly unlawful acts having been committed
against the company by the State of its nationality. Protection by
“substitution” would therefore appear to constitute the very last resort for
the protection of foreign investments.
89. The Court, having carefully examined State practice and decisions of
international courts and tribunals in respect of diplomatic protection of
associés and shareholders, is of the opinion that these do not reveal ⎯ at
least at the present time ⎯ an exception in customary international law
allowing for protection by substitution, such as is relied on by Guinea.
90. The fact invoked by Guinea that various international agreements, such
as agreements for the promotion and protection of foreign investments and
the Washington Convention, have established special legal régimes governing
investment protection, or that provisions in this regard are commonly
included in contracts entered into directly between States and foreign
investors, is not sufficient to show that there has been a change in the
customary rules of diplomatic protection; it could equally show the
contrary. The arbitrations relied on by Guinea are also special cases,
whether based on specific international agreements between two or more
States, including the one responsible for the allegedly unlawful acts
regarding the companies concerned (see, for example, the special agreement
concluded between the American, British and Portuguese Governments in the
Delagoa case or the one concluded between El Salvador and the United States
of America in the Salvador Commercial Company case) or based on agreements
concluded directly between a company and the State allegedly responsible for
the prejudice to it (see, for example, the Biloune v. Ghana Investment
Centre case).
91. It is a separate question whether customary international law contains a
more limited rule of protection by substitution, such as that set out by the
ILC in its draft Articles on Diplomatic Protection, which would apply only
where a company’s incorporation in the State having committed the alleged
violation of international law “was required by it as a precondition for
doing business there” (Article 11, paragraph (b)).
92. However, this very special case does not seem to correspond to the one
the Court is dealing with here. It is a fact that Mr. Diallo, a Guinean
citizen, settled in Zaire in 1964, when he was 17 years of age, and that he
did not set up his first company, Africom-Zaire, until ten years later, in
1974. In addition, when, in 1979, Mr. Diallo took part in the creation of
Africontainers-Zaire, it was in fact only as manager (gérant) of
Africom-Zaire, a company under Congolese law. When Africontainers-Zaire was
set up, 70 per cent of its capital was held by associés of Congolese
nationality, and only in 1980, one year later, did Mr. Diallo become an
associé in his own name of that company, holding 40 per cent of the capital,
following the withdrawal of the other two associés, the company
Africom-Zaire holding the remaining parts sociales. It appears natural,
against this background, that Africom-Zaire and Africontainers-Zaire were
created in Zaire and entered in the Trade Register of the city of Kinshasa
by Mr. Diallo, who was already engaged in commercial activities.
Furthermore, and above all it has not satisfactorily been established before
the Court that their incorporation in that country, as legal entities of
Congolese nationality, would have been required of their founders to enable
the founders to operate in the economic sectors concerned.
93. The Court concludes on the facts before it that the companies,
Africom-Zaire and Africontainers-Zaire, were not incorporated in such a way
that they would fall within the scope of protection by substitution in the
sense of Article 11, paragraph (b), of the ILC draft Articles on Diplomatic
Protection referred to by Guinea. Therefore, the question of whether or not
this paragraph of Article 11 reflects customary international law does not
arise in this case.
94. In view of the foregoing, the Court cannot accept Guinea’s claim to
exercise diplomatic protection by substitution. It is therefore the normal
rule of the nationality of the claims which governs the question of the
diplomatic protection of Africom-Zaire and Africontainers-Zaire. The
companies in question have Congolese nationality. The objection as to
inadmissibility raised by the DRC owing to Guinea’s lack of standing to
offer Mr. Diallo diplomatic protection as regards the alleged unlawful acts
of the DRC against the rights of the two companies Africom-Zaire and
Africontainers-Zaire is consequently well founded and must be upheld.
95. Having concluded that Guinea is without standing to offer Mr. Diallo
diplomatic protection as regards the alleged unlawful acts of the DRC
against the rights of the companies Africom-Zaire and Africontainers-Zaire,
the Court need not further consider the DRC’s objection based on the
non-exhaustion of local remedies. **
96. In view of all the foregoing, the Court concludes that Guinea’s
Application is admissible in so far as it concerns protection of Mr.
Diallo’s rights as an individual and his direct rights as associé in
Africom-Zaire and Africontainers-Zaire.
97. In accordance with Article 79, paragraph 7, of the Rules of Court as
adopted on 14 April 1978, time-limits for the further proceedings shall
subsequently be fixed by Order of the Court.
98. For these reasons, THE COURT,
(1) As regards the preliminary objection to admissibility raised by the
Democratic Republic of the Congo for lack of standing by the Republic of
Guinea to exercise diplomatic protection in the present case:
(a) unanimously,
Rejects the objection in so far as it concerns protection of Mr. Diallo’s
direct rights as associé in Africom-Zaire and Africontainers-Zaire;
(b) by fourteen votes to one,
Upholds the objection in so far as it concerns protection of Mr. Diallo in
respect of alleged violations of rights of Africom-Zaire and
Africontainers-Zaire;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna,
Skotnikov; Judge ad hoc Mampuya;
AGAINST: Judge ad hoc Mahiou;
(2) As regards the preliminary objection to admissibility raised by the
Democratic Republic of the Congo on account of non-exhaustion by Mr. Diallo
of local remedies:
(a) unanimously, Rejects the objection in so far as it concerns protection
of Mr. Diallo’s rights as an individual;
(b) by fourteen votes to one,
Rejects the objection in so far as it concerns protection of Mr. Diallo’s
direct rights as associé in Africom-Zaire and Africontainers-Zaire;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna,
Skotnikov; Judge ad hoc Mahiou;
AGAINST: Judge ad hoc Mampuya;
(3) In consequence,
(a) unanimously,
Declares the Application of the Republic of Guinea to be admissible in so
far as it concerns protection of Mr. Diallo’s rights as an individual;
(b) by fourteen votes to one,
Declares the Application of the Republic of Guinea to be admissible in so
far as it concerns protection of Mr. Diallo’s direct rights as associé in
Africom-Zaire and Africontainers-Zaire;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna,
Skotnikov; Judge ad hoc Mahiou;
AGAINST: Judge ad hoc Mampuya;
(c) by fourteen votes to one,
Declares the Application of the Republic of Guinea to be inadmissible in so
far as it concerns protection of Mr. Diallo in respect of alleged violations
of rights of Africom-Zaire and Africontainers-Zaire.
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna,
Skotnikov; Judge ad hoc Mampuya;
AGAINST: Judge ad hoc Mahiou.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-fourth day of May, two thousand and
seven, 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) Rosalyn HIGGINS,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge ad hoc MAHIOU appends a declaration to the Judgment of the Court;
Judge ad hoc MAMPUYA appends a separate opinion to the Judgment of the
Court.
(Initialled) R.H.
(Initialled) Ph.C.
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