            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)

             EXCEPTIONS PRE
                          u LIMINAIRES

                ARRE
                   | T DU 24 MAI 2007

                   2007
            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)

              PRELIMINARY OBJECTIONS

              JUDGMENT OF 24 MAY 2007

                       Mode officiel de citation :
                        Ahmadou Sadio Diallo
    (République de Guinée c. République démocratique du Congo),
      exceptions préliminaires, arrêt, C.I.J. Recueil 2007, p. 582

                          Official citation :
                       Ahmadou Sadio Diallo
     (Republic of Guinea v. Democratic Republic of the Congo),
    Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 582

                                            No de vente :
ISSN 0074-4441
ISBN 978-92-1-071030-5
                                            Sales number    924

                                          24 MAI 2007

                                            ARRE
                                               |T

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

             EXCEPTIONS PRE
                          u LIMINAIRES

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

              PRELIMINARY OBJECTIONS

                                         24 MAY 2007

                                         JUDGMENT

                                                                               582

               INTERNATIONAL COURT OF JUSTICE

                                  YEAR 2007                                              2007
                                                                                24 May
                                                                                General List
                                  24 May 2007                                          No. 103

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

                      PRELIMINARY OBJECTIONS

   Facts underlying the case — Disputes between Africom-Zaire and Africon-
tainers-Zaire, two sociétés privées à responsabilité limitée (SPRLs) incorpo-
rated under Zairean law, on the one hand, and the Zairean State and other
business partners on the other — Arrest, detention and expulsion of Mr. Diallo,
a Guinean citizen, associé and gérant of the companies, on the ground that his
presence and conduct breached public order in Zaire — Disagreement between
the Parties on the circumstances of Mr. Diallo’s arrest, detention and expulsion.

                                       *       *
   Object of the Application — Diplomatic protection on behalf of Mr. Diallo
for the violation of three categories of rights — Mr. Diallo’s individual personal
rights — Mr. Diallo’s direct rights as associé in Africom-Zaire and Africon-
tainers-Zaire — Rights of the companies.

                                       *       *
  Basis of the Court’s jurisdiction — Declarations made by the Parties under
Article 36, paragraph 2, of the Statute.

                                       *       *
   Preliminary objections raised by the DRC to the admissibility of the Applica-
tion — Guinea’s standing — Non-exhaustion of local remedies — Examination
by the Court in respect of each of the three different categories of rights alleged
by Guinea to have been violated.

                                           *
                                                                                4

                     AHMADOU SADIO DIALLO (JUDGMENT)                          583

   Mr. Diallo’s individual personal rights.
   DRC’s contention that Guinea’s Application is inadmissible on the ground
that local remedies have not been exhausted — Scope ratione materiae of dip-
lomatic protection — Conditions of exercise — Mr. Diallo’s Guinean national-
ity — Burden of proof as regards local remedies — Guinea required to prove
exhaustion by Mr. Diallo of local remedies available in the DRC or the exist-
ence of exceptional circumstances justifying the failure to exhaust them — DRC
required to prove existence and non-exhaustion of available and effective local
remedies — Examination by the Court confined to the question of local rem-
edies in respect of Mr. Diallo’s expulsion — Expulsion characterized as “refusal
of entry” (“refoulement”) when carried out — Refusals of entry not appealable
under Congolese law — DRC cannot rely on error in designation — Request for
reconsideration by the administrative authority having taken the decision not a
local remedy to be exhausted — Objection based on failure to exhaust local
remedies rejected.

                                        *
   Protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Afri-
containers-Zaire.
   DRC’s contention that Guinea’s Application is inadmissible for lack of stand-
ing, Mr. Diallo’s expulsion not having injured his direct rights as associé —
Guinea’s contention that the effect of and motive for Mr. Diallo’s expulsion was
to prevent him from exercising his direct rights as associé in Africom-Zaire and
Africontainers-Zaire and his rights as their gérant — Legal nature of the com-
panies governed by Congolese law — Independent legal personality of SPRLs
distinct from that of their associés — National State of associés entitled to exer-
cise diplomatic protection in respect of infringements of their direct rights —
Definition of rights appertaining to the status of associé and to the position of
gérant of an SPRL under Congolese law and assessment of the effects on these
rights of the actions taken against Mr. Diallo, being substantive matters —
Objection based on Guinea’s lack of standing rejected.

   DRC’s contention that Guinea’s Application is inadmissible for failure to
exhaust local remedies — Alleged violations of Mr. Diallo’s direct rights as
associé described by Guinea as a direct consequence of his expulsion — Court
having found that the DRC has not proved the existence under Congolese law of
effective remedies against Mr. Diallo’s expulsion — DRC not having shown the
existence of distinct remedies against the alleged violations of Mr. Diallo’s
direct rights as associé — Objection as to inadmissibility based on failure to
exhaust local remedies rejected.

                                        *
   Diplomatic protection with respect to Mr. Diallo “by substitution” for Afri-
com-Zaire and Africontainers-Zaire.
   DRC’s contention that Guinea’s Application is inadmissible for lack of stand-
ing — Guinea’s argument that customary international law of diplomatic pro-
tection by a company by its State of nationality is subject to an exception
allowing for diplomatic protection of shareholders by their national State “by

                                                                                5

                    AHMADOU SADIO DIALLO (JUDGMENT)                         584

substitution” for the company when the State whose responsibility is at issue is
the national State of the company — Exception not, at present, established in
customary international law — Question whether customary international law
contains a more limited rule of protection “by substitution”, such as that pro-
posed by the International Law Commission (ILC) in Article 11 (b) of its draft
Articles on Diplomatic Protection — Does not arise for decision on present
facts — Diplomatic protection of Africom-Zaire and Africontainers-Zaire gov-
erned by the normal rule of the nationality of the claims — Congolese nation-
ality of the companies — Objection based on Guinea’s lack of standing upheld.

  DRC’s objection based on failure to exhaust local remedies without object.

                                     *   *
   Application admissible in so far as it concerns protection of Mr. Diallo’s
rights as an individual and his direct rights as associé in Africom-Zaire and
Africontainers-Zaire.

                                JUDGMENT

Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
          SHI, KOROMA, BUERGENTHAL, OWADA, SIMMA, TOMKA, ABRAHAM,
          KEITH, BENNOUNA, SKOTNIKOV ; Judges ad hoc MAHIOU, MAMPUYA ;
          Registrar COUVREUR.

  In the case concerning Ahmadou Sadio Diallo,
  between
the Republic of Guinea,
represented by
  Mr. Mohamed Camara, Chargé d’affaires a.i. at the Embassy of the Repub-
     lic of Guinea, Brussels,
  as Agent ;
  Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member
     and former Chairman of the International Law Commission of the United
     Nations,
  as Deputy Agent, Counsel and Advocate ;
  Mr. Mathias Forteau, Professor at the University of Lille 2,
  Mr. Jean-Marc Thouvenin, Professor at the University of Paris X-Nanterre,
     member of the Paris Bar, Cabinet Sygna Partners,
  Mr. Samuel Wordsworth, member of the English Bar, Essex Court Cham-
     bers,
  as Counsel and Advocates ;

                                                                               6

                    AHMADOU SADIO DIALLO (JUDGMENT)                        585

  Mr. Daniel Müller, Researcher at the Centre de droit international de Nan-
    terre (CEDIN), University of Paris X-Nanterre,
  Mr. Luke Vidal, member of the Paris Bar, Cabinet Sygna Partners,
  as Advisers,
  and
the Democratic Republic of the Congo,
represented by
  H.E. Mr. Pierre Ilunga M’Bundu wa Biloba, Minister of Justice and Keeper
     of the Seals, Democratic Republic of the Congo,
  as Head of Delegation ;
  H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and
     Plenipotentiary of the Democratic Republic of the Congo to the Kingdom
     of the Netherlands,
  as Agent ;
  Maître Tshibangu Kalala, Deputy, Congolese Parliament, member of the
     Kinshasa and Brussels Bars, Cabinet Tshibangu et Associés,
  as Co-Agent, Counsel and Advocate ;
  Mr. André Mazyambo Makengo Kisala, Professor of International Law,
     University of Kinshasa,
  as Counsel and Advocate ;
  Mr. Yenyi Olungu, Principal Advocate-General of the Republic, Directeur
     de cabinet of the Minister of Justice and Keeper of the Seals,
  Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice
     and Keeper of the Seals,
  Mr. Nsingi-zi-Mayemba, Minister-Counsellor, Embassy of the Democratic
     Republic of the Congo in the Netherlands,
  Mr. Bamana Kalonji Jerry, Second Counsellor, Embassy of the Democratic
     Republic of the Congo in the Netherlands,
  Maître Kikangala Ngoie, member of the Brussels Bar,
  as Advisers ;
  Maître Kadima Mukadi, member of the Kinshasa Bar, Cabinet Tshibangu et
     Associés,
  Maître Lufulwabo Tshimpangila, member of the Brussels Bar,
  Maître Tshibwabwa Mbuyi, member of the Brussels Bar,
  as Research Assistants ;
  Ms Ngoya Tshibangu,
  as Assistant,

  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
  1. On 28 December 1998, the Government of the Republic of Guinea (here-
inafter “Guinea”) filed in the Registry of the Court an Application instituting

                                                                             7

                    AHMADOU SADIO DIALLO (JUDGMENT)                          586

proceedings against the Democratic Republic of the Congo (hereinafter the
“DRC”) in respect of a dispute concerning “serious violations of international
law” allegedly committed “upon the person of a Guinean national”. The Appli-
cation consisted of two parts, each signed by Guinea’s Minister for Foreign
Affairs. The first part, entitled “Application” (hereinafter the “Application
(Part One)”), contained a succinct statement of the subject of the dispute, the
basis of the Court’s jurisdiction and the legal grounds relied on. The second
part, entitled “Memorial of the Republic of Guinea” (hereinafter the “Applica-
tion (Part Two)”), set out the facts underlying the dispute, expanded on the
legal grounds put forward by Guinea and stated Guinea’s claims. In the Appli-
cation (Part One) Guinea maintained :
      “Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality,
    was unjustly imprisoned by the authorities of the Democratic Republic of
    the Congo, after being resident in that State for thirty-two (32) years,
    despoiled of his sizable investments, businesses, movable and immovable
    property and bank accounts, and then expelled.”
Guinea added :
    “[t]his expulsion came at a time when Mr. Ahmadou Sadio Diallo was
    pursuing recovery of substantial debts owed to his businesses by the State
    and by oil companies established in its territory and of which the State is
    a shareholder”.
   Mr. Diallo’s arrest, detention and expulsion are alleged to constitute,
inter alia, violations of
    “the principle that aliens should be treated in accordance with ‘a minimum
    standard of civilization’, [of] the obligation to respect the freedom and
    property of aliens, [and of] the right of aliens accused of an offence to a
    fair trial on adversarial principles by an impartial court”.
To found the jurisdiction of the Court, Guinea invoked in the Application
(Part One) the declarations whereby the two States have recognized the com-
pulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute
of the Court.
  2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the DRC by the Registrar ;
and, in accordance with paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.
  3. By an Order of 25 November 1999, the Court fixed 11 September 2000 as
the time-limit for the filing of a Memorial by Guinea and 11 September 2001 as
the time-limit for the filing of a Counter-Memorial by the DRC. By an Order of
8 September 2000, the President of the Court, at Guinea’s request, extended the
time-limit for the filing of the Memorial to 23 March 2001 ; in the same Order
the time-limit for the filing of the Counter-Memorial was extended to 4 October
2002. Guinea duly filed its Memorial within the time-limit as thus extended.

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

                                                                               8

                    AHMADOU SADIO DIALLO (JUDGMENT)                           587

   5. On 3 October 2002, within the time-limit set in Article 79, paragraph 1, of
the Rules of Court as adopted on 14 April 1978, the DRC raised preliminary
objections in respect of the admissibility of Guinea’s Application. In accord-
ance with Article 79, paragraph 3, of the Rules of Court, the proceedings on
the merits were then suspended. By an Order of 7 November 2002, the Court,
taking account of the particular circumstances of the case and of the agreement
of the Parties, fixed 7 July 2003 as the time-limit for the presentation by Guinea
of a written statement of its observations and submissions on the preliminary
objections raised by the DRC. Guinea filed such a statement within the time-
limit fixed and the case thus became ready for hearing on the preliminary objec-
tions.
   6. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings.
   7. Public sittings were held from 27 November 2006 to 1 December 2006, at
which the Court heard the oral arguments and replies of :

For the DRC : H.E. Mr. Jacques Masangu-a-Mwanza,
                 Maître Tshibangu Kalala,
                 Mr. André Mazyambo Makengo Kisala.
For Guinea :     Mr. Mohamed Camara,
                 Mr. Mathias Forteau,
                 Mr. Samuel Wordsworth,
                 Mr. Alain Pellet,
                 Mr. Jean-Marc Thouvenin.
   8. A Member of the Court put a question at the hearing on 28 Novem-
ber 2006, which the Parties answered orally, in accordance with Article 61,
paragraph 4, of the Rules of Court.
   9. By a letter dated 1 December 2006, the Court, acting pursuant to Arti-
cle 62, paragraph 1, of the Rules of Court, asked the DRC to furnish it with
certain additional documents.

                                        *
 10. In the Application (Part Two), the following requests were made by
Guinea :
       “As to the form : To admit the present Application.
       As to the merits : To order the authorities of the Democratic Republic of
    the Congo to make an official public apology to the State of Guinea for
    the numerous wrongs done to it in the person of its national Ahma-
    dou 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 the Congolese State to pay to the State of Guinea on behalf of
    its national Ahmadou Sadio Diallo the sums of US $31,334,685,888.45 and
    Z 14,207,082,872.7 in respect of the financial loss suffered by him ;

                                                                                9

                    AHMADOU SADIO DIALLO (JUDGMENT)                           588

      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, to authorize the State of Guinea to seize the assets of the
    Congolese State wherever they may be found, up to an amount equal to the
    principal sum due and such further amounts as the Court shall have ordered.
       To order that the costs of the present proceedings be borne by the Con-
    golese State.” (Emphasis in the original.)
  11. In the written proceedings, the following submissions were presented by
the Parties :
On behalf of the Government of Guinea,
in the Memorial on the merits :
       “The Republic of Guinea has the honour to request that it may please
    the International Court of Justice to adjudge and declare :
    (1) that, in arbitrarily arresting and expelling its national, Mr. 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
         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.”

                                                                                10

                   AHMADOU SADIO DIALLO (JUDGMENT)                          589

On behalf of the Government of the DRC,
in the preliminary objections :
       “The Democratic Republic of the Congo respectfully requests the Court
    to adjudge and declare that the Application of the Republic of Guinea is
    inadmissible,
    (1) on the ground that the Republic of Guinea lacks standing to exercise
        diplomatic protection in the present proceedings, since its Application
        seeks essentially to secure reparation for injury suffered on account of
        the alleged violation of rights of companies not possessing its nation-
        ality ;
    (2) on the ground that, in any event, neither the companies in question
        nor Mr. Diallo have exhausted the available and effective local rem-
        edies existing in Zaire, and subsequently in the Democratic Republic
        of the Congo.”
On behalf of the Government of Guinea,
in the written statement containing its observations and submissions on the
preliminary objections raised by the DRC :
      “For the reasons set out above, the Republic of Guinea kindly requests
    the Court to :
      1. Reject the preliminary objections raised by the Democratic Republic
    of the Congo, and
      2. Declare the Application of the Republic of Guinea admissible.”
  12. At the oral proceedings, the following submissions were presented by the
Parties :
On behalf of the Government of the DRC,
at the hearing of 29 November 2006 :
       “The Democratic Republic of the Congo respectfully requests the Court
    to adjudge and declare that the Application of the Republic of Guinea is
    inadmissible,
    (1) on the ground that the Republic of Guinea lacks standing to exercise
        diplomatic protection in the present proceedings, since its Application
        seeks essentially to secure reparation for injury suffered on account of
        the violation of rights of companies not possessing its nationality ;

    (2) on the ground that, in any event, neither the companies in question
        nor Mr. Diallo have exhausted the available and effective local rem-
        edies existing in the Democratic Republic of the Congo.”
On behalf of the Government of Guinea,
at the hearing of 1 December 2006 :
       “For the reasons set out in its Observations of 7 July 2003 and in oral
    argument, the Republic of Guinea kindly requests the International Court
    of Justice :
    (1) to reject the preliminary objections raised by the Democratic Republic
        of the Congo ;
    (2) to declare the Application of the Republic of Guinea admissible ; and

                                                                             11

                   AHMADOU SADIO DIALLO (JUDGMENT)                      590

    (3) to fix time-limits for the further proceedings.”

                                    * * *

   13. The Court will begin with a brief description of the factual back-
ground to the present case.
   14. As set out in their written pleadings, the Parties are in agreement
as to the following facts. Mr. Ahmadou Sadio Diallo, a Guinean citizen,
settled in the DRC (called “Congo” between 1960 and 1971 and “Zaire”
between 1971 and 1997) in 1964. There, in 1974, he founded an import-
export company, Africom-Zaire, a société privée à responsabilité limitée
(private limited liability company, hereinafter “SPRL”) incorporated
under Zairean law and entered in the Trade Register of the city of Kin-
shasa, and he became its gérant (manager). In 1979 Mr. Diallo expanded
his activities, taking part, as gérant of Africom-Zaire and with backing
from two private partners, in the founding of another Zairean SPRL,
specializing in the containerized transport of goods. The capital in the
new company, Africontainers-Zaire, was held as follows : 40 per cent by
Mr. Zala, a Zairean national ; 30 per cent by Ms Dewast, a French
national ; and 30 per cent by Africom-Zaire. It too was entered in the
Trade Register of the city of Kinshasa. In 1980 Africom-Zaire’s two part-
ners in Africontainers-Zaire withdrew. The parts sociales (see para-
graph 25 hereunder) in Africontainers-Zaire were then held as follows :
60 per cent by Africom-Zaire and 40 per cent by Mr. Diallo. At the same
time Mr. Diallo became the gérant of Africontainers-Zaire. Towards the
end of the 1980s, Africom-Zaire’s and Africontainers-Zaire’s relation-
ships with their business partners started to deteriorate. The two compa-
nies, acting through their gérant, Mr. Diallo, then initiated various steps,
including judicial ones, in an attempt to recover alleged debts. The vari-
ous disputes between Africom-Zaire or Africontainers-Zaire, on the one
hand, and their business partners, on the other, continued throughout the
1990s and for the most part remain unresolved today. Thus, Africom-
Zaire claims payment from the DRC of a debt (acknowledged by the
DRC) resulting from default in payment for deliveries of listing paper to
the Zairean State between 1983 and 1986. Africom-Zaire is involved in
another dispute, concerning arrears or overpayments of rent, with Plan-
tation Lever au Zaire (“PLZ”). Africontainers-Zaire is in dispute with the
companies Zaire Fina, Zaire Shell and Zaire Mobil Oil, as well as with
the Office National des Transports (“ONATRA”) and Générale des Car-
rières et des Mines (“Gécamines”). For the most part these differences
concern alleged violations of contractual exclusivity clauses and the lay-
up, improper use or destruction or loss of containers.

  15. The Court considers the following facts also to be established. On
31 October 1995, the Prime Minister of Zaire issued an expulsion Order
against Mr. Diallo. The Order gave the following reason for the expul-

                                                                         12

                   AHMADOU SADIO DIALLO (JUDGMENT)                     591

sion : Mr. Diallo’s “presence and conduct have breached public order in
Zaire, especially in the economic, financial and monetary areas, and con-
tinue to do so”. On 31 January 1996, Mr. Diallo, already under arrest,
was deported from Zaire and returned to Guinea by air. The removal
from Zaire was formalized and served on Mr. Diallo in the shape of a
notice of refusal of entry (refoulement) on account of “illegal residence”
(séjour irrégulier) that had been drawn up at the Kinshasa airport on the
same day.

                                    *
  16. Throughout the proceedings Guinea and the DRC have continued
to differ on a number of other facts.
  17. In respect of the specific circumstances of Mr. Diallo’s arrest,
detention and expulsion, Guinea maintains that Mr. Diallo was “secretly
placed in detention, without any form of judicial process or even exami-
nation” on 5 November 1995. He allegedly remained imprisoned first for
two months, before being released on 10 January 1996, “further to inter-
vention by the [Zairean] President himself”, only then to be “immediately
rearrested and imprisoned for two [more] weeks” before being expelled.
Mr. Diallo is thus said to have been detained for 75 days in all. Guinea
adds that he was mistreated while in prison and was “deprived of the
benefit of the 1963 Vienna Convention on Consular Relations”. Accord-
ing to Guinea, Mr. Diallo has been without means of support since his
expulsion and he has been unable to fulfil his functions as executive
officer (dirigeant) of, or exercise his rights as shareholder in, Africom-
Zaire and Africontainers-Zaire.
  18. Guinea further maintains that Mr. Diallo’s arrest, detention and
expulsion were the culmination of a DRC policy to prevent him from
recovering the debts owed to his companies, including judgment debts.
Guinea claims that, before arresting Mr. Diallo and expelling him in Janu-
ary 1996, the Congolese authorities repeatedly interfered in the affairs of
his companies. Guinea contends that Mr. Diallo had already suffered one
year of imprisonment, in 1988, after trying to recover debts owed to Afri-
com-Zaire by the Zairean State. Guinea also cites certain steps taken by
the DRC in the course of 1995 “arbitrarily to stay the domestic proceed-
ings for the enforcement of decisions handed down in favour of
Mr. Diallo’s companies”. It thus explains :

       “Enforcement of the judgment [by the Kinshasa Tribunal de grande
    instance] in the Africontainers[-Zaire] v. Zaire Shell case was stayed,
    on 13 September [1995], by order of the [Zairean Vice-] Minister of
    Justice, without any legal basis.”
After the stay was lifted, property belonging to Zaire Shell was attached
but “the attachments were once again revoked on 13 October [1995], this

                                                                        13

                   AHMADOU SADIO DIALLO (JUDGMENT)                        592

time permanently, on ‘oral instructions’ from the Minister of Justice and
outside the law”. Guinea adds that Mr. Diallo’s arrest, detention and
expulsion took place just as Zaire Shell, for its part, and Zaire Fina and
Zaire Mobil Oil, for theirs, approached Zaire’s Minister of Justice, by let-
ters dated 29 August 1995 and 15 November 1995, respectively, “seeking
the intervention of the Government to warn the courts and tribunals
about Mr. Ahmadou Sadio Diallo’s conduct in his campaign to destabilize
commercial companies”.

  19. The DRC rejects these allegations by Guinea and argues that the
duration and conditions of Mr. Diallo’s detention during the expulsion
process were in conformity with Zairean law. In particular, it contends
that the statutory maximum of eight days’ detention was not exceeded.
The DRC adds that the decision expelling Mr. Diallo was justified by his
“manifestly groundless” and increasingly exaggerated financial claims
against Zairean public undertakings and private companies operating in
Zaire and by the disinformation campaign he had launched there “aimed
at the highest levels of the Zairean State, as well as very prominent fig-
ures abroad”. The DRC notes that

    “the total sum claimed by Mr. Diallo as owed to the companies run
    by him came to over 36 billion United States dollars . . ., which rep-
    resents nearly three times the [DRC’s] total foreign debt”.

It adds : “the Zairean authorities also discovered that Mr. Diallo had
been involved in currency trafficking and that he was moreover guilty of
a number of attempts at bribery”. Mr. Diallo’s actions thus allegedly
threatened seriously to compromise not only the operation of the under-
takings concerned but also public order in Zaire.

   20. The DRC further claims not to have interfered in the affairs of
Africom-Zaire and Africontainers-Zaire or to have expelled Mr. Diallo
with a view to preventing the companies from completing the legal pro-
ceedings they had brought to recover monies owed them. The DRC does
not deny that in September 1995 the Minister of Justice ordered a stay of
execution of the judgment rendered by the Kinshasa Tribunal de grande
instance in the Africontainers-Zaire v. Zaire Shell case. It nevertheless
explains that, “when the enforcement of a judicial decision is liable to . . .
lead to serious public disorder”, Zairean law allows the Minister of Jus-
tice to “stay its execution and request the Inspectorat général des services
judiciaires (Inspectorate-General of Courts) to review it for legality”. It
adds that procedures of this type, “found . . . in a number of African
States”, are “in no way contrary to the principle of separation of powers,
as it is understood in that part of the world”. The DRC points out that
the stay of execution of the judgment in question “was of very short

                                                                           14

                   AHMADOU SADIO DIALLO (JUDGMENT)                      593

duration”, because a few days after the stay took effect the Minister of
Justice “requested the president of the Court of Appeal to ‘take the nec-
essary measures to execute’ the judgment . . . [on the ground that] ‘there
had been no manifest error’”. The DRC moreover stresses that Mr. Diallo
should not be confused with Africom-Zaire and Africontainers-Zaire,
that the companies are separate legal entities and that the actions taken
against Mr. Diallo cannot be equated with actions against the companies.
Specifically, the companies remained completely free, after Mr. Diallo’s
expulsion, to pursue any and all legal proceedings they had begun and
did in fact do so, according to the DRC.

   21. At the hearings the DRC made reference to various problems said
to exist in connection with Africom-Zaire. Thus, in response to the ques-
tion put by Judge Bennouna at the end of the first round of oral argu-
ment, seeking clarification from both Parties as to
    “whether the legislation of the Democratic Republic of the Congo or
    the jurisprudence of the courts of the country authorizes the creation
    of a sociéte privée à responsabilité limitée with a single shareholder
    and by one person” (see paragraph 8 above),
the DRC explained that “Congolese legislation in force does not permit
the incorporation of a société privée à responsabilité limitée by just one
person” and that, contrary to Guinea’s contention, Mr. Diallo could not
therefore be the sole associé in Africom-Zaire.
   22. The DRC next argued, for the first time, that in reality Mr. Diallo
was not an associé at all in Africom-Zaire. In support it cited, and pro-
duced at the hearing, the articles of incorporation of a company called
“Africom”, claiming to have discovered them just a few days earlier in
the files of the Trade Register of the city of Kinshasa. After the oral pro-
ceedings had closed, the Court, acting pursuant to Article 62 of the Rules
of Court, asked the DRC to provide it with the articles of incorporation
of “Africom-Zaire”. In response, the DRC, by a letter of 20 Decem-
ber 2006, transmitted to the Registry a document identical to the one it
had produced at the hearings, accompanied by a note stating that it had
been unable to find any reference to Africom-Zaire in the Trade Register
of the city of Kinshasa. After Guinea submitted observations on the let-
ter and its annexes, the DRC communicated to the Court, by a letter of
31 January 2007, comments in reply, in which it acknowledged that Afri-
com-Zaire had indeed existed and been registered in the Trade Register
of the city of Kinshasa but explained that the company had ceased all
activity in the mid-1980s. The DRC stated in that letter that “under Con-
golese law, a commercial company in such a situation [of inactivity] is
automatically struck off the Trade Register as having ceased trading”, so
that it was “highly possible that [the Africom-Zaire] file was removed
from the files, lost or destroyed by the [Congolese] administrative staff”.

                                                                         15

                   AHMADOU SADIO DIALLO (JUDGMENT)                     594

   23. While admitting that Congolese legislation does not allow for the
incorporation of an SPRL by one person, Guinea, in answering the ques-
tion put by Judge Bennouna (see paragraphs 8 and 21 above), rejected
the DRC’s argument that Mr. Diallo could not be the sole shareholder in
Africom-Zaire. It maintained that “the fact of not being able to create a
one-person company in no way prevents . . . a company becoming uni-
personal subsequently” and in support cited the Decree of 6 March 1951
establishing Zaire’s trade register, which “does not mention a company’s
becoming unipersonal as a case necessitating the cancellation of its reg-
istration in the trade register”.

  24. Guinea further stated that the document referred to by the DRC
at the hearing and provided to the Court concerns another company,
one “not connected with Mr. Diallo’s company”. As proof thereof, it
pointed out that the registered office addresses, registration numbers
in the Trade Register and gérants of the two companies are different,
as are their corporate purposes and dates of incorporation. Guinea
argued that “the existence of [the] company [Africom-Zaire] and its
articles of incorporation is beyond dispute”. In this connection it
pointed out that the validity of the filing of the company’s articles of
incorporation had been confirmed by the public prosecutor before the
Supreme Court of Justice of the DRC, and it cited “many official
documents issued by Zairean authorities” recognizing “Mr. Diallo to
be the gérant of Africom-Zaire”. Finally, Guinea maintained that the
DRC had acknowledged not only the existence of the two companies
in question but also the fact that Mr. Diallo had “become, in fact, the
sole executive officer of these two companies incorporated under the
laws of Zaire”.

                                   *   *
  25. The Court notes at the outset that Africom-Zaire and Africontain-
ers-Zaire are sociétés privées à responsabilité limitée (SPRLs) incorpo-
rated under Congolese law, i.e. companies
    “which are formed by persons whose liability is limited to their capi-
    tal contributions ; which are not publicly held companies ; and in
    which the parts sociales (shares), required to be uniform and in reg-
    istered form, are not freely transferable” (Article 36 of the Decree of
    27 February 1887 on commercial companies).
Under Congolese law, holders of parts sociales (“not freely transferable”
shares) in SPRLs, like Mr. Diallo, are termed “associés” (see, for exam-
ple, Articles 43, 44, 45, and 51 of the Decree of 27 February 1887). In
their written pleadings and at the hearings, the Parties have however
often employed the generic term “shareholder” in referring to Mr.
Diallo’s status as associé in the two companies. In light of the foregoing,

                                                                        16

                   AHMADOU SADIO DIALLO (JUDGMENT)                     595

“associé” will be the term primarily used by the Court in the present
Judgment, except where it is referring to the Parties’ arguments and when
they themselves used the generic term “shareholder”.

                                   *   *
   26. The Court observes that the dispute between Guinea and the DRC
comprises many aspects and that the Parties have focused on the one or
the other of these at different stages in the proceedings.
   27. Thus, the greater part of Guinea’s Application concerns the dis-
putes between Africom-Zaire and Africontainers-Zaire, on the one hand,
and their public and private business partners, on the other. Specifically,
Guinea devotes a lengthy part of its Application to describing the debts
allegedly owed to the companies and Mr. Diallo, as well as to expound-
ing the legal grounds on which the DRC is alleged to be liable for all
these debts. The claims put forward by Guinea in its Application (Part
Two) are also aimed for the most part at obtaining payment of the debts
(see paragraph 10 above).
   28. Guinea nevertheless also states in its Application that it seeks to
exercise its diplomatic protection on behalf of Mr. Diallo “with a view to
obtaining [from the Court] a finding that the [DRC] is guilty of serious
violations of international law committed upon [his] person”. It asserts
that the DRC has violated
    “the principle that aliens should be treated in accordance with ‘a
    minimum standard of civilization’, the obligation to respect the free-
    dom and property of aliens, [and] the right of aliens accused of an
    offence to a fair trial on adversarial principles by an impartial
    court”.
In support of these claims, Guinea cites “numerous international agree-
ments concerning the treatment of aliens and the free movement of goods
and persons”, including in particular the Universal Declaration of Human
Rights of 10 December 1948 and the International Covenant on Civil and
Political Rights of 19 December 1966. It states that “these various viola-
tions of human rights must be construed as breaches of norms of jus
cogens”.
   29. In its Memorial on the merits, Guinea continues to devote consid-
erable attention to the issue of the debts allegedly owed to Africom-Zaire
and Africontainers-Zaire and to Mr. Diallo. But Guinea also places
renewed emphasis on the exercise of its diplomatic protection on behalf
of Mr. Diallo and states that it
    “is taking up the cause of one of its nationals, and is acting to
    enforce his direct rights as an individual and as shareholder and
    executive officer of companies which he founded . . . and of which he
    is the sole or principal owner, to the exclusion of distinct rights
    which these companies may have against the DRC”.

                                                                        17

                   AHMADOU SADIO DIALLO (JUDGMENT)                        596

It divides Mr. Diallo’s rights which it seeks to protect into two separate
categories, according to their nature. In the first, it places Mr. Diallo’s
rights as an individual, including, in addition to those referred to in the
Application, Mr. Diallo’s right not to be subjected to inhuman and
degrading treatment and his right to the benefit of the provisions of the
1963 Vienna Convention on Consular Relations, both of which rights
were allegedly violated at the time of his arrest, detention and expulsion.
In the second category of rights which Guinea seeks to protect it places
the “direct rights” allegedly enjoyed by Mr. Diallo as a shareholder
(rights also sometimes called by Guinea “shareholder’s rights”) in Afri-
com-Zaire and Africontainers-Zaire, specifically his right to oversee, con-
trol and manage the companies.

   30. Guinea further states in its Application that it is seeking to protect,
in addition to Mr. Diallo, “the companies which he founded and owns”.
In its Memorial on the merits, it makes clear that it seeks to exercise its
diplomatic protection on behalf of Mr. Diallo by “substitution” for Afri-
com-Zaire and Africontainers-Zaire. Guinea explains that by “substitu-
tion” or “protection by substitution” it means the right of a State to
exercise its diplomatic protection on behalf of nationals who are share-
holders in a foreign company whenever the company has been a victim of
wrongful acts committed by the State under whose law it has been incor-
porated. Thus Guinea does not confine itself to exercising protection of
Mr. Diallo in respect of the violations of his direct rights as shareholder
in Africom-Zaire and Africontainers-Zaire but seeks to protect him “in
respect of the injuries suffered by [these] companies [themselves]”.

   31. In sum, Guinea seeks through its action to exercise its diplomatic
protection on behalf of Mr. Diallo for the violation, alleged to have
occurred at the time of his arrest, detention and expulsion, or to have
derived therefrom, of three categories of rights : his individual personal
rights, his direct rights as associé in Africom-Zaire and Africontainers-
Zaire and the rights of those companies, by “substitution”.

                                    *   *
   32. To establish the jurisdiction of the Court, Guinea relies on the dec-
larations made by the Parties under Article 36, paragraph 2, of the Stat-
ute. The DRC acknowledges that the declarations are sufficient to found
the jurisdiction of the Court in the present case. The DRC nevertheless
challenges the admissibility of Guinea’s Application and raises two pre-
liminary objections in doing so. First of all, according to the DRC,
Guinea lacks standing to act in the current proceedings since the rights
which it seeks to protect belong to Africom-Zaire and Africontainers-
Zaire, Congolese companies, not to Mr. Diallo. Guinea, it is argued, is
further precluded from exercising its diplomatic protection on the ground
that neither Mr. Diallo nor the companies have exhausted the remedies

                                                                           18

                   AHMADOU SADIO DIALLO (JUDGMENT)                      597

available in the Congolese legal system to obtain reparation for the inju-
ries claimed by Guinea before the Court.

                                  * * *
   33. The Court will now examine the preliminary objections to admis-
sibility raised by the DRC, in respect of each of the various categories of
rights alleged by Guinea to have been violated in the present case.

                                   *   *
   34. The Court will first address the question of the admissibility of
Guinea’s Application in so far as it concerns protection of Mr. Diallo’s
rights as an individual.
   35. According to the DRC, Guinea’s claims in respect of Mr. Diallo’s
rights as an individual are inadmissible because he “[has not] exhausted
the available and effective local remedies existing in Zaire, and subse-
quently in the Democratic Republic of the Congo”. While this objection,
presented by the DRC in its written pleadings and at the hearings, is very
broadly worded, in the course of the present proceedings the DRC elabo-
rated on only a single aspect of it : that concerning his expulsion from
Congolese territory.
   36. On this subject the DRC maintains that its domestic legal system
provided for available, effective remedies which Mr. Diallo should have
exhausted before his cause could be espoused by Guinea. It first observes
that, contrary to Guinea’s contention, Mr. Diallo’s expulsion from the
territory was lawful. The DRC acknowledges that the notice signed by
the immigration officer “inadvertently” refers to “refusal of entry”
(refoulement) instead of “expulsion”. Further, it does not challenge
Guinea’s assertion that Congolese law provides that refusals of entry are
not appealable. The DRC nevertheless maintains that “despite this error,
it is indisputable . . . that this was indeed an expulsion and not a refusal
of entry”. According to the DRC, calling the action a refusal of entry was
therefore not intended to deprive Mr. Diallo of a remedy ; on the con-
trary, “if Mr. Diallo had appealed to the Congolese authorities for per-
mission to return to the DRC, that appeal would have had some prospect
of success”. The DRC cites the general principle of Congolese law that
reconsideration of a decision can in all cases be requested from the
authority having taken it and, if necessary, from that authority’s sup-
erior. It maintains that Mr. Diallo never asked the competent authorities
to reconsider their position and to allow him to return to the DRC.
According to the DRC, such a request would have had a good chance of
success, especially after the change in régime in the country in 1997. The
effectiveness of requests for redress in respect of expulsion decisions in
the DRC is alleged to be confirmed moreover by a substantial practice,
the DRC citing in this regard two applications made by foreign nationals

                                                                         19

                   AHMADOU SADIO DIALLO (JUDGMENT)                         598

appealing their removal from Zairean territory, each of which led to
withdrawal of the removal Order.

   37. Guinea responds that “[a]fter eight years of proceedings the DRC
has shown itself to be incapable of invoking so much as a single real rem-
edy that would have been available to Mr. Diallo” in respect of the viola-
tion of his rights as an individual. On the subject of Mr. Diallo’s expul-
sion from the Congolese territory, Guinea states that there were no
effective remedies first in Zaire, nor in the later DRC, against this
measure, recalling in this regard that the expulsion Order against Mr. Diallo
was carried out by way of an action denominated “refusal of entry” and
that, “under Article 13 of the Legislative Order of 12 September 1983
concerning immigration control [in Zaire] ; ‘[a] measure refusing entry
shall not be subject to appeal’”. Guinea adds that the possibility
Mr. Diallo had to approach the Zairean authority having issued the
expulsion Order “is not[, in any event,] a remedy within the meaning of
the local remedies rule”. It asserts that, on the contrary, this is merely an
“extra-legal procedure that may be characterized as an appeal to the
indulgence of the governmental authorities”. And, according to Guinea,
“[a]dministrative or other remedies which are neither judicial nor quasi-
judicial and are discretionary in nature are not . . . taken into account by
the local remedies rule”. Guinea observes moreover that the two instances
of remedies against expulsion cited by the DRC in support of its position
are not germane since one case involved expulsion on grounds of illegal
immigration, in respect of which a remedy of grace (recours gracieux) is
available, and the other involved a “decision on grounds of undesirabil-
ity” the reason for which is not specified in the Order revoking the deci-
sion.
   38. Guinea further contends that, even though some remedies may in
theory have been available to Mr. Diallo in the Congolese legal system,
they would in any event have offered him no reasonable possibility of
protection at the time. Guinea thus notes that the objective in expelling
Mr. Diallo was precisely to prevent him from pursuing legal proceedings
and argues that
    “if a State deliberately chooses to remove an alien from its
    territory . . . because that alien is seeking local redress, that State can
    no longer reasonably demand that the alien seek redress only through
    legal avenues available in its territory”.
Lastly, it notes that any action taken by Mr. Diallo would have been
doomed to fail owing to the personal animosity towards him harboured
by certain members of the Congolese Government.

                                      *
                                                                            20

                   AHMADOU SADIO DIALLO (JUDGMENT)                       599

   39. The Court will recall that under customary international law, as
reflected in Article 1 of the draft Articles on Diplomatic Protection of the
International Law Commission (hereinafter the “ILC”),

    “diplomatic protection consists of the invocation by a State, through
    diplomatic action or other means of peaceful settlement, of the
    responsibility of another State for an injury caused by an interna-
    tionally wrongful act of that State to a natural or legal person that is
    a national of the former State with a view to the implementation of
    such responsibility” (Article 1 of the draft Articles on Diplomatic
    Protection adopted by the ILC at its Fifty-eighth Session (2006),
    ILC Report, doc. A/61/10, p. 24).
Owing to the substantive development of international law over recent
decades in respect of the rights it accords to individuals, the scope ratione
materiae of diplomatic protection, originally limited to alleged violations
of the minimum standard of treatment of aliens, has subsequently
widened to include, inter alia, internationally guaranteed human rights.

   40. In the present case Guinea seeks to exercise its diplomatic protec-
tion on behalf of Mr. Diallo in respect of the DRC’s alleged violation of
his rights as a result of his arrest, detention and expulsion, that violation
allegedly constituting an internationally wrongful act by the DRC giving
rise to its responsibility. It therefore falls to the Court to ascertain
whether the Applicant has met the requirements for the exercise of dip-
lomatic protection, that is to say whether Mr. Diallo is a national of
Guinea and whether he has exhausted the local remedies available in the
DRC.
   41. To begin with, the Court observes that it is not disputed by the
DRC that Mr. Diallo’s sole nationality is that of Guinea and that he has
continuously held that nationality from the date of the alleged injury to
the date the proceedings were initiated. The Parties have however devoted
much argument to the issue of exhaustion of local remedies.

  42. As the Court stated in the Interhandel (Switzerland v. United
States of America) case,
    “[t]he rule that local remedies must be exhausted before interna-
    tional proceedings may be instituted is a well-established rule of cus-
    tomary international law ; the rule has been generally observed in
    cases in which a State has adopted the cause of its national whose
    rights are claimed to have been disregarded in another State in viola-
    tion of international law. Before resort may be had to an interna-
    tional court in such a situation, it has been considered necessary that
    the State where the violation occurred should have an opportunity
    to redress it by its own means, within the framework of its own
    domestic legal system.” (I.C.J. Reports 1959, p. 27.)

                                                                          21

                   AHMADOU SADIO DIALLO (JUDGMENT)                       600

  43. The Parties do not question the local remedies rule ; they do how-
ever differ as to whether the Congolese legal system actually offered local
remedies which Mr. Diallo should have exhausted before his cause could
be espoused by Guinea before the Court.

   44. In matters of diplomatic protection, it is incumbent on the appli-
cant to prove that local remedies were indeed exhausted or to establish
that exceptional circumstances relieved the allegedly injured person whom
the applicant seeks to protect of the obligation to exhaust available local
remedies (see Elettronica Sicula S.p.A. (ELSI) (United States of
America v. Italy), I.C.J. Reports 1989, pp. 43-44, para. 53). It is for the
respondent to convince the Court that there were effective remedies in its
domestic legal system that were not exhausted (see ibid., p. 46, para. 59).
Thus, in the present case, Guinea must establish that Mr. Diallo exhausted
any available local remedies or, if not, must show that exceptional cir-
cumstances justified the fact that he did not do so ; it is, on the other
hand, for the DRC to prove that there were available and effective rem-
edies in its domestic legal system against the decision to remove Mr. Diallo
from the territory and that he did not exhaust them.

   45. The Court will recall at this stage that, in its Memorial on the mer-
its, Guinea described in detail the violations of international law allegedly
committed by the DRC against Mr. Diallo. Among those cited is the
claim that Mr. Diallo was arbitrarily arrested and detained on two occa-
sions, first in 1988 and then in 1995. It states that he suffered inhuman
and degrading treatment during those periods in detention and adds that
his rights under the 1963 Vienna Convention on Consular Relations were
not respected. The Court observes however that Guinea has not, in any
way, developed the question of the admissibility of the claims concerning
this inhuman and degrading treatment or relating to the 1963 Vienna
Convention on Consular Relations. As the Court has already noted (see
paragraph 36), the DRC has for its part endeavoured in the present pro-
ceedings to show that remedies to challenge the decision to remove
Mr. Diallo from Zaire are institutionally provided for in its domestic
legal system. By contrast, the DRC did not address the issue of exhaus-
tion of local remedies in respect of Mr. Diallo’s arrest, his detention or
the alleged violations of his other rights, as an individual, said to have
resulted from those measures, and from his expulsion, or to have accom-
panied them. In view of the above, the Court will address the question of
local remedies solely in respect of Mr. Diallo’s expulsion.

  46. The Court notes that the expulsion was characterized as a “refusal
of entry” when it was carried out, as both Parties have acknowledged and
as is confirmed by the notice drawn up on 31 January 1996 by the
national immigration service of Zaire. It is apparent that refusals of entry

                                                                          22

                   AHMADOU SADIO DIALLO (JUDGMENT)                       601

are not appealable under Congolese law. Article 13 of Legislative Order
No. 83-033 of 12 September 1983, concerning immigration control,
expressly states that the “measure [refusing entry] shall not be subject to
appeal”. The Court considers that the DRC cannot now rely on an error
allegedly made by its administrative agencies at the time Mr. Diallo was
“refused entry” to claim that he should have treated the measure as an
expulsion. Mr. Diallo, as the subject of the refusal of entry, was justified
in relying on the consequences of the legal characterization thus given by
the Zairean authorities, including for purposes of the local remedies rule.

   47. The Court further observes that, even if this was a case of expul-
sion and not refusal of entry, as the DRC maintains, the DRC has also
failed to show that means of redress against expulsion decisions are avail-
able under its domestic law. The DRC did, it is true, cite the possibility of
requesting reconsideration by the competent administrative authority
(see paragraph 36 above). The Court nevertheless recalls that, while the
local remedies that must be exhausted include all remedies of a legal
nature, judicial redress as well as redress before administrative bodies,
administrative remedies can only be taken into consideration for pur-
poses of the local remedies rule if they are aimed at vindicating a right
and not at obtaining a favour, unless they constitute an essential prereq-
uisite for the admissibility of subsequent contentious proceedings. Thus,
the possibility open to Mr. Diallo of submitting a request for reconsid-
eration of the expulsion decision to the administrative authority having
taken it, that is to say the Prime Minister, in the hope that he would
retract his decision as a matter of grace cannot be deemed a local remedy
to be exhausted.

   48. Having established that the DRC has not proved the existence in
its domestic legal system of available and effective remedies allowing
Mr. Diallo to challenge his expulsion, the Court concludes that the
DRC’s objection to admissibility based on the failure to exhaust local
remedies cannot be upheld in respect of that expulsion.

                                    *   *
  49. The Court now turns to the question of the admissibility of Guin-
ea’s Application in so far as it concerns protection of Mr. Diallo’s rights
as associé of the two companies Africom-Zaire and Africontainers-
Zaire. The DRC raises two objections to admissibility regarding this
aspect of the Application : it contests Guinea’s standing, and it sug-
gests that Mr. Diallo has not exhausted the local remedies that were
available to him in the DRC to assert his rights. The Court will deal

                                                                          23

                    AHMADOU SADIO DIALLO (JUDGMENT)                         602

with these objections in turn, beginning with that relating to Guinea’s
standing.

                                       *
   50. The DRC accepts that under international law the State of nation-
ality has the right to exercise its diplomatic protection in favour of asso-
ciés or shareholders when there is an injury to their direct rights as such.
It nonetheless contends that “international law allows for [this]
protection . . . only under very limited conditions which are not fulfilled
in the present case”.
   51. The DRC maintains first of all that Guinea is not seeking, in this
case, to protect the direct rights of Mr. Diallo as associé. It takes the view
that Guinea “identifies an attack on company rights, resulting in damage
to shareholders, with the violation of their direct rights” or, more specifi-
cally, that it identifies a violation of the rights of Africom-Zaire and Afri-
containers-Zaire with a violation of the rights of Mr. Diallo. The DRC
states as proof that “in several passages in its written pleadings, Guinea
considers claims held by Africom-Zaire and Africontainers-Zaire to be
claims held by Mr. Diallo”. Such confusion between the rights of the
companies and the rights of the shareholders is described by the DRC
not only as “contrary to positive international law” but also as “contrary
to the logic itself of the institution of diplomatic protection” ; it is said to
have been expressly “rejected by the Court in the Barcelona Traction
case”.
   52. The DRC further asserts that, in any event, action to protect the
direct rights of shareholders as such applies to only very limited cases.
Since shareholders “can claim to derive their shareholders rights [only
from the company]”, “by definition, what is envisaged here can only be
the rights of shareholders in their relations with the company”. Accord-
ing to the DRC :
     “[t]his interpretation is confirmed by the list of examples provided by
     the Court [in the Barcelona Traction case] : the right to dividends,
     the right to attend and vote at general meetings, and the right to
     share in the residual assets of the company on liquidation are rights
     which by definition the shareholder can invoke only against the com-
     pany, subject to certain conditions and in accordance with certain
     procedures laid down in the company’s articles and in the commer-
     cial law of the legal order concerned”.
The only acts capable of violating the direct rights of shareholders would
consequently be “acts of interference in relations between the company
and its shareholders”. For the DRC, therefore, the arrest, detention and
expulsion of Mr. Diallo could not constitute acts of interference on its
part in relations between the associé Mr. Diallo and the companies Afri-
com-Zaire and Africontainers-Zaire. As a result, they could not injure
Mr. Diallo’s direct rights.

                                                                             24

                    AHMADOU SADIO DIALLO (JUDGMENT)                        603

  53. The DRC agrees, as suggested by Guinea, that
     “the rights listed in the 1970 Judgment [in the Barcelona Traction
     case] are no more than examples, and that the rights in question
     must be sought in the domestic legislation of the States concerned”.

The DRC also agrees with Guinea on the fact that, in terms of Congolese
law, the direct rights of associés are determined by the Decree of the
Independent State of Congo of 27 February 1887 on commercial corpo-
rations. The rights of Mr. Diallo as associé of the companies Africom-
Zaire and Africontainers-Zaire are therefore theoretically as follows :
“the right to dividends and to the proceeds of liquidation”, “the right to
be appointed manager (gérant)”, “the right of the associé manager
(gérant) not to be removed without cause”, “the right of the manager to
represent the company”, “the right of oversight [of the management]”
and “the right to participate in general meetings”. However, the DRC
notes that in practice, Mr. Diallo “was unable to exercise . . . the right of
oversight of the two companies” since “the statutory oversight is over-
sight of the management [(gérance)]” and “such oversight cannot be
entrusted to an individual who is already manager [(gérant)]”. The
DRC further maintains that, contrary to what is claimed by Guinea,
none of the other rights accorded to Mr. Diallo could have been affected
by his expulsion. Hence it points out that the right of “being paid divi-
dends and liquidation bonuses does not require as a condition of its
enjoyment that the holder live in the Congo”. Likewise, “the functional
rights [of the associé] . . . are not such as to be essentially affected by the
physical absence of the holder from the headquarters of the company”.
Mr. Diallo could very well have exercised them from foreign territory. He
would have had every opportunity of “delegating executive tasks to local
administrators, including through the appointment of a new manager”.
The DRC also notes on this subject
     “that Mr. Diallo himself continued to run Africontainers[-Zaire] and
     pursued recovery of the debts owed to that company well after his
     expulsion . . . [by appointing] representatives and lawyers to act on
     his behalf and on his instructions”.

   54. In support of its diplomatic protection claim on behalf of
Mr. Diallo as associé, Guinea refers to the Judgment in the Barcelona
Traction case, where, having ruled that “an act directed against and
infringing only the company’s rights does not involve responsibility
towards the shareholders, even if their interests are affected” (I.C.J.
Reports 1970, p. 36, para. 46), the Court added that “[t]he situation is
different if the act complained of is aimed at the direct rights of the share-
holder as such” (ibid., p. 36, para. 47). Guinea further claims that this
position of the Court was taken up in Article 12 of the ILC’s draft Arti-
cles on Diplomatic Protection, which provides that :

                                                                            25

                   AHMADOU SADIO DIALLO (JUDGMENT)                        604

       “To the extent that an internationally wrongful act of a State
    causes direct injury to the rights of shareholders as such, as distinct
    from those of the corporation itself, the State of nationality of any
    such shareholders is entitled to exercise diplomatic protection in
    respect of its nationals.”

   55. According to Guinea, the direct rights of Mr. Diallo as a share-
holder of Africom-Zaire and Africontainers-Zaire are essentially deter-
mined by the Decree of 27 February 1887 on commercial corporations.
This text is said to confer on him firstly a series of “property rights”,
including the right to dividends from these companies, and secondly a
series of “functional rights”, including the right to control, supervise and
manage the companies. Guinea claims that the Congolese investment
code also affords Mr. Diallo certain additional rights as shareholder, for
example “the right to a share of the profits of his companies” and “a
right of ownership in his companies, in particular in respect of his
shares”. Guinea thus takes the view that it is confining itself, in its claim,
to the violation of the rights enjoyed by Mr. Diallo in respect of the com-
panies, including his rights of supervision, control and management, and
that it is therefore not confusing his rights with those of the company.

   56. Guinea also points out that, in SPRLs, the parts sociales “are not
freely transferable”, which “considerably accentuates the intuitu personae
character of these companies, very different in this respect from public
limited companies”. It argues that this character is seen as even more
marked in the case of Africom-Zaire and Africontainers-Zaire, since
Mr. Diallo was their “sole manager (gérant) and sole associé (directly or
indirectly)”. According to Guinea, “in fact and in law it was virtually
impossible to distinguish Mr. Diallo from his companies”.

   57. Guinea considers that the arrest, detention and expulsion of
Mr. Diallo not only had the effect “of preventing him from continuing to
administer, manage and control any of the operations of the companies
Africom-Zaire and Africontainers-Zaire”, but were specifically motivated
by the intent to prevent him from exercising these rights, from pursuing
the legal proceedings brought on behalf of the companies, and thereby
from recovering their debts. Such intent is said to emerge from the text of
the Order of 31 October 1995, which refers to “[Mr. Diallo,] whose pres-
ence and conduct have breached Zairean law and order, especially in the
economic, financial and monetary areas, and continue to do so”. These
measures, moreover, are said to have followed on from moves by the
Zairean authorities seeking a stay of execution on a judgment of the Tri-
bunal de Grande Instance of Kinshasa ordering Zaire Shell to pay com-
pensation to Africontainers-Zaire.
   58. Finally, Guinea maintains that, contrary to what is claimed by the
DRC, Mr. Diallo could not validly exercise his direct rights as share-
holder from his country of origin. Consequently,

                                                                           26

                   AHMADOU SADIO DIALLO (JUDGMENT)                        605

    “[e]ven if he had been in a position to appoint a new ‘gérant’ and a
    ‘commissaire’ — and he was not, given his lack of funds — he was
    still being deprived of the right to appoint the management of his
    choice in violation of . . . the 1887 Decree, and he could not be
    expected to confer or abandon the management to some third party”.

Guinea adds that it is unrealistic to claim, as the DRC does, that
Mr. Diallo could have exercised, from abroad, his rights of supervision
and control, or indeed convoked, taken part in and voted at the general
meetings.

                                      *
   59. The Court begins by noting the existence of a disagreement between
the Parties on the circumstances surrounding the establishment of Afri-
com-Zaire and the conduct of its activities, on the continuation of those
activities after the 1980s, and on the consequences these questions may
have under Congolese law. It nonetheless takes the view that this dis-
agreement essentially relates to the merits and that it has no bearing on the
question of the admissibility of Guinea’s Application as challenged in the
Congo’s objections.
   60. The Court notes that the Parties have referred frequently to the
case concerning the Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain). This involved a public limited company
whose capital was represented by shares. The present case concerns
SPRLs whose capital is composed of parts sociales (see paragraph 25
above).
   61. As the Court recalled in the Barcelona Traction case, “[t]here is . . .
no need to investigate the many different forms of legal entity provided
for by the municipal laws of States” (I.C.J. Reports 1970, p. 34, para. 40).
What matters, from the point of view of international law, is to deter-
mine whether or not these have a legal personality independent of their
members. Conferring independent corporate personality on a company
implies granting it rights over its own property, rights which it alone is
capable of protecting. As a result, only the State of nationality may exer-
cise diplomatic protection on behalf of the company when its rights are
injured by a wrongful act of another State. In determining whether a
company possesses independent and distinct legal personality, interna-
tional law looks to the rules of the relevant domestic law.

  62. The Court, in order to establish the precise legal nature of Afri-
com-Zaire and Africontainers-Zaire, must refer to the domestic law of
the DRC and, in particular, to the Decree of 27 February 1887 on com-
mercial corporations. This text states, in Article 1, that “commercial cor-
porations recognized by law in accordance with this Decree shall consti-
tute legal persons having a personality distinct from that of their
members”.

                                                                           27

                   AHMADOU SADIO DIALLO (JUDGMENT)                       606

   63. Congolese law accords an SPRL independent legal personality dis-
tinct 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 Trac-
tion case : “So long as the company is in existence the shareholder has no
right to the corporate assets.” (I.C.J. Reports 1970, p. 34, para. 41.) This
remains the fundamental rule in this respect, whether for a SPRL or for
a public limited company.
   64. The exercise by a State of diplomatic protection on behalf of a
natural or legal person, who is associé or shareholder, having its nation-
ality, seeks to engage the responsibility of another State for an injury
caused to that person by an internationally wrongful act committed by
that State. Ultimately, this is no more than the diplomatic protection of
a natural or legal person as defined by Article 1 of the ILC draft Articles ;
what amounts to the internationally wrongful act, in the case of associés
or shareholders, is the violation by the respondent State of their direct
rights in relation to a legal person, direct rights that are defined by the
domestic law of that State, as accepted by both Parties, moreover. On
this basis, diplomatic protection of the direct rights of associés of a SPRL
or shareholders of a public limited company is not to be regarded as an
exception to the general legal régime of diplomatic protection for natural
or legal persons, as derived from customary international law.

  65. Having considered all of the arguments advanced by the Parties,
the Court finds that Guinea does indeed have standing in this case in so
far as its action involves a person of its nationality, Mr. Diallo, and is
directed against the allegedly unlawful acts of the DRC which are said to
have infringed his rights, particularly his direct rights as associé of the
two companies Africom-Zaire and Africontainers-Zaire.

  66. The Court notes that Mr. Diallo, who was associé in Africom-
Zaire and Africontainers-Zaire, also held the position of gérant in each of
them. An associé of an SPRL holds parts sociales in its capital, while the
gérant is an organ of the company acting on its behalf. It is not for the
Court to determine, at this stage in the proceedings, which specific rights
appertain to the status of associé and which to the position of gérant of
an SPRL under Congolese law. It is at the merits stage, as appropriate,
that the Court will have to define the precise nature, content and limits of
these rights. It is also at that stage of the proceedings that it will be for
the Court, if need be, to assess the effects on these various rights of the
action against Mr. Diallo. There is no need for the Court to rule on these
substantive matters in order to be able to dispose of the preliminary
objections raised by the Respondent.

                                                                          28

                     AHMADOU SADIO DIALLO (JUDGMENT)                      607

   67. In view of the foregoing, the Court concludes that the objection of
inadmissibility raised by the DRC due to Guinea’s lack of standing to
protect Mr. Diallo cannot be upheld in so far as it concerns his direct
rights as associé of Africom-Zaire and Africontainers-Zaire.

                                     *
   68. The DRC further claims that Guinea cannot exercise its diplo-
matic protection for the violation of Mr. Diallo’s direct rights as associé
of Africom-Zaire and Africontainers-Zaire in so far as he has not
attempted to exhaust the local remedies available in Congolese law for
the alleged breach of those specific rights.

  69. The DRC points out that Guinea
    “does not dispute . . . that there are procedures and machinery for
    redress, judicial or otherwise, within the legal system of the DRC
    which would have enabled the companies in question or Mr. Diallo
    himself to safeguard their rights”.
It adds that
    “[i]n the circumstances of the present case, however, there is
    nothing . . . to warrant the conclusion that it was impossible for
    Mr. Diallo to avail himself of the machinery and procedures offered
    by Congolese law which would have enabled him to safeguard his
    rights”.
   70. The DRC thus submits first that “Mr. Diallo’s absence from Con-
golese territory was not an obstacle [in Congolese law] to the proceedings
already initiated when Mr. Diallo was still in the Congo” or for him to
bring other proceedings. Mr. Diallo could also have “giv[en] one or more
representatives power of attorney to act in legal proceedings instituted”
or to “institute fresh proceedings in other disputes”. In that connection,
the DRC observes that in reality the

    “proceedings already set in motion by Mr. Diallo on behalf of the
    companies of which he was managing director were not interrupted
    because of his removal from the national territory”.
It also notes that
    “the alleged ‘extreme poverty’ of Mr. Diallo and his finding it ‘mat-
    erially impossible to initiate further . . . proceedings’ [, as claimed by
    Guinea] . . . are affirmations lacking in credibility and quite without
    evidential value”.
In any event, poverty does not constitute “a new exception to the funda-
mental principle of the prior exhaustion of local remedies”.

                                                                           29

                   AHMADOU SADIO DIALLO (JUDGMENT)                      608

  71. The DRC also asserts that the existing remedies available in the
Congolese legal system are effective. It emphasizes in that respect the fact
that “the ‘effectiveness’ of a remedy in no way implies that the plaintiff
wins the case”, adding that
    “there can clearly be no question of contesting the effectiveness of
    local remedies simply because Mr. Diallo’s initial claims were not
    upheld in full or were subsequently rejected”.

It also points out that in fact
    “the local remedies available within the Congolese legal system have
    been shown to be effective with respect to the disputes submitted to
    the ordinary Congolese courts by the companies Africontainers-
    Zaire and Africom-Zaire”
in which those companies obtained rulings in their favour. Moreover, the
DRC considers that, given “the particular situation in which the Demo-
cratic Republic of the Congo . . . found itself for some years”, it does not
appear that the duration of proceedings before its domestic courts was
unreasonable.
   72. For its part, Guinea alleges that “the Congolese State deliberately
chose to deny access to its territory to Mr. Diallo because of the legal
proceedings that he had initiated on behalf of his companies”. It main-
tains that
    “[i]n these circumstances, to accuse Mr. Diallo of not having
    exhausted the remedies would not only be manifestly ‘unreasonable’
    and ‘unfair’, but also an abuse of the rule regarding the exhaustion
    of local remedies”.
Guinea adds that the circumstances of Mr. Diallo’s expulsion also pre-
cluded him from pursuing local remedies on his own behalf or on that of
his companies. It recalls that Mr. Diallo was first arrested and impris-
oned in 1988, then in 1995 and finally expelled from the territory of the
Congo for having “ventured . . . to bring administrative and legal
claims”. The threat weighing on Mr. Diallo and his exclusion from Con-
golese territory constituted, according to Guinea, “a factual denial of
access to local remedies”. The expulsion of Mr. Diallo from Congolese
territory is also said to have put him in a financial position in which it
was “materially impossible for him to pursue any remedy whatsoever in
Zaire”. As for the possibility referred to by the DRC of appointing
another gérant or giving someone else power of attorney to pursue the
proceedings already initiated or institute fresh proceedings, Guinea points
out that, in the circumstances of the case, “no one could be called upon
to take over so dangerous a managerial post” and that “[t]he possible
successor . . . would have had good reason to think that he was ‘mani-
festly precluded from pursuing local remedies’”.
   73. Guinea further emphasizes that the existing remedies in the Con-

                                                                         30

                   AHMADOU SADIO DIALLO (JUDGMENT)                       609

golese legal system must, in any event, be regarded as ineffective in view,
inter alia, of the excessive delays of the Congolese judicial authorities in
the settlement of the cases brought before them and the “unlawful
administrative practices” allegedly inherent in the Congolese legal sys-
tem, particularly the obstacles placed by the Government authorities to
impede the enforcement of court rulings. Guinea notes in support of
these arguments that there has still been no final ruling in two of the cases
brought before the Congolese courts by Africom-Zaire and Africontain-
ers-Zaire 14 and 13 years ago respectively. According to Guinea such
“excessive lengths were general and probably not exceptional” ; they
demonstrate, it is claimed, “the futility of the remedies which Mr. Dial-
lo’s companies, or indeed he himself, might have done their utmost to
seek”. Guinea also recalls that, irrespective of the duration of proceed-
ings before Congolese courts, “at the time of the events, the enforcement
of legal decisions depended solely on the government’s goodwill”. It illus-
trates its argument by referring to “the interference by the Zairean Gov-
ernment in the legal proceedings brought by Mr. Diallo’s companies”
and more particularly the repeated stays of execution on the ruling of the
Kinshasa Tribunal de Grande Instance in the case between Africontain-
ers-Zaire and Zaire Shell. According to Guinea,

    “[t]he upshot of this is that any legal action that Mr. Diallo or his
    companies might have brought against the government could only
    result in a decision by that government based on political considera-
    tions”.

                                     *
   74. The Court notes that the alleged violation of Mr. Diallo’s direct
rights as associé was dealt with by Guinea as a direct consequence of his
expulsion given the circumstances in which that expulsion occurred. The
Court has already found above (see paragraph 48), that the DRC has not
proved that there were effective remedies, under Congolese law, against
the expulsion Order against Mr. Diallo. The Court further observes that
at no time has the DRC argued that remedies distinct from those in
respect of Mr. Diallo’s expulsion existed in the Congolese legal system
against the alleged violations of his direct rights as associé and that he
should have exhausted them. The Parties have indeed devoted discussion
to the question of the effectiveness of local remedies in the DRC but have
confined themselves in it to examining remedies open to Africom-Zaire
and Africontainers-Zaire, without considering any which may have been
open to Mr. Diallo as associé in the companies. Inasmuch as it has not
been argued that there were remedies that Mr. Diallo should have
exhausted in respect of his direct rights as associé, the question of the
effectiveness of those remedies does not in any case arise.

                                                                          31

                    AHMADOU SADIO DIALLO (JUDGMENT)                        610

   75. The Court concludes from the foregoing that the objection as to
inadmissibility raised by the DRC on the ground of the failure to exhaust
the local remedies against the alleged violations of Mr. Diallo’s direct
rights as associé of the two companies Africom-Zaire and Africontainers-
Zaire cannot be upheld.

                                    *       *
  76. The Court will now consider the question of the admissibility of
Guinea’s Application as it relates to the exercise of diplomatic protection
with respect to Mr. Diallo “by substitution” for Africom-Zaire and Afri-
containers-Zaire and in defence of their rights. Here too the DRC raises
two objections to the admissibility of Guinea’s Application, derived
respectively from Guinea’s lack of standing and the failure to exhaust
local remedies. The Court will again address these issues in turn, begin-
ning with Guinea’s standing.

                                        *
  77. The DRC contends that Guinea cannot invoke, as it does in the
present case,
     “‘considerations of equity’ in order to justify ‘the right to exercise its
     diplomatic protection [in favour of Mr. Diallo and by substitution
     for Africom-Zaire and Africontainers-Zaire] independently of the
     violation of the direct rights [of Mr. Diallo]’”
on the ground that the State whose responsibility is at issue is also the
State of nationality of the companies concerned. It recalls that the insti-
tution of diplomatic protection is based on the premise “whereby any
violation of the rights of a foreign national is also a violation of the rights
of his State of nationality”. “It is this circumstance, and this circumstance
alone, which justifies recourse to diplomatic protection.” And the DRC
emphasizes that “[c]onversely, if no right of its nationals is violated then
no right of the State is violated and, in consequence, that State can in no
circumstances have standing”. The diplomatic protection “by substitu-
tion” proposed by Guinea is thus said to go “far beyond what positive
international law provides”.
   78. The DRC adds that “contrary to what Guinea says, neither the
Court’s jurisprudence nor State practice recognizes the possibility of dip-
lomatic protection by substitution”. It explains that, although it touched
upon this possibility in the Barcelona Traction case, the Court neverthe-
less did not “conclude that such a possibility existed under positive inter-
national law”. On the contrary, the DRC contends that certain judges
were “fiercely opposed to it”. The DRC submits that
     “Guinea vainly seeks acceptance of the notion of a customary basis
     for such protection [by substitution] by relying in turn on : arbitral

                                                                            32

                   AHMADOU SADIO DIALLO (JUDGMENT)                     611

    awards ; decisions of the European Commission of Human Rights ;
    the requirements of Article 25 of the Washington Convention ; ICSID
    jurisprudence ; and bilateral treaties for the promotion and protec-
    tion of investments”.

According to the DRC, the arbitral awards to which Guinea refers are of
no relevance, on the one hand, because of their age and, on the other,
because, in each of the cases concerned, the issue of the right to claim on
behalf of the shareholders had been settled in a convention enabling the
arbitrators to adjudicate without limiting themselves to the application of
general international law and which also contained a waiver by the
respondent State of any right to raise an objection preventing the tribu-
nal from ruling on the merits. The decisions of the European Commis-
sion of Human Rights, “given within a quite specific institutional and
conventional framework, applicable at regional level, [are said to be no
more] . . . relevant to the circumstances of the present case”. As for the
ICSID Convention, bilateral and multilateral treaties for the promotion
and protection of investments and, ICSID decisions, they are also said to
lack relevance, as they “do not constitute the direct application of the
principles and rules governing diplomatic protection”.

   79. According to the DRC, Guinea is in reality asking the Court to
authorize it to exercise its diplomatic protection in a manner contrary to
international law. In this connection, the DRC referred to the Judgment
delivered by a Chamber of the Court in the case concerning Frontier Dis-
pute (Burkina Faso/Republic of Mali), and observed that, since the
Parties had not, in the present case, requested a decision ex aequo et bono
under Article 38, paragraph 2, of the Statute, the Court must “also dis-
miss any possibility of resorting to equity contra legem” (I.C.J. Reports
1986, p. 567, para. 28). The DRC adds that none of the particular cir-
cumstances of the case warrants calling that conclusion into question.
   80. The DRC further contends that, even supposing that the Court
agreed to take account of the considerations of equity relied on by
Guinea, Guinea has not demonstrated that protection of the shareholder
“in substitution” for the company which possesses the nationality of the
respondent State would be justified in the present case. In this connec-
tion, the DRC contends first that it has not been established that the
solution advocated by Guinea is equitable in principle. On the contrary,
the DRC suggests that such protection by substitution would in fact lead
to a discriminatory régime of protection, resulting as it would in the
unequal treatment of the shareholders. Some shareholders, such as
Mr. Diallo in this case, might enjoy the protection of their national State
by virtue of their alien status and of the good relations which they enjoy
with their national authorities, whereas the other shareholders, either
because they have the same nationality as the companies, or because their
country of origin does not wish to exercise diplomatic protection in

                                                                        33

                   AHMADOU SADIO DIALLO (JUDGMENT)                        612

respect of them, could have recourse only to domestic law and domestic
courts to assert their rights. According to the DRC, such a difference in
treatment lacks any objective and reasonable basis and thus constitutes
true discrimination.
   81. Lastly, the DRC maintains that “even assuming that ‘protection
by substitution’ were accepted as justified, application of this principle to
the case of Mr. Diallo would prove fundamentally inequitable”. Accord-
ing to the DRC, “Mr. Diallo’s personality and the conduct adopted by
him since the start of this case are far from irreproachable”. Moreover,
the DRC alleges that it was those “activities [of Mr. Diallo], fraudulent
and detrimental to public order, which motivated his removal from Zair-
ean territory”. It adds that Mr. Diallo’s refusal to exhaust the available
local remedies would also render diplomatic protection by substitution
inequitable in this case.
   82. For its part, Guinea observes that it is not asking the Court to
resort to equity contra legem to decide the present case when invoking
Mr. Diallo’s protection by substitution for Africom-Zaire and Africon-
tainers-Zaire. Rather, Guinea contends that, in the Barcelona Traction
case, the Court referred, in a dictum, to the possibility of an exception,
founded on reasons of equity, to the general rule of the protection of a
company by its national State, “when the State whose responsibility is
invoked is the national State of the company”. In this connection, it
quotes the following passage from the Judgment, which it considers
apposite :
       “On the other hand, the Court considers that, in the field of dip-
    lomatic protection as in all other fields of international law, it is nec-
    essary that the law be applied reasonably. It has been suggested that
    if in a given case it is not possible to apply the general rule that the
    right of diplomatic protection of a company belongs to its national
    State, considerations of equity might call for the possibility of pro-
    tection of the shareholders in question by their own national State.”
    (I.C.J. Reports 1970, p. 48, para. 93.)
According to Guinea, the equity concerned in this case is equity infra
legem. The alleged purpose of such recourse is to permit “‘a reasonable
application’ . . . of the rules relating to diplomatic protection”, in order
“not to deprive foreign shareholders in a company having the nationality
of the State responsible for the internationally wrongful act of all possi-
bility of protection”. Guinea recognizes that the Court did not defini-
tively settle the question of the existence of diplomatic protection by
substitution in the Barcelona Traction case. It nevertheless considers that
the text of the Judgment, read in the light of the opinions of the Members
of the Court appended to it, leads one “to believe that a majority of the
Judges regarded the exception as established in law”.
   83. Guinea contends that the existence of the rule of protection by
substitution and its customary nature are confirmed by numerous arbi-
tral awards establishing

                                                                           34

                   AHMADOU SADIO DIALLO (JUDGMENT)                     613

    “that the shareholders of a company can enjoy the diplomatic pro-
    tection of their own national State as regards the national State of
    the company when that State is responsible for an internationally
    wrongful act against it”.
Further, according to Guinea, “[s]ubsequent practice [following Barce-
lona Traction], conventional or jurisprudential . . . has dispelled any
uncertainty . . . on the positive nature of the ‘exception’”. Guinea thus
refers to certain decisions of the European Commission of Human Rights,
to the Washington Convention establishing the ICSID, to the latter’s
jurisprudence and to the jurisprudence of the Iran-United States Claims
Tribunal.
   84. In Guinea’s view, the application of protection by substitution is
particularly appropriate in this case. Guinea again emphasizes that Afri-
com-Zaire and Africontainers-Zaire are SPRLs, which have a marked
intuitu personae character and which, moreover, are statutorily control-
led and managed by one and the same person. Further, it especially
points out that Mr. Diallo was bound, under Zairean legislation, and in
particular Article 1 of the Legislative Order of 7 June 1966 concerning
the registered office and the administrative seat of companies “whose
main centre of operations is situated in the Congo”, to incorporate the
companies in Zaire. In this regard, Guinea refers to Article 11, paragraph
(b), of the draft Articles on Diplomatic Protection adopted in 2006 by
the ILC, providing that the rule of protection by substitution applies spe-
cifically in situations where the shareholders in a company have been
required to form the company in the State having committed the alleged
violation of international law. Under Article 11, paragraph (b) :

      “A State of nationality of shareholders in a corporation shall not
    be entitled to exercise diplomatic protection in respect of such share-
    holders in the case of an injury to the corporation unless :
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    (b) the corporation had, at the date of injury, the nationality of the
        State alleged to be responsible for causing the injury, and incor-
        poration in that State was required by it as a precondition for
        doing business there.”
   85. Guinea also submits that the accusations made by the DRC against
Mr. Diallo are not supported by any facts. On the contrary, it describes
Mr. Diallo as “a shrewd and serious investor and businessman”, who
has never been accused of not honouring his own commitments to the
Zairean State and private companies, and who has rendered great
services to the economic development of Zaire by making substantial
investments there. Lastly, Guinea rejects as not only inaccurate but
also irrelevant in the present context the allegation that Mr. Diallo
refused to exhaust all the remedies available in the DRC, this being a

                                                                        35

                   AHMADOU SADIO DIALLO (JUDGMENT)                      614

claim concerning a condition for admissibility different from that which
is here examined.

                                     *
   86. The Court recalls that, as regards diplomatic protection, the prin-
ciple as emphasized in the Barcelona Traction case, is that :

       “Not a mere interest affected, but solely a right infringed involves
    responsibility, so that an act directed against and infringing only the
    company’s rights does not involve responsibility towards the share-
    holders, even if their interests are affected.” (I.C.J. Reports 1970,
    p. 36, para. 46.)
   87. Since its dictum in the Barcelona Traction case (ibid., p. 48,
para. 93) (see paragraph 82 above), the Court has not had occasion to
rule on whether, in international law, there is indeed an exception to the
general rule “that the right of diplomatic protection of a company
belongs to its national State” (ibid., p. 48, para. 93), which allows for
protection of the shareholders by their own national State “by substitu-
tion”, and on the reach of any such exception. It is true that in the case
concerning Elettronica Sicula S.p.A. (ELSI) (United States of Amer-
ica v. Italy), the Chamber of the Court allowed a claim by the United
States of America on behalf of two United States corporations (who held
100 per cent of the shares in an Italian company), in relation to alleged
acts by the Italian authorities injuring the rights of the latter company.
However, in doing so, the Chamber based itself not on customary inter-
national law but on a Treaty of Friendship, Commerce and Navigation
between the two countries directly granting to their nationals, corpora-
tions and associations certain rights in relation to their participation in
corporations and associations having the nationality of the other State.
The Court will now examine whether the exception invoked by Guinea is
part of customary international law, as claimed by the latter.

   88. The Court is bound to note that, in contemporary international
law, the protection of the rights of companies and the rights of their
shareholders, and the settlement of the associated disputes, are essentially
governed by bilateral or multilateral agreements for the protection of for-
eign investments, such as the treaties for the promotion and protection of
foreign investments, and the Washington Convention of 18 March 1965
on the Settlement of Investment Disputes between States and Nationals
of Other States, which created an International Centre for Settlement of
Investment Disputes (ICSID), and also by contracts between States and
foreign investors. In that context, the role of diplomatic protection some-
what faded, as in practice recourse is only made to it in rare cases where
treaty régimes do not exist or have proved inoperative. It is in this par-
ticular and relatively limited context that the question of protection by

                                                                         36

                   AHMADOU SADIO DIALLO (JUDGMENT)                     615

substitution might be raised. The theory of protection by substitution
seeks indeed to offer protection to the foreign shareholders of a company
who could not rely on the benefit of an international treaty and to whom
no other remedy is available, the allegedly unlawful acts having been
committed against the company by the State of its nationality. Protection
by “substitution” would therefore appear to constitute the very last resort
for the protection of foreign investments.

  89. The Court, having carefully examined State practice and decisions
of international courts and tribunals in respect of diplomatic protection
of associés and shareholders, is of the opinion that these do not reveal —
at least at the present time — an exception in customary international
law allowing for protection by substitution, such as is relied on by
Guinea.
  90. The fact invoked by Guinea that various international agreements,
such as agreements for the promotion and protection of foreign invest-
ments and the Washington Convention, have established special legal
régimes governing investment protection, or that provisions in this regard
are commonly included in contracts entered into directly between States
and foreign investors, is not sufficient to show that there has been a
change in the customary rules of diplomatic protection ; it could equally
show the contrary. The arbitrations relied on by Guinea are also special
cases, whether based on specific international agreements between two or
more States, including the one responsible for the allegedly unlawful acts
regarding the companies concerned (see, for example, the special agree-
ment concluded between the American, British and Portuguese Govern-
ments in the Delagoa case or the one concluded between El Salvador and
the United States of America in the Salvador Commercial Company case)
or based on agreements concluded directly between a company and the
State allegedly responsible for the prejudice to it (see the Biloune v.
Ghana Investments Centre case).

   91. It is a separate question whether customary international law con-
tains a more limited rule of protection by substitution, such as that set
out by the ILC in its draft Articles on Diplomatic Protection, which
would apply only where a company’s incorporation in the State having
committed the alleged violation of international law “was required by it
as a precondition for doing business there” (Art. 11, para. (b)).

   92. However, this very special case does not seem to correspond to the
one the Court is dealing with here. It is a fact that Mr. Diallo, a Guinean
citizen, settled in Zaire in 1964, when he was 17 years of age, and that he
did not set up his first company, Africom-Zaire, until ten years later, in
1974. In addition, when, in 1979, Mr. Diallo took part in the creation of
Africontainers-Zaire, it was in fact only as manager (gérant) of Africom-

                                                                        37

                   AHMADOU SADIO DIALLO (JUDGMENT)                      616

Zaire, a company under Congolese law. When Africontainers-Zaire was
set up, 70 per cent of its capital was held by associés of Congolese nation-
ality, and only in 1980, one year later, did Mr. Diallo become an associé
in his own name of that company, holding 40 per cent of the capital, fol-
lowing the withdrawal of the other two associés, the company Africom-
Zaire holding the remaining parts sociales. It appears natural, against
this background, that Africom-Zaire and Africontainers-Zaire were cre-
ated in Zaire and entered in the Trade Register of the city of Kinshasa by
Mr. Diallo, who was already engaged in commercial activities. Further-
more, and above all it has not satisfactorily been established before the
Court that their incorporation in that country, as legal entities of Con-
golese nationality, would have been required of their founders to enable
the founders to operate in the economic sectors concerned.

   93. The Court concludes on the facts before it that the companies,
Africom-Zaire and Africontainers-Zaire, were not incorporated in such a
way that they would fall within the scope of protection by substitution in
the sense of Article 11, paragraph (b), of the ILC draft Articles on Dip-
lomatic Protection referred to by Guinea. Therefore, the question of
whether or not this paragraph of Article 11 reflects customary interna-
tional law does not arise in this case.
   94. In view of the foregoing, the Court cannot accept Guinea’s claim
to exercise diplomatic protection by substitution. It is therefore the nor-
mal rule of the nationality of the claims which governs the question of
the diplomatic protection of Africom-Zaire and Africontainers-Zaire.
The companies in question have Congolese nationality. The objection as
to inadmissibility raised by the DRC owing to Guinea’s lack of standing
to offer Mr. Diallo diplomatic protection as regards the alleged unlawful
acts of the DRC against the rights of the two companies Africom-Zaire
and Africontainers-Zaire is consequently well founded and must be
upheld.

                                       *
  95. Having concluded that Guinea is without standing to offer
Mr. Diallo diplomatic protection as regards the alleged unlawful acts of
the DRC against the rights of the companies Africom-Zaire and Afric-
ontainers-Zaire, the Court need not further consider the DRC’s objection
based on the non-exhaustion of local remedies.

                                   *       *
  96. In view of all the foregoing, the Court concludes that Guinea’s
Application is admissible in so far as it concerns protection of
Mr. Diallo’s rights as an individual and his direct rights as associé in
Africom-Zaire and Africontainers-Zaire.

                                  * * *
                                                                         38

                   AHMADOU SADIO DIALLO (JUDGMENT)                      617

  97. In accordance with Article 79, paragraph 7, of the Rules of Court
as adopted on 14 April 1978, time-limits for the further proceedings shall
subsequently be fixed by Order of the Court.

                                  * * *
  98. For these reasons,
  THE COURT,
  (1) As regards the preliminary objection to admissibility raised by the
Democratic Republic of the Congo for lack of standing by the Republic
of Guinea to exercise diplomatic protection in the present case :
  (a) unanimously,
  Rejects the objection in so far as it concerns protection of Mr. Diallo’s
direct rights as associé in Africom-Zaire and Africontainers-Zaire ;

  (b) by fourteen votes to one,
   Upholds the objection in so far as it concerns protection of Mr. Diallo
in respect of alleged violations of rights of Africom-Zaire and Africon-
tainers-Zaire ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges
    Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham,
    Keith, Bennouna, Skotnikov ; Judge ad hoc Mampuya ;
  AGAINST : Judge ad hoc Mahiou ;

 (2) As regards the preliminary objection to admissibility raised by the
Democratic Republic of the Congo on account of non-exhaustion by
Mr. Diallo of local remedies :
  (a) unanimously,
   Rejects the objection in so far as it concerns protection of Mr. Diallo’s
rights as an individual ;
  (b) by fourteen votes to one,
  Rejects the objection in so far as it concerns protection of Mr. Diallo’s
direct rights as associé in Africom-Zaire and Africontainers-Zaire ;

  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges
    Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham,
    Keith, Bennouna, Skotnikov ; Judge ad hoc Mahiou ;
  AGAINST : Judge ad hoc Mampuya ;

  (3) In consequence :
  (a) unanimously,
  Declares the Application of the Republic of Guinea to be admissible in
so far as it concerns protection of Mr. Diallo’s rights as an individual ;

                                                                         39

                   AHMADOU SADIO DIALLO (JUDGMENT)                      618

  (b) by fourteen votes to one,
  Declares the Application of the Republic of Guinea to be admissible in
so far as it concerns protection of Mr. Diallo’s direct rights as associé in
Africom-Zaire and Africontainers-Zaire ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges
    Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham,
    Keith, Bennouna, Skotnikov ; Judge ad hoc Mahiou ;
  AGAINST : Judge ad hoc Mampuya ;

  (c) by fourteen votes to one,
   Declares the Application of the Republic of Guinea to be inadmissible
in so far as it concerns protection of Mr. Diallo in respect of alleged vio-
lations of rights of Africom-Zaire and Africontainers-Zaire.
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges
    Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham,
    Keith, Bennouna, Skotnikov ; Judge ad hoc Mampuya ;
  AGAINST : Judge ad hoc Mahiou.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-fourth day of May, two thou-
sand and seven, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Republic of Guinea and the Government of the Democratic Republic
of the Congo, respectively.

(Signed) President.                        (Signed) Rosalyn HIGGINS,
                                                       President.
                                         (Signed) Philippe COUVREUR,
                                                       Registrar.

  Judge ad hoc MAHIOU appends a declaration to the Judgment of the
Court ; Judge ad hoc MAMPUYA appends a separate opinion to the Judg-
ment of the Court.

                                                      (Initialled) R.H.
                                                      (Initialled) Ph.C.

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