   SEPARATE OPINION OF JUDGE AD HOC MAMPUYA

ranslation]

Requirement of the existence of an inter-State dispute as a precondition to
y judicial action and novelty of certain claims.
Paragraph 1 (b) of Article 36 of the Vienna Convention — Content and sense
 the obligation to inform — Nature and scope of the obligation contained in
ticle 36 to inform the arrested or detained alien in the light of the object and
rpose of the 1963 Convention — Specificity of the rights identified in Arti-
  36, paragraph 1, and the interrelationship of the three rights set out in sub-
ragraph (b) — In the absence of material injury, a declaration by the Court of
  wrongful nature of the Democratic Republic of the Congo’s conduct should
ve constituted sufficient reparation for the injury suffered.
Lawfulness of the expulsion : Article 13 of the International Covenant on
vil and Political Rights (the Covenant or ICCPR) merely stipulates that the
cision to expel be taken “in accordance with the law” — Arbitrariness is not
ntemplated by Article 13 of the ICCPR : the Court imposes a condition addi-
nal to those laid down in the ICCPR in order for an expulsion to be lawful —
 rbitrariness” only refers to arrests or detentions in the context of Article 9,
ragraph 1, of the Covenant.
Direct rights as shareholder — Enforceability or opposability of an associé’s
 ect rights — Notion of interference in company law — Enforceability or
posability of an associé’s direct rights — Notion of interference.

The Court’s function is to decide, in accordance with international law, such
putes as are submitted to it ; the Court can exercise its jurisdiction in con-
 tious proceedings only when a dispute genuinely exists between the Parties.
 e Court only takes cognizance of the facts through the inter-State dispute in
ation to those facts ; an argument expounded during the oral proceedings can-
t be evidence of the existence of a dispute between the Parties.
Subparagraph (b) of paragraph 1 of Article 36 of the Vienna Convention on
 nsular Relations contains three separate but interrelated elements. The legal
nclusions to be drawn from that interrelationship necessarily depend upon the
 ts of each case. It is necessary to consider the interrelationship of those three
ments in the light of the particular facts and circumstances of the present case.
A purely moral, non-material injury may be redressed by purely moral “satis-
 tion”. There is abundant jurisprudence to show that a declaration by the
 urt of the wrongful nature of a State’s conduct constitutes sufficient repara-
n for the injury suffered.
The international instruments applied in the present case are not aimed at
rbitrary” expulsion ; arbitrariness does not derive from the alleged unlawful-
 s of an act. The arbitrary character of a measure falling within a prerogative
so discretionary a nature on the part of the State as the determination of the
nditions of access or acceptance of foreigners on its territory must therefore,
 respect of expulsion, be proved, and not presumed or deduced from the

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eged unlawfulness of the measure. The law affords States a certain latitude to
fine what, in order to enforce an expulsion measure, is or is not required for
 ir public order or national security.
Direct rights of the shareholder and interests of the shareholder. The alleged
 ernationally wrongful acts must have been aimed directly at the associé’s
 ect rights as such. The associé’s direct rights are only enforceable against the
mpany and within the context of its relations with the associés ; the actions of
 hird party can only be considered as damaging to the direct rights of an asso-
  “as such” if they represent acts of interference in the operation of the com-
ny or in the relations between the latter and its associés.

It is with real regret that I have found myself unable to concur fully
th the majority of the Court in this case. However, as judge — even
  hoc — I did not vote against the principal conclusion of the Judgment
 ding the Democratic Republic of the Congo guilty of violating certain
 ligations in relation to the individual rights of a Guinean national,
ereby demonstrating, just as I did at the preliminary objections stage,
at I have no problem with the universal assertion and safeguarding of
 man rights.
The purpose of this opinion is not therefore to dispute the provisions
  the Judgment relating to that important issue, but to express certain
 ervations in respect of specific points decided by the Court, while dis-
reeing with some of the reasoning advanced by the majority or, at times,
th certain of its conclusions.

                            MY RESERVATIONS
 1. Having already voiced my dissent to the 24 May 2007 Judgment on
e preliminary objections, I particularly wanted to start by setting out
y reservations on a question which I believe to be of undisputed legal
 nificance in international judicial law, concerning a Court practice
hich has become an established procedural principle — as consistently
nfirmed by the Court in its jurisprudence — but which was seemingly
 andoned in its 2007 Judgment in this case. I am referring to the pre-
ndition to any seisin of the Court by unilateral application : there must
, particularly for the exercise of diplomatic protection, a dispute between
e States concerned, that is, the State of origin of the individual whose
 hts are alleged to have been violated, and the receiving State, the per-
trator of the alleged internationally wrongful acts.
 2. I was concerned at the time, in a purely legal interest, that this
ould mark the start of an unjustified U-turn in the jurisprudence in this
ea ; the fact that States have since continued to adhere to this require-
ent (see, in particular, paras. 3.17-3.22 of Russia’s preliminary objec-
 ns in the case concerning Application of the International Convention
  the Elimination of All Forms of Racial Discrimination (Georgia v.
 ssian Federation)), is encouragement for me to recall the merits of the
 inion I expressed at that time. As I had already pointed out in my

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parate opinion to the Judgment on the preliminary objections, the dip-
matic practice is well-established : all international litigation, even if it
 ates to the facts of a situation covered by a bilateral agreement, is
ways preceded by “diplomatic representations”, which are not to be
nfused with exhaustion of local remedies. On this point the jurispru-
nce has likewise been well-established since the Judgment of the Per-
anent Court in the Mavrommatis Palestine Concessions case, which
fines a dispute as “a disagreement on a point of law or fact, a conflict
 legal views or of interests” (Judgment No. 2, 1924, P.C.I.J., Series A,
o. 2, p. 11).
 A dispute develops when a conflict arises between the arguments
 vanced by the parties in respect of an act considered by one of them as
 ongful ; legally, it is this dispute, rather than the act itself, which forms
e subject-matter of the proceedings, and it is through the dispute that
e Court will take cognizance of the facts (case concerning Ahmadou
 dio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
 eliminary Objections, Judgment, I.C.J. Reports 2007 (II), pp. 636-
 4).
 3. In fact, from the Mavrommatis Palestine Concessions case to that
  Armed Activities on the Territory of the Congo (New Application :
02) (Democratic Republic of the Congo v. Rwanda), in 2006, the Court’s
 sition remained unchanged, until the Judgment on the preliminary
 jections in the present case. In that Judgment, the Court found that it
 s entitled to entertain Guinea’s Application without first having esta-
 shed that the acts allegedly suffered by Mr. Diallo at the hands of the
ongo, besides being unlawful, had given rise to an inter-State dispute
tween Guinea and the Congo, the only circumstance under which any
ch act can be referred to the Court by means of an application. In so
 ing, the Court acted as though this requirement would no longer have
 be satisfied, which would have constituted a complete about-turn in a
 isprudence which had never previously been contested.
 4. Fortunately, in its preliminary objections in the case concerning
 plication of the International Convention on the Elimination of All
 rms of Racial Discrimination (Georgia v. Russian Federation), the
ussian Federation makes it clear, in accordance with jurisprudential
 dition, that this requirement is still a precondition to the proper refer-
  of any matter to the Court (para. 3.17) ; in the case concerning the
uclear Tests (New Zealand v. France), the Court states the following :

      “The Court, as a court of law, is called upon to resolve existing
   disputes between States. Thus the existence of a dispute is the pri-
   mary condition for the Court to exercise its judicial function ; it is
   not sufficient for one party to assert that there is a dispute, since
   ‘whether there exists an international dispute is a matter for objec-
   tive determination’ by the Court” (Nuclear Tests (New Zealand v.
   France), Judgment, I.C.J. Reports 1974, p. 476, para. 58, citing

                                                                          198

   Interpretation of Peace Treaties with Bulgaria, Hungary and Rom-
   ania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).

adds there: :
     “Article 38 of the Court’s Statute provides that its function is ‘to
   decide in accordance with international law such disputes as are sub-
   mitted to it’ ; but not only Article 38 itself but other provisions of the
   Statute and Rules also make it clear that the Court can exercise its
   jurisdiction in contentious proceedings only when a dispute genu-
   inely exists between the parties . . .” (Ibid., p. 477, para. 60 ; emphasis
   added.)
 When the Order was made on the indication of provisional measures in
e Georgia v. Russian Federation case, seven judges expressed their
ared view in a joint dissenting opinion. In asserting that the disputed
nvention prescribes negotiated settlement ahead of any recourse to the
ourt, they confirm the requirement that there must be a dispute between
e parties relating to the interpretation or application of the said con-
ntion (case concerning Application of the International Convention on
e Elimination of All Forms of Racial Discrimination (Georgia v. Rus-
 n Federation), Provisional Measures, Order of 15 October 2008, joint
 senting opinion of Judges Al-Khasawneh, Ranjeva, Shi, Koroma,
 mka, Bennouna and Skotnikov, I.C.J. Reports 2008, p. 401, para. 6).

The Judges object that :
   “[m]oreover, . . . unable to find any evidence that the acts alleged
   by Georgia fall within the provisions of CERD, [the majority] has
   been content to observe merely that a dispute appears to exist as to
   the interpretation and application of CERD because the two Parties
   have manifested their disagreement over the applicability of Arti-
   cles 2 and 5 of the Convention.” (Ibid., p. 402, para. 10.)
 ereby contesting the fact that “an argument expounded during oral
oceedings has mutated into evidence of the existence of a dispute
tween the Parties” (ibid., p. 402, para. 10).
The seven judges observe, nevertheless, that
   “[t]he Court . . . admits that the questions concerning CERD should
   have been raised between the Parties, referring specifically in this
   regard to the bilateral contacts between the Parties and certain rep-
   resentations made to the Security Council, even though nowhere in
   these has Georgia accused Russia of racial discrimination. Thus, in
   our opinion, the very substance of CERD was never debated between
   the Parties before the filing of a claim before the Court.” (Ibid.,
   p. 402, para. 12 ; emphasis added.)
Like the authors of that dissenting opinion, I myself find it “very sur-
sing that the Court has chosen to disregard this precondition to any

                                                                          199

dicial action . . .” (I.C.J. Reports 2008, p. 402, para. 13) in the present
dgment, just as it did when it considered the preliminary phase of the
 allo case, because I still consider it to be a fundamental condition upon
hich the Court should have ruled, even in the absence of an objection to
at effect, a preliminary objection or any other cumulative condition
quiring, for example, prior negotiation or arbitration.

 5. That said, in respect of the present Judgment on the merits, while I
 ted with the majority on the violations of Articles 9 and 13 of the Inter-
 tional Covenant on Civil and Political Rights and Articles 6 and 12 of
e African Charter on Human and Peoples’ Rights, I still have reserva-
  ns about some of the reasoning, specifically that relating to the con-
 ct of the Congolese authorities, which amounts to little more than
ppositions and accusations that, in my view, were unnecessarily mali-
ous, being based on suspicion, or simply redundant. Furthermore, I
  s unable to subscribe to either the reasoning or the part of the opera-
 e clause which finds that the Congo violated the obligations incumbent
 on it under Article 36, paragraph 1 (b) of the Vienna Convention on
onsular Relations, while, in respect of the rejection of Guinea’s com-
aints concerning Mr. Diallo’s direct rights as associé, although I fully
bscribe to the Court’s conclusion, it is nevertheless my modest belief
at the reasoning behind that conclusion fails to take account of the
gument of principle as to why those complaints should be rejected.
 6. On the first point, I will confine myself to repeating that, just as the
 splaced reductionist reasoning which led the Court to consider it neces-
ry to imply (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
  public of the Congo), Preliminary Objections, Judgment,
C.J. Reports 2007 (II), p. 601, para. 46) that the Congo acted out of
 liberate malice, cunning and calculated self-interest in issuing a notice
 refusal of entry [refoulement] rather than a notice of expulsion was, to my
 nd, gratuitous and unconvincing (ibid., opinion of Judge ad
 c Mampuya, p. 645), so too its reiteration in this Judgment pro-
 kes the same reaction on my part. The same is true of the assertion, which
 merely groundless speculation, that a link must have existed “between
r. Diallo’s expulsion and the fact that he had attempted to recover
bts . . . bringing cases for this purpose before the civil courts” (para-
aph 82 of the Judgment). While it is understandable that so serious a
arge might lie in the mouth of the Applicant, the World Court can-
 t endorse such a charge on the basis of an unfounded presumption.
 Furthermore, both of these very serious charges were unnecessary, as
 ither was required in order for the Court to reach its principal conclu-
  n on the lawfulness of the expulsion.
 7. Thus, having voted with the majority of the Court on certain vio-
 ions attributed to the Democratic Republic of the Congo, I also voted
  favour of point 7 of the Judgment’s operative clause relating to the
paration owing to Guinea by the Congo as a result of those violations.
owever, in my view, the Court could have usefully made it clear that the

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 rely moral and non-material injury found to have been caused by the
 spondent’s purported violation of its obligation under Article 36,
 ragraph 1 (b), of the Vienna Convention on Consular Relations — a
olation which did not cause any material injury — calls only for
 eclaratory” or moral reparation. Fully in line with point 7 of the
 erative clause, which provides for reparation only in respect of the vio-
 ions of the International Covenant on Civil and Political Rights and
e African Charter on Human and Peoples’ Rights, such clarification
ould have served to demonstrate the Court’s confirmation of a matter
hich, following its established jurisprudence, has become a principle.
 us, as just one example of this, I cite the following passage from the
 rfu Channel (United Kingdom v. Albania) case — where it was in fact
e violation of a State’s sovereignty that was at issue — in which the
ourt unanimously finds that :
   “by reason of the acts of the British Navy in Albanian waters in the
   course of the Operation of November 12th and 13th, 1946, the United
   Kingdom violated the sovereignty of the People’s Republic of Alba-
   nia, and that this declaration by the Court constitutes in itself appro-
   priate satisfaction” (Merits, Judgment, I.C.J. Reports 1949, p. 36).
Doctrine fully supports this position, for example :
      “A purely moral injury may be redressed by purely moral ‘satis-
   faction’. The simplest form of satisfaction is a declaration by the
   court of the wrongfulness of a State’s conduct ; there is abundant
   jurisprudence in support of the proposition that, in the absence of
   material injury, a declaration by the court of the wrongful nature of
   conduct constituted sufficient reparation for the injury suffered
   (Corfu Channel, I.C.J. Reports 1949, p. 35).” (P. Reuter, Droit inter-
   national public, Paris, Presses universitaires de France, 1983, 6th ed.,
   p. 268.) [Translation by the Registry.]
 While J. Crawford observes that : “[o]ne of the most common modali-
 s of satisfaction provided in the case of moral or non-material injury to
e State is a declaration of the wrongfulness of the act by a competent
urt or tribunal”. (In his commentary on the International Law Com-
 ssion’s Article 37, paragraph 2, on State responsibility.)
 8. Moreover, in order to enhance the Respondent’s responsibility, the
ourt believed it indispensable to include an additional characteristic,
 d hence a condition further to those laid down in the ICCPR in order
r an expulsion to be lawful : Mr. Diallo’s expulsion was not only
nsidered unlawful, it was also “arbitrary”. In fact, Article 13 merely
pulates that the decision to expel be taken “in accordance with the law”
 d that the individual concerned be allowed to “submit the reasons
ainst his expulsion” to “the competent authority or a person or persons
pecially designated by the competent authority”. The same is true of
 ticle 12, paragraph 4, of the African Charter, which states that a
 n-national “legally admitted in a territory of a State party to the

                                                                       201

esent Charter, may only be expelled from it by virtue of a decision
ken in accordance with the law”. There is no mention anywhere of
rbitrary” expulsion, unless that “arbitrary” character derives from unlaw-
 ness or is implied by it. For it can only be one or the other. Either arbi-
 riness derives from unlawfulness, but manifestly this cannot be so, or
bitrariness is distinct from unlawfulness. In the latter case, in the first
ace this would impose an additional condition, not contemplated by Arti-
  13 of the Covenant. Indeed, the Court’s intent to impose this addi-
 nal, unwritten condition is clear when it states :
     “[f]irst, the applicable domestic law must itself be compatible with
   the other requirements of the Covenant and the African Charter ;
   second, an expulsion must not be arbitrary in nature . . .” (para-
   graph 65 of the Judgment ; emphasis added) ;
 when it observes that “the DRC has never been able to provide
ounds which might constitute a convincing basis for Mr. Diallo’s
pulsion”, or when it refers to “such an expulsion measure, one without
y defensible basis” (paragraph 82 of the Judgment). Secondly, this
ditional condition creates a need : a need to clarify and explain what
en, besides unlawfulness, arbitrariness would consist of.

9. There is no mention anywhere in the Judgment of any of these con-
rns, which to my mind, the Court, in introducing this further condition
 ating to arbitrariness, was not entitled to overlook. The Judgment
content to refer to the “considerable body of interpretative case law”
 the Human Rights Committee, which the Court describes as “quasi-
dicial” and to which it “believes that it should ascribe great weight”.
10. However, the two concepts are distinct and must be distinguished,
cause, while arbitrary can cover unlawful, the opposite is not true. If
  confine ourselves to the practice of that same Human Rights Com-
 ttee, as Sir N. Rodley states in his separate opinion :
      “‘Arbitrary’ in Article 9, paragraph 1, certainly covers unlawful-
   ness. It is evident from the very notion of arbitrariness and the pre-
   paratory work. But I fail to see how the opposite is also true. Nor is
   there anything in the preparatory work to justify it.” (C. v. Aus-
   tralia, 2002, Communication No. 900/1999.)

This may explain why an act, such as an arrest, which is perfectly legal,
n be arbitrary, and why every unlawful act is not necessarily arbitrary.
 is is how it is understood by the Human Rights Committee when it
 tes :
      “The drafting history of Article 9, paragraph 1, confirms that
   ‘arbitrariness’ is not to be equated with ‘against the law’, but must
   be interpreted more broadly to include elements of inappropriate-
   ness, injustice and lack of predictability.” (See Communication
   No. 305/1988, Hugo van Alphen v. The Netherlands, views adopted

                                                                        202

   on 23 July 1990, doc. CCPR/C/39/D/305/1988 of 15 August 1990,
   para. 5.8.)

11. Moreover, it should be noted that the “interpretative case law” of
e Human Rights Committee, to which this Judgment refers, relates
clusively to the interpretation of Article 9, paragraph 1, of the Cov-
ant, which makes a distinction between arbitrary arrest or detention (in
e second sentence) and the unlawful deprivation of liberty (third sen-
nce) :
     “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.”
Accordingly, it is only to arrests or detentions in the context of Arti-
   9, paragraph 1, of the Covenant that such “arbitrariness” refers. In
pport of this assertion, I cite, in particular, the following “case law” of
e Committee : Teófila Casafranca de Gómez v. Peru, 2003, Communi-
tion No. 981/2001 ; A. v. Australia, Communication No. 560/1993,
 ws adopted on 3 April 1997 ; Hugo van Alphen v. The Netherlands,
 ws adopted on 23 July 1990, doc. CCPR/C/39/D/305/1988 of 15 August
90 ; Womah Mukong v. Cameroon, views adopted on 21 July 1994,
 c. CCPR/C/51/D/458/1991 ; C. v. Australia, Communication No. 900/
99 ; Baban et al. v. Australia, Communication No. 1014/2001 ; Bakhti-
ri et al. v. Australia, Communication No. 1069/2002 ; Rafael Marques
 Morais v. Angola, 2005, Communication No. 1128/2002.
12. If, therefore, the drafters of the Covenant had wanted to lay down
  additional condition, while already using this concept of “arbitrary”
 Article 9 in respect of arrest and detention, they would have done so
  stating, in Article 13, that an expulsion has to be both in accordance
th the law and not arbitrary. Besides the fact that such a characteristic
  its nature and content — would need to be established, the unden-
ble truth is that, even then, Article 13 of the Covenant, whose alleged
olation is addressed in this Judgment, is not aimed at the arbitrariness of
 expulsion (a concept, moreover, not readily envisageable). Accordingly,
e silence of the Covenant and the African Charter in that respect should
  considered neither an omission which the Court should seek to make
 od, nor an error which it should try to correct, because the African
 arter, which postdates the Covenant by 15 years, could have incorpo-
 ed that notion of “arbitrary” had its sponsors so desired. The drafters of
e Covenant and, in turn, those of the Charter were guided by common
nse, which does not readily permit the contemplation of a condition such
 this, which would deem arbitrary a decision of so discretionary a nature
  the part of the State as whether or not to allow, under its law, the pres-
ce of foreigners on its territory.
13. As relevant jurisprudence on the subject of expulsion, in support

                                                                        203

  the further condition that an expulsion should “not be arbitrary in
 ture”, paragraph 68 of the Judgment cites Article 1 of Protocol No. 7
  the European Convention for the Protection of Human Rights and
  ndamental Freedoms, entitled “Procedural safeguards relating to
pulsion of aliens”. Cited without examples of specific decisions in
hich it has been interpreted in the same way as by the Court in the
esent case, this provision stipulates the following :
     “1. An alien lawfully resident in the territory of a State shall not
   be expelled therefrom except in pursuance of a decision reached in
   accordance with law and shall be allowed :
   (a) to submit reasons against his expulsion,
   (b) to have his case reviewed, and
   (c) to be represented for these purposes before the competent
       authority or a person or persons designated by that authority.”
 In this provision, we indeed not only find the same substance as in
 ticle 13 of the ICCPR, but also the same question of its interpretation,
thout, however, anything to corroborate the fact that the European
ourt has interpreted it in the same way as this Judgment.
 On the other hand, should we also wish to “make the case for the
fence”, we could find support in paragraph 2 of the same Article, which
ovides : “An alien may be expelled before the exercise of his rights under
 ragraph 1 (a), (b) and (c) of this Article, when such expulsion is neces-
ry in the interests of public order or is grounded on reasons of
 tional security.” The use here of a positive formulation (“An alien may
  expelled before the exercise of his rights under . . .” and not “cannot be
pelled before the exercise of his rights under . . . unless . . .”) shows that
 ritorial authorities are recognized to enjoy a certain latitude in the case,
ecifically, of a prerogative of a discretionary nature, which cannot be
 plicitly restricted, even by a suggestion that it is “arbitrary”.
 Finally, although there are no provisions anywhere for “material safe-
 ards”, the title of this same Article 1 of the European Protocol, “Pro-
dural safeguards relating to expulsion of aliens”, makes it clear that
en the European Convention did not intend for an expulsion measure
  be subject to material, substantive conditions, thus also letting it be
 derstood that the content of the only condition approximating to a
bstantive one, “in the interests of [the] public . . . [and for] reasons of
 tional security”, is defined at the discretion of the State authority.
  erefore, I do not believe it justified to treat, as the Court does (para-
aph 72 of the Judgment), the requirement to provide reasons for the
cision to expel laid down by Article 15 of the 1983 Legislative Order as
strictly substantive condition, when only the territorial State is in a
 sition to say what is and what is not “necessary in the interests of pub-
   order” or required for its “national security”. This argument,
pounded at length by the Democratic Republic of the Congo (Counter-
emorial, paras. 1.27-1.28), was not considered by the Court.

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 I will now turn to the source of my disagreement with the majority of
 e Court.

                          MY DISAGREEMENT
 The Alleged Violation of the Obligation under Article 36. para-
 aph 1 (b), of the Vienna Convention on Consular Relations :

            Content and Sense of the Obligation to Inform
 14. Article 36, paragraph 1 (b), provides :
     “[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 for-
   warded by the said authorities without delay. The said authorities
   shall inform the person concerned without delay of his rights under
   this subparagraph.”

 The Congo is criticized in particular for failing to inform directly and
  ithout delay” the individual concerned, Mr. Diallo, of his right to
quest, through the Guinean Embassy in Kinshasa, the intervention of
 e Guinean authorities. In the Judgment, the allegation is presented, and
 e relevant provision interpreted, in a way which, in my view, fails to
ke account of all the pertinent elements as laid down by the Conven-
  n. In that Convention, as the Court itself has interpreted it (LaGrand
  ermany v. United States of America), Judgment, I.C.J. Reports 2001,
 492, para. 74), the fundamental principle in respect of consular protec-
  n is set out in paragraph 1 (a), which concerns the right of consular
mployees to communicate with and have access to nationals of the send-
g State. I believe this is important to a full understanding of the scope
  the receiving State’s obligation laid down in subparagraph (b) of the
 me paragraph.
 15. The obligation itself is split into three elements : first, the compe-
nt authorities of the receiving State must, if the person concerned so
quests, notify the arrest to the consular post of the sending State ; sec-
  d, they must transmit any communication addressed to the consular
  st by the arrested person ; and, finally, they must inform “without
 lay” the individual concerned of his rights. According to the Court’s
  erpretation, this third element — the final element laid down by para-
 aph 1 (b) — is in fact an indispensable precondition to the fulfillment
  the other two elements : the person concerned must be informed of his
  ht, as set out in the last sentence of paragraph 1 (b), in order for the
 st two elements to be realized.

                                                                       205

16. Thus, the obligation to inform the consular authorities codified in
e Convention is considered as an obligation to inform the person
tained of his right to request consular assistance, as well as — only if he
 requests — his right to contact his consular post. It is a positive obliga-
 n incumbent upon the State in whose territory a foreign national is
tained. This is how the Court interprets it in the Avena case :

   “the clear duty to provide consular information under Article 36,
   paragraph 1 (b), does not invite assumptions as to what the arrested
   person might prefer, as a ground for not informing him. It rather
   gives the arrested person, once informed, the right to say he none-
   theless does not wish his consular post to be notified.” (Avena and
   Other Mexican Nationals (Mexico v. United States of America),
   Judgment, I.C.J. Reports 2004 (I), p. 46, para. 76.)

owever, the Court states prior to this that :
      “Article 36, paragraph 1 (b), contains three separate but inter-
   related elements : the right of the individual concerned to be informed
   without delay of his rights under Article 36, paragraph 1 (b) ; the
   right of the consular post to be notified without delay of the indi-
   vidual’s detention, if he so requests ; and the obligation of the receiv-
   ing State to forward without delay any communication addressed to
   the consular post by the detained person.” (Ibid., p. 43, para. 61 ;
   emphasis added.)

 ature and Scope of the Obligation Contained in Article 36 to Inform
he Arrested or Detained Alien in the Light of the Object and Purpose
                      of the 1963 Convention
 17. It is true that in the LaGrand case the Court concludes that, in
 w of the wording of its provisions, Article 36, paragraph 1, creates
dividual rights, stating that “[t]he clarity of these provisions, viewed in
eir context, admits of no doubt” (LaGrand (Germany v. United States
 America), Judgment, I.C.J. Reports 2001, p. 494, para. 77).
  And, logically, it is on account of this supposed “clarity” that the
ourt chose not to have recourse to the classical rules of interpretation,
 set forth in Article 31 of the Vienna Convention on the Law of Trea-
 s.
 18. In this respect, and without wishing to dispute that conclusion, I
   have some doubts about that categorical statement by the Court.
hen the relevant provision of Article 36 is placed in the general context
 the Convention, far from being “clear”, its sense and scope need rather
 be sought out.
 We observe, first, that the purpose and object of concluding an inter-
 tional convention on consular relations, as the preamble indicates, is to
ontribute to the development of friendly relations among nations”.

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 cond, Article 36, which is entitled “Communication and contact with
 tionals of the sending State”, opens with the phrase : “With a view to
cilitating the exercise of consular functions relating to nationals of the
nding State”. This phrase clearly limits the scope of Article 36 to that
  a provision aimed solely at facilitating the exercise of consular func-
 ns relating to the nationals of the sending State. Third, in accordance
 th Article 5 (a) of the Convention, consular functions primarily con-
 t of “protecting in the receiving State the interests of the sending State
 d of its nationals, both individuals and bodies corporate, within the
mits permitted by international law”. From this context of consular
nctions, it is clear that, here, the principle of interpretation according
  the natural and ordinary meaning of the words used cannot be abso-
 e. The interpretation should not disregard the purpose and object of
e conclusion of an international convention on consular relations,
hich, as the preamble indicates, is to “contribute to the development of
 endly relations among nations” and, in particular, to enable the send-
g State to exercise its consular functions.

 19. Thus, on the one hand, the language of the Convention itself does
 t seem to corroborate the trend initiated by the interpretation given in
 01 in the LaGrand case, making the right of the arrested or detained
 en to be informed an exclusively individual right, a trend which purely
 d simply treats the issue as a human rights one, detaching it completely
om the field of diplomatic or consular protection.

Therefore, the United States was not entirely unjustified in seeking to
 erpret Article 36, in the context and light of the object and purpose of
e Convention, in order to argue that :
   “the position of the individual under the Convention derives from
   the right of the State party to the Convention, acting through its
   consular officer, to communicate with its nationals. The treatment
   due to individuals is inextricably linked to and derived from the
   right of the State.” (Counter-Memorial of the United States, p. 84,
   para. 100.)
20. An examination of the travaux préparatoires confirms this reading :
 s important to recall the debate which took place on whether mention
ould be made of the rights accorded to individuals and, in particular,
e way in which Article 36, paragraph 1 (a) should address the question
 a foreign national being able to communicate with a consular officer.

 The original text proposed by the ILC was drafted as follows :
      “The competent authorities shall, without undue delay, inform the
   competent consulate of the sending State, if within its district, a
   national of that State is committed to prison or to custody pending
   trial or is detained in any other manner.” (A/CONF.25/6, United

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   Nations Conference on Consular Relations, Vol. II, A/CONF.25/16/
   Add.1, p. 24.)
 That text made no mention of individual rights, and the commentary
hich accompanied it clearly stated that what mattered was that consular
ficers were able to carry out their functions.
 21. A certain number of delegations took the view that the Conven-
 n should recognize the personal right of a foreign national to commu-
cate with the consular officers of his country, but this matter gave rise
 a great deal of controversy, from which a clear consensus could not be
und. During the negotiating sessions on Article 36, the Venezuelan del-
ation objected to the opening statement of paragraph 1 (a) of the ILC
aft, which concerned the rights of nationals of the sending State to
mmunicate with and have access to the competent consulate, arguing
at this statement had no place in a convention on consular relations,
 d stating that :
   “foreign nationals in the receiving State should be under the jurisdic-
   tion of that State and should not come within the scope of a conven-
   tion on consular relations” (United Nations Conference on Consular
   Relations, Vol. I, Summary records of plenary meetings and of the
   meetings of the First and Second Committees, A/CONF.25/16,
   p. 358, para. 32 (meeting of 14 March 1963 of the Second Commit-
   tee)).
22. This led to the order of the elements of Article 36, paragraph 1 (a)
ing reversed, in such a way that the consul’s right to communicate with
e individual is mentioned first, and then the individual’s right to com-
unicate with the consul (ibid., p. 361, para. 2, amendment proposed by
 nezuela and other States).
What this underscores, therefore, is that the individual’s position in
 pect of the Convention derives from the right accorded to the State
 rty to the Convention, acting through its consular officers, to commu-
cate with its nationals ; the treatment of individuals is inextricably
 ked to and derived from the right of the State.

pecificity of the Rights Identified in Article 36, Paragraph 1, and the
Interrelationship of the Three Rights Set Out in Subparagraph (b)
23. As we have seen, in the Avena case the Court established a link
tween the three elements of Article 36, paragraph 1 (b), even though it
serted that they were distinct. It is worth pointing out that the Court
d already done this in the LaGrand case, in very clear terms which
scribed this link as an interrelationship (I.C.J. Reports 2001, p. 492,
ra. 74). However, in the Avena case the Court made one very impor-
nt addition :
     “The legal conclusions to be drawn from that interrelationship nec-
   essarily depend upon the facts of each case . . . It is necessary to

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   revisit the interrelationship of the three subparagraphs of Article 36,
   paragraph 1, in the light of the particular facts and circumstances of
   the present case.” (Avena and Other Mexican Nationals (Mexico v.
   United States of America), Judgment, I.C.J. Reports 2004 (I),
   p. 52, paras. 99-100 ; emphasis added.)

 In that connection, we know that the Democratic Republic of the
ongo has argued that it follows from the interrelated link between the
 ht to information of the sending State or State of nationality and the
 ht to information of the arrested or detained alien that, “if that right
 s not been violated in respect of the State — here, Guinea — it cannot
 ve been so in respect of its national, Mr. Diallo” (response of the
emocratic Republic of the Congo to a question put by a judge ; see
 c. Guinea-DRC 2010/15, 27 April 2010).
 Thus the Respondent’s position is that Article 36, paragraph 1 (b) of
e Vienna Convention does indeed create “individual rights” (LaGrand
  ermany v. United States of America), Judgment, I.C.J. Reports 2001,
 494, para. 77), but rights which are inextricably linked to the sending
ate’s right to communicate with its nationals through consular agents.
  cordingly, it asserts that, in spite of its individual dimension, this right
mains closely tied to the rights of the State itself. Finally, the Demo-
atic Republic of the Congo argues that the right to information is a
utual right of the individual and his sending State (doc. Guinea-
RC 2010/15, 27 April 2010, p. 1). This argument enables it to highlight
e fact that the purpose of this right to information is to facilitate the
ercise of consular functions relating to nationals of the sending State,
hich confirms that this individual right is closely linked to the rights of
e State itself, and that the treatment of individuals is inextricably linked
  and derived from the rights of the State.
 24. As in the Avena case, the Court, rather than making an interpreta-
 n based first and foremost on a “clarity” which, when examined, is
 ubtful to say the least, could have usefully interpreted Article 36, para-
aph 1 (b), in relation both to its context and to the interrelationship of
e rights set out therein, in the light of the particular facts and circum-
  nces of the case between Guinea and the Democratic Republic of the
ongo, as the Court itself recommends in its Avena Judgment. Not doing
  led the Court to apply purely theoretical considerations. In this con-
ction, it should be pointed out that Guinea defends its position on the
 sis of the Court’s interpretation of this treaty provision in the LaGrand
 d Avena cases, even though the legal problems posed in, and the cir-
mstances of, those cases are markedly different from those of the
esent case.

 The facts and circumstances of the present case show that, in contrast
 both of the above-mentioned cases, the Democratic Republic of the
ongo’s failure to inform Mr. Diallo of his rights did not prevent Guinea
om exercising the right accorded to it under Article 36, paragraph 1. It is

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ue that informing Mr. Diallo of his rights might well have “facilitate[d]
 e implementation of the system of consular protection” (see para. 74 of
 e LaGrand Judgment), but, considering the object of the obligation
cumbent upon the receiving State, it is impossible to be indifferent to
 e fact that the Guinean authorities were undeniably informed or, indeed,
 at they were able, as they themselves acknowledge, to exercise their con-
  ar function. Accordingly, the failure to inform could not have had the
 ect of preventing Guinea from exercising its rights of consular protec-
  n in respect of its national. In fact, in this instance, Mr. Diallo’s situa-
  n was certainly not unknown to the Guinean authorities, who became
  are within a period sufficiently “timely” for them to have been able to
 t, while remaining entitled to take the Congolese authorities to task,
  re it indeed the case, for not having complied with the relevant proce-
 re. Thus, this case is not the same as that of the LaGrand brothers,
hose situation was, as it were, hidden from the German authorities and
mained unknown to them throughout the period when diplomatic action
  s still possible ; Germany was prevented from acting by the American
 lure to inform the LaGrand brothers of their rights. It is therefore not
 tirely justified to summarily dismiss the Congolese claim that Mr. Diallo
  s orally informed. In relation to an information process which can, in
 actice, only be carried out orally, it is unrealistic to talk of a lack of “the
 ghtest evidence” which would prove that an oral action had been car-
 d out. The Court should have attached no weight whatever to the state-
ent of the individual concerned, Mr. Diallo, questioned 13 years after
 e event, alleging for the first time that the Congolese authorities had not
  ormed him of his right to request the protection of his country’s
mbassy (Reply of the Republic of Guinea, Vol. II, Annex I : Transcript
  hearing of Mr. Ahmadou Sadio Diallo, drawn up on 29 October 2008
   Maîtres Boubacar Télimélé Sylla and Aboubacar Camara). All the
ore so since there was no evidence to the contrary — which, in any
 ent, would be impossible to produce — and since the alleged violation
   the Congo of Article 36, paragraph 1 (b), of the Convention in ques-
  n did not cause any injury to Guinea, since it did not prevent it from
  rning of Mr. Diallo’s imprisonment and, later, of his expulsion, or,
 erefore, from protecting him.

      MY POSITION ON THE ALLEGED VIOLATIONS OF MR. DIALLO’S
                    DIRECT RIGHTS AS ASSOCIÉ

 25. According to the Democratic Republic of the Congo, the question
hich arises is whether “Mr. Diallo’s expulsion from the Congo resulted
 a violation of his direct rights as associé in Africom-Zaire and Afri-
ntainers” (Counter-Memorial of the Democratic Republic of the
ongo, para. 2.02 ; Rejoinder of the Democratic Republic of the Congo,
 ra. 2.05). It observes in this respect that, in ordering Mr. Diallo’s
pulsion in 1996, it did not infringe any of his direct rights as associé.

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 erefore, what must be determined is whether or not the Democratic
 public of the Congo carried out acts specifically aimed at Mr. Diallo’s
 ect rights.

    Enforceability or Opposability of an Associé’s Direct Rights
 26. Guinea treats an attack on company rights, resulting in injury to
areholders, as a violation of their direct rights ; in other words, it treats
violation of the rights of Africom-Zaire and Africontainers-Zaire as a
olation of the rights of Mr. Diallo. However, to conflate the rights in
 s way is to misrepresent the general régime of diplomatic protection,
hich, for its part, always subjects the admissibility of a claim on behalf
 shareholders of a foreign company to there having been a violation of
e “direct rights” of such shareholders “as such”.
 In this connection, Guinea has claimed, as it did for the Judgment of
  May 2007, that Mr. Diallo’s arrest, detention and expulsion not only
 d the effect “of preventing him from continuing to administer, manage
 d control any of the operations of the companies Africom-Zaire and
 ricontainers-Zaire”, but were specifically motivated by the intent to
event him from exercising these rights, from pursuing the legal proceed-
gs brought on behalf of the companies, and thereby from recovering
eir debts.
 27. Expulsion is indeed a measure which, when taken against an indi-
dual, could have an effect on his status as associé. But, as the Court
  ed in the Barcelona Traction case, this is not sufficient to engage the
  ponsibility of a State. It would need to be determined whether the
easures taken by the Democratic Republic of the Congo were aimed
  ectly at Mr. Diallo’s rights as associé or whether, on the contrary, they
 re aimed at him as an individual and, collaterally, affected his rights as
socié and their exercise.
 28. In order to reject Guinea’s claims, however, the Court relies solely
   the reasoning previously followed by it in the Barcelona Traction
se : that in principle it is possible for a State to bring proceedings where
e acts complained of were aimed at the “direct rights of the sharehold-
    as such”. Accordingly, it proceeded to verify each of the rights
voked by the Applicant, so as to ascertain whether the Congo had
ken actions “aimed at [those] rights . . . as such” and found that the
 egation was unfounded, because the right claimed to be enjoyed by
r. Diallo in fact belongs to the company (paragraph 119 of the Judg-
ent), and because the decisions taken by the Congo did not violate the
 ht invoked (paragraphs 134, 137, 138 and 148 of the Judgment). The
ourt also had a duty to respond to Guinea’s allegations on the intuitu
rsonae character of the companies in question. The Applicant contends
at, in sociétés privées à responsabilité limitée [private limited liability
mpanies] (hereinafter “SPRLs”), the parts sociales are not freely trans-
 able, which greatly accentuates the intuitu personae character of these
mpanies, making them very different in this respect from public limited

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 mpanies. It argues that this characteristic is even more marked in the
se of Africom-Zaire and Africontainers-Zaire, since Mr. Diallo was
eir sole gérant and sole associé. According to Guinea, “in fact and in
w it was virtually impossible to distinguish Mr. Diallo from his com-
 nies” (Guinea’s Reply, para. 2.90 ; case concerning Ahmadou Sadio
 allo (Republic of Guinea v. Democratic Republic of the Congo), Pre-
minary Objections, Judgment, I.C.J. Reports 2007 (II), p. 604, para. 56).
 In support of its argument, Guinea cites what it calls “the acts of inter-
  ence” by the Democratic Republic of the Congo “with Mr. Diallo’s
operty rights in the parts sociales”, the “interference” through the
 rrests and detentions” and through the arrests and expulsion, the
nterference” through the expropriation of the companies, which it has
ade no attempt whatsoever to prove, as well as the “judicial interfer-
 ce”.
 The Court responds to those allegations (in particular, in para-
aphs 155-157) by remaining faithful to the solutions developed and
 opted by it in the Barcelona Traction case.
 29. In my view, however, this was its opportunity to reaffirm the prin-
ple, implied in that approach, that the direct rights of an associé,
hether “functional” or “property” rights, are only enforceable or oppos-
 le against the company itself, because they are born, and are deployed
 d exercised, within the context of the relations between the company
 d its associés or shareholders ; they can thus be seen as entitlements
 ld by the associés or shareholders vis-à-vis the company. That is why,
hen those entitlements are violated by actions aimed at the company’s
  hts, the associé can only seek redress from the latter. It is also the rea-
n why a claim against a third party will only lie if its actions were
med at those rights as such.

                Notion of Interference in Company Law
 30. The other fundamental principle is that of the notion of interfer-
 ce liable to infringe the direct rights of an associé. Guinea cites this
  nciple, but applies it incorrectly when it alleges “interference with
Mr. Diallo’s] property rights”, in the form, in particular, of his arrest,
 tention and expulsion, measures which prevented Mr. Diallo “from
 anaging his companies and from any participation in the activities of
 eir corporate organs, and . . . deprived [him] of any possibility of con-
olling and using his parts sociales” (Guinea’s Reply, paras. 2.86-2.88).
 uinea further cites the acts of interference which led to “the Congolese
 thorities’ decision . . . to stay enforcement of the judgment for the
 aintiff handed down in Africontainers v. Zaire Shell” (ibid., and para-
 aph 150 of the Judgment). However, these “acts of interference”, if
  ablished, would not have been aimed at the associé’s rights “as such”,
  hough they might, at best, be evidence of a possible denial of justice, a
  im which Guinea has not sought to pursue.
 However, the “acts of interference” capable of infringing the direct

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 hts of an associé “as such” are those which obstruct the operation of
e company or the relations between the company and its associés. In
actice, since the direct rights of the associé are only enforceable against
e company and in the context of its relations with the associés, the
tions of a third party can only be considered as damaging to the direct
 hts of an associé “as such” if they represent acts of interference as thus
fined. No logical process can transform acts aimed at an associé as an
dividual, in his personal capacity, such as the arrest, detention and
pulsion of Mr. Diallo, into interference, as defined above and aimed at
e rights of the associé “as such”, in the operation of the company, or in
e relations between the company and its associés.

 31. The Congo gives a good example of such interference when
 ponding to those arguments advanced by Guinea, stating that Guinea
 as not demonstrated that the Democratic Republic of the Congo gave
e order to Africontainers not to permit Mr. Diallo to control its opera-
 ns” (CR 2010/4, p. 8, para. 15).
 This reasoning is that developed in the Salvador Commercial Company
se, cited by both Parties, and in particular by the Democratic Republic
  the Congo in its preliminary objections (para. 2.35). Although that
se seems to be in the nature of an equitable judgment, it is a perfectly
 od illustration of the notion of interference. Thus the tribunal states
at the Salvadoran authorities had adopted measures directly aimed at
e direct rights of the shareholders vis-à-vis their company. The arbitral
 ard, referring to those acts of interference, cites the arbitrary replace-
ent of the directors of the Salvadoran company by other directors
  apparently in the pay of the State — the calling of meetings of the
mpany’s governing bodies without notifying the American majority
areholders, the refusal to allow those shareholders to examine certain
mpany documents, etc. (Reports of International Arbitral Awards
 IAA), Vol. XV, pp. 474-475), and finds that, by undertaking those
easures, Salvador had directly prevented shareholders from exercising
eir rights in relation to their company.
 32. By contrast, there is nothing in the circumstances of the present
se to suggest that the Congolese authorities interfered in this way with
e internal operation of Africom-Zaire or Africontainers-Zaire. The
ourt reaches the same conclusion, but I felt that this conclusion required
tter reasoning than the somewhat elliptical reasoning offered in the
dgment.

                                        (Signed) Auguste MAMPUYA.

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