    COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRE| TS,
AVIS CONSULTATIFS ET ORDONNANCES

       AFFAIRE
  AHMADOU SADIO DIALLO
(RE
  u PUBLIQUE DE GUINE
                    u E c. RE
                            u PUBLIQUE
      DE
       u MOCRATIQUE DU CONGO)

     ARRE
        | T DU 30 NOVEMBRE 2010

            2010
    INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

    CASE CONCERNING
  AHMADOU SADIO DIALLO
(REPUBLIC OF GUINEA v. DEMOCRATIC
     REPUBLIC OF THE CONGO)

   JUDGMENT OF 30 NOVEMBER 2010

                    Mode officiel de citation :
                     Ahmadou Sadio Diallo
  (République de Guinée c. République démocratique du Congo),
             fond, arrêt, C.I.J. Recueil 2010, p. 639

                        Official citation :
                     Ahmadou Sadio Diallo
   (Republic of Guinea v. Democratic Republic of the Congo),
        Merits, Judgment, I.C.J. Reports 2010, p. 639

                                     No de vente :
SN 0074-4441
BN 978-92-1-071111-1
                                     Sales number    1001

                             30 NOVEMBRE 2010

                                  ARRE
                                     |T

      AHMADOU SADIO DIALLO
(RE
  u PUBLIQUE DE GUINE
                    u E c. RE
                            u PUBLIQUE
      DE
       u MOCRATIQUE DU CONGO)

      AHMADOU SADIO DIALLO
(REPUBLIC OF GUINEA v. DEMOCRATIC
     REPUBLIC OF THE CONGO)

                             30 NOVEMBER 2010

                                JUDGMENT

                       TABLE OF CONTENTS
                                                                   Paragraphs

RONOLOGY OF THE PROCEDURE                                                  1-14
. GENERAL FACTUAL BACKGROUND                                              15-20
. PROTECTION OF MR. DIALLO’S RIGHTS AS AN INDIVIDUAL                      21-98
 A. The claim concerning the arrest and detention measures
    taken against Mr. Diallo in 1988-1989                                 24-48
 B. The claim concerning the arrest, detention and expulsion
    measures taken against Mr. Diallo in 1995-1996                        49-98
    1. The facts                                                          49-62
    2. Consideration of the facts in the light of the applicable
       international law                                                  63-98
       (a) The alleged violation of Article 13 of the Covenant and
            Article 12, paragraph 4, of the African Charter               64-74
       (b) The alleged violation of Article 9, paragraphs 1 and 2, of
            the Covenant and Article 6 of the African Charter             75-85
       (c) The alleged violation of the prohibition on subjecting
            a detainee to mistreatment                                    86-89
       (d) The alleged violation of the provisions of Article 36,
            paragraph 1 (b), of the Vienna Convention on
            Consular Relations                                            90-98
. PROTECTION OF MR. DIALLO’S DIRECT RIGHTS AS ASSOCIÉ IN
  AFRICOM-ZAIRE AND AFRICONTAINERS-ZAIRE                 99-159
 A. The right to take part and vote in general meetings                 117-126
 B. The rights relating to the gérance                                  127-140
 C. The right to oversee and monitor the management                     141-148

 D. The right to property of Mr. Diallo over his parts sociales in
    Africom-Zaire and Africontainers-Zaire                         149-159
. REPARATION                                                            160-164
ERATIVE CLAUSE                                                             165

                                                                             4

            INTERNATIONAL COURT OF JUSTICE

                              YEAR 2010                                             2010
                                                                                30 November
                                                                                General List
                           30 November 2010                                        No. 103

               CASE CONCERNING
             AHMADOU SADIO DIALLO
           (REPUBLIC OF GUINEA v. DEMOCRATIC
                REPUBLIC OF THE CONGO)

General factual background.
Protection of Mr. Diallo’s rights as an individual.
Admissibility of the claim concerning the arrest and detention measures taken
ainst Mr. Diallo in 1988-1989 — Point in the proceedings when this claim
s asserted — Purpose of the written observations in response to the prelimi-
ry objections — Claim first presented in the Reply — Article 40, paragraph 1,
the Statute — Articles 38, paragraph 2, and 49, paragraph 1, of the Rules of
 urt — Subject of the dispute defined by the Application — Determination as
whether the additional claim is implicit in the Application — 1988-1989 and
95-1996 arrests made in different contexts and on different legal bases —
 w claim depriving the Respondent of the fundamental procedural right to
se preliminary objections — Distinctiveness, in this respect, of an action in
 lomatic protection — Determination as to whether the additional claim
ses directly out of the issue forming the subject-matter of the Application —
cts which are more or less comparable but dissimilar in nature — Facts
own to the Applicant when the Application was filed and pre-dating those
ich the Application concerns — Additional claim inadmissible.

Claim concerning the arrest, detention and expulsion measures taken against
r. Diallo in 1995-1996 — Facts on which the Parties concur — Facts on
ich the Parties differ — Burden of proof — Principles — Type of facts and
 igation in question — Evaluation by the Court of all the evidence produced
 the Parties and subjected to adversarial scrutiny.

Court’s assessment of the facts — First period of detention continuous —
cond period of detention with a view to expulsion — Death threats not sup-
rted by any evidence.
Alleged violation of Article 13 of the International Covenant on Civil and
litical Rights and Article 12, paragraph 4, of the African Charter on Human
d Peoples’ Rights — Requirement that expulsion must be “in accordance with

                                                                           5

   law” — Meaning — Court’s interpretation corroborated by the Human
ghts Committee and the African Commission on Human and Peoples’
ghts — Interpretation of similar provisions by the European Court of Human
ghts and the Inter-American Court of Human Rights consistent with the
 urt’s interpretation — Authority empowered under DRC law to sign the
pulsion decree — Zairean Legislative Order of 12 September 1983 concerning
migration control — Constitutional Act of 9 April 1994 — Interpretation of
mestic law by national authorities — Interpretation of domestic law by the
 urt when a State puts forward a manifestly incorrect reading — No prior
 nion from the National Immigration Board — Absence of reasoning in the
pulsion decree — Violation of Article 13 of the Covenant and Article 12,
ragraph 4, of the African Charter — No opportunity for Mr. Diallo to submit
  reasons against his expulsion and to have his case reviewed by the competent
thority — Absence of “compelling reasons of national security” — Violation
 Article 13 of the Covenant.

Alleged violation of Article 9, paragraphs 1 and 2, of the International
 venant on Civil and Political Rights and Article 6 of the African Charter
 Human and Peoples’ Rights — Provisions applicable to any form of arrest
 detention decided upon and carried out by a public authority, even outside
  context of criminal proceedings — Insignificance in this respect of how the
 cible removal from the territory is characterized under domestic law — Require-
 nt that the arrested person must be “informed of any charges” against him
plicable only in criminal proceedings — Mr. Diallo’s arrest and detention
 h a view to his expulsion — Violation of the requirements laid down in Arti-
  15 of the Zairean Legislative Order of 12 September 1983 concerning immi-
ation control — Arbitrariness of the arrest and detention given the number
d seriousness of the irregularities tainting them — Violation of Article 9,
ragraph 1, of the Covenant and Article 6 of the African Charter — No notice
the reasons for arrest — Violation of Article 9, paragraph 2, of the Covenant.

Alleged violation of the prohibition on subjecting a detainee to mistreat-
nt — Articles 7 and 10, paragraph 1, of the International Covenant on Civil
d Political Rights ; Article 5 of the African Charter on Human and Peoples’
ghts — Prohibition of inhuman and degrading treatment — Rule of general
ernational law binding on States in all circumstances, even apart from any
aty commitments — Lack of evidence — Violation not established.

Alleged violation of Article 36, paragraph 1 (b), of the Vienna Convention on
 nsular Relations — Provision applicable to any form of deprivation of lib-
 y, even outside the criminal context — Obligation to inform the arrested per-
n on the authorities’ own initiative and “without delay” of his right to seek
 istance from the consular authorities of his country — Fact that the arrested
 son did not request such assistance and that the consular authorities
 rned of the arrest through other channels — No evidence to prove oral notice —
olation established.
Alleged violation of the right to property guaranteed by Article 14 of the Afri-
n Charter on Human and Peoples’ Rights — Question falling within the scope
 the assessment of the damage Mr. Diallo suffered.

                                      *

                                                                              6

 Protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Afri-
 ntainers-Zaire.
 Congolese law of commercial companies — Société privée à responsabilité
mitée — Concept — Legal existence of the two companies under domestic
w — Mr. Diallo’s role and participation in the companies as gérant and asso-
   — Distinction between alleged infringements of the companies’ rights and
ose concerning the associé’s direct rights — Arguments put forward by
  inea.
 Right to take part and vote in general meetings of the companies — Arti-
   79 of the Congolese Decree of 27 February 1887 on commercial compa-
  s — Direct right of the associés — No general meetings convened — Impact
  the right to take part and vote — Alleged obligation to hold general meetings
   DRC territory and convening of meetings from abroad — Alleged right to
 end general meetings in person — Proxy representation of the associé at gen-
  l meetings pursuant to Articles 80 and 81 of the Decree of 27 February
 87 — Purpose of these provisions — Control exercised by Mr. Diallo over
   companies — Appointment of a proxy under Article 22 of Africontainers-
  ire’s Articles of Incorporation — Distinction between impeding the exercise
 a right and violating that right — No violation of the right to take part and
  e in general meetings.
 Rights relating to the gérance — Articles 64, 65 and 69 of the Decree of
   February 1887 ; Articles 14 and 17 of Africontainers-Zaire’s Articles of
  orporation — Alleged violation of the right to appoint a gérant — Respon-
 ility of the company, not a right of the associé — Alleged violation of the
 ht to be appointed gérant — No violation, Mr. Diallo having remained
  ant — Alleged violation of the right to exercise the functions of gérant —
 ssible to entrust day-to-day management to agents or proxies under Congo-
 e law and the Articles of Incorporation — No violation — Alleged violation
 the right not to be removed as gérant — Conditions on removal under Arti-
   67 of the Decree of 27 February 1887 — Removal not proved — No viola-
 n.
 Right to oversee and monitor the management — Articles 71 and 75 of the
  cree of 27 February 1887 ; Article 19 of Africontainers-Zaire’s Articles of
  orporation — No violation.
 Right to property of Mr. Diallo over his parts sociales in Africom-Zaire and
 ricontainers-Zaire –– Legal personality of the company distinct from that of
  shareholders — Property of the company not merged with that of an associé,
  n a sole associé — Capital being part of the company’s property — Parts
ciales, representing but distinct from the capital, owned by the associés —
 ght of associés to receive dividends or any monies payable on the winding-up
 a company — No evidence of any dividend declaration or of the winding-up of
   companies — No need to determine the extent of the companies’ business
  ivities — No need to establish whether, as alleged, the companies had been in
 ndeclared bankruptcy” — Claim of indirect expropriation not established.

                                      *

 Reparation — Judicial finding of the violations not sufficient — Compensa-
 n — Six-month period to reach agreement on the amount of compensation to
 paid by the DRC to Guinea for the injury flowing from the wrongful deten-

                                                                             7

ns and expulsion of Mr. Diallo in 1995-1996, including the resulting loss of
 personal belongings.

                             JUDGMENT

esent : President OWADA ; Vice-President TOMKA ; Judges AL-KHASAWNEH,
        SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV,
        CANÇADO TRINDADE, YUSUF, GREENWOOD ; Judges ad hoc MAHIOU,
        MAMPUYA ; Registrar COUVREUR.

In the case concerning Ahmadou Sadio Diallo,
between
  Republic of Guinea,
presented by
Colonel Siba Lohalamou, Minister of Justice, Keeper of the Seals,
as Head of Delegation ;
Ms Djénabou Saïfon Diallo, Minister of Co-operation ;
Mr. Mohamed Camara, First Counsellor for Political Affairs, Embassy of
   Guinea in the Benelux countries and in the European Union,

as Agent ;
Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-
  La Défense, member and former Chairman of the International Law Com-
  mission, Associate of the Institut de droit international,
as Deputy Agent, Counsel and Advocate ;
Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-
  La Défense, Secretary-General of the Société française pour le droit
  international,
Mr. Daniel Müller, Researcher at the Centre de droit international de Nan-
  terre (CEDIN), University of Paris Ouest, Nanterre-La Défense,
Mr. Jean-Marc Thouvenin, Professor at the University of Paris Ouest, Nan-
  terre-La Défense, Director of the Centre de droit international de Nanterre
  (CEDIN), member of the Paris Bar, Cabinet Sygna Partners,
Mr. Luke Vidal, member of the Paris Bar, Cabinet Sygna Partners,
Mr. Samuel Wordsworth, member of the English and Paris Bars, Essex
  Court Chambers,
as Counsel and Advocates ;
H.E. Mr. Ahmed Tidiane Sakho, Ambassador of the Republic of Guinea to
  the Benelux countries and to the European Union,
Mr. Alfred Mathos, Judicial Agent of the State,
Mr. Hassan II Diallo, Legal Adviser to the Prime Minister of the Republic of
  Guinea,
Mr. Ousmane Diao Balde, Director of the Legal and Consular Division of
  the Ministry of Foreign Affairs,

                                                                           8

Mr. André Saféla Leno, President of the Indictments Division of the Court
  of Appeal of Conakry,
H.E. Mr. Abdoulaye Sylla, former Ambassador,
as Advisers ;
Mr. Ahmadou Sadio Diallo,
and
  Democratic Republic of the Congo,
presented by
H.E. Mr. Henri Mova Sakanyi, Ambassador of the Democratic Republic of
   the Congo to the Kingdom of Belgium, the Kingdom of the Netherlands
   and the Grand Duchy of Luxembourg,
as Agent and Head of Delegation ;
Mr. Tshibangu Kalala, Professor of International Law at the University of
   Kinshasa, member of the Kinshasa and Brussels Bars, and Deputy, Con-
   golese Parliament,
as Co-Agent, Counsel and Advocate ;
Mr. Lwamba Katansi, Professor at the University of Kinshasa, Legal Adviser,
   Office of the Minister of Justice and Human Rights,
Ms Corinne Clavé, member of the Brussels Bar, Cabinet Liedekerke-Wolters-
   Waelbroeck-Kirkpatrick,
Mr. Kadima Mukadi, member of the Kinshasa Bar, Cabinet Tshibangu and
   Associés,
Mr. Bukasa Kabeya, member of the Kinshasa Bar, Cabinet Tshibangu and
   Associés,
Mr. Kikangala Ngoie, member of the Brussels Bar,
Mr. Moma Kazimbwa Kalumba, member of the Brussels Bar, Lawyer-
   Counsel, Embassy of the Democratic Republic of the Congo in Brussels,
Mr. Tshimpangila Lufuluabo, member of the Brussels Bar,
Ms Mwenze Kisonga Pierrette, Head of the Legal and Litigation Depart-
   ment, Embassy of the Democratic Republic of the Congo in Brussels,
Mr. Kalume Mabingo, Legal Adviser, Embassy of the Democratic Republic
   of the Congo in Brussels,
as Advisers ;
Mr. Mukendi Tshibangu, Researcher, Cabinet Tshibangu and Associés,

Ms Ali Feza, Researcher, Office of the Minister of Justice and Human
  Rights,
Mr. Makaya Kiela, Researcher, Office of the Minister of Justice and Human
  Rights,
as Assistants,

THE COURT,
composed as above,
after deliberation,
delivers the following Judgment :

                                                                         9

1. On 28 December 1998, the Government of the Republic of Guinea
 reinafter “Guinea”) filed in the Registry of the Court an Application
 tituting proceedings against the Democratic Republic of the Congo (here-
 fter the “DRC”, named Zaire between 1971 and 1997) in respect of a dispute
ncerning “serious violations of international law” alleged to have been
mmitted “upon the person of a Guinean national”. The Application consisted
 two parts, each signed by Guinea’s Minister for Foreign Affairs. The first
rt, entitled “Application” (hereinafter the “Application (Part One)”), contained
succinct statement of the subject of the dispute, the basis of the Court’s
 isdiction and the legal grounds relied on. The second part, entitled “Memo-
l of the Republic of Guinea” (hereinafter the “Application (Part Two)”), set
t the facts underlying the dispute, expanded on the legal grounds put for-
 rd by Guinea and stated Guinea’s claims.
In the Application (Part One), Guinea maintained that :
     “Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality,
   was unjustly imprisoned by the authorities of the Democratic Republic of
   the Congo, after being resident in that State for thirty-two (32) years,
   despoiled of his sizable investments, businesses, movable and immovable
   property and bank accounts, and then expelled”.
  inea added : “[t]his expulsion came at a time when Mr. Ahmadou Sadio Diallo
 s pursuing recovery of substantial debts owed to his businesses by the State
 d by oil companies established in its territory and of which the State is a share-
  der”. Mr. Diallo’s arrest, detention and expulsion constituted, inter
 a, according to Guinea, violations of
   “the principle that aliens should be treated in accordance with ‘a minimum
   standard of civilization’ [of] the obligation to respect the freedom and
   property of aliens, [and of] the right of aliens accused of an offence to a
   fair trial on adversarial principles by an impartial court”.

To found the jurisdiction of the Court, Guinea invoked in the Application
art One) the declarations whereby the two States have recognized the com-
 lsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute
 the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
 mediately communicated to the Government of the DRC by the Registrar ;
 d, in accordance with paragraph 3 of that Article, all States entitled to
 pear before the Court were notified of the Application.
3. By an Order of 25 November 1999, the Court fixed 11 September 2000 as
   time-limit for the filing of a Memorial by Guinea and 11 September 2001 as
   time-limit for the filing of a Counter-Memorial by the DRC. By an Order of
  eptember 2000, the President of the Court, at Guinea’s request, extended the
me-limit for the filing of the Memorial to 23 March 2001 ; in the same Order,
   time-limit for the filing of the Counter-Memorial was extended to 4 Octo-
r 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
her of the Parties, each of them availed itself of its right under Article 31, para-
 ph 3, of the Statute to choose a judge ad hoc to sit in the case. Guinea chose
 . Mohammed Bedjaoui and the DRC Mr. Auguste Mampuya Kanunk’a-

                                                                                10

 hiabo. Following Mr. Bedjaoui’s resignation on 10 September 2002,
uinea chose Mr. Ahmed Mahiou.
 5. On 3 October 2002, within the time-limit set in Article 79, paragraph 1, of
   Rules of Court as adopted on 14 April 1978, the DRC raised preliminary
 jections in respect of the admissibility of Guinea’s Application. In accord-
 ce with Article 79, paragraph 3, of the Rules of Court, the proceedings on
   merits were then suspended. By an Order of 7 November 2002, the Court,
king account of the particular circumstances of the case and the agreement of
   Parties, fixed 7 July 2003 as the time-limit for the presentation by Guinea of
 written statement of its observations and submissions on the preliminary
 jections raised by the DRC. Guinea filed such a statement within the time-
mit fixed, and the case thus became ready for hearing on the preliminary
 jections.
 6. The Court held hearings on the preliminary objections raised by the DRC
  m 27 November to 1 December 2006. In its Judgment of 24 May 2007, the
  urt declared the Application of the Republic of Guinea to be admissible “in
 far as it concerns protection of Mr. Diallo’s rights as an individual” and “in
 far as it concerns protection of [his] direct rights as associé in Africom-Zaire
 d Africontainers-Zaire”. On the other hand, the Court declared the Applica-
 n of the Republic of Guinea to be inadmissible “in so far as it concerns pro-
 tion of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire
 d Africontainers-Zaire”.

 7. By an Order of 27 June 2007, the Court fixed 27 March 2008 as the time-
mit for the filing of the Counter-Memorial of the DRC. That pleading was
 ly filed within the time-limit thus prescribed.
 8. By an Order of 5 May 2008, the Court authorized the submission of a
 ply by Guinea and a Rejoinder by the DRC, and fixed 19 November 2008
 d 5 June 2009 as the respective time-limits for the filing of those pleadings.
 e Reply of Guinea and the Rejoinder of the DRC were duly filed within the
me-limits thus prescribed.
 9. In accordance with Article 53, paragraph 2, of the Rules of Court, the
  urt decided that, after ascertaining the views of the Parties, copies of the
  adings and documents annexed would be made accessible to the public on
   opening of the oral proceedings.
 10. Owing to the difficulties in the air transport sector following the volcanic
uption in Iceland during April 2010, the public hearings which, according to
   schedule originally adopted, were due to be held from 19 to 23 April 2010
ok place on 19, 26, 28 and 29 April 2010. At those hearings, the Court heard
   oral arguments and replies of :

 r Guinea :    Mr. Mohamed Camara,
               Mr. Luke Vidal,
               Mr. Jean-Marc Thouvenin,
               Mr. Mathias Forteau,
               Mr. Samuel Wordsworth,
               Mr. Daniel Müller,
               Mr. Alain Pellet.
 r the DRC : Mr. Tshibangu Kalala.
 11. At the hearings, Members of the Court put questions to the Parties, to

                                                                              11

 ich replies were given orally and in writing, in accordance with Article 61,
ragraph 4, of the Rules of Court.

                                     *
12. In the Application (Part Two), the following requests were made by
uinea :
     “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 pay-
  ment of these debts, in accordance with the principles of State responsibil-
  ity and civil liability ;
     To order that the Congolese State pay to the State of Guinea on behalf
  of its national Ahmadou Sadio Diallo the sums of US$31,334,685,888.45
  and Z 14,207,082,872.7 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 Z 2,131,062,430.9 ;

     To award to the applicant State bank and moratory interest at respec-
  tive 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, 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 Con-
  golese State.” (Emphasis in the original.)
13. In the written proceedings, the following submissions were presented by
 Parties :
 behalf of the Government of Guinea,
the Memorial :
     “The Republic of Guinea has the honour to request that it may please
  the International Court of Justice to adjudge and declare :
  (1) that, in arbitrarily arresting and expelling its national, Mr. Ahma-
      dou Sadio Diallo ; in not at that time respecting his right to the benefit
      of the provisions of the [1963] Vienna Convention on Consular Rela-
      tions ; in subjecting him to humiliating and degrading treatment ; in

                                                                             12

       depriving him of the exercise of his rights of ownership and manage-
       ment in respect of the companies founded by him in the DRC ; in pre-
       venting 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.”
the Reply :
    “On the grounds set out in its Memorial and in the present Reply, the
  Republic of Guinea requests the International Court of Justice to adjudge
  and declare :
  1. that, in carrying out arbitrary arrests of its national, Mr. Ahmadou
      Sadio Diallo, and expelling him ; in not at that time respecting his right
      to the benefit of the provisions of the 1963 Vienna Convention on
      Consular Relations ; in submitting him to humiliating and degrading
      treatment ; in depriving him of the exercise of his rights of ownership,
      oversight and management in respect of the companies which he
      founded in the DRC and in which he was the sole associé ; in prevent-
      ing him in that capacity from pursuing recovery of the numerous debts
      owed to the said companies both by the DRC itself and by other con-
      tractual partners ; in expropriating de facto Mr. Diallo’s property, the
      Democratic Republic of the Congo has committed internationally
      wrongful acts which engage its responsibility to the Republic of Guinea ;
  2. that the Democratic Republic of the Congo is accordingly bound to
      make full reparation on account of the injury suffered by Mr. Diallo or
      by the Republic of Guinea in the person of its national ;
  3. that such reparation shall take the form of compensation covering the
      totality of the injuries caused by the internationally wrongful acts of
      the Democratic Republic of the Congo, including loss of earnings, and
      shall also include interest.
    The Republic of Guinea further requests the Court kindly to authorize it
  to submit an assessment of the amount of the compensation due to it on
  this account from the Democratic Republic of the Congo in a subsequent
  phase of the proceedings in the event that the two Parties should be unable
  to agree on the amount thereof within a period of six months following
  delivery of the Judgment.”

                                                                             13

 behalf of the Government of the DRC,
the Counter-Memorial :
    “In the light of the arguments set out above and of the Court’s Judg-
  ment of 24 May 2007 on the preliminary objections, in which the Court
  declared Guinea’s Application to be inadmissible in so far as it concerned
  protection of Mr. Diallo in respect of alleged violations of rights belonging
  to Africom-Zaire and Africontainers-Zaire, the Respondent respectfully
  requests the Court to adjudge and declare that :
  1. the Democratic Republic of the Congo has not committed any inter-
     nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
     individual personal rights ;
  2. the Democratic Republic of the Congo has not committed any inter-
     nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
     direct rights as associé in Africom-Zaire and Africontainers-Zaire ;

  3. accordingly, the Application of the Republic of Guinea is unfounded in
     fact and in law.”
the Rejoinder :
    “While expressly reserving the right to supplement and expand on its
  grounds in fact and in law and without admitting any statement that might
  be prejudicial to it, the Respondent requests the Court to adjudge and
  declare that :
  1. the Democratic Republic of the Congo has not committed any inter-
     nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
     individual personal rights ;
  2. the Democratic Republic of the Congo has not committed any inter-
     nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
     direct rights as associé in Africontainers-Zaire or alleged associé in
     Africom-Zaire ;
  3. accordingly, the Application of the Republic of Guinea is unfounded in
     fact and in law.”
14. At the oral proceedings, the following final submissions were presented
 the Parties :
 behalf of the Government of Guinea,
the hearing of 28 April 2010 :
     “1. On the grounds set out in its Memorial, its Reply and the oral argu-
  ment now being concluded, the Republic of Guinea requests the Interna-
  tional Court of Justice to adjudge and declare :
  (a) that, in carrying out arbitrary arrests of its national, Mr. Ahma-
        dou Sadio Diallo, and expelling him ; in not at that time respecting his
        right to the benefit of the provisions of the 1963 Vienna Convention
        on Consular Relations ; in submitting him to humiliating and degrad-
        ing treatment ; in depriving him of the exercise of his rights of own-
        ership, oversight and management in respect of the companies which
        he founded in the DRC and in which he was the sole associé ; in pre-
        venting him in that capacity from pursuing recovery of the numerous
        debts owed to the said companies both by the DRC itself and by
        other contractual partners ; and in expropriating de facto Mr. Diallo’s

                                                                             14

         property, the Democratic Republic of the Congo has committed
         internationally wrongful acts which engage its responsibility to the
         Republic of Guinea ;
   (b) that the Democratic Republic of the Congo is accordingly bound to
         make full reparation on account of the injury suffered by Mr. Diallo
         or by the Republic of Guinea in the person of its national ;
   (c) that such reparation shall take the form of compensation covering the
         totality of the injuries caused by the internationally wrongful acts of
         the Democratic Republic of the Congo, including loss of earnings,
         and shall also include interest.
      2. The Republic of Guinea further requests the Court kindly to author-
   ize 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 subse-
   quent 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 fol-
   lowing delivery of the Judgment.”
  behalf of the Government of the DRC,
 the hearing of 29 April 2010 :
      “In the light of the arguments referred to above and of the Court’s
   Judgment of 24 May 2007 on the preliminary objections, whereby the
   Court declared Guinea’s Application to be inadmissible in so far as it
   concerned protection of Mr. Diallo in respect of alleged violations of
   rights of Africom-Zaire and Africontainers-Zaire, the Respondent respect-
   fully requests the Court to adjudge and declare that :
   1. the Democratic Republic of the Congo has not committed any inter-
       nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
       individual personal rights ;
   2. the Democratic Republic of the Congo has not committed any inter-
       nationally wrongful acts towards Guinea in respect of Mr. Diallo’s
       direct rights as associé in Africom-Zaire and Africontainers-Zaire ;

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

                                    * * *

                  I. GENERAL FACTUAL BACKGROUND

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

 16. Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC
 1964. There, in 1974, he founded an import-export company, Africom-

                                                                             15

 ire, a société privée à responsabilité limitée (private limited liability com-
ny, hereinafter “SPRL”) incorporated under Zairean law and entered in
e Trade Register of the city of Kinshasa. In 1979 Mr. Diallo took part,
 gérant (manager) of Africom-Zaire, in the founding of a Zairean SPRL
ecializing in the containerized transport of goods, Africontainers-Zaire.
 is company was entered in the Trade Register of the city of Kinshasa
d Mr. Diallo became its gérant (see paragraphs 105-113 below).
17. At the end of the 1980s, Africom-Zaire and Africontainers-Zaire,
ting through their gérant, Mr. Diallo, instituted proceedings against
eir business partners in an attempt to recover various debts. The vari-
 s disputes between Africom-Zaire or Africontainers-Zaire, on the one
nd, and their business partners, on the other, continued throughout the
90s and for the most part remain unresolved today (see paragraphs 109,
4, 136 and 150 below).
18. On 25 January 1988, Mr. Diallo was arrested and imprisoned. On
 January 1989, the public prosecutor in Kinshasa ordered the release of
r. Diallo after the case was closed for “inexpediency of prosecution”.

19. On 31 October 1995, the Zairean Prime Minister issued an expul-
 n decree against Mr. Diallo. On 5 November 1995, Mr. Diallo was
rested and placed in detention with a view to his expulsion. After
ving been released and rearrested, he was finally expelled from Congo-
 e territory on 31 January 1996 (see paragraphs 50-60 below).
20. Having, in its Judgment of 24 May 2007, declared the Application
 the Republic of Guinea to be admissible “in so far as it concerns pro-
 tion of Mr. Diallo’s rights as an individual” and “in so far as it con-
rns protection of [his] direct rights as associé in Africom-Zaire and
 ricontainers-Zaire” (see paragraph 6 above), the Court will in turn
nsider below the questions of the protection of Mr. Diallo’s rights as
  individual (see paragraphs 21-98) and of the protection of his direct
 hts as associé in Africom-Zaire and Africontainers-Zaire (see para-
aphs 99-159). In the light of the conclusions it comes to on these ques-
 ns, it will then examine the claims for reparation made by Guinea in its
 al submissions (see paragraphs 160-164).

     II. PROTECTION OF MR. DIALLO’S RIGHTS AS AN INDIVIDUAL

21. In its arguments as finally stated, Guinea maintains that Mr. Diallo
 s the victim in 1988-1989 of arrest and detention measures taken by
e DRC authorities in violation of international law and in 1995-1996 of
rest, detention and expulsion measures also in violation of interna-
 nal law. Guinea reasons from this that it is entitled to exercise diplo-
atic protection of its national in this connection.

                                                                            16

22. The DRC maintains that the claim relating to the events in 1988-
89 was presented belatedly and must therefore be rejected as inadmis-
 le. In the alternative, the DRC maintains that the said claim must be
ected because of failure to exhaust local remedies, or, otherwise,
ected on the merits. The DRC denies that Mr. Diallo’s treatment in
95-1996 breached its obligations under international law.
23. The Court must therefore first rule on the DRC’s argument con-
ting the admissibility of the claim concerning the events in 1988-1989
fore it can, if necessary, consider the merits of that claim. It will then
ed to consider the merits of the grievances relied upon by Guinea in
pport of its claim concerning the events in 1995-1996, the admissibility
 which is no longer at issue in this phase of the proceedings.

A. The Claim concerning the Arrest and Detention Measures Taken
                against Mr. Diallo in 1988-1989

24. After asserting that it was only in the Reply that Guinea first set
t arguments in respect of the events in 1988-1989, the DRC in the
 joinder challenged the admissibility of the claim in question as fol-
ws :
     “The Applicant is clearly seeking to put forward a new claim by
   means of the Reply and consequently to amend the Application at
   an inappropriate stage of the proceedings. This new claim, which is
   not in any way linked to the main claim concerning the events of
   1995 to 1996 forming the basis of this dispute, entitles the [Respond-
   ent] to raise the objection of failure to exhaust the local remedies
   available in the Congolese legal system with respect to the arrest and
   detention of 1988-1989.”
 e DRC reiterated this objection in like terms during the oral proceed-
gs.
 25. Thus enunciated, the Respondent’s objection amounts to a chal-
nge to the admissibility of the claim concerning the events of 1988-1989
  two separate grounds : first, Guinea is alleged to have raised the claim
 a stage in the proceedings such that it was late, in view of the lack of
 ufficient connection between it and the claim advanced in the Appli-
tion instituting proceedings ; second, this claim is alleged to be barred
 any case by an objection based on Mr. Diallo’s failure first to exhaust
e remedies available in the Congolese legal system.

26. The Court must commence by considering the first of these two
ounds of inadmissibility. If it concludes that the claim was in fact late
d must therefore be rejected without any consideration on the merits,
ere will be no need for the Court to proceed any further. If, on the
her hand, it concludes that the claim was not asserted belatedly, it will
ed to consider whether the DRC is entitled to raise, at this stage of the

                                                                       17

oceedings, the objection of non-exhaustion of local remedies and, if so,
hether that objection is warranted.

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

28. To begin, note should be taken that there is nothing in the Appli-
tion instituting proceedings of 28 December 1998 referring to the
ents in 1988-1989.
Granted, it is stated under the heading “Subject of the Dispute” as
fined in the Application that Mr. Diallo was “unjustly imprisoned . . .
spoiled . . . and then expelled”. But it is clear from the document
nexed to the Application (the Application (Part Two), see paragraph 1
ove) that the “imprisonment” in question began on 5 November 1995
d, according to Guinea, ended after a brief interruption with Mr. Diallo’s
 ysical expulsion on 31 January 1996 at Kinshasa airport. Nowhere in
e Application proper or in the annex to it is there any reference to
r. Diallo’s arrest and detention in 1988-1989.

 29. Nor are these facts mentioned in the Memorial Guinea filed pur-
ant to Article 49, paragraph 1, of the Rules of Court on 23 March 2001.
  at Memorial contains an extensive discussion of the facts which have
ven rise to the dispute. In respect of those corresponding to “arrest”
 d “detention”, the events of 1995-1996 are described in detail, in the
ction “the salient facts”, whereas no mention is made of any detention
ffered by Mr. Diallo in 1988-1989. True, the Court is requested in the
 al “submissions” in the Memorial to declare that, “in arbitrarily arrest-
g and expelling . . . Mr. Diallo” [“en procédant à l’arrestation arbitraire
 à l’expulsion de . . . M. Diallo”], the DRC committed acts engaging its
 ernational responsibility, without any further specification as to the
 te and nature of the “arbitrary arrest” [“l’arrestation arbitraire”] in
 estion. But it is usual for the facts not to be treated in any detail in the
ubmissions” which a Memorial is required to contain pursuant to Arti-
   49, paragraph 1, of the Rules of Court, because the submissions fol-
w the statement of facts, which the same provision of the Rules of
ourt also requires, and they must be read in the light of that statement.
  the case at hand, the “arbitrary arrest” referred to in the submissions
 Guinea’s Memorial can only be the arrest Mr. Diallo suffered, accord-
g to the Applicant, in 1995-1996 in view of the carrying out of the
pulsion decree issued against him in October 1995, not Mr. Diallo’s
 eged arrest in 1988-1989, of which there is no mention.

30. It was not until the Applicant filed its Written Observations on
e preliminary objections raised by the Respondent on 7 July 2003 that

                                                                          18

r. Diallo’s arrest and detention in 1988-1989 were referred to for the
st time. But it is to be observed that the reference appears only in the
st chapter, entitled “The salient facts”, solely in the context of the
 usal of the Zairean authorities to pay sums to Africom-Zaire, and no
rther mention is made of these events in the later chapters devoted to
e discussion from the legal perspective of the DRC’s objections to
 missibility.
 31. In the opinion of the Court, the claim in respect of the events in
 88-1989 cannot be deemed to have been presented by Guinea in its
Written Observations” of 7 July 2003. The purpose of those observa-
 ns was to respond to the DRC’s objections in respect of admissibility,
 accordance with the requirements of Article 79, paragraph 5, of the
ules of Court, in the 1978 version applicable to these proceedings. As
ese were preliminary objections, having been raised by the DRC within
e time-limit for the filing of its Counter-Memorial, the proceedings on
e merits had been suspended upon receipt by the Registry of the docu-
ent setting them out, in accordance with Article 79, paragraph 3, of the
ules of Court, in the version applicable to the present proceedings. That
 why Guinea confined itself in its Written Observations of 7 July 2003
  submitting at the end that the Court should “[r]eject the Preliminary
bjections” and “[d]eclare the Application . . . admissible”. As those
 re incidental proceedings opened by virtue of the DRC’s preliminary
 jections, Guinea could not present any submission other than those
ncerning the merit of the objections and how the Court should deal
th them. Accordingly, the “Written Observations” of 7 July 2003 can-
 t be interpreted as having introduced an additional claim by the Appli-
nt into the proceedings. And it would have been especially difficult for
e Respondent to have so interpreted them, given the object of the inci-
ntal proceedings. It is hardly surprising then that the DRC did not
 er, either in the oral proceedings on the preliminary objections or in its
ounter-Memorial, to the facts alleged by Guinea in respect of 1988-1989.

 32. Guinea first presented its claim in respect of the events in 1988-
 89 in its Reply, filed on 19 November 2008, after the Court had handed
 wn its Judgment on the preliminary objections. The Reply describes in
tail the circumstances surrounding Mr. Diallo’s arrest and detention in
 88-1989, states that these “inarguably figure among the wrongful acts
r which Guinea is seeking to have the Respondent held internationally
 ponsible” and indicates for the first time what, from the Applicant’s
 int of view, were the international obligations, notably treaty-based
 es, breached by the Respondent in connection with the acts in ques-
 n. Tellingly, whereas in the final submissions in the Memorial Guinea
ked the Court to adjudge “that, in arbitrarily arresting and expel-
 g . . . Mr. Ahmadou Sadio Diallo . . . the Democratic Republic of the
ongo has committed . . . acts which engage its responsibility” [in the
 ginal French : “qu’en procédant à l’arrestation arbitraire et à l’expul-

                                                                        19

 n de . . . M. Ahmadou Sadio Diallo . . . la RDC a commis des faits . . .
 i engagent sa responsabilité” (emphasis added)], the submissions in the
 ply are worded identically with the sole exception that the singular
 m emphasized above is replaced by the plural : “arbitrary arrests”
des arrestations arbitraires”].
33. In response to the DRC’s objection based on the belated assertion
 the claim in question, Guinea gave no explanation as to why this claim
 s introduced at such an advanced stage of the proceedings. It pointed
 t however that the Court stated in paragraph 45 of its Judgment of
  May 2007 on the Respondent’s preliminary objections in the present
se :

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

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

 35. Having determined exactly when the claim concerning the events
  1988-1989 was introduced into the proceedings, the Court can now
 cide whether that claim should be considered late and inadmissible as a
 ult. The Judgment handed down on 24 May 2007 on the DRC’s pre-
minary objections does not prevent the Respondent from now raising
e objection that the additional claim was presented belatedly, since the
 im was introduced, as just stated, after delivery of the 2007 Judgment.

36. On the subject of additional claims introduced — by an Appli-
nt — in the course of proceedings, the Court has developed a jurispru-
nce which is now well settled and is based on the relevant provisions of
e Statute and the Rules of Court, specifically Article 40, paragraph 1,
 the former and Article 38, paragraph 2, and Article 49, paragraph 1, of
e latter.
37. Article 40, paragraph 1, of the Statute of the Court provides :

                                                                      20

      “1. Cases are brought before the Court, as the case may be, either
   by the notification of the special agreement or by a written applica-
   tion addressed to the Registrar. In either case the subject of the dis-
   pute and the parties shall be indicated.” (Emphasis added.)
Article 38, paragraph 2, of the Rules of Court states :
      “2. The application shall specify as far as possible the legal
   grounds upon which the jurisdiction of the Court is said to be based ;
   it shall also specify the precise nature of the claim, together with a
   succinct statement of the facts and grounds on which the claim is
   based.” (Emphasis added.)
Article 49, paragraph 1, of the Rules of Court reads :
      “1. A Memorial shall contain a statement of the relevant facts, a
   statement of law, and the submissions.” (Emphasis added.)

 38. The Court has deemed these provisions “essential from the point
 view of legal security and the good administration of justice” (Certain
 osphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
 dgment, I.C.J. Reports 1992, p. 267, para. 69). It has further observed
at they were already, in substance, part of the text of the Statute of the
 rmanent Court of International Justice, adopted in 1920, and of the
xt of the first Rules of that Court, adopted in 1922 (ibid.).
 39. From these provisions, the Court has concluded that additional
 ims formulated in the course of proceedings are inadmissible if they
ould result, were they to be entertained, in transforming “the subject of
e dispute originally brought before [the Court] under the terms of the
pplication” (Territorial and Maritime Dispute between Nicaragua and
onduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
C.J. Reports 2007 (II), p. 695, para. 108). In this respect, it is the
pplication which is relevant and the Memorial, “though it may eluci-
 te the terms of the Application, must not go beyond the limits of the
 im as set out therein” (Certain Phosphate Lands in Nauru (Nauru v.
  stralia), Preliminary Objections, Judgment, I.C.J. Reports 1992,
  267, para. 69, citing the Order of the Permanent Court of 4 Febru-
y 1933 in the case concerning Prince von Pless Administration (Order
  4 February 1933, P.C.I.J., Series A/B, No. 52, p. 14)). A fortiori, a
 im formulated subsequent to the Memorial, as is the case here, cannot
 nsform the subject of the dispute as delimited by the terms of the
pplication.
 40. The Court has however also made clear that “the mere fact that a
 im is new is not in itself decisive for the issue of admissibility” and
at :
   “In order to determine whether a new claim introduced during the
   course of the proceedings is admissible [it] will need to consider
   whether, ‘although formally a new claim, the claim in question can

                                                                       21

   be considered as included in the original claim in substance’” (Ter-
   ritorial and Maritime Dispute between Nicaragua and Honduras in
   the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
   Reports 2007 (II), p. 695, para. 110, in part quoting Certain Phos-
   phate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
   Judgment, I.C.J. Reports 1992, pp. 265-266, para. 65).

41. In other words, a new claim is not inadmissible ipso facto ; the
cisive consideration is the nature of the connection between that claim
d the one formulated in the Application instituting proceedings.
In this regard the Court has also had the occasion to point out that, to
 d that a new claim, as a matter of substance, has been included in the
 ginal claim, “it is not sufficient that there should be links between
em of a general nature” (Territorial and Maritime Dispute between
caragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
dgment, I.C.J. Reports 2007 (II), p. 695, para. 110).
Drawing upon earlier cases, the Judgment handed down in the case
ncerning Certain Phosphate Lands in Nauru (Nauru v. Australia)
 reliminary Objections, Judgment, I.C.J. Reports 1992) formulated
o alternative tests.
Either the additional claim must be implicit in the Application (as was
e case of one of the Applicant’s final submissions in the case concerning
 mple of Preah Vihear (Cambodia v. Thailand) (see the Judgment on
e merits, I.C.J. Reports 1962, p. 36)) or it must arise directly out of the
 estion which is the subject-matter of the Application (as was the case
 one of Nicaragua’s final submissions in the case concerning Territorial
d Maritime Dispute between Nicaragua and Honduras in the Caribbean
a (Nicaragua v. Honduras) cited above, paragraph 114).

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

43. The Court finds itself unable to consider this claim as being
mplicit” in the original claim as set forth in the Application. Leaving
 de the alleged violations of rights belonging to the companies owned
  Mr. Diallo, in respect of which the Application was held inadmissible
 the Judgment rendered on the preliminary objections, and the viola-
 ns of Mr. Diallo’s direct rights as associé, to be dealt with below, the
 tial claim concerned violations of Mr. Diallo’s individual rights alleged
  Guinea to have resulted from the arrest, detention and expulsion
easures taken against him in 1995-1996. It is hard to see how allega-
 ns concerning other arrest and detention measures, taken at a different
me and in different circumstances, could be regarded as “implicit” in
e Application concerned with the events in 1995-1996. This is especially
 given that the legal bases for Mr. Diallo’s arrests in 1988-1989, on the
 e hand, and 1995-1996, on the other, were completely different. His

                                                                        22

st detention was carried out as part of a criminal investigation into
 ud opened by the Prosecutor’s Office in Kinshasa. The second was
dered with a view to implementing an expulsion decree, that is to say,
  part of an administrative procedure. Among other consequences, it
 lows that the applicable international rules — which the DRC is
cused of having violated — are different in part, and that the domestic
medies on whose prior exhaustion the exercise of diplomatic protection
as a rule contingent are also different in nature.

44. The last point deserves particular attention. Since, as noted above,
e new claim was introduced only at the Reply stage, the Respondent
 s no longer able to assert preliminary objections to it, since such objec-
 ns have to be submitted, under Article 79 of the Rules of Court as
 plicable to these proceedings, within the time-limit fixed for the deliv-
y of the Counter-Memorial (and, under that Article as in force since
February 2001, within three months following delivery of the Memo-
 l). A Respondent’s right to raise preliminary objections, that is to say,
 jections which the Court is required to rule on before the debate on the
erits begins (see Questions of Interpretation and Application of the 1971
ontreal Convention arising from the Aerial Incident at Lockerbie
 ibyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
dgment, I.C.J. Reports 1998, p. 26, para. 47), is a fundamental proce-
 ral right. This right is infringed if the Applicant asserts a substantively
w claim after the Counter-Memorial, which is to say at a time when the
 spondent can still raise objections to admissibility and jurisdiction, but
 t preliminary objections. This is especially so in a case involving dip-
matic protection if, as in the present instance, the new claim concerns
cts in respect of which the remedies available in the domestic system are
 ferent from those which could be pursued in respect of the facts under-
ng the initial claim.

45. Thus, it cannot be said that the additional claim in respect of the
ents in 1988-1989 was “implicit” in the initial Application.
46. For similar reasons, the Court sees no possibility of finding that
e new claim “arises directly out of the question which is the subject-
atter of the Application”. Obviously, the mere fact that two questions
e closely related in subject-matter, in that they concern more or less
mparable facts and similar rights, does not mean that one arises out of
e other. Moreover, as already observed, the facts involved in Mr. Dial-
 s detentions in 1988-1989 and in 1995-1996 are dissimilar in nature, the
 mestic legal framework is different in each case and the rights guaran-
 d by international law are far from perfectly coincident. It would be
 rticularly odd to regard the claim concerning the events in 1988-1989
  “arising directly” out of the issue forming the subject-matter of the
pplication in that the claim concerns facts, perfectly well known to

                                                                         23

uinea on the date the Application was filed, which long pre-date those
 respect of which the Application (in that part of it concerning the
eged violation of Mr. Diallo’s individual rights) was presented.

47. For all of the reasons set out above, the Court finds that the claim
ncerning the arrest and detention measures to which Mr. Diallo was
bject in 1988-1989 is inadmissible.
48. In light of the above finding, there is no need for the Court to con-
 er whether the DRC is entitled to raise, at this stage in the proceed-
gs, an objection to the claim in question based on the failure to exhaust
cal remedies, or, if so, whether the objection would be warranted.

   B. The Claim concerning the Arrest, Detention and Expulsion
        Measures Taken against Mr. Diallo in 1995-1996

 The facts
49. Some of the facts relating to the arrest, detention and expulsion
easures taken against Mr. Diallo between October 1995 and Janu-
y 1996 are acknowledged by both Parties ; others, in contrast, are in
 pute.
50. The facts on which the Parties are in agreement are as follows.

 An expulsion decree was issued against Mr. Diallo on 31 October 1995.
 is decree, signed by the Prime Minister of Zaire, stated that : “[the]
esence and personal conduct [of Mr. Diallo] have breached Zairean
 blic order, especially in the economic, financial and monetary areas,
 d continue to do so”.
 On 5 November 1995, further to the above-mentioned decision and
th a view to its implementation, Mr. Diallo was arrested and placed in
tention in the premises of the immigration service.
 On 10 January 1996, Mr. Diallo was released.
 On 31 January 1996, Mr. Diallo was expelled to Abidjan, on a flight
om Kinshasa airport. He was served with a notice, drawn up that day,
dicating that he was the subject of a “refoulement on account of unauth-
 zed residence”.
 51. However, the Parties disagree markedly concerning, on the one
 nd, Mr. Diallo’s situation between 5 November 1995, when he was first
rested, and his release on 10 January 1996, and, on the other hand, his
uation during the period between this latter date and his actual expul-
 n on 31 January 1996.
 As regards the first of these periods, Guinea maintains that Mr. Diallo
mained continuously in detention : he is thus said to have been detained
r 66 consecutive days. In contrast, the DRC contends that Mr. Diallo
 s released on 7 November 1995 — two days after his arrest — and

                                                                      24

aced under surveillance. According to the DRC, having resumed his
tivities in breach of public order, he was rearrested on an unspecified
te, but in any event not earlier than 2 January 1996. He is then said to
ve been released for a second time on 10 January 1996, because the
 migration service could not find a flight leaving for Conakry within the
 ht-day legal time-limit following his latest arrest. During the first
riod in question, therefore, according to the DRC, Mr. Diallo was only
tained for two days in the first instance and subsequently for no longer
an eight days.
With regard to the period from 10 January to 31 January 1996, Guinea
aintains that Mr. Diallo was rearrested on 14 January 1996, on the
der of the Congolese Prime Minister for the purpose of effecting the
pulsion decree, and kept in detention until he was deported from Kin-
asa airport on 31 January, i.e., for another 17 days. On the other hand,
e DRC asserts that Mr. Diallo remained at liberty from 10 January to
  January 1996, on which date he was arrested prior to being expelled a
w days later, on 31 January.
52. The Parties also differ as to how Mr. Diallo was treated during the
riods when he was deprived of his liberty, although on this aspect of
e dispute the disagreement relates less to the facts themselves than to
eir characterization. According to Guinea, Mr. Diallo was held in dire
d difficult conditions ; he was only able to receive food because of the
 its from his next of kin ; and he was subjected to death threats from the
rsons responsible for guarding him. The DRC contests this final point ;
r the rest, it maintains that the conditions of Mr. Diallo’s detention did
 t amount to inhuman and degrading treatment in breach of interna-
 nal law.

                                    *
53. Faced with a disagreement between the Parties as to the existence
 the facts relevant to the decision of the case, the Court must first
dress the question of the burden of proof.
54. As a general rule, it is for the party which alleges a fact in support
 its claims to prove the existence of that fact (see, most recently, the
dgment delivered in the case concerning Pulp Mills on the River Uru-
ay (Argentina v. Uruguay), I.C.J. Reports 2010 (I), p. 71, para. 162).

However, it would be wrong to regard this rule, based on the maxim
us probandi incumbit actori, as an absolute one, to be applied in all
 cumstances. The determination of the burden of proof is in reality
pendent on the subject-matter and the nature of each dispute brought
fore the Court ; it varies according to the type of facts which it is neces-
ry to establish for the purposes of the decision of the case.
55. In particular, where, as in these proceedings, it is alleged that a
rson has not been afforded, by a public authority, certain procedural
arantees to which he was entitled, it cannot as a general rule be dem-

                                                                         25

 ded of the Applicant that it prove the negative fact which it is asser-
 g. A public authority is generally able to demonstrate that it has
 lowed the appropriate procedures and applied the guarantees required
  law — if such was the case — by producing documentary evidence of
e actions that were carried out. However, it cannot be inferred in every
se where the Respondent is unable to prove the performance of a pro-
dural obligation that it has disregarded it : that depends to a large
tent on the precise nature of the obligation in question ; some obliga-
 ns normally imply that written documents are drawn up, while others
  not. The time which has elapsed since the events must also be taken
 o account.
 56. It is for the Court to evaluate all the evidence produced by the two
 rties and duly subjected to adversarial scrutiny, with a view to forming
  conclusions. In short, when it comes to establishing facts such as those
hich are at issue in the present case, neither party is alone in bearing the
 rden of proof.

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

                                    *

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

There are two documents in the case file which prove that Mr. Diallo
 s imprisoned on 5 November 1995 and freed again on 10 Janu-
y 1996 : these are the committal note (billet d’écrou) bearing the first of
ese two dates and the release document (billet de mise en liberté) which
ars the second. If it were true, as the DRC claims, that between these
o dates Mr. Diallo was released for the first time and then rearrested,
 s hardly comprehensible that the Respondent has been unable to pro-
 ce any administrative documents — or any other piece of evidence —
  establish the reality of those events. It is true that on 30 Novem-
r 1995 — a date when Mr. Diallo was at liberty according to the
RC’s version of the facts, whereas according to Guinea’s allegations, he
 s in prison — he wrote a letter to the Zairean Prime Minister and Min-
er of Finance transmitting to them the files concerning the debts
 imed by his companies, in which he makes no reference to his deten-
 n. But the existence of this correspondence far from proves, contrary
 the assertions of the DRC, that Mr. Diallo was at liberty on that date.
is a fact that, during the periods when he was deprived of his liberty,
r. Diallo was largely able to communicate with the outside world, and

                                                                         26

at he was not prevented from engaging in written correspondence. The
 ter of 30 November 1995 is therefore in no way conclusive.
 59. Accordingly, the Court concludes that Mr. Diallo remained in
ntinuous detention for 66 days, from 5 November 1995 to 10 Janu-
y 1996.
 60. On the other hand, the Court does not accept the Applicant’s
sertion that Mr. Diallo was rearrested on 14 January 1996 and remained
  detention until he was expelled on 31 January. This claim, which is
ntested by the Respondent, is not supported by any evidence at all ; the
ourt also observes that, in the written proceedings, Guinea stated the
 te of this alleged arrest to be 17 and not 14 January. The Court there-
re cannot regard the second period of detention claimed by the Appli-
nt, lasting 17 days, as having been established. However, since the
RC has acknowledged that Mr. Diallo was detained, at the latest, on
  January 1996, the Court will take it as established that he was in
tention between 25 and 31 January 1996.

61. Nor can the Court accept the allegations of death threats said to
ve been made against Mr. Diallo by his guards, in the absence of any
dence in support of these allegations.

62. As regards the question of compliance of the authorities of the
RC with their obligations under Article 36 (1) (b) of the Vienna Con-
ntion on Consular Relations, the relevant facts will be examined at a
er stage, when the Court deals with that question (see paragraphs 90-97
low).

 Consideration of the facts in the light of the applicable international law
 63. Guinea maintains that the circumstances in which Mr. Diallo was
rested, detained and expelled in 1995-1996 constitute in several respects
breach by the DRC of its international obligations.
 First, the expulsion of Mr. Diallo is said to have breached Article 13 of
e International Covenant on Civil and Political Rights (hereinafter the
 ovenant”) of 16 December 1966, to which Guinea and the DRC
came parties on 24 April 1978 and 1 February 1977 respectively, as
 ll as Article 12, paragraph 4, of the African Charter on Human and
 oples’ Rights (hereinafter the “African Charter”) of 27 June 1981,
hich entered into force for Guinea on 21 October 1986, and for the
RC on 28 October 1987.
 Second, Mr. Diallo’s arrest and detention are said to have violated
 ticle 9, paragraphs 1 and 2, of the Covenant, and Article 6 of the Afri-
n Charter.
 Third, Mr. Diallo is said to have suffered conditions in detention com-
 rable to forms of inhuman or degrading treatment that are prohibited
  international law.
 Fourth and last, Mr. Diallo is said not to have been informed, when he

                                                                          27

 s arrested, of his right to request consular assistance from his country,
 violation of Article 36 (1) (b) of the Vienna Convention on Consular
 lations of 24 April 1963, which entered into force for Guinea on
 July 1988 and for the DRC on 14 August 1976.

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

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

64. Article 13 of the Covenant reads as follows :
      “An alien lawfully in the territory of a State party to the present
   Covenant may be expelled therefrom only in pursuance of a decision
   reached in accordance with law and shall, except where compelling
   reasons of national security otherwise require, be allowed to submit
   the reasons against his expulsion and to have his case reviewed by,
   and be represented for the purpose before, the competent authority
   or a person or persons especially designated by the competent author-
   ity.”
kewise, Article 12, paragraph 4, of the African Charter provides that :

      “A non-national legally admitted in a territory of a State party to
   the present Charter, may only be expelled from it by virtue of a deci-
   sion taken in accordance with the law.”
 65. It follows from the terms of the two provisions cited above that the
pulsion of an alien lawfully in the territory of a State which is a party
   these instruments can only be compatible with the international
 ligations of that State if it is decided in accordance with “the law”, in
her words the domestic law applicable in that respect. Compliance with inter-
 tional law is to some extent dependent here on compliance with internal
w. However, it is clear that while “accordance with law” as thus
fined is a necessary condition for compliance with the above-mentioned
ovisions, it is not the sufficient condition. First, the applicable domestic
w must itself be compatible with the other requirements of the
ovenant and the African Charter ; second, an expulsion must not be
bitrary in nature, since protection against arbitrary treatment lies at the
art of the rights guaranteed by the international norms protecting
 man rights, in particular those set out in the two treaties applicable in
 s case.
 66. The interpretation above is fully corroborated by the jurisprudence
  the Human Rights Committee established by the Covenant to ensure
 mpliance with that instrument by the States parties (see for example, in
 s respect, Maroufidou v. Sweden, No. 58/1979, para. 9.3 ; Human Rights

                                                                          28

 mmittee, General Comment No. 15 : The Position of Aliens under
e Covenant).
Since it was created, the Human Rights Committee has built up a
nsiderable body of interpretative case law, in particular through its
 dings in response to the individual communications which may be sub-
 tted to it in respect of States parties to the first Optional Protocol, and
 the form of its “General Comments”.

 Although the Court is in no way obliged, in the exercise of its judicial
nctions, to model its own interpretation of the Covenant on that of the
ommittee, it believes that it should ascribe great weight to the interpre-
 ion adopted by this independent body that was established specifically
  supervise the application of that treaty. The point here is to achieve
e necessary clarity and the essential consistency of international law, as
 ll as legal security, to which both the individuals with guaranteed
 hts and the States obliged to comply with treaty obligations are enti-
 d.
 67. Likewise, when the Court is called upon, as in these proceedings,
 apply a regional instrument for the protection of human rights, it must
ke due account of the interpretation of that instrument adopted by the
dependent bodies which have been specifically created, if such has been
e case, to monitor the sound application of the treaty in question. In
e present case, the interpretation given above of Article 12, para-
aph 4, of the African Charter is consonant with the case law of the
 rican Commission on Human and Peoples’ Rights established by Arti-
  30 of the said Charter (see, for example, Kenneth Good v. Republic of
 tswana, No. 313/05, para. 204 ; World Organization against Torture
 d International Association of Democratic Lawyers, International Com-
 ssion of Jurists, Inter-African Union for Human Rights v. Rwanda,
o. 27/89, 46/91, 49/91, 99/93).
 68. The Court also notes that the interpretation by the European
ourt of Human Rights and the Inter-American Court of Human Rights,
 pectively, of Article 1 of Protocol No. 7 to the (European) Convention
r the Protection of Human Rights and Fundamental Freedoms and
 ticle 22, paragraph 6, of the American Convention on Human Rights —
e said provisions being close in substance to those of the Covenant and
e African Charter which the Court is applying in the present case — is
nsistent with what has been found in respect of the latter provisions in
 ragraph 65 above.
 69. According to Guinea, the decision to expel Mr. Diallo first breached
 ticle 13 of the Covenant and Article 12, paragraph 4, of the African
harter because it was not taken in accordance with Congolese domestic
w, for three reasons : it should have been signed by the President of the
 public and not by the Prime Minister ; it should have been preceded by
nsultation of the National Immigration Board ; and it should have
dicated the grounds for the expulsion, which it failed to do.

                                                                         29

 70. The Court is not convinced by the first of these arguments. It is
ue that Article 15 of the Zairean Legislative Order of 12 Septem-
r 1983 concerning immigration control, in the version in force at the
me, conferred on the President of the Republic, and not the Prime Min-
er, the power to expel an alien. However, the DRC explains that since
e entry into force of the Constitutional Act of 9 April 1994, the powers
nferred by particular legislative provisions on the President of the
  public are deemed to have been transferred to the Prime Minister —
en though such provisions have not been formally amended — under
  ticle 80 (2) of the new Constitution, which provides that “the Prime
inister shall exercise regulatory power by means of decrees deliberated
 on in the Council of Ministers”.
 The Court recalls that it is for each State, in the first instance, to inter-
et its own domestic law. The Court does not, in principle, have the
 wer to substitute its own interpretation for that of the national authori-
 s, especially when that interpretation is given by the highest national
urts (see, for this latter case, Serbian Loans, Judgment No. 14, 1929,
C.I.J., Series A, No. 20, p. 46 and Brazilian Loans, Judgment No. 15,
 29, P.C.I.J., Series A, No. 21, p. 124). Exceptionally, where a State
 ts forward a manifestly incorrect interpretation of its domestic law,
 rticularly for the purpose of gaining an advantage in a pending case, it
for the Court to adopt what it finds to be the proper interpretation.
 71. That is not the situation here. The DRC’s interpretation of its
onstitution, from which it follows that Article 80 (2) produces certain
 ects on the laws already in force on the date when that Constitution
  s adopted, does not seem manifestly incorrect. It has not been con-
  ted that this interpretation corresponded, at the time in question, to
e general practice of the constitutional authorities. The DRC has
cluded in the case file, in this connection, a number of other expulsion
crees issued at the same time and all signed by the Prime Minister.
onsequently, although it would be possible in theory to discuss the
 lidity of that interpretation, it is certainly not for the Court to adopt a
  ferent interpretation of Congolese domestic law for the purposes of the
cision of this case. It therefore cannot be concluded that the decree
pelling Mr. Diallo was not issued “in accordance with law” by virtue of
e fact that it was signed by the Prime Minister.
 72. However, the Court is of the opinion that this decree did not com-
y with the provisions of Congolese law for two other reasons.
 First, it was not preceded by consultation of the National Immigration
  ard, whose opinion is required by Article 16 of the above-mentioned
 gislative Order concerning immigration control before any expulsion
easure is taken against an alien holding a residence permit. The DRC
 s not contested either that Mr. Diallo’s situation placed him within the
ope of this provision, or that consultation of the Board was neglected.
  is omission is confirmed by the absence in the decree of a citation men-
  ning the Board’s opinion, whereas all the other expulsion decrees
cluded in the case file specifically cite such an opinion, in accordance

                                                                           30

th Article 16 of the Legislative Order, moreover, which concludes by
pulating that the decision “shall mention the fact that the Board was
nsulted”.
 Second, the expulsion decree should have been “reasoned” pursuant to
 ticle 15 of the 1983 Legislative Order ; in other words, it should have
dicated the grounds for the decision taken. The fact is that the general,
 reotyped reasoning included in the decree cannot in any way be
garded as meeting the requirements of the legislation. The decree con-
 es itself to stating that the “presence and conduct [of Mr. Diallo] have
eached Zairean public order, especially in the economic, financial and
onetary areas, and continue to do so”. The first part of this sentence
mply paraphrases the legal basis for any expulsion measure according
 Congolese law, since Article 15 of the 1983 Legislative Order permits
e expulsion of any alien “who, by his presence or conduct, breaches or
reatens to breach the peace or public order”. As for the second part,
hile it represents an addition, this is so vague that it is impossible to
 ow on the basis of which activities the presence of Mr. Diallo was
emed to be a threat to public order (in the same sense, mutatis mutandis,
e Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
 France), Judgment, I.C.J. Reports 2008, p. 231, para. 152).

 The formulation used by the author of the decree therefore amounts to
  absence of reasoning for the expulsion measure.
 73. The Court thus concludes that in two important respects, concern-
g procedural guarantees conferred on aliens by Congolese law and
med at protecting the persons in question against the risk of arbitrary
 atment, the expulsion of Mr. Diallo was not decided “in accordance
th law”.
 Consequently, regardless of whether that expulsion was justified on the
erits, a question to which the Court will return later in this Judgment,
e disputed measure violated Article 13 of the Covenant and Article 12,
 ragraph 4, of the African Charter.
 74. Furthermore, the Court considers that Guinea is justified in con-
nding that the right afforded by Article 13 to an alien who is subject to
  expulsion measure to “submit the reasons against his expulsion and to
 ve his case reviewed by . . . the competent authority” was not respected
 the case of Mr. Diallo.
 It is indeed certain that, neither before the expulsion decree was signed
   31 October 1995, nor subsequently but before the said decree was
 plemented on 31 January 1996, was Mr. Diallo allowed to submit his
fence to a competent authority in order to have his arguments taken
 o consideration and a decision made on the appropriate response to be
ven to them.
 It is true, as the DRC has pointed out, that Article 13 of the Covenant
ovides for an exception to the right of an alien to submit his reasons
here “compelling reasons of national security” require otherwise. The
  spondent maintains that this was precisely the case here. However, it

                                                                       31

 s not provided the Court with any tangible information that might
 ablish the existence of such “compelling reasons”. In principle, it is
 ubtless for the national authorities to consider the reasons of public
der that may justify the adoption of one police measure or another. But
hen this involves setting aside an important procedural guarantee pro-
ded for by an international treaty, it cannot simply be left in the hands
 the State in question to determine the circumstances which, exception-
 y, allow that guarantee to be set aside. It is for the State to demon-
 ate that the “compelling reasons” required by the Covenant existed, or
 the very least could reasonably have been concluded to have existed,
king account of the circumstances which surrounded the expulsion
easure.
 In the present case, no such demonstration has been provided by the
  spondent.
 On these grounds too, the Court concludes that Article 13 of the Cov-
ant was violated in respect of the circumstances in which Mr. Diallo
  s expelled.

(b) The alleged violation of Article 9, paragraphs 1 and 2, of the
    Covenant and Article 6 of the African Charter
75. Article 9, paragraphs 1 and 2, of the Covenant provides that :
     “1. Everyone has the right to liberty and security of person. No
   one shall be subjected to arbitrary arrest or detention. No one shall
   be deprived of his liberty except on such grounds and in accordance
   with such procedure as are established by law.
     2. Anyone who is arrested shall be informed, at the time of arrest,
   of the reasons for his arrest and shall be promptly informed of any
   charges against him.”
Article 6 of the African Charter provides that :
     “Every individual shall have the right to liberty and to the security
   of his person. No one may be deprived of his freedom except for rea-
   sons and conditions previously laid down by law. In particular, no
   one may be arbitrarily arrested or detained.”
76. According to Guinea, the above-mentioned provisions were vio-
 ed when Mr. Diallo was arrested and detained in 1995-1996 for the
 rpose of implementing the expulsion decree, for a number of reasons.
First, the deprivations of liberty which he suffered did not take place
n accordance with such procedure as [is] established by law” within the
eaning of Article 9, paragraph 1, of the Covenant, or on the basis of
onditions previously laid down by law” within the meaning of Article 6
 the African Charter.
Second, they were “arbitrary” within the meaning of these provisions.

Third, Mr. Diallo was not informed, at the time of his arrests, of the

                                                                       32

asons for those arrests, nor was he informed of the charges against him,
hich constituted a violation of Article 9, paragraph 2, of the Covenant.

 The Court will examine in turn whether each of these assertions is well-
unded.
 77. First of all, it is necessary to make a general remark. The provi-
 ns of Article 9, paragraphs 1 and 2, of the Covenant, and those of
 ticle 6 of the African Charter, apply in principle to any form of arrest
  detention decided upon and carried out by a public authority, what-
er its legal basis and the objective being pursued (see in this respect,
th regard to the Covenant, the Human Rights Committee’s General
omment No. 8 of 30 June 1982 concerning the right to liberty and secu-
y of person (Human Rights Committee, CCPR General Comment
o. 8 : Article 9 (Right to Liberty and Security of Person))). The scope
  these provisions is not, therefore, confined to criminal proceedings ;
ey also apply, in principle, to measures which deprive individuals of
eir liberty that are taken in the context of an administrative procedure,
ch as those which may be necessary in order to effect the forcible
moval of an alien from the national territory. In this latter case, it is of
 le importance whether the measure in question is characterized by
 mestic law as an “expulsion” or a “refoulement”. The position is only
 ferent as regards the requirement in Article 9, paragraph 2, of the Cov-
ant that the arrested person be “informed of any charges” against him,
requirement which is only meaningful in the context of criminal pro-
edings.
 78. The Court now turns to the first of Guinea’s three allegations,
 mely, that Mr. Diallo’s arrest and detention were not in accordance
th the requirements of the law of the DRC. It should first be noted that
r. Diallo’s arrest on 5 November 1995 and his detention until 10 Janu-
y 1996 (see paragraph 58 above) were for the purpose of enabling the
pulsion decree issued against him on 31 October 1995 to be effected.
 e second arrest, on 25 January 1996 at the latest, was also for the pur-
 se of implementing that decree : the mention of a “refoulement” on
count of “illegal residence” in the notice served on Mr. Diallo on
  January 1996, the day when he was actually expelled, was clearly erro-
ous, as the DRC acknowledges.
 79. Article 15 of the Legislative Order of 12 September 1983 concern-
g immigration control, as in force at the time of Mr. Diallo’s arrest and
tention, provided that an alien “who is likely to evade implementation”
  an expulsion measure may be imprisoned for an initial period of
  hours, which may be “extended by 48 hours at a time, but shall not
ceed eight days”. The Court finds that Mr. Diallo’s arrest and deten-
 n were not in accordance with these provisions. There is no evidence
at the authorities of the DRC sought to determine whether Mr. Diallo
 s “likely to evade implementation” of the expulsion decree and, there-
re, whether it was necessary to detain him. The fact that he made no
 empt to evade expulsion after he was released on 10 January 1996 sug-

                                                                         33

sts that there was no need for his detention. The overall length of time
r which he was detained — 66 days following his initial arrest and at
 st six more days following the second arrest — greatly exceeded the
aximum period permitted by Article 15. In addition, the DRC has pro-
 ced no evidence to show that the detention was reviewed every 48 hours,
 required by that provision.

 80. The Court further finds, in response to the second allegation set
 t above (see paragraph 76 above), that Mr. Diallo’s arrest and deten-
 n were arbitrary within the meaning of Article 9, paragraph 1, of the
ovenant and Article 6 of the African Charter.
 81. Admittedly, in principle an arrest or detention aimed at effecting
   expulsion decision taken by the competent authority cannot be
 aracterized as “arbitrary” within the meaning of the above-mentioned
ovisions, even if the lawfulness of the expulsion decision might be open
  question. Consequently, the fact that the decree of 31 October 1995
  s not issued, in some respects, “in accordance with law”, as the Court
 s noted above in relation to Article 13 of the Covenant and Article 12,
 ragraph 4, of the African Charter, is not sufficient to render the arrest
 d detention aimed at implementing that decree “arbitrary” within the
eaning of Article 9, paragraph 1, of the Covenant and Article 6 of the
 rican Charter.
 82. However, account should be taken here of the number and seri-
 sness of the irregularities tainting Mr. Diallo’s detentions. As noted
 ove, he was held for a particularly long time and it would appear that
e authorities made no attempt to ascertain whether his detention was
 cessary.
 Moreover, the Court can but find not only that the decree itself was
 t reasoned in a sufficiently precise way, as was pointed out above
 e paragraph 72), but that throughout the proceedings, the DRC has
 ver been able to provide grounds which might constitute a convinc-
g basis for Mr. Diallo’s expulsion. Allegations of “corruption” and
her offences have been made against Mr. Diallo, but no concrete
idence has been presented to the Court to support these claims.
hese accusations did not give rise to any proceedings before the
 urts or, a fortiori, to any conviction. Furthermore, it is difficult not
  discern a link between Mr. Diallo’s expulsion and the fact that he
 d attempted to recover debts which he believed were owed to his
 mpanies by, amongst others, the Zairean State or companies in
hich the State holds a substantial portion of the capital, bringing
ses for this purpose before the civil courts. Under these circum-
ances, the arrest and detention aimed at allowing such an expulsion
easure, one without any defensible basis, to be effected can only be
 aracterized as arbitrary within the meaning of Article 9, para-
aph 1, of the Covenant and Article 6 of the African Charter.

                                                                       34

 83. Finally, the Court turns to the allegation relating to Article 9,
 ragraph 2, of the Covenant.
 For the reasons discussed above (see paragraph 77), Guinea cannot
 ectively argue that at the time of each of his arrests (in November 1995
 d January 1996), Mr. Diallo was not informed of the “charges against
m”, as the Applicant contends is required by Article 9, paragraph 2, of
e Covenant. This particular provision of Article 9 is applicable only
hen a person is arrested in the context of criminal proceedings ; that was
 t the case for Mr. Diallo.

84. On the other hand, Guinea is justified in arguing that Mr. Diallo’s
 ht to be “informed, at the time of arrest, of the reasons for his
rest” — a right guaranteed in all cases, irrespective of the grounds for
e arrest — was breached.
The DRC has failed to produce a single document or any other form
 evidence to prove that Mr. Diallo was notified of the expulsion decree
 the time of his arrest on 5 November 1995, or that he was in some way
 ormed, at that time, of the reason for his arrest. Although the expul-
 n decree itself did not give specific reasons, as pointed out above (see
ragraph 72), the notification of this decree at the time of Mr. Diallo’s
rest would have informed him sufficiently of the reasons for that arrest
r the purposes of Article 9, paragraph 2, since it would have indicated
 Mr. Diallo that he had been arrested for the purpose of an expulsion
ocedure and would have allowed him, if necessary, to take the appro-
 ate steps to challenge the lawfulness of the decree. However, no infor-
ation of this kind was provided to him ; the DRC, which should be in a
 sition to prove the date on which Mr. Diallo was notified of the decree,
s presented no evidence to that effect.

85. The same applies to Mr. Diallo’s arrest in January 1996. On that
te, it has also not been established that Mr. Diallo was informed that
 was being forcibly removed from Congolese territory in execution of
 expulsion decree. Moreover, on the day when he was actually expelled,
 was given the incorrect information that he was the subject of a
efoulement” on account of his “illegal residence” (see paragraph 50
ove). This being so, the requirement for him to be informed, laid down
 Article 9, paragraph 2, of the Covenant, was not complied with on
at occasion either.

(c) The alleged violation of the prohibition on subjecting a detainee
    to mistreatment
86. Guinea maintains that Mr. Diallo was subjected to mistreatment
 ring his detention, because of the particularly tough conditions thereof,
cause he was deprived of his right to communicate with his lawyers and
th the Guinean Embassy, and because he received death threats from
e guards.

                                                                        35

 87. The Applicant invokes in this connection Article 10, paragraph 1,
 the Covenant, according to which : “All persons deprived of their liberty
all be treated with humanity and with respect for the inherent dignity
 the human person.”
 Article 7 of the Covenant, providing that “[n]o one shall be subjected
 torture or to cruel, inhuman or degrading treatment or punishment”,
 d Article 5 of the African Charter, stating that “[e]very individual shall
 ve the right to the respect of the dignity inherent in a human being”,
e also pertinent in this area.
 There is no doubt, moreover, that the prohibition of inhuman and
grading treatment is among the rules of general international law
hich are binding on States in all circumstances, even apart from any
 aty commitments.
 88. The Court notes, however, that Guinea has failed to demonstrate
nvincingly that Mr. Diallo was subjected to such treatment during his
tention. There is no evidence to substantiate the allegation that he
ceived death threats. It seems that Mr. Diallo was able to communicate
th his relatives and his lawyers without any great difficulty and, even if
 s had not been the case, such constraints would not per se have con-
tuted treatment prohibited by Article 10, paragraph 1, of the Covenant
 d by general international law. The question of Mr. Diallo’s commu-
cations with the Guinean authorities is distinct from that of compliance
th the provisions currently under examination and will be addressed
 der the next heading, in relation to Article 36, paragraph 1 (b), of the
enna Convention on Consular Relations. Finally, that Mr. Diallo was
d thanks to the provisions his relatives brought to his place of deten-
 n — which the DRC does not contest — is insufficient in itself to
ove mistreatment, since access by the relatives to the individual deprived
 his liberty was not hindered.

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

(d) The alleged violation of the provisions of Article 36, paragraph 1 (b),
    of the Vienna Convention on Consular Relations

90. Article 36, paragraph 1 (b), of the Vienna Convention on Consu-
 Relations provides that :
     “[I]f he so requests, the competent authorities of the receiving
   State shall, without delay, inform the consular post of the sending
   State if, within its consular district, a national of that State is
   arrested or committed to prison or to custody pending trial or is
   detained in any other manner. Any communication addressed to the
   consular post by the person arrested, in prison, custody or detention
   shall be forwarded by the said authorities without delay. The said

                                                                        36

   authorities shall inform the person concerned without delay of his
   rights under this subparagraph.”

91. These provisions, as is clear from their very wording, are applica-
e to any deprivation of liberty of whatever kind, even outside the con-
xt of pursuing perpetrators of criminal offences. They therefore apply
 the present case, which the DRC does not contest.

 92. According to Guinea, these provisions were violated when
r. Diallo was arrested in November 1995 and January 1996, because he
 s not informed “without delay” at those times of his right to seek
sistance from the consular authorities of his country.
 93. At no point in the written proceedings or the first round of oral
gument did the DRC contest the accuracy of Guinea’s allegations in
 s respect ; it did not attempt to establish, or even claim, that the infor-
ation called for by the last sentence of the quoted provision was sup-
 ed to Mr. Diallo, or that it was supplied “without delay”, as the text
quires.
 The Respondent replied to the Applicant’s allegation with two argu-
ents : that Guinea had failed to prove that Mr. Diallo requested the
ongolese authorities to notify the Guinean consular post without delay
  his situation ; and that the Guinean Ambassador in Kinshasa was
 are of Mr. Diallo’s arrest and detention, as evidenced by the steps he
ok on his behalf.

94. It was only in replying to a question put by a judge during the hear-
g of 26 April 2010 that the DRC asserted for the first time that it had
 rally informed Mr. Diallo immediately after his detention of the possi-
 ity of seeking consular assistance from his State” (written reply by the
RC handed in to the Registry on 27 April 2010 and confirmed orally at
e hearing of 29 April, during the second round of oral argument).
 95. The Court notes that the two arguments put forward by the DRC
fore the second round of oral pleadings lack any relevance. It is for the
 thorities of the State which proceeded with the arrest to inform on
eir own initiative the arrested person of his right to ask for his consu-
 e to be notified ; the fact that the person did not make such a request
 t only fails to justify non-compliance with the obligation to inform
hich is incumbent on the arresting State, but could also be explained in
me cases precisely by the fact that the person had not been informed of
   rights in that respect (Avena and Other Mexican Nationals (Mexico v.
nited States of America), Judgment, I.C.J. Reports 2004 (I), p. 46,
 ra. 76). Moreover, the fact that the consular authorities of the national
ate of the arrested person have learned of the arrest through other
annels does not remove any violation that may have been committed
  the obligation to inform that person of his rights “without delay”.

                                                                         37

96. As for the DRC’s assertion, made in the conditions described
ove, that Mr. Diallo was “orally informed” of his rights upon his
rest, the Court can but note that it was made very late in the proceed-
gs, whereas the point was at issue from the beginning, and that there is
 t the slightest piece of evidence to corroborate it. The Court is there-
re unable to give it any credit.
97. Consequently, the Court finds that there was a violation by the
RC of Article 36, paragraph 1 (b), of the Vienna Convention on Con-
 ar Relations.

                                    *
98. Guinea has further contended that Mr. Diallo’s expulsion, given
e circumstances in which it was carried out, violated his right to prop-
 y, guaranteed by Article 14 of the African Charter, because he had to
 ve behind most of his assets when he was forced to leave the Congo.

 In the Court’s view, this aspect of the dispute has less to do with the
wfulness of Mr. Diallo’s expulsion in the light of the DRC’s interna-
 nal obligations and more to do with the damage Mr. Diallo suffered as
 esult of the internationally wrongful acts of which he was a victim. The
ourt will therefore examine it later in this Judgment, within the context
  the question of reparation owed by the Respondent (see para-
aphs 160-164 below).

   III. PROTECTION OF MR. DIALLO’S DIRECT RIGHTS AS ASSOCIÉ IN
             AFRICOM-ZAIRE AND AFRICONTAINERS-ZAIRE

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

                                                                        38

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

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

101. In its final submissions, Guinea asked the Court to find that, on
e issue of Mr. Diallo’s direct rights as associé, the DRC had committed
veral internationally wrongful acts which engage its responsibility
wards Guinea. Specifically, Guinea contended that the DRC had
eached its international obligations by :
   “depriving [Mr. Diallo] of the exercise of his rights of ownership,
   oversight and management in respect of the companies which he
   founded in the DRC and in which he was the sole associé ; [by] pre-
   venting him in that capacity from pursuing recovery of the numer-
   ous debts owed to the said companies both by the DRC itself and by
   other contractual partners ; and [by] expropriating de facto Mr. Dial-
   lo’s property”.
102. In contrast, the DRC reiterated in its final submissions that it had
mmitted no internationally wrongful acts towards Guinea in respect of
r. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-
ire.

                                    *
 103. Before addressing the various claims made by the Parties in this
gard, it is necessary for the Court to clarify matters relating to the legal
 stence of the two companies and to Mr. Diallo’s role and participation
 them. Indeed, as the Court found in its Judgment of 24 May 2007, the
 hts of associés are “their direct rights in relation to a legal person”
 C.J. Reports 2007 (II), p. 606, para. 64 ; emphasis added). In other
ords, direct rights as associé exist because companies have “juridical
rsonalities distinct from those of the associés” (as stated in Article 1 of
e Congolese Decree of 27 February 1887 on commercial corporations),
 d they are rights of the associés in their relationship with the company
hose parts they hold. In the present case, it is especially important to
 rify the issues of the legal existence of the companies and of Mr. Dial-
 s participation and role in them, since Guinea claims that he was the
 e gérant and also, directly or indirectly, the sole associé of the two
mpanies. As mentioned by the Court in its Judgment of 24 May 2007,

                                                                         39

uinea maintains that “in fact and in law it was virtually impossible to
 tinguish Mr. Diallo from his companies” (I.C.J. Reports 2007 (II),
 604, para. 56). The DRC, for its part, considers that the number of
rts held by Mr. Diallo in Africom-Zaire has never been indisputably
 ablished ; it adds that the two companies are still formally in existence
d are therefore to be distinguished from Mr. Diallo as associé. More-
er, the DRC contends that, for lack of any commercial activity, the
o SPRLs were in a state of “undeclared bankruptcy” for many years
fore Mr. Diallo’s expulsion.

104. In order to determine Mr. Diallo’s legal rights as associé in Afri-
m-Zaire and Africontainers-Zaire, and whether those rights have been
ringed, the Court will have to examine in the first instance the exist-
ce and structure of those companies under DRC law. As the Court
 ted in the Barcelona Traction case :
      “In this field international law is called upon to recognize institu-
   tions of municipal law that have an important and extensive role in
   the international field . . . All it means is that international law has
   had to recognize the corporate entity as an institution created by
   States in a domain essentially within their domestic jurisdiction. This
   in turn requires that, whenever legal issues arise concerning the
   rights of States with regard to the treatment of companies and share-
   holders, as to which rights international law has not established its
   own rules, it has to refer to the relevant rules of municipal law.”
   (Barcelona Traction, Light and Power Company, Limited (Bel-
   gium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, pp. 33-
   34, para. 38.)

  the Judgment of 24 May 2007, the Court has already found that
r. Diallo’s direct rights as associé “are defined by the domestic law” of
e DRC, being the State of incorporation of the companies (I.C.J.
 ports 2007 (II), p. 606, para. 64), and that the Congolese Decree of
  February 1887 on commercial corporations must in particular be
 erred to “in order to establish the precise legal nature of Africom-Zaire
 d Africontainers-Zaire” (ibid., p. 605, para. 62).
 105. In its Judgment of 24 May 2007, the Court observed that, under
e Decree of 27 February 1887, SPRLs are companies “which are
rmed by persons whose liability is limited to their capital contributions ;
hich are not publicly held companies ; and in which the parts sociales,
quired to be uniform and nominative, are not freely transferable” (Arti-
  36 of the Decree of 27 February 1887 on commercial corporations ;
C.J. Reports 2007 (II), p. 594, para. 25 ; see paragraph 99 above). The
ourt also stated that
     “Congolese law accords an SPRL independent legal personality

                                                                        40

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

106. It is not disputed that Africom-Zaire, an import-export company,
 s founded in 1974 by Mr. Diallo, and that he has been the gérant of
at company for many years. As mentioned below (see paragraph 110),
was in that capacity that Mr. Diallo took part in the creation of Afri-
ntainers-Zaire. Guinea contends that he was also the sole associé of
 ricom-Zaire. This has however been questioned by the DRC in the
urse of the proceedings. In particular, the DRC contends that the
 mber of parts held by Mr. Diallo in Africom-Zaire has never been duly
 cumented and that Guinea has not established that he was still an
socié of that company at the time of his expulsion.
107. Because the record before the Court does not include Africom-
 ire’s Articles of Incorporation, the Court is unable to determine pre-
ely the nature and extent of Mr. Diallo’s holding in that company at
e time it was formed. Nevertheless, as DRC law requires that an SPRL
 formed by more than one associé — as seen in the relevant Articles of
e 1887 Decree, including Article 36, cited above (“[a]n [SPRL] is a com-
ny formed by persons” (emphasis added)) and Article 78, which refers
  the general meeting “of the associés” — and since neither of the
 rties has contested the fact that Africom-Zaire was duly formed as an
 RL under the 1887 Decree, the conclusion is inescapable that, at the
ry first stage of its existence, Africom-Zaire must have had, besides
r. Diallo, at least one other associé.

108. As the Court has not been provided with minutes of general
eetings of Africom-Zaire, it is unable to conclude whether Mr. Diallo
 s become the sole associé of that SPRL and, if so, when this occurred.
 the opinion of the Court, that factual issue is however of no legal con-
quence to the issue under consideration here, since it has not been
 ablished that, under DRC law, an SPRL automatically ceases to exist
 a legal person when all its parts sociales come to be owned by a single
rson. Moreover, it is clear that in practice, the business activities of
 ricom-Zaire in the DRC were not in any way impaired by the fact that
may have become a unipersonal SPRL. This is shown by the commer-
 l relationship established by Africom-Zaire with the authorities of
 ire (and later the DRC), in which no questions or objections were

                                                                       41

vanced as to the legal nature of Africom-Zaire and the fact that it may
ve become a company with a sole associé. The DRC has stated that by
e mid-1980s, Africom-Zaire had ceased all commercial activity and for
at reason had been struck off the Trade Register. However, the DRC
d not argue that that administrative measure amounted to the ending
 the distinct legal personality of the SPRL. The Court thus concludes
at, notwithstanding the fact that Mr. Diallo may have become its sole
socié, Africom-Zaire kept its distinct legal personality. This SPRL thus
mains governed by the 1887 Decree, in the absence of Congolese legis-
 ion specifically regulating companies whose parts sociales are owned
  a single associé, or which, de facto, are fully controlled by the gérant
socié.

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

110. On 18 September 1979, as gérant of Africom-Zaire, Mr. Diallo
ok part in the creation of another SPRL, Africontainers-Zaire, which
ecialized in transporting goods in containers. The notarial act of 18 Sep-
mber 1979 constituting Africontainers-Zaire’s Articles of Incorporation
 s submitted by Guinea as part of the documents included with its

                                                                       42

 emorial. The capital in the new company was held as follows :
   per cent by Mr. Kibeti Zala, a Zairean national ; 30 per cent by
 s Colette Dewast, a French national, and 30 per cent by Africom-
  ire. Mr. Zala and Ms Dewast withdrew from Africontainers-Zaire
   1980. From that time onwards, the capital in Africontainers-Zaire
  s held as follows : 60 per cent by Africom-Zaire and 40 per cent
  Mr. Diallo. At the same time Mr. Diallo became gérant of Africontainers-
  ire for an indefinite period, thus replacing Mr. Alain David, who had
 en appointed the first gérant in the Articles of Incorporation. The
ourt concludes that since Mr. Diallo was, as established above (see
 ragraph 109), fully in charge and in control of Africom-Zaire, he was
 o, directly or indirectly, fully in charge and in control of Africontainers-
 ire.
 111. Relying on documents submitted to the Court, the DRC alleges
at, following his expulsion, Mr. Diallo appointed a new gérant for Afri-
 ntainers-Zaire, Mr. N’Kanza. The DRC notes in this regard that it was
 r. N’Kanza who made the inventory of Africontainers’ property and
presented the company in the negotiations with Gécamines in 1997,
 er one year after Mr. Diallo’s expulsion. Guinea argues that, contrary
 the assertion by the DRC, Mr. Diallo did not appoint Mr. N’Kanza as
 new gérant for Africontainers-Zaire. First, it draws attention to the
  k of evidence establishing that an extraordinary general meeting was
 er held at which Mr. N’Kanza might have been appointed gérant of
 ricontainers-Zaire. Secondly, Guinea cites the decision of the Cour
Appel of Kinshasa/Gombe of 20 June 2002, in which Mr. Diallo is
 erred to as the gérant associé of Africontainers-Zaire. Finally, Guinea
 serves that in documents relating to Africontainers-Zaire submitted to
e Court, Mr. N’Kanza is not referred to as gérant, but rather as
Directeur d’exploitation”, and that Mr. Diallo signed his letters to the
RC as “gérant of Africontainers-Zaire”.

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

113. The Court is moreover of the view that Africom-Zaire and
 ricontainers-Zaire have not ceased to exist. In the absence of a judicial
 uidation, the dissolution of a company, according to the 1887
ecree, “can only be decided by a general meeting” (Art. 99). Once the
 solution has been decided upon, the company goes into a process of
 uidation. The Court notes that there is however no evidence before it
dicating that a judicial liquidation took place or that a general meeting

                                                                          43

either of the two companies was held for the purposes of their dissolu-
n or liquidation.

                                   *
114. Having reached the conclusion that Mr. Diallo was, both as
rant and associé of the two companies, fully in charge and in control of
em, but that they nevertheless remained legal entities distinct from him,
e Court will now address the various claims of Guinea pertaining to the
 ect rights of Mr. Diallo as associé. In doing so, the Court will have to
sess whether, under DRC law, the claimed rights are indeed direct
 hts of the associé, or whether they are rather rights or obligations of
e companies. As the Court has already pointed out, claims relating to
 hts which are not direct rights held by Mr. Diallo as associé have been
clared inadmissible by the Judgment of 24 May 2007 ; they can there-
re no longer be entertained. In particular, this is the case of the claims
 ating to the contractual rights of Africom-Zaire against the State of
 ire (DRC), and of Africontainers-Zaire against the Gécamines, Ona-
 , Fina and Shell companies.

115. In the following paragraphs, the Court is careful to maintain the
ict distinction between the alleged infringements of the rights of the
o SPRLs at issue and the alleged infringements of Mr. Diallo’s direct
 hts as associé of these latter (see I.C.J. Reports 2007 (II), pp. 605-606,
ras. 62-63). The Court understands that such a distinction could appear
 ificial in the case of an SPRL in which the parts sociales are held in
actice by a single associé. It is nonetheless well-founded juridically, and
is essential to rigorously observe it in the present case. Guinea itself
cepts this distinction in the present stage of the proceedings, and most
 its arguments are indeed based on it. The Court has to deal with the
 ims as they were presented by the Applicant.

116. Guinea’s claims relating to Mr. Diallo’s direct rights as associé
rtain to the right to participate and vote in general meetings of the two
 RLs, the right to appoint a gérant, and the right to oversee and moni-
r the management of the companies. Guinea also presents a claim in
 ation to the right to property concerning Mr. Diallo’s parts sociales in
 ricom-Zaire and Africontainers-Zaire. The Court will now address
ose different claims.

     A. The Right to Take Part and Vote in General Meetings
117. Guinea maintains that the DRC, in expelling Mr. Diallo, deprived
m of his right, guaranteed by Article 79 of the Congolese Decree of
 February 1887 on commercial corporations, to take part in general
eetings and to vote. It claims that under DRC law general meetings of

                                                                        44

 ricom-Zaire and Africontainers-Zaire could not be held outside the
 ritory of the DRC. Guinea admits that Mr. Diallo could of course
ve exercised his rights as associé from another country by appointing a
oxy of his choice, in accordance with Article 81 of the 1887 Decree, but
gues that appointing a proxy is merely an option available to the asso-
 , whose recognized right is clearly to have a choice whether to appoint
 epresentative or to attend in person. Guinea adds that, in the case of
 ricontainers-Zaire, it would have been impossible for Mr. Diallo to be
presented by a proxy, since Article 22 of the Articles of Incorporation
 the SPRL stipulates that only an associé may be appointed proxy of
other, whereas he had become its sole associé at the time of his expul-
 n.

118. The DRC maintains that there cannot have been any violation of
r. Diallo’s right to take part in general meetings, as there has been no
 dence that any general meetings were convened and that Mr. Diallo
 s unable to attend owing to his removal from DRC territory. The
RC asserts that in any case Congolese commercial law places no obliga-
n on commercial companies in respect of where general meetings are
 be held.

                                   *
119. Article 79 of the Congolese Decree of 27 February 1887 on com-
ercial corporations stipulates that : “[n]otwithstanding any provision to
e contrary, all associés shall have the right to take part in general meet-
gs and shall be entitled to one vote per share”. The Court observes that
follows from the terms of this provision that the right to participate
 d vote in general meetings belongs to the associés and not to the com-
 ny. This is consistent with the Court’s conclusion in the Barcelona
 action case, where it pointed out that “[i]t is well known” that the right
 participate and vote in general meetings is a right “which municipal
w confers upon the [shareholders] distinct from those of the company”
arcelona Traction, Light and Power Company, Limited (Belgium v.
 ain), Second Phase, Judgment, I.C.J. Reports 1970, p. 36, para. 47).
120. The Court now turns to the question of whether the DRC, in
pelling Mr. Diallo, deprived him of his right to take part in general
eetings and to vote, as guaranteed by Article 79 of the Congolese
ecree of 27 February 1887 on commercial corporations.
121. According to Article 83 of the Congolese Decree of 27 Febru-
y 1887, while the decision to convene a general meeting is incumbent
 on the gérant or the auditors (para. 1), associés also have the right to
quest that a general meeting be convened if they hold a fifth of the total
 mber of shares (para. 2). In view of the evidence submitted to it by the
 rties, the Court finds that there is no proof that Mr. Diallo, acting
 her as gérant or as associé holding at least one-fifth of the total number
 shares, has taken any action to convene a general meeting, either after

                                                                        45

 ving been expelled from the DRC, or at any time when he was a resi-
nt in the DRC after 1980, not even for the purposes of annually “con-
 er[ing] and decid[ing] on the balance sheet and profit and loss account
 d on the allocation of profits”, as required by the 1887 Decree (see
 ticle 96). In the opinion of the Court, the right of Mr. Diallo to take
 rt in general meetings and to vote could only have been breached if
neral meetings had actually been convened after his expulsion from the
RC. The Court notes in this respect that, even assuming that Article 1
 Legislative Order No. 66-341 of 7 June 1966 were to oblige corpora-
 ns having their administrative seat in the DRC to hold their general
eetings on Congolese territory, no evidence has been provided that
r. Diallo would have been precluded from taking any action to convene
neral meetings from abroad, either as gérant or as associé.

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

123. According to Article 81 of the Congolese Decree of 27 Febru-
y 1887, “[a]ssociés may always be represented by a proxy of
eir choice, subject to compliance with the conditions set forth in the
 tutes”. According to Article 80 of the Congolese Decree, “[u]nless the
 tutes provide otherwise, associés may express their votes in writing or by
 y other means that guarantees the authenticity of the will expressed”.
 e Court has noted that the Parties have provided it with the Articles of
corporation of Africontainers-Zaire, but have not communicated to it
ose of Africom-Zaire (see paragraphs 107 and 110 above). Article 22,
 ragraph 2, of the Articles of Incorporation of Africontainers-Zaire
ads as follows : “Associés may arrange to be represented either by a
oxy chosen from amongst the associés, or by a representative or agent
 any associé that is a legal person, if such is the case.” Article 21 of the
 ticles of Incorporation of Africontainers-Zaire states that “[r]es-
utions of the general meeting shall be passed by a majority of three
 arters of the votes irrespective of the number of shares owned by the
embers present or represented at the meeting” (emphasis added).
124. It follows from these provisions that an associé’s right to take
 rt and vote in general meetings may be exercised by the associé in per-
n or through a proxy of his choosing. There is no doubt in this connec-
 n that a vote expressed through a proxy at a general meeting has the
me legal effect as a vote expressed by the associé himself. On the other
 nd, it is more difficult to infer with certainty from the above-mentioned
ovisions that they establish the right, as Guinea maintains, for the asso-
  to attend general meetings in person. In the opinion of the Court, the
 mary purpose of these provisions is to ensure that the general meetings

                                                                         46

  companies can take place effectively. Guinea’s interpretation of
ongolese law might frustrate that objective, by allowing an associé to
event the organs of the company from operating normally. It is ques-
 nable whether the Congolese legislators could have desired such
  outcome, which is far removed from the affectio societatis. Moreover,
 respect of Africom-Zaire and Africontainers-Zaire, the Court does not
e how the appointment of a representative by Mr. Diallo could in any
 y have breached in practical terms his right to take part and vote in
neral meetings of the two SPRLs, since he had complete control over
em.
 125. Furthermore, with regard to Africontainers-Zaire, the Court can-
 t accept Guinea’s argument that it would have been impossible for
r. Diallo to be represented at a general meeting by a proxy other than
mself because he was the sole associé of that SPRL and Article 22 of
 ricontainers-Zaire’s Articles of Incorporation stipulates that an associé
ay only appoint another associé as proxy. As the Court has observed
 ove (see paragraph 110), that company has two associés, namely,
r. Diallo and Africom-Zaire. Therefore, pursuant to the above-
entioned Article 22, Mr. Diallo, acting as associé of Africontainers-
 ire, could appoint the “representative or agent” of Africom-Zaire
 his proxy for a general meeting of Africontainers-Zaire. Prior to the appoint-
ent of that proxy, and acting as gérant of Africom-Zaire pursuant to
 ticle 69 of the 1887 Decree (see paragraph 135 below), Mr. Diallo
uld have appointed such a “representative or agent” of the latter com-
 ny.
 126. Therefore, the Court cannot sustain Guinea’s claim that the DRC
 s violated Mr. Diallo’s right to take part and vote in general meetings.
 e DRC, in expelling Mr. Diallo, has probably impeded him from tak-
g part in person in any general meeting, but, in the opinion of the
ourt, such hindrance does not amount to a deprivation of his right to
ke part and vote in general meetings.

                 B. The Rights relating to the Gérance
127. The Court observes that, at various points in the proceedings,
uinea has made four slightly different assertions which it has grouped
 der the general claim of a violation of Mr. Diallo’s right to “appoint a
rant”. It has contended that, by unlawfully expelling Mr. Diallo, the
RC has committed : a violation of his alleged right to appoint a gérant,
violation of his alleged right to be appointed as gérant, a violation of
  alleged right to exercise the functions of a gérant, and a violation of
  alleged right not to be removed as gérant.

128. The DRC contends that the right to appoint the gérant of an
RL is a right of the company, not of the associé, as it lies with the
neral meeting, which is an organ of the company. Furthermore, the

                                                                            47

RC affirms that because, under the 1887 Decree, a gérant who has not
en appointed in the Articles of Incorporation is appointed by the
neral meeting, the right invoked by Guinea to appoint a gérant is indis-
 guishable from the right of the associé to take part in the general
eetings. According to the DRC, Guinea has failed to show that a
neral meeting was convened and that the DRC intervened with the other
sociés to prevent Mr. Diallo from participating in the appointment
 a new gérant, or from being represented by another person of his choice.
 e DRC submits that Mr. Diallo did appoint Mr. N’Kanza as gérant of
 ricontainers-Zaire following his expulsion.

                                    *
129. The Court observes that the appointment and functions of gérants
e governed, in Congolese law, by the 1887 Decree on commercial cor-
 rations, and by the Articles of Incorporation of the company in ques-
 n.
130. Under Article 64 of the 1887 Decree :
     “A private limited company shall be managed by one or more per-
   sons, who may or may not be associés, called gérants.”
 e appointment of gérants is governed by Article 65 of the 1887 Decree,
hich provides :
      “Gérants shall be appointed either in the instrument of incorpora-
   tion or by the general meeting, for a period which may be fixed or
   indeterminate.”
 addition, Article 69 of the 1887 Decree provides that :
     “The statutes, the general meeting or the gérance may entrust the
   day-to-day management of the company and special powers to
   agents or other proxies, whether associés or not.”
131. Furthermore, Article 14 of Africontainers-Zaire’s Articles of
corporation provides, inter alia, that :
      “The company shall be managed by one or more gérants, who
   may or may not be associés, appointed by the general meeting.
      Where more than one gérant is appointed, the general meeting
   shall decide whether they shall exercise their powers separately or
   jointly.”
 ticle 17, for its part, is couched in the following terms :
     “The gérance may delegate to one of the associés or to third
   parties or confer on one of its managers any powers necessary for
   the performance of daily managerial duties. It shall determine the
   powers to be conferred and, where necessary, the remuneration of
   such agents ; delegated powers may be revoked at any time.”
132. The Court will begin by dismissing the DRC’s argument that

                                                                      48

r. Diallo’s right to appoint a gérant could not have been violated
cause he in fact appointed a gérant for Africontainers-Zaire in the per-
n of Mr. N’Kanza. It has already concluded that this allegation has not
en proved (see paragraphs 111 and 112 above).
133. As regards the first assertion put forth by Guinea that the DRC
 s violated Mr. Diallo’s right to appoint a gérant, the Court recalls Arti-
   65 of the 1887 Decree, which provides that “[g]érants shall be
 pointed either in the instrument of incorporation or by the general
eeting”. The Court observes that, under this provision, every SPRL is
quired to be managed by at least one gérant. In principle, the appoint-
ent of the gérant takes place at the point when the SPRL is founded. It
n also take place at a later stage, by decision of the general meeting. In
at case, one organ of the company (the general meeting) exercises its
 wer in respect of another (the gérance). The appointment of the gérant
erefore falls under the responsibility of the company itself, without
nstituting a right of the associé. Accordingly, the Court concludes that
uinea’s claim that the DRC has violated Mr. Diallo’s right to appoint a
rant must fail.
134. As regards the second assertion put forward by Guinea that the
RC has violated Mr. Diallo’s right to be appointed gérant, the Court
 tes that, in its 2007 Judgment on preliminary objections, it observed
at :

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

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

                                                                        49

135. The Court notes that, thirdly, Guinea has claimed that a right of
r. Diallo to exercise his functions as gérant was violated. In this regard,
uinea has argued in its Reply that :
   “following [Mr. Diallo’s] detention and expulsion by the Zairean
   authorities, it became impossible for him, in practical terms, to per-
   form the role of ‘gérant’ from Guinea, because he was outside the
   country”.
 e Court cannot accept this line of reasoning, and refers in this regard
 Article 69 of the 1887 Decree, which provides that “the gérance may
trust the day-to-day management of the company and special powers
  agents or other proxies, whether associés or not”. Moreover, with
 pect to Africontainers-Zaire, the Court also refers to Article 16 of its
 ticles of Incorporation, which provides that the “gérance is entitled to
 ablish administrative bases in the Republic of Zaire and branches,
fices, agencies, depots or trading outlets in any location whatsoever,
hether in the Republic of Zaire or abroad”. While the performance of
r. Diallo’s duties as gérant may have been rendered more difficult by
  presence outside the country, Guinea has failed to demonstrate that it
 s impossible to carry out those duties. In addition, Guinea has not
own that Mr. Diallo attempted to appoint a proxy, who could have
ted within the DRC on his instructions.
 136. In fact, it is clear from various documents submitted to the Court
at, even after Mr. Diallo’s expulsion, representatives of Africontainers-
 ire have continued to act on behalf of the company in the DRC and to
gotiate contractual claims with the Gécamines company.

137. The Court accordingly concludes that Guinea’s claim that the
RC has violated a right of Mr. Diallo to exercise his functions as gérant
ust fail.
138. Finally, the Court observes that, fourthly, Guinea has claimed
at the DRC has violated Mr. Diallo’s right not to be removed as
rant, referring to Article 67 of the 1887 Decree, which provides that :

     “Unless the statutes provide otherwise, gérants associés appointed
   for the life of the company can be removed only for good cause, by
   a general meeting deliberating under the conditions required for
   amendments to the statutes.
     Other gérants can be removed at any time.”
ith reference to this provision, Guinea argues that Mr. Diallo was
prived of his right not to be removed as a gérant as long as the com-
ny was in existence. The Court observes, however, that no evidence has
en provided to it that Mr. Diallo was deprived of his right to remain
rant, since no general meeting was ever convened for the purpose of
moving him, or for any other purpose. There was therefore no possi-
ity of having him removed “for good cause”. Although it may have

                                                                        50

 come more difficult for Mr. Diallo to carry out his duties as gérant
om outside the DRC following his expulsion, as discussed above, he
mained, from a legal standpoint, the gérant of both Africom-Zaire and
 ricontainers-Zaire. Accordingly, the Court concludes that Guinea’s
 im that the DRC has violated Mr. Diallo’s right not to be removed as
rant must fail.
 139. The Court may add that, even if it were established that Mr. Diallo
 d been appointed gérant associé as long as the company was in exist-
 ce and that he had been removed as gérant without good cause, the
 im of Guinea would still stand on very weak ground. The right estab-
hed by Article 67 of the 1887 Decree is a right of a combined gérant
socié, not a simple right of an associé. To the extent that it is a right of
e gérant, who is an organ of the company, the claim would be pre-
uded by paragraph 98 (3) (c) of the Court’s 2007 Judgment.

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

                C. The Right to Oversee and Monitor
                         the Management

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

 142. The DRC submits that under Articles 71 and 75 of the
 87 Decree, as well as Article 19 and Article 25, paragraph 3, of Afric-
 tainers-Zaire’s Articles of Incorporation, the task of overseeing and
onitoring the gérance of an SPRL is entrusted not to an associé indi-
dually, but to financial experts known as “statutory auditors” [commis-
 res aux comptes]. In the view of the DRC, the right of the associé is
mited to participating in the appointment of one or more such auditors
 the general meeting. The DRC acknowledges that, under certain con-
 ions, Congolese law accords associés the right to oversee and monitor
e management of the company, but it argues that Guinea has failed to

                                                                         51

monstrate that the DRC had ordered Africontainers-Zaire not to per-
t Mr. Diallo to monitor its operations.

                                  *
143. Article 71 of the 1887 Decree provides as follows :
                              “Article 71
    Oversight of the management shall be entrusted to one or more
  administrators, who need not be associés, called ‘auditors’.
    If there are more than one of these, the statutes or the general
  meeting may require them to act on a collegiate basis.
    If the number of associés does not exceed five, the appointment of
  auditors is not compulsory, and each associé shall have the powers
  of an auditor.”
144. Article 75 of that Decree is couched in the following terms :
                                “Article 75
     The auditors’ task shall be to oversee and monitor, without restric-
  tion, all the actions performed by the management, all the compa-
  ny’s transactions and the register of associés.”
145. Article 19 of Africontainers-Zaire’s Articles of Incorporation pro-
des :
    “Each of the associés shall exercise supervision over the company.
  Should the company consist of more than five associés, supervision
  shall be exercised by at least one auditor appointed by the general
  meeting, which shall fix his/her term of office and remuneration.”

146. The Court concludes from the wording of Article 71, third para-
aph, as cited above, that since both Africom-Zaire and Africontainers-
 ire had fewer than five associés, Mr. Diallo was permitted to act as
 ditor. However, the question arises of whether, under Congolese law,
 s provision applies in the case of a company where there is only one
socié who is fully in charge and in control of it.
147. The Court considers that, even if a right to oversee and monitor
e management exists in companies where only one associé is fully in
arge and in control, Mr. Diallo could not have been deprived of the
 ht to oversee and monitor the gérance of the two companies. While it
ay have been the case that Mr. Diallo’s detentions and expulsion from
e DRC rendered the business activity of the companies more difficult,
ey simply could not have interfered with his ability to oversee and
onitor the gérance, wherever he may have been.
148. Accordingly, the Court concludes that Guinea’s claim that the
RC has violated Mr. Diallo’s right to oversee and monitor the manage-
ent fails.

                                                                      52

  The Right to Property of Mr. Diallo over his Parts Sociales in
             Africom-Zaire and Africontainers-Zaire

149. Guinea claims that Mr. Diallo, no longer enjoying control over,
  effective use of, his rights as associé, has suffered the indirect expro-
 ation of his parts sociales in Africom-Zaire and Africontainers-Zaire
cause his property rights have been interfered with to such an extent
at he has been lastingly deprived of effective control over, or actual use
   or the value of those rights.
 150. Guinea states that the acts of interference by the DRC with
r. Diallo’s property rights in the parts sociales date back to 1988,
hen he was first placed in detention. Those acts allegedly resulted in the
bts owed to the companies not being recovered and, by way of con-
quence, Mr. Diallo’s investment in the companies falling in value.
 cording to Guinea, the interference by the DRC continued conse-
 ent to the Congolese authorities’ decision in 1995 to stay enforcement
   the judgment for the plaintiff handed down in Africontainers v.
  ire Shell, which resulted in reducing the value of Mr. Diallo’s parts
ciales in the company. Guinea claims that the interference by the DRC
lminated in the re-arrest and expulsion of Mr. Diallo who, as a result,
  s prevented from managing his companies and from participating in
 y way in the activities of their corporate organs and was deprived of
 y possibility of controlling and using his parts sociales. Guinea asserts
at the indirect expropriation of Mr. Diallo’s rights constitutes an inter-
 tionally wrongful act giving rise to the DRC’s international responsi-
 ity.
151. The essence of Guinea’s argument is that there is a factual ele-
ent specific to this case, namely :
   “that Mr. Diallo is the sole associé in the two companies, that is to
   say, the only owner of the parts sociales in Africom[-Zaire] and Afri-
   containers[-Zaire]. As a consequence, even though officially they
   have separate legal personalities, the very special characteristics of
   the relationship between Mr. Diallo and his companies means that,
   from the factual perspective, which is the perspective of expropria-
   tion (expropriation is a question of fact), the property of the two
   companies merges with his. Thus, in expropriating his companies,
   the DRC infringed Mr. Diallo’s ownership rights in his parts
   sociales.”
152. For its part, the DRC claims that there cannot have been any vio-
 ion of any rights attaching to ownership of the parts sociales. In par-
ular, as regards the right to dividends, it alleges that, even on the
sumption that any have actually been distributed by the companies,
uinea would still have to show that Mr. Diallo was unable to receive
em on account of the decision to remove him from Congolese territory
 of another wrongful act attributable to the DRC. The DRC argues in
 s respect that Guinea has not established that Mr. Diallo could not

                                                                        53

 ectly receive his dividends abroad or that he was prevented from doing
 by an act attributable to the DRC.

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

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

                                     *
 155. The Court observes that international law has repeatedly acknowl-
 ged the principle of domestic law that a company has a legal person-
 ty distinct from that of its shareholders. This remains true even in the
 se of an SPRL which may have become unipersonal in the present case.
  erefore, the rights and assets of a company must be distinguished from
 e rights and assets of an associé. In this respect, it is legally untenable
   consider, as Guinea argues, that the property of the corporation
erges with the property of the shareholder. Furthermore, it must be recog-
zed that the liabilities of the company are not the liabilities of the
 areholder. In the case of Africontainers-Zaire, as an SPRL, it is spe-
fically indicated in its Articles of Incorporation that the “liability of
 ch associé in respect of corporate obligations shall be limited to the
mount of his/her parts sociales in the company” (Article 7 ; see also
 ragraphs 105 and 115 above).
 156. The Court, in the Barcelona Traction case, recognized that “a
  ong done to the company frequently causes prejudice to its sharehold-
  ” (Barcelona Traction, Light and Power Company, Limited (Bel-
um v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 35,
 ra. 44). But, it added, damage affecting both company and shareholder
 ll not mean that both are entitled to claim compensation :

   “whenever a shareholder’s interests are harmed by an act done to the
   company, it is to the latter that he must look to institute appropriate

                                                                          54

  action ; for although two separate entities may have suffered from
  the same wrong, it is only one entity whose rights have been
  infringed” (I.C.J. Reports 1970, p. 35, para. 44).
is principle was reaffirmed when the Court, responding to a Belgian
ntention, established a
  “distinction between injury in respect of a right and injury to a sim-
  ple interest . . . Not a mere interest affected, but solely a right
  infringed involves responsibility, so that an act directed against and
  infringing only the company’s rights does not involve responsibility
  towards the shareholders, even if their interests are affected.” (Ibid.,
  p. 36, para. 46.)
157. The Court has already indicated that the DRC has not violated
r. Diallo’s direct right as associé to take part and vote in general meet-
gs of the companies, nor his right to be appointed or to remain gérant,
 r his right to oversee and monitor the management (see paragraphs 117-
8 above). As the Court has just reaffirmed, Mr. Diallo’s other direct
 hts, in respect of his parts sociales, must be clearly distinguished from
e rights of the SPRLs, in particular in respect of the property rights
longing to the companies. The Court recalls in this connection that,
gether with its other assets, including debts receivable from third parties,
e capital is part of the company’s property, whereas the parts sociales
e owned by the associés. The parts sociales represent the capital but are
 tinct from it, and confer on their holders rights in the operation of the
mpany and also a right to receive any dividends or any monies payable
 the event of the company being liquidated. The only direct rights of
r. Diallo which remain to be considered are in respect of these last two
atters, namely, the receipt of dividends or any monies payable on a
nding-up of the companies. There is, however, no evidence that any
vidends were ever declared or that any action was ever taken to wind
  the companies, even less that any action attributable to the DRC has
 ringed Mr. Diallo’s rights in respect of those matters.

 158. Finally, the Court considers there to be no need to determine the
tent of the business activities of Africom-Zaire and Africontainers-
 ire at the time Mr. Diallo was expelled, or to make any finding as to
hether they were in a state of “undeclared bankruptcy”, as alleged by
e DRC. As the Court has already found in the Barcelona Traction
se :
  “a precarious financial situation cannot be equated with the demise
  of the corporate entity . . . : the company’s status in law is alone rele-
  vant, and not its economic condition, nor even the possibility of its
  being ‘practically defunct’” (ibid., p. 41, para. 66).

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

                                                                         55

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

                           IV. REPARATION

 160. Having concluded that the Democratic Republic of the Congo
 s breached its obligations under Articles 9 and 13 of the International
ovenant on Civil and Political Rights, Articles 6 and 12 of the African
harter on Human and Peoples’ Rights, and Article 36, paragraph 1 (b),
 the Vienna Convention on Consular Relations (see paragraphs 73, 74,
  and 97 above), it is for the Court now to determine, in light of Guin-
 s final submissions, what consequences flow from these internationally
 ongful acts giving rise to the DRC’s international responsibility.

 161. The Court recalls that “reparation must, as far as possible, wipe
 t all the consequences of the illegal act and reestablish the situation
hich would, in all probability, have existed if that act had not been
mmitted” (Factory at Chorzów, Merits, Judgment No. 13, 1928,
C.I.J., Series A, No. 17, p. 47). Where this is not possible, reparation
ay take “the form of compensation or satisfaction, or even both” (Pulp
 ills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
  ports 2010 (I), p. 103, para. 273). In the light of the circumstances of
e case, in particular the fundamental character of the human rights
 ligations breached and Guinea’s claim for reparation in the form of
mpensation, the Court is of the opinion that, in addition to a judicial
 ding of the violations, reparation due to Guinea for the injury suffered
  Mr. Diallo must take the form of compensation.

 162. In this respect, Guinea requested in its final submissions that the
ourt defer its Judgment on the amount of compensation, in order for
e Parties to reach an agreed settlement on that matter. Should the
 rties be unable to do so “within a period of six months following [the]
livery of the [present] Judgment”, Guinea also requested the Court to
 thorize it to submit an assessment of the amount of compensation due
 it, in order for the Court to decide on this issue “in a subsequent phase
  the proceedings” (see paragraph 14 above).
 163. The Court is of the opinion that the Parties should indeed engage
  negotiation in order to agree on the amount of compensation to be
 id by the DRC to Guinea for the injury flowing from the wrongful
tentions and expulsion of Mr. Diallo in 1995-1996, including the result-
g loss of his personal belongings.
 164. In light of the fact that the Application instituting proceedings in
e present case was filed in December 1998, the Court considers that the
und administration of justice requires that those proceedings soon be

                                                                       56

 ought to a final conclusion, and thus that the period for negotiating an
 reement on compensation should be limited. Therefore, failing agree-
ent between the Parties within six months following the delivery of the
 esent Judgment on the amount of compensation to be paid by the
RC, the matter shall be settled by the Court in a subsequent phase of
e proceedings. Having been sufficiently informed of the facts of the
 esent case, the Court finds that a single exchange of written pleadings
  the Parties would then be sufficient in order for it to decide on the
mount of compensation.

                                 * * *
 165. For these reasons,
 THE COURT,
 (1) By eight votes to six,
 Finds that the claim of the Republic of Guinea concerning the arrest
 d detention of Mr. Diallo in 1988-1989 is inadmissible ;
 N FAVOUR :   President Owada ; Vice-President Tomka ; Judges Abraham,
   Keith, Sepúlveda-Amor, Skotnikov, Greenwood ; Judge ad hoc Mam-
   puya ;
 AGAINST : Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, Yusuf ;
   Judge ad hoc Mahiou ;
 (2) Unanimously,
 Finds that, in respect of the circumstances in which Mr. Diallo was
pelled from Congolese territory on 31 January 1996, the Democratic
 public of the Congo violated Article 13 of the International Covenant
  Civil and Political Rights and Article 12, paragraph 4, of the African
harter on Human and Peoples’ Rights ;
 (3) Unanimously,
Finds that, in respect of the circumstances in which Mr. Diallo was
rested and detained in 1995-1996 with a view to his expulsion, the
emocratic Republic of the Congo violated Article 9, paragraphs 1
 d 2, of the International Covenant on Civil and Political Rights and
 ticle 6 of the African Charter on Human and Peoples’ Rights ;
 (4) By thirteen votes to one,
Finds that, by not informing Mr. Diallo without delay, upon his deten-
 n in 1995-1996, of his rights under Article 36, paragraph 1 (b), of the
enna Convention on Consular Relations, the Democratic Republic of
e Congo violated the obligations incumbent upon it under that sub-
ragraph ;
 N FAVOUR : President Owada ; Vice-President Tomka ; Judges Al-Khasawneh,
   Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,
   Cançado Trindade, Yusuf, Greenwood ; Judge ad hoc Mahiou ;

                                                                       57

AGAINST : Judge ad hoc Mampuya ;

(5) By twelve votes to two,
Rejects all other submissions by the Republic of Guinea relating to the
cumstances in which Mr. Diallo was arrested and detained in 1995-
96 with a view to his expulsion ;
N FAVOUR : President Owada ; Vice-President Tomka ; Judges Al-Khasawneh,
  Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf,
  Greenwood ; Judge ad hoc Mampuya ;
AGAINST : Judge Cançado Trindade ; Judge ad hoc Mahiou ;

(6) By nine votes to five,
Finds that the Democratic Republic of the Congo has not violated
r. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-
ire ;
N  FAVOUR : President Owada ; Vice-President Tomka ; Judges Simma,
  Abraham, Keith, Sepúlveda-Amor, Skotnikov, Greenwood ; Judge ad hoc
  Mampuya ;
AGAINST : Judges Al-Khasawneh, Bennouna, Cançado Trindade, Yusuf ;
  Judge ad hoc Mahiou ;
(7) Unanimously,
Finds that the Democratic Republic of the Congo is under obligation
 make appropriate reparation, in the form of compensation, to the
public of Guinea for the injurious consequences of the violations of
ernational obligations referred to in subparagraphs (2) and (3) above ;
(8) Unanimously,
Decides that, failing agreement between the Parties on this matter
thin six months from the date of this Judgment, the question of com-
nsation due to the Republic of Guinea shall be settled by the Court,
d reserves for this purpose the subsequent procedure in the case.

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

igned) President.                        (Signed) Hisashi OWADA,
                                                     President.
                                       (Signed) Philippe COUVREUR,
                                                     Registrar.

                                                                      58

Judges AL-KHASAWNEH, SIMMA, BENNOUNA, CANÇADO TRINDADE and
USUF  append a joint declaration to the Judgment of the Court ;
dges AL-KHASAWNEH and YUSUF append a joint dissenting opinion to
e Judgment of the Court ; Judges KEITH and GREENWOOD append a
nt declaration to the Judgment of the Court ; Judge BENNOUNA appends
dissenting opinion to the Judgment of the Court ; Judge CANÇADO
 INDADE appends a separate opinion to the Judgment of the Court ;
dge ad hoc MAHIOU appends a dissenting opinion to the Judgment of
e Court ; Judge ad hoc MAMPUYA appends a separate opinion to the
dgment of the Court.

                                                (Initialled) H.O.
                                                (Initialled) Ph.C.

                                                                 59