                        SEPARATE OPINION
                   OF JUDGE CANÇADO TRINDADE

                              TABLE OF CONTENTS

                                                                   Paragraphs

     I. PROLEGOMENA : THE SUBJECT OF THE RIGHTS AND THE OBJECT OF
        THE CLAIM                                                           4-10
     II. REFLECTIONS ON THE APPLICABLE LAW IN THE CAS D’ESPÈCE             11-32
         1. Invocation and incidence of the 1966 UN Covenant on Civil
            and Political Rights                                           11-23
         2. Invocation and incidence of the 1981 African Charter on
            Human and Peoples’ Rights                                      24-28
         3. Invocation and incidence of the 1963 Vienna Convention on
            Consular Relations                                             29-32
 III. THE SAGA OF THE SUBJECT OF THE RIGHTS : CONSIDERATIONS ON
      THE VINDICATION OF THE PROTECTED RIGHTS                              33-81
      1. The right to liberty and security of person                       35-55
         (a) The arrests and detention of 1988-1989                        35-49
         (b) The arrests and detention of 1995-1996                        50-55
      2. The right not to be expelled from a State without a legal
         basis                                                             56-64
      3. The right not to be subjected to mistreatment                     65-74
      4. The right to information on consular assistance in the frame-
         work of the guarantees of the due process of law                  75-81
 IV. THE HERMENEUTICS OF HUMAN RIGHTS TREATIES                             82-92
     V. THE PRINCIPLE OF HUMANITY IN ITS WIDE DIMENSION                   93-106
 VI. THE PROHIBITION OF ARBITRARINESS IN THE INTERNATIONAL LAW
     OF HUMAN RIGHTS                                           107-142
     1. The notion of arbitrariness                            108-111
     2. The position of the UN Human Rights Committee          112-116

        3. The position of the African Commission on Human and
           Peoples’ Rights                                              117-122
        4. The jurisprudential construction of the Inter-American Court
           of Human Rights                                              123-130
        5. The jurisprudential construction of the European Court of
           Human Rights                                                 131-139
        6. General assessment                                           140-142
VII. THE MATERIAL CONTENT OF THE PROTECTED RIGHTS                        143-157

94

        1. The right to liberty and security of person               145-147
        2. The right not to be expelled from a State without a legal
           basis                                                     148-152
        3. The interrelationship between the protected rights        153-157
VIII. THE JURISPRUDENTIAL CONSTRUCTION OF THE RIGHT TO INFORMA-
      TION ON CONSULAR ASSISTANCE IN THE CONCEPTUAL UNIVERSE OF
      HUMAN RIGHTS                                                158-188
      1. The individual right beyond the Inter-State dimension    158-162
      2. The humanization of consular law                         163-166
      3. The irreversibility of the advance of humanization       167-188
         (a) The text of the 1963 Vienna Convention               173-174
         (b) The object and purpose of the 1963 Vienna Conven-
              tion                                                    175
         (c) The travaux préparatoires of the 1963 Vienna Conven-
             tion                                                 176-181
         (d) General assessment                                   182-188
 IX. THE NOTION OF “CONTINUING SITUATION” : THE PROJECTION OF
     HUMAN RIGHTS VIOLATIONS IN TIME                          189-199
     X. THE INDIVIDUAL AS VICTIM : REFLECTIONS ON THE RIGHT TO REPA-
        RATION                                                         200-212
 XI. BEYOND THE INTER-STATE DIMENSION : INTERNATIONAL LAW FOR
     THE HUMAN PERSON                                         213-221
XII. CONCLUDING OBSERVATIONS                                           222-231
XIII. EPILOGUE : TOWARDS A NEW ERA OF INTERNATIONAL ADJUDICA-
      TION OF HUMAN RIGHTS CASES BY THE ICJ                   232-245

                                      *

   1. This is the first time in its history, to the best of my knowledge, that
 he International Court of Justice has established violations of the two
human rights treaties at issue, together, namely, at universal level, the
1966 UN Covenant on Civil and Political Rights and, at regional level,
 he 1981 African Charter on Human and Peoples’ Rights both in the
 ramework of the universality of human rights : I fully concur with the
Court’s decision in this respect, as well as in respect of the established
breach of the 1963 Vienna Convention on Consular Relations (Arti-
cle 36 (1) (b)), as set forth in the resolutory points 2, 3 and 4 of the dis-
positif of the present Judgment.
   2. Yet, pursuing a distinct rationale, the Court’s majority came to an
entirely different conclusion in other aspects of the present case (reso-
 utory points 1, 5 and 6 of the dispositif). In relation to these other
aspects, I regret not to be able to concur with the conclusions of the
Court’s majority. In this connection, a point has already been made in a

95

 oint declaration of five Members of the Court 1, appended to the present
Judgment, as to the right to liberty and to security of person (added to
 he right not to be expelled from a State without a legal basis).
   3. In addition thereto, and in relation to other matters dealt with in
 he present Judgment of the Court in the Ahmadou Sadio Diallo case
(Republic of Guinea v. Democratic Republic of the Congo), I thus feel it
my duty to present, in this separate opinion, the foundations of my own
personal position on them. Before embarking on this presentation, I shall
preliminarily draw attention briefly to one significant feature — as I per-
ceive it — of the cas d’espèce, as presented to the Court by the contend-
 ng Parties themselves, in relation to the subject of the rights and the
object of the claim in the cas d’espèce.

                          I. PROLEGOMENA :
         THE SUBJECT OF THE RIGHTS AND THE OBJECT OF THE CLAIM

  4. The present case, opposing the Republic of Guinea to the Demo-
cratic Republic of the Congo, concerns, in reality, the individual rights of
Mr. A. S. Diallo, as set forth in the 1966 UN Covenant on Civil and
Political Rights and in the 1981 African Charter on Human and Peoples’
Rights, namely, and mainly, the right to liberty and security of person,
and the right not to be expelled from a State without a legal basis 2. It
 urther concerns his individual right to information on consular assist-
ance in the framework of the guarantees of the due process of law, as
enshrined into the 1963 Vienna Convention on Consular Relations. The
violations complained of are those of the rights set forth in Articles 9,
paragraphs (1) to (4), and 13, of the Covenant, and in Articles 6 and
12 (4) of the African Charter, and in Article 36 (1) (b) of the 1963 Vienna
Convention.

   5. The two contending States are both parties to the aforementioned
 reaties : Guinea is party to the Covenant on Civil and Political Rights
since 24 January 1978, and to the African Charter since 16 February
1982, and the DRC is party to the Covenant since 1 November 1976, and
 o the African Charter since 20 July 1987. They are both, likewise, parties
 o the 1963 Vienna Convention : Guinea is party to it since 30 June 1988,
and the DRC since 15 July 1976. The present case is, thus, significantly,
an inter-State contentious case before the International Court of Justice,
pertaining entirely to the rights of the individual concerned (Mr. A. S.
Diallo), and the legal consequences of their alleged violation, under a UN
human rights treaty, a regional human rights treaty, and a UN codifica-

  1 Cf., joint declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trin-

dade and Yusuf.
  2 The complaints arise out of the successive arrests and detentions of Mr. A. S. Diallo

n DRC in 1988-1989 and in 1995-1996, as well as his expulsion from the DRC in 1996.

96

ion Convention. This is a significant feature of the present case, unique
n the history of the ICJ.

   6. Once identified the subject of the rights and the object of the claim
 n the cas d’espèce, I purport, in the paragraphs that follow, to address,
 n logical sequence, some interrelated points. First, I shall focus on the
 dentification of the applicable law in the cas d’espèce, with particular
attention to the invocation and the incidence of the relevant provisions of
 he 1966 UN Covenant on Civil and Political Rights and of the 1981
African Charter on Human and Peoples’ Rights, in addition to the rele-
vant provision of the 1963 Vienna Convention on Consular Relations.

   7. Secondly, I shall turn attention to the saga of the subject of rights
 Mr. A. S. Diallo) in the cas d’espèce. I shall concentrate my considera-
 ions on the vindication of the protected rights under those three treaties,
namely, the right to the liberty and security of person, the right not to be
expelled from a State without a legal basis, the right not to be subjected
 o mistreatment, and the right to information on consular assistance in
 he framework of the guarantees of the due process of law.
   8. Thirdly, I shall dwell upon the hermeneutics of human rights trea-
 ies (in so far as it has a bearing on the resolution of the cas d’espèce),
and, fourthly, I shall then concentrate my attention on the principle of
humanity, as I understand it, in its wide dimension. Fifthly, my next set
of considerations will focus on the key issue of the prohibition of arbi-
 rariness in the international law of human rights, wherein I shall review
and assess the position of the UN Human Rights Committee and of the
African Commission on Human and Peoples’ Rights, and the jurispru-
dential construction of the Inter-American and the European Courts of
Human Rights.
   9. Sixthly, in sequence, I shall examine the material content of the pro-
 ected rights under the present Judgment (right to liberty and security of
person, and right not to be expelled from a State without a legal basis), as
well as the jurisprudential construction of the right to information on
consular assistance in the conceptual universe of human rights. In respect
of this latter, I shall dwell upon the individual right to information on
consular assistance beyond the inter-State dimension, and examine and
assess the process of humanization of consular law in this connection (as
I perceive it), and what I consider the irreversibility of such advance of
humanization.
   10. Seventhly, I shall examine the notion of “continuing situation”, in
 he light of the projection of human rights violations in time. This will be
 ollowed, eighthly, by my reflections on the individual as victim and titu-
 aire of the right to reparation, and, ninthly, by a brief presentation of
my outlook of international law for the human person, beyond the inter-
State dimension. The path will then have been paved for the presentation
of my concluding observations, and a brief epilogue on the move — as I

97

perceive it — towards a new era of international adjudication of human
rights cases by the ICJ.

     II. REFLECTIONS ON THE APPLICABLE LAW IN THE CAS D’ESPÈCE
        1. Invocation and Incidence of the 1966 UN Covenant on
                        Civil and Political Rights
  11. Throughout the whole proceedings of the Diallo case, the relevant
provisions of the 1966 UN Covenant on Civil and Political Rights
marked presence, at the written and oral phases, and formed object of the
submissions of the contending Parties. This remarkable feature of the cas
d’espèce before the International Court of Justice is not to be underesti-
mated. Already in its Application instituting proceedings of 28 December
1998, the Applicant State contended that under the Covenant on Civil
and Political Rights, together with the 1948 Universal Declaration of
Human Rights, “no one may be arrested or detained unless proved guilty
according to law by an impartial tribunal acting with regard for the pre-
sumption of innocence and the rights of the defence” (p. 29 in fine).

  12. In its Memorial (of 23 March 2001), Guinea invoked the “relevant
principles” applicable in case of “arbitrary arrest and detention and
expulsion”, as enshrined in Articles 9 (1) and 13 of the Covenant on Civil
and Political Rights (paras. 3.6 and 3.33). On its part, the Respondent
State, the DRC, in its Counter-Memorial (of 27 March 2008), addressed
 he point at issue (para. 1.03), challenging the alleged breaches of Articles 9
and 13 of the Covenant (paras. 1.24-1.31). Shortly afterwards, in its
Reply (of 19 November 2008), Guinea dwelt upon the point at issue, at
greater length, elaborating further on its submissions of violations — on
 he part of the DRC — of Articles 9 (1) to (4) of the Covenant.

   13. This occurred, in Guinea’s view, on account of the arrests and
detentions of Mr. A. S. Diallo in 1988-1989 and in 1995-1996, expressly
referred to (paras. 1.17-1.48), which Guinea regarded as arbitrary, as the
alleged victim was not informed of the reasons for his arrests and deten-
 ions and the charges against him, nor brought before a judge or a court
 o decide on their lawfulness within a reasonable time. Furthermore,
Guinea sustained that the expulsion of the original complainant from the
DRC in 1996 was effected not in conformity with the Covenant on Civil
and Political Rights (Article 12 (4)), nor with the African Charter on
Human and Peoples’ Rights (Article 12 (2)) (paras. 1.60-1.90).

  14. On its part, in its Rejoinder (of 5 June 2009), the DRC contro-
verted the Applicant State’s submission that it had breached Article 9 (1)
 o (4) of the Covenant (paras. 1.18-1.35 and 1.39), also expressly referring

98

 o Mr. A. S. Diallo’s arrests and detentions of 1988-1989 as well as of
1995-1996 (paras. 1.07-1.49). The two contending Parties dwelt further
upon their points in the course of the oral phase of the proceedings
before the Court. Thus, in its pleadings of 19 April 2010, Guinea again
 nvoked Articles 9 and 13 of the Covenant, in combination with Article 6
of the African Charter, and Article 36 (1) (b) of the 1963 Vienna Con-
vention on Consular Relations (cf. infra) 3.
   15. Guinea concentrated attention particularly on Article 9 (1) to (5)
of the Covenant 4. For its part, the DRC, in its pleadings of 26 April
2010, argued that there had been no breach, on its part, of Articles 9 and
13 of the Covenant (on account of Mr. A. S. Diallo’s expulsion of
31 January 1996) 5. The controversies between Guinea and the DRC
were, thus, sustained by them throughout the whole proceedings of the
present case before the Court, in their written and oral phases.
   16. The important point here to be retained and singled out, in my
perception, is precisely that, in the present Diallo case, the two contend-
 ng Parties clearly relied on, as the applicable law in the cas d’espèce,
mainly the UN Covenant on Civil and Political Rights, and also the Afri-
can Charter on Human and Peoples’ Rights. It is highly significant —
perhaps a sign of the new times — that the ICJ is here called upon, by the
contending Parties themselves, to determine whether there has been a
breach, or some breaches, by the Respondent State, of the relevant
provisions of the Covenant and the African Charter, in addition to the
relevant provision of the 1963 Vienna Convention.
   17. It may well be that the present case has undergone a certain meta-
morphosis, since the early days of the Application instituting proceedings
of 28 December 1998 and the Court’s Judgment on preliminary objec-
 ions (of 24 May 2007), followed by the subsequent proceedings till the
present Judgment on the Merits (of 30 November 2010). Earlier on,
much emphasis was placed on property rights and diplomatic protection,
but enthusiasts of those two traditional issues seemed gradually to lose
some or much of their interest (still dreaming of, or longing for, Barce-
 ona Traction added to the Mavrommatis fiction remindful of Vattel), as
 he dynamics of the present case has fortunately taken a new course, in
 he written and oral phases concerning the merits (and reparation).

  18. To my mind, the truth is that, during the proceedings on the merits
 written and oral phases), the present case has taken the form — as it
should — of a clear case of human rights protection. After all, since the
days of Ulpiano (circa 170-228 of our era), honeste vivere comes first.
Vivere itself comes before habere, and dignitatem vivere surely stands
above property rights. Well above discretionary diplomatic protection, this

 3   CR 2010/1 of 19 April 2010, p. 34, para. 24, p. 50, para. 39, and p. 54, paras. 52-55.
 4   Ibid., pp. 36-39, paras. 31-37 ; and cf. CR 2010/5 of 28 April 2010, pp. 18-19, paras. 23-24.
 5   CR 2010/3 of 26 April 2010, pp. 32-36, paras. 58, 62-63, 66 and 70.

99

has become a case of human rights protection, and one with far greater
 nterest, in my view, for the jus gentium of our times. Each case has
a dynamic of its own, and this development in the cas d’espèce should not
pass unnoticed.

   19. It is indeed remarkable that a Court, such as the ICJ, which is
entrusted with the settlement of inter-State disputes, is at last requested,
 n the exercise of its function in contentious matters, to settle a dispute on
 he basis of two human rights treaties (one of the most important UN
human rights treaties, the 1966 Covenant on Civil and Political Rights,
and the African Charter on Human and Peoples’ Rights), in addition to
 he relevant provision of the 1963 Vienna Convention on Consular Rela-
 ions. The submissions of the contending Parties before the Court have
been based on those three treaties, which the two contending States
 hemselves came to identify as the applicable law in the cas d’espèce.
   20. At least one basic lesson can be extracted there from. This lesson is
 ar more important than the already acknowledged impact of interna-
 ional human rights law even upon a voluntarist, inter-State mechanism,
such as diplomatic protection. Beyond the restricted confines of discre-
 ionary diplomatic protection, we can nowadays reckon that we have
before us as essentially a human rights case, a case pertaining to the inter-
national protection of human rights. It is lodged with this Court within
 he confines of an inter-State mechanism, the one envisaged by the Com-
mittee of Jurists which originally devised the PCIJ Statute in 1920, which
became, mutatis mutandis, the ICJ Statute in 1945.

   21. The fact that the mechanism remains a strictly inter-State one,
rather anachronistically, as if attempting to defy the ineluctable passing
of time, does not mean that the reasoning of the ICJ should nowadays
remain also one developed on a strictly inter-State perspective, a reason-
 ng which can only behold States (cf. paras. 203-205, infra). We have
before us a human rights case, a case concerning the rights of Mr. A. S.
Diallo under the UN Covenant on Civil and Political Rights and the
African Charter on Human and Peoples’ Rights (in addition to the 1963
Vienna Convention), in respect of the arrests and detentions he was sub-
 ected to in 1988-1989 and 1995-1996, prior to his expulsion from the
country of his long-time residence in 1996. Despite its inter-State proce-
dure, the Court is called upon to pronounce on the rights of a human
person, beyond the inter-State straightjacket.

   22. Ours are the times of a new jus gentium, focused on the rights of
 he human person, individually or collectively, which the “droit d’état-
 stes” of the legal profession insist on refusing to reckon, or rather on
refusing or failing to understand, willingly or not. Much to the credit of
both Guinea and the DRC, the ICJ is now called upon to settle a dis-
pute brought into its cognizance, in the course of the proceedings on the
merits, on the basis of two human rights treaties (the 1966 Covenant on

100

Civil and Political Rights and the 1981 African Charter on Human and
Peoples’ Rights) which have a prominent place in the contemporary cor-
pus juris of the international law of human rights, in addition to the 1963
Vienna Convention on Consular Relations.

   23. In respect of the merits (and reparation), this is indeed and clearly
a case pertaining to human rights protection, rather than to diplomatic pro-
 ection. This latter was the means (or the tool) whereby the complaint
was lodged with the Court, once the cause of Mr. A. S. Diallo was
espoused by his State of origin or nationality. But diplomatic protection,
 neluctably discretionary in character, has already played its instrumental
role, and the case now before the Court is substantively one pertaining to
human rights protection.

           2. Invocation and Incidence of the 1981 African Charter
                        on Human and Peoples’ Rights

   24. Both the DRC and Guinea focused their pleadings — which I
have taken the care to review in the present separate opinion — on the
UN Covenant on Civil and Political Rights, in so far as the fate of
Mr. A. S. Diallo as an individual is concerned ; yet, as already indicated,
 wo other treaties were referred to, namely, the 1981 African Charter on
Human and Peoples’ Rights, and the 1963 Vienna Convention on Con-
sular Relations, also in respect of Mr. A. S. Diallo’s fate as an indi-
vidual. I shall likewise review their pleadings in relation to these three
 reaties.

   25. In so far as the African Charter on Human and Peoples’ Rights is
concerned, in the consideration of the present Diallo case, it was brought
 nto the picture only at a late stage of the written phase of the proceedings
before the Court. It was not until its Reply (of 10 November 2008) that
Guinea invoked Article 12 (4) of the African Charter, in connection with
 he corresponding Article 13 of the UN Covenant on Civil and Political
Rights, in its argument on the limits imposed by international law on the
expulsion of aliens (paras. 1.60-1.71). The Rejoinder (of 5 June 2009) of
 he DRC did not touch on this point, and concentrated its views, at that
stage, only on the alleged unlawfulness of the arrests and detentions of
Mr. Diallo in 1988-1989 and 1995-1996, not on his expulsion.
   26. In its oral arguments, in addressing the arrests and detentions of
Mr. A. S. Diallo, Guinea sustained breaches of “Article 9 of the 1966
Covenant on Civil and Political Rights, to which might be added Arti-
cle 6 of the African Charter on Human and Peoples’ Rights” 6. Neither
Guinea nor the DRC dwelt much further upon the African Charter in the

  6   CR 2010/1 of 19 April 2010, para. 24, and cf. para. 26.

101

course of the proceedings, but this did not impede the Court to develop,
as it rightly did, its own reasoning to determine the breaches of the rele-
vant provisions of both human rights treaties.

  27. In the circumstances of the case, the ICJ was, in my view, perfectly
entitled to do so, even motu proprio, in so far as the African Charter (in
combination with the aforementioned Covenant) is concerned. It may be
added that, in Article 60, on “Applicable Principles”, the African Charter
discloses a wide horizon for the exercise of its hermeneutics, in providing
 hat its application (by the African Commission — and nowadays also
 he African Court — on Human and Peoples’ Rights) is to :

       “draw inspiration from international law on human and peoples’
       rights, particularly from the provisions of various African instru-
       ments on human and peoples’ rights, the Charter of the United
       Nations, the Charter of the [then] Organization of African Unity,
       the Universal Declaration of Human Rights, other instruments
       adopted by the United Nations and by African countries in the field
       of human and peoples’ rights as well as from the provisions of vari-
       ous instruments adopted within the specialized agencies of the United
       Nations of which the parties to the present Charter are members” 7.

   28. The ICJ, as “the principal judicial organ of the United Nations”
 Article 92 of the UN Charter), was perfectly entitled, in the cas d’espèce
 o proceed, sponte sua, to the legal construction it undertook to deter-
mine the breach of Article 6 of the African Charter together with Arti-
cle 9 (1) of the UN Covenant on Civil and Political Rights (paras. 74-
79). The Court further referred to the relationship between Article 5 of
 he African Charter and Article 7 of the aforementioned Covenant, in respect
of the African Charter’s provision on “the right to the respect of the dignity
 nherent in a human being” (cited in para. 87).

           3. Invocation and Incidence of the 1963 Vienna Convention
                             on Consular Relations
  29. Besides the relevant provisions of the Covenant and of the African

  7 And, further to this provision, Article 61 of the African Charter adds that the African

Commission is also to
      “take into consideration, as subsidiary measures to determine the principles of law,
      other general or special international conventions laying down rules expressly recog-
      nized by member States of the [then] Organization of African Unity, African prac-
      tices consistent with international norms on human and peoples rights, customs
      generally accepted as law, general principles of law recognized by African States as
      well as legal precedents and doctrine”.

102

Charter (supra), the contending Parties also invoked, throughout the
whole proceedings of the present case before the Court, the 1963 Vienna
Convention on Consular Relations, and in particular its Article 36 (1) (b).
Guinea and the DRC thus acknowledged such provisions of those three
 reaties as conforming the applicable law in the cas d’espèce. As for Arti-
cle 36 (1) (b) of the 1963 Vienna Convention, it was Guinea which first
 nvoked and dwelt upon it, at some length, in its Memorial (of 23 March
2001).

   30. On the basis of the case law of the ICJ on the matter, Guinea iden-
 ified, in its Memorial, the right of the individual under that provision of
 he 1963 Vienna Convention (to be informed of consular assistance and
 o avail himself of it if he so wished), and the corresponding obligations
of the States parties (to secure that consular assistance be provided)
under that Convention — none of which had in its view been complied
with in the present case (paras. 3.11-3.12, 3.30.2, 4.4 and 5.1.1). In its
Counter-Memorial (of 27 March 2008), the DRC challenged the submis-
sion of Guinea of a breach of Article 36 (1) (b) of that Convention, by
arguing that “Guinea’s Ambassador in Kinshasa was aware of Mr. Dial-
 o’s arrest and detention in anticipation of his deportation to Conakry”
 para. 1.20, and paras. 1.18-1.19 and 1.21-1.23).

  31. In its Reply (of 19 November 2008), Guinea contended that “the
 acts establishing the elements of the violation of the 1963 Vienna Con-
vention” were, in its view, “unquestionable” (para. 1.7). In reiterating,
and insisting on, its position (paras. 3.3.1 and 4.1.1), Guinea stated :

        “At no time in either 1988-1989 or 1995-1996 was Mr. Diallo, a
      Guinean national, informed of his rights under Article 36, para-
      graph 1 (b), of the Vienna Convention on Consular Relations. (. . .)
      The DRC should have read all three sentences in Article 36, para-
      graph 1 (b), of the 1963 Convention. As stated in the third sentence,
      the competent authorities of the receiving State ‘shall inform the per-
      son concerned without delay of his rights under this subparagraph’.
      This third element cannot be ignored. (. . .) In the present case Zaire
      therefore bore an obligation under the 1963 Convention to ‘inform
      the person concerned without delay of his rights’ at the time of
      his arrest in 1988, and his arrests in 1995 and 1966. This was not
      done, and it constitutes a further violation of Mr. Diallo’s rights.”
      (Paras. 1.49 and 1.51-1.53.)

  32. In the course of the oral arguments of 19 April 2010 before the
Court, Guinea reiteratedly invoked Article 36 (1) (b) of the Vienna Con-
vention on Consular Relations in support of its views 8. In its turn, the

 8 CR 2010/1 of 19 April 2010, pp. 27, 31 and 34-36, paras. 3 (v), 18, 24 and 28-29 ;

CR 2010/2 of 19 April 2010, p. 37, para. 7.

103

DRC argued, in the public sitting of 26 April 2010, that there had been
no breach on its part of that provision of the 1963 Vienna Convention. In
 ts argument, the DRC pursued the matter from a strict inter-State out-
 ook, referring to the contacts (and a letter) between the Ambassador of
Guinea in Kinshasa and the authorities of the Congolese Government 9.
The debates between the two contending Parties, by no means ended in
respect of the three treaties invoked in general before the Court : they
were to continue in relation to the specific rights thereunder that were at
stake — which I shall now turn my attention to.

III. THE SAGA OF THE SUBJECT OF THE RIGHTS : CONSIDERATIONS ON THE
               VINDICATION OF THE PROTECTED RIGHTS

   33. The individual rights vindicated in the present case were alleged to
have been breached in the factual context to the arrests, detentions and
expulsion to which Mr. A. S. Diallo was subjected, in the period ranging
 rom 1988 to 1996. Such rights comprised the right to liberty and to
security of person (Articles 9 (1) to (4) of the UN Covenant on Civil
and Political Rights), the right not to be expelled from a State without a
 egal basis (Article 13 of the Covenant), the right not to be subjected to
mistreatment (Articles 7 and 10 of the Covenant), added to the right to
 nformation on consular assistance in the framework of the guarantees
of the due process of law (Article 36 (1) (b)) of the 1963 Convention on
Consular Relations.

   34. The question may be asked why this latter is listed herein, as an
 ndividual right, provided for in a Convention having in mind consular
relations, and celebrated in 1963 in pursuance of a predominantly
 nter-State optic. I shall address this question, characterizing the right to
 nformation on consular assistance as an individual right, within the
conceptual universe of human rights, in a subsequent section (VIII, infra)
of the present separate opinion, so as to clarify the point and discard
any doubts that might still subsist as to the characterization of the right
 o information on consular assistance. Before embarking on such clarifi-
cation, may I proceed to examine the aforementioned rights, one by one,
 n the subsequent paragraphs.
                1. The Right to Liberty and Security of Person
 a) The arrests and detention of 1988-1989
   35. The first right invoked in the present case was Mr. A. S. Diallo’s
right to liberty and security of person, under Article 9 (1) to (4) of the

  9 CR 2010/3 of 26 April 2010, pp. 26-31, paras. 48-49 and 54 ; and cf. also ibid., pp. 18 and

26-30, paras. 15, 42-47 and 50-53.

104

Covenant. The right is asserted in relation to his arrests and detention in
 he DRC in 1988-1989 and in 1995. The contending Parties did not dis-
pute the fact that Mr. A. S. Diallo was arrested on 25 January 1988, nor
did they disagree that he was placed in detention on 27 January 1988, in
 he Makala prison, and one year later released, on 3 January 1989, due to
a Presidential pardon granted to him, after intervention by Guinea’s
Ambassador 10.
  36. Guinea argued that Mr. A. S. Diallo’s arrest and detention in
1988-1989 were arbitrary, as the sole reason for his imprisonment in Janu-
ary 1988 lay in the fact that the Zairean State was greatly in debt to his
company Africom-Zaire 11. That was in breach, in the view of Guinea, of
 he DRC’s obligations arising under Article 9 of the Covenant 12. For its
part, the DRC argued that “Mr. Diallo had been imprisoned in 1988 pur-
suant to a judicial investigation opened by law officers in the Prosecutor’s
Office of Kinshasa into acts of fraud of which he had, rightly or wrongly,
been accused” 13. The DRC did not challenge Guinea’s factual allegations
with regard to Mr. A. S. Diallo’s arrest and detention in 1988-1989, but
considered it to be a new claim 14.

   37. The relevant provisions of the Covenant to the present line of con-
sideration of the cas d’espèce, are those enshrined into Article 9 (on the
right to liberty and security of person), which states :
      “1. Everyone has the right to liberty and security of person. No one
          shall be subjected to arbitrary arrest or detention. No one shall
          be deprived of his liberty except on such grounds and in accord-
          ance with such procedure as established by law.

       2. Anyone who is arrested shall be informed, at the time of arrest,

    10 Observations of the Republic of Guinea to the Preliminary Objections of the Demo-

  ratic Republic of the Congo (hereinafter “Observations of Guinea”), para. 1.41 ; CR 2006/
51, para. 18, Reply of the Republic of Guinea (hereinafter “Reply of Guinea”), para. 1.13-
1.16. Following this pardon, the Procureur Général at the Prosecutor’s Office in Kinshasa
  losed the case on 28 January 1989 for inexpediency of prosecution ; Observations of
Guinea op. cit. supra, para. 1.43.
    11 Reply of Guinea, para. 1.9.
    12 Guinea referred to a letter dated 4 July 1988 signed by Mr. S. Pida Nbagui, Zaire’s

First State Commissioner, and sent to the President of the Judicial Council of the Repub-
 ic of Zaire ; Reply of Guinea, para. 1.14 ; Observations of Guinea, Annex 15, op. cit.
 upra, note 10. That letter indicated, added Guinea, that the head of the DRC’s Executive
Branch alone gave the order for Mr. A. S. Diallo’s arrests and incarcerations, in an exam-
ple of “the most complete commingling of powers” ; Reply of Guinea, para. 1.15.
  13 Rejoinder of the Democratic Republic of the Congo (hereinafter “Rejoinder of the

DRC”), para. 1.16. It was therefore — the DRC added — a temporary detention for rea-
 ons of judicial investigation. The DRC reproduced the version of the facts set out by the
Guinean Embassy in Kinshasa, in a letter to the Guinean Minister of Foreign Affairs in
Conakry, dated 3 February 1988 ; Rejoinder of the DRC, para. 1.14.
  14 Ibid., paras. 1.11 and 1.13.

105

         of the reasons for his arrest and shall be promptly informed of
         any charges against him.
      3. Anyone arrested or detained on a criminal charge shall be
         brought promptly before a judge or other officer authorized by
         law to exercise judicial power and shall be entitled to trial within
         a reasonable time or to release. It shall not be the general rule
         that persons awaiting trial shall be detained in custody, but
         release may be subject to guarantees to appear for trial, at any
         other stage of the judicial proceedings, and, should occasion
         arise, for execution of the judgement.

      4. Anyone who is deprived of his liberty by arrest or detention
         shall be entitled to take proceedings before a court, in order
         that that court may decide without delay on the lawfulness of
         his detention and order his release if the detention is not law-
         ful.
      5. Anyone who has been the victim of unlawful arrest or detention
         shall have an enforceable right to compensation.”

   38. As to the first point to be herein considered, as to whether there
has been a violation by the DRC of the conditions for permissive depri-
vation of liberty (principle of legality, prohibition of arbitrariness —
Article 9 (1) of the Covenant), it ensues, from the evidence produced in
 he present case, that the Zairean judicial authorities did not issue any
arrest warrant in 1988. This can surely be regarded, under the relevant
provisions of the Covenant on Civil and Political Rights, as an indication
of an arbitrary arrest. This is in line with the notion of arbitrariness
under the Covenant, which I subsequently review in this separate opinion
 section VI, infra). Moreover, there was no decision by the competent
authorities as to the extension of Mr. A. S. Diallo’s detention awaiting
 rial (détention preventive). The fact remains that Mr. A. S. Diallo
remained one year in detention without any further judicial proceedings
or investigation, charging him of any criminal offense.

   39. The DRC did not provide any evidence that Mr. A. S. Diallo was
arrested and imprisoned, as alleged, in the context of a true judicial
 nvestigation opened against him for alleged acts of fraud. In this
regard, the Human Rights Committee has stated that arrests and deten-
 ions effected without charges constitute a violation of Article 9 (1) of
 he Covenant 15. There is no indication that he was charged with a
criminal offense at any time. In the absence of any relevant State party
 nformation, it can be concluded — as the Court correctly did (para. 79)

  15 UN/Human Rights Committee (HRC), case Titiahonjo v. Cameroun, 2007, No. 1186/

2003, para. 6.5 ; HRC, case Monja Jaona v. Madagascar, 1985, No. 132/1982, para. 14 ;
HRC, case Mpandanjila v. The Democratic Republic of the Congo, 1986, No. 138/1983,
para. 10.

106

— that Mr. A. S. Diallo’s deprivation of liberty was arbitrary and
n violation of Article 9 (1) of the Covenant.

   40. Moving on to the right (of the arrested or detained person) to be
 nformed of the reasons for the arrest or detention and the corresponding
charges (Article 9 (2) of the Covenant), Guinea claimed that Mr. A. S.
Diallo was never specifically informed, either of the purported acts
constituting the alleged offence, or of the provisions under which the
accusation was brought against him 16. According to Guinea, the only
 nformation given to Mr. A. S. Diallo by the judicial authority before
which he was brought during his detention was that his arrest was “rel-
ated to the Prime Minister’s communiqué” 17. The judicial authority there-
 ore had no file, no indictment, nothing to show to Mr. A. S. Diallo
authorizing his arrest and imprisonment, other than the Prime Minister’s
communiqué.
   41. The DRC, on its part, acknowledged that Mr. A. S. Diallo was
brought to the office of the Judicial Inspector, who told him that his
arrest was related to the Prime Minister’s press release (about his being
accused of fraud) 18. It thus appears established that a press release of
 he Prime Minister accused Mr. A. S. Diallo of fraud 19, and that this accusa-
 ion was made public on radio and television channels on 20 January
1988, as well as by the press 20. There is no evidence that, at the moment
of Mr. A. S. Diallo’s arrest, Congolese authorities informed him of the
reasons for his arrest, nor is there any evidence that they informed him of
 he charges against him.
   42. The UN Human Rights Committee, on its turn, has stated that the
resulting obligation is not merely one of form. Not only must the indi-
vidual concerned be informed at the time of arrest, but the information
given must also be sufficiently specific 21, so that he knows exactly the rea-
son of the arrest. In the Committee’s own words,

   16 Guinea provided documentary evidence of a transcript by Mr. A. S. Diallo, drawn

up on 29 October 2008 by two process servers for the courts and tribunals of Conakry,
where Mr. A. S. Diallo stated : “[T]hey did not show me a document of any kind author-
 zing my arrest, nor did they explain why I was being arrested”, Reply of Guinea, Annex 1,
answer to question 3.
   17 Ibid., Vol. II, p. 6.
   18 Rejoinder of the DRC, para. 1.22.
   19 Ibid., para. 1.22 ; CR 2010/1 of 19 April 2010, p. 28.
   20 Letter sent to the Guinean Minister for Foreign Affairs in Conakry, dated 3 Febru-

ary 1988. The DRC referred to a letter dated 3 February 1988 from Mr. Lounceny Kouy-
ate (CR 2010/3 of 26 April 2010, pp. 16-17), Counsel at the Guinean Embassy in
Conakry, in support of its contention that Mr. A. S. Diallo and Guinea itself were aware
of the accusations against Mr. A. S. Diallo ; Observations of Guinea, cf. note 10 supra,
pp. 17-18.
   21 HRC, Adolfo Drescher Caldas v. Uruguay, case No. 43/1979, 21 July 1983, paras. 13.2

and 14.

107

         “[T]he Committee is of the opinion that Article 9 (2) of the Cov-
      enant requires that anyone who is arrested shall be informed suffi-
      ciently of the reasons for his arrest to enable him to take immediate
      steps to secure his release if he believes that the reasons given are
      invalid or unfounded. It is the view of the Committee that it was not
      sufficient simply to inform Adolfo Drescher Caldas that he was
      being arrested under the prompt security measures without any indi-
      cation of the substance of the complaint against him.”

In the present Diallo case, in the absence of relevant and precise informa-
 ion from the DRC, Mr. A. S. Diallo’s arrest and detention in 1988 have
amounted to a violation of Article 9 (2) of the Covenant.

   43. Turning now to the next point, as to rights of persons in custody
and pre-trial detention, it may be recalled that Article 9 (3) of the Cov-
enant — already quoted — stipulates that “anyone arrested or detained
on a criminal charge “shall be brought promptly before a judge” or other
 udicial officer and “shall be entitled to trial within a reasonable time or
 o release” ; it adds that it “shall not be the general rule that persons
awaiting trial shall be detained in custody”, but release may be subject to
“guarantees to appear for trial” and, should occasion arise, “for execu-
 ion of the judgment”.

  44. In this provision, what does “promptly” (“dans le plus court
délai”) mean exactly ? The Covenant itself has left it open, and so have
 he corresponding provisions of the European Convention of Human
Rights (Article 5 (3)) and the American Convention on Human Rights
 Article 7 (5)), which have given rise to a considerable case law. However,
 he Human Rights Committee, in its General Comment No. 8 (of 1982),
on Article 9, has emphasized that, in no event, this may last longer than
“a few days” (para. 2) 22. In interpreting the requirement that a person be
brought before a judge or another legal officer “authorized by law to
exercise judicial power”, one may recall the criteria developed by the
European Court of Human Rights in the Schiesser v. Switzerland case
 1979, under Article 5 (3) of the European Convention of Human Rights)
 or the interpretation of that provision (para. 30), to the effect that :

 22 Cf. case Fillastre and Bizouarn v. Bolivia, No. 336/1988 ; and cf. also, in the same

ense, case McLawrence v. Jamaica, No. 702/1996, and case Kurbanov v. Tajikistan,
No. 1096/2002.

108

          “Such a judicial officer must be independent of the executive, per-
       sonally hear the person concerned and be empowered to direct pre-
       trial detention or to release the person arrested.”

   45. This case law has been confirmed by the Human Rights Commit-
 ee in the case Kulomin v. Hungary (1996), wherein the Committee pon-
dered that :
          “It is inherent to the proper exercise of judicial power that it be
       exercised by an authority which is independent, objective and impar-
       tial in relation to the issues dealt with.” 23
In the circumstances of the Kulomin v. Hungary case, the Committee was
not satisfied that the public prosecutor could be regarded as having the
 nstitutional objectivity and impartiality necessary to be considered an
officer authorized to exercise judicial power within the meaning of Arti-
cle 9 (3) of the Covenant. This provision enshrines the principle that pre-
 rial detention cannot become the general rule, and is thus to be limited
 o essential reasons 24, and should anyway be as short as possible.
    46. It should not pass unnoticed that the Covenant regards pre-trial
detention, not surprisingly, as an exceptional measure. In the cas d’espèce,
 t is not disputed that Mr. A. S. Diallo was taken on 25 January 1988, the
day of his arrest, to the office of the Judicial Inspector, where he was told
by the Inspector that his arrest was related to the First State Commis-
sioner’s press release. However, Guinea considered that the Judicial
Inspector assigned to the Prosecutor’s Office, before which Mr. A. S. Dia-
 lo was brought, could not be characterized as an officer authorized by
 aw within the meaning of Article 9 (3) of the Covenant 25. Guinea
added that the aforementioned judicial inspector was obeying the direct
orders of the First State Commissioner 26.

  47. The DRC asserted that the Covenant does not state that the
authority referred to must be independent of the Executive 27. However,
 he DRC has not provided any evidence of a written arrest warrant or a
minute of the first interrogation. Neither was Mr. A. S. Diallo brought
before a judge or other officer authorized by law to exercise judicial
power, according to the obligation set out in Article 9 (3) of the Cov-
enant, under which anyone arrested or detained on a criminal charge must
be brought promptly before a judge or another officer authorized by law

  23 HRC No. 521/1992.
  24 Such as danger of suppression of evidence, of repetition of the offence, or of
absconding.
  25 CR 2010/1 of 19 April 2010, paras. 16-17 ; Reply of Guinea, p. 13, para. 1.24.
  26 Reply of Guinea, para. 1.24.
  27 Rejoinder of the DRC, para. 1.26.

109

 o exercise judicial power. During his entire stay in the prison of Makala
 from 27 January 1988 to 3 January 1989), Mr. A. S. Diallo did not see
any judge 28. Therefore, it so appears that the DRC has incurred into a
breach of Article 9 (3) of the Covenant.

   48. Next, the question may be asked whether the DRC has breached
 he right (of an arrested or detained person) to habeas corpus (Article
9 (4) of the Covenant) 29. This right, to have the detention reviewed in
court without delay, exists irrespective of whether deprivation of liberty
 s unlawful. The Human Rights Committee has stated that the person
deprived of liberty must have access to a lawyer 30. In the present case,
Mr. A. S. Diallo has not been presented any arrest warrant when he was
detained, and thus did not have the opportunity to obtain a ruling on the
 awfulness or otherwise of his detention. It thus appears that the DRC
has incurred into a breach also of Article 9 (4) of the Covenant.
   49. As can be seen from the preceding paragraphs, the contending Par-
 ies — unlike the Court — have taken into account Article 9 of the Cov-
enant as a whole, as they should. I have also taken into account Article 9
of the Covenant as a whole, comme il faut, in the circumstances of the
present case. The Court, however, took into account only paragraphs (1)
and (2) of Article 9, as the arguments on paragraphs (3) and (4) of Arti-
cle 9 pertained to the arrests and detention of Mr. A. S. Diallo of 1988-
1989, which the Court excluded from the scope of its considerations in
 he present case. As I have dissented from that part of the Court’s deci-
sion (corresponding to resolutory point No. 1 of the dispositif), I feel it
my duty to pronounce on the breach of Article 9 of the Covenant as a
whole.

b) The arrests and detention of 1995-1996

  50. The contending Parties agreed that Mr. A. S. Diallo was arrested
and detained more than once in late 1995 and early 1996, but that was as
 ar as they did agree 31. They disagreed on the duration of the periods in
detention (cf. infra) 32. Guinea maintained that Mr. A. S. Diallo was
placed in detention on 5 November 1995 and that he remained impris-

  28  CR 2010/1 of 19 April 2010, para. 17.
  29  According to Guinea, Mr. A. S. Diallo was not given the opportunity to take any
proceedings to obtain a ruling on the lawfulness of his detention ; Reply of Guinea, p. 14.
 n turn, the DRC stated that Guinea has not produced any evidence to show that
Mr. A. S. Diallo was prevented by the DRC from taking such proceedings ; Rejoinder of
 he DRC, para. 1.34.
   30 HRC, Berry v. Jamaica case, 1994, No. 330/1988, para. 11.1.
   31 Reply of Guinea, para. 1.29 ; Counter-Memorial of the DRC, pp. 11-12, paras. 1.09-

1.11 ; CR 2006/50 of 27 November 2006, pp. 39-40, paras. 89-92.
   32 The Congolese legislative order of 12 September 1983 provided for an eight-day

 tatutory limit on detention.

110

oned first for two months, before being released on 10 January 1996,
“further to intervention by the [Zairean] President himself” 33. Mr. A. S. Dia-
 lo was, according to Guinea, then rearrested and imprisoned for two more
weeks before being expelled 34. Mr. A. S. Diallo is thus said to have been
detained for 75 days in all 35.
   51. The DRC, in dismissing these allegations by Guinea, argued that
 he duration and conditions of Mr. A. S. Diallo’s detention during the
expulsion process were in conformity with Zairean law ; in particular, it
contended that the statutory maximum of eight days’ detention was not
exceeded. According to the DRC, Mr. A. S. Diallo was arrested on 5 Nov-
ember 1995 and then released two days later 36. At a date not provided
by the DRC (but allegedly within eight days before 10 January 1996),
Mr. A. S. Diallo was rearrested with a view to expulsion, and then he was
released on 10 January 1996 because the Government had been unable
 o find an aircraft leaving for Conakry within the statutory period of no
more than eight days of detention 37. The DRC claimed at last that
Mr. A. S. Diallo was under arrest in Kinshasa on 25 January 1996 (six
days at least before being expelled), but it did not say since when 38.

  52. It so appears that the Respondent State did not provide evidence
 or all its assertions. In this regard, the only proven facts, not contested
by the contending Parties, are the fact that Mr. A. S. Diallo was arrested
on 5 November 1995 39, as well as his release on 10 January 1996 40. How-
ever, the DRC did not prove its assertion that he was released in between
 hose dates ; nor did it specify exactly when was Mr. A. S. Diallo incar-
cerated after 10 January 1996, before he was deported 41.
  53. Article 9 of the Covenant on Civil and Political Rights refers, in

  33   Memorial of the Republic of Guinea (hereinafter Memorial of Guinea), para. 2.63.
  34 Reply of Guinea, para. 1.40.
  35 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 591, para. 17 ; Memorial
of Guinea, para. 2.64. Guinea relied on the documentary evidence of Avocats sans Fron-
 ières (press release) and an article from the Kinshasa Business and News. An article in the
Guinean daily newspaper Horoya (edition of 6 August 1996) which echoed the Zairean
weekly L’Ouragan (edition of 31 January 1996) was also cited by Guinea. Cf. Memorial of
Guinea, Annexes 190, 193 and 206, respectively.
  36  Counter-Memorial of the DRC, para. 1.10, and Annex 7.
  37  Ibid., para. 1.11.
  38  Ibid., para. 1.21.
   39 Ibid., para. 1.10, and Annex 7 : committal note (billet d’écrou) ; in such handwritten

 ommittal note it can be read that it was said : “Sieur Diallo est détenu à la permanence jus-
qu’à son expulsion du Zaire.”
   40 Reply of Guinea, para. 1.32 ; Memorial of Guinea, Annex 194.
   41 The Respondent State simply gave two clues : the first was the reference to “several

days” after 10 January 1996, and the second was its own statement that on 25 January 1996
Mr. A. S. Diallo was “still in detention in Kinshasa six days before being expelled” ;
 f. Counter-Memorial of the DRC, p. 12, para. 1.11, and p. 16, para. 1.21.

111

general terms, to every type of deprivation of liberty 42, whether pursuant to
a judicial investigation, or following an administrative decision. Article 9
of the Covenant thus applies to the arrests and detentions of Mr. A. S. Dia-
 lo in 1995-1996. Article 9 (1) of the Covenant provides that any depri-
vation of liberty can only be effected in accordance with a procedure
established by law. In the present case, the DRC did not produce any
evidence that Mr. Diallo was likely to evade decisions taken by Zairean
authorities and flee away. Nor did it produce any evidence that Mr. A. S. Dia-
 lo was released between 5 November 1995 and 10 January 1996. Nor
did it provide the decisions extending the detention beyond the first 48
hours 43. In any event, the periods of arrests altogether exceeded the
statutory period of eight days 44.

   54. Moreover, the DRC did not explain why, or whether, it was
“absolutely necessary” to incarcerate again Mr. A. S. Diallo on 17 Janu-
ary 1996 45 ; nor did it ever demonstrate that it was absolutely necessary
 o extend Mr. A. S. Diallo’s detention. In conclusion, Mr. A. S. Diallo’s
arrest and detention in 1995-1996 appears, in the light of the aforemen-
 ioned, arbitrary and unlawful, and thus in breach of Article 9 (1) of the
CCPR, as the Court rightly concluded (Judgment, para. 79).

  55. Next, as to Article 9 (2) of the Covenant, in the present case
Mr. A. S. Diallo was neither informed of the reasons for the arrests nor
promptly informed of the charges against him. He was not even informed
of the adoption of the decree of 31 October 1995 46. The DRC itself
admits that, between 31 October 1995, when the expulsion decree was
adopted, and 31 January 1996, when Mr. A. S. Diallo was actually
deported, he did not know that there was already an expulsion order
against him 47. It thus appears that, by not informing Mr. A. S. Diallo of
 he reasons for his arrests and detentions in 1995-1996, the DRC incurred
 n breach of Article 9 (2) of the Covenant, as the Court rightly deter-
mined (Judgment, para. 82).

  42 Cf. text reproduced in para. 35, supra.
  43 Reply of Guinea, para. 1.46. If Mr. Diallo was released on 10 January 1996, he
would have been arrested on 2 January 1996, but there was no proof that he was freed
before 2 January 1996.
  44 There is some contradiction in the arguments of the DRC : it stated that he was released

on 10 January 1996 because the Government had been unable to find an aircraft leaving for
Conakry, within the statutory period of no more than eight days of detention, pending
 xpulsion from the Congo ; Counter-Memorial of the DRC, para. 1.11. However, the only
document produced, dated 10 January 1996, stated that Mr. A. S. Diallo had been released
“for inquiries” ; Memorial of Guinea, Annex 194. Inaccuracies of the kind make the Respon-
dent State’s argument appear vague and without foundation.
  45 Reply of Guinea, para. 1.40 ; and Annex 1, answers to question 22.
  46 Ibid., para. 1.48 ; and Annex 1, answers to questions 15, 20 and 26.
  47 CR 2006/52 of 29 November 2006, pp. 19-20, para. 10.

112

 2. The Right Not to Be Expelled from a State without a Legal Basis

  56. Another right vindicated in the framework of the cas d’espèce, was
he right not to be expelled from a State without a legal basis, set forth in
Article 13 of the Covenant, which states :
         “An alien lawfully in the territory of a State party to the present
      Covenant may be expelled therefrom only in pursuance of a decision
      reached in accordance with law and shall, except where compelling
      reasons of national security otherwise require, be allowed to submit
      the reasons against his expulsion and to have his case reviewed by,
      and be represented for the purpose before, the competent authority
      or a person or persons especially designated by the competent author-
      ity.”
   57. In the present case, the fact was not disputed that, on 31 October
1995, the Prime Minister of Zaire issued an expulsion order against
Mr. A. S. Diallo 48, with the following reason : Mr. A. S. Diallo’s “pres-
ence and conduct have breached public order in Zaire, especially in the
economic, financial and monetary areas, and continue to do so” 49. It was
also common ground between the contending Parties that, on 5 Novem-
ber 1995, Mr. A. S. Diallo was placed under arrest with a view to his
deportation. However, the Parties contested each other’s arguments as
regards the duration and conditions of the periods of arrest 50 (cf. supra),
as well as in respect of the facts related to the specific circumstances of
Mr. A. S. Diallo’s arrest, detention and expulsion (cf. supra).

   58. Guinea claimed that Mr. A. S. Diallo’s expulsion contravened
some international and domestic rules framing the power to expel,
namely : (a) the Respondent State did not fulfill the obligation to state
reasons for the expulsion ; (b) the jurisdictional, formal and procedural
rules were deliberately evaded ; (c) the refusal-of-entry procedure was
 ntentionally and arbitrarily misused to effect an expulsion ; and, at last,
(d) Mr. A. S. Diallo was at no time afforded the opportunity to submit
 he reasons against his expulsion and to have his case reviewed by the
competent authority. All these elements show that the measure taken
against Mr. Diallo was wholly arbitrary.

   59. There are two different phases in the expulsion of Mr. A. S. Dia-
 lo : first, the expulsion decree of 31 October 1995 ; and secondly, the
notice of refusal of entry of 31 January 1996. As for the grounds for
expulsion, the lack of statement of reasons (in the legal sense of the term)

  48 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),

Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), pp. 590-591, paras. 15-16.
  49 Counter-Memorial of the DRC, Annex 5 (Decree No. 0043 of 31 October 1995, on

deportation of Mr. A. S. Diallo).
  50 Reply of Guinea, para. 1.31.

113

makes the decree of expulsion vague. In this respect, the African Com-
mission on Human and Peoples’ Rights found, in the case of Amnesty
International and Others v. Sudan (1999), that :
         “It is not enough for an arrest to be carried out under a legal pro-
      vision to satisfy the requirements of Article 6 : the law must comply
      with accepted standards. Thus a decree allowing for arrests for
      vague reasons, and upon suspicion rather than proven acts, was not
      in conformity with the African Charter [on Human and Peoples’
      Rights].” 51
   60. As already pointed out, Mr. A. S. Diallo was neither informed of
 he reasons for the arrests nor promptly informed of the charges against
him ; he was not even informed of the adoption of the 31 October 1995
decree for his deportation 52. This fact has been admitted by the DRC 53.
For that reason, Mr. A. S. Diallo could not submit any reason against
 he expulsion, nor could he have had his case reviewed by the competent
authority, as provided for by Article 13 of the Covenant. The decree of
expulsion was thus not in conformity with Article 13 of the Covenant.
   61. There is, furthermore, a disagreement between the contending
Parties as to the form of expulsion of Mr. A. S. Diallo. The DRC
acknowledged that Mr. A. S. Diallo was indeed expelled, and that the
notice signed by the immigration officer “inadvertently” referred to
“refusal of entry” (refoulement), instead of “expulsion”. Guinea sus-
 ained, on its part, that Mr. A. S. Diallo was subjected to a “refusal of
entry” 54. It may here be pointed out that the UN Human Rights Com-
mittee, in its General Comment No. 15, of 1986, on the Position of Aliens
under the Covenant [on Civil and Political Rights], made it clear that the
guarantee of Article 13 of the Covenant relates to any form of “obliga-
 ory departure” of aliens, irrespective of how this was described under
domestic law 55 (cf. infra). Accordingly, although Article 13 refers to
expulsion, it applied likewise to the refusal of entry of Mr. A. S. Diallo.

  62. Article 13 of the Covenant states that the individual subject to
expulsion must be “allowed to submit the reasons against his expulsion”.

   51 Cf. African Commission on Human and Peoples’ Rights, communications 48/90,

50/91, 52/91 and 89/93, para. 59.
   52 Reply of Guinea, para. 1.48 and Annex 1, answers to questions 15, 20 and 26.
   53 CR 2006/52 of 29 November 2006, pp. 19-20, para. 10.
   54 The Court drew attention to this, in its Judgment on preliminary objections, stating

 hat Mr. Diallo “was justified in relying on the consequences of the legal characterization
 hus given by the Zairean authorities” ; Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J. Reports
2007 (II), p. 601, para. 46.
   55 On this point, cf. also : European Court of Human Rights (ECHR), judgment of

5 October 2006, case Bolat v. Russia (Application 14139/03), para. 79 ; ECHR, judgment
of 12 February 2009, case Nolan and K. v. Russia (Application 2512/04), para. 112. And
 f. also UN/International Law Commission (ILC), Memorandum Prepared by the Secre-
 ariat — Expulsion of Aliens, doc. A/CN.4/565, of 10 July 2006, p. 58, para. 67.

114

Furthermore, the possibility must be afforded “to plead [his] case before
 he competent national courts”, according to the African Commission on
Human and Peoples’ Rights 56. However, Mr. A. S. Diallo was not given
due notice of the decision to expel him before it was carried out, and was
not able therefore to oppose any reason against it 57. Mr. A. S. Diallo
should have been enabled to have had his case reviewed by the competent
authority.
  63. In the leading case of Hammel v. Madagascar (1987) 58, the UN
Human Rights Committee decided against the Respondent State because
 he expellee had not been “indicted nor brought before a magistrate
on any charge”, and because “he was not afforded an opportunity to
challenge the expulsion order prior to his expulsion” (para. 18.2). The
Committee added that the victim “was not given an effective remedy to
challenge his expulsion”, and that the State concerned did not show
 hat there were “compelling reasons of national security” to deprive him
of that remedy (para. 19.2).
  64. In formulating its views on the Hammel v. Madagascar case (1987),
 he Human Rights Committee also took into account its General Com-
ment No. 15 (27), on the position of aliens under the Covenant, and
pointed out in particular that :
      “an alien must be given full facilities for pursuing his remedy against
      expulsion so that this right will in all the circumstances of his case be
      an effective one” (para. 19.2).
In the present Diallo case, the victim did not enjoy either, the right of
access to justice (comprising legal assistance) in the context of Article 13
of the Covenant. This Court rightly determined a breach of Article 13 of
 he Covenant in respect of the circumstances surrounding the expulsion
of Mr. A. S. Diallo (para. 74).

            3. The Right Not to Be Subjected to Mistreatment
  65. There are two other provisions of the UN Covenant on Civil and
Political Rights which are pertinent to the consideration of the present
case, namely, Articles 7 and 10 of the Covenant. Article 7 stipulates that :

         “No one shall be subjected to torture or to cruel, inhuman or
      degrading treatment or punishment. In particular, no one shall be
      subjected without his free consent to medical or scientific experimen-
      tation.”

  56 Cf. African Commission on Human and Peoples’ Rights, Union interafricaine des

droits de l’homme and Others v. Angola, No. 159/96, 11 November 1997, para. 20.
  57 Cf. also, on this point, African Commission on Human and Peoples’ Rights,

Amnesty International v. Zambia, No. 212/98, 5 May 1999, para. 41 in fine.
  58 Communication No. 155/83, Human Rights Committee’s views of 3 April 1987,

doc. CCPR/C/29/D/155/1983, pp. 1-9.

115

And, in addition, Article 10 (1) of the Covenant provides that :

          “All persons deprived of their liberty shall be treated with human-
       ity and with respect for the inherent dignity of the human person.”

  66. In this connection, the Human Rights Committee has stressed, in
ts General Comment No. 29 (on Derogations during a State of Emergency),
of 2001, that Article 10 of the Covenant :

       “expresses a norm of general international law not subject to dero-
       gation. This is supported by the reference to the inherent dignity of
       the human person in the preamble to the Covenant and by the close
       connection between Articles 7 and 10” 59 (para. 13 (a)).

   67. In its Memorial 60, Guinea claimed that Mr. A. S. Diallo was mis-
 reated during his imprisonment and expulsion. Guinea asserted, on this
point, that, in carrying out the deportation order, the law enforcement
authorities took Mr. A. S. Diallo away, on 5 November 1995, and
secretly placed him in detention in an Immigration Service lock-up, with-
out any form of judicial process or even examination, and that he
remained imprisoned there without receiving any visit from his lawyers
or officials from the Guinean Embassy until 10 January 1996, i.e., for
65 days.

  68. He is alleged to have been incarcerated under dire conditions and
 o have received no food from the Congolese authorities. In particular,
Guinea argued that during “the first four days of [his] detention [he] was
kept secretly in a mosquito-infested cell that was permanently illuminated
by a very bright light and (. . .) was deprived of food” 61. Being kept in a
cell under those conditions is completely incompatible with Article 10 of
 he Covenant, according to which “[a]ll persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity
of the human person” 62.

   69. Guinea further asserted that Mr. A. S. Diallo’s arrests and expul-
sion were in violation of the minimum standard of protection owed to
aliens 63. Moreover, Guinea claimed that this treatment was in breach of
such minimum standard and, specifically, of the minimum rules for the

  59 The same General Comment No. 29 adds that “in no circumstances” may States

parties invoke Article 4 (in relation to derogations) “as justification for acting in violation
of humanitarian law or peremptory norms of international law” ; para. 11.
  60 Memorial of Guinea, pp. 30-31 and 51 et seq.
  61 Reply of Guinea, Annex 1, pp. 6-7.
  62 CR 2010/5 of 28 April 2010 (translation), para. 23.
  63 Reply of Guinea, para. 1.55.

116

 reatment of prisoners adopted by ECOSOC in 1955 64, whose value was
reaffirmed by the UN General Assembly in 1990 65.

   70. The DRC dismissed these claims and asserted that Mr. Diallo was
held in a well-appointed facility through which passed all aliens under-
going deportation, there has been no production of evidence to the con-
 rary 66. It added that at no time did Guinea’s Ambassador in Kinshasa,
who followed Mr. A. S. Diallo’s case very closely, complain that their
national was subjected to inhuman conditions.

   71. In the view of the DRC, had Guinea presented the Court with evi-
dence that Mr. A. S. Diallo was kept secretly in a mosquito-infested cell
 hat was permanently illuminated by a very bright light and that he was
deprived of food — which it did not — such treatment would not
amount automatically to a breach of Article 10 of the Covenant. The
DRC concluded that Guinea had not proved the consequence of the
alleged inhuman treatment (physical or mental effects of the circum-
stances of Mr. Diallo’s incarceration), and there had thus been no breach
of Article 10 (1) of the Covenant.

   72. In its present Judgment, the Court has found that “it has not been
demonstrated that Mr. Diallo was subjected to treatment prohibited by
Article 10, paragraph 1, of the Covenant” (para. 89). And the Court’s
majority then rejected Guinea’s submissions in this respect (resolutory
point 5 of the dispositif). Unlike in relation to the previous findings of the
Court concerning provisions of the Covenant on Civil and Political
Rights (supra), on this particular point I regret not to be able to follow
 he Court’s majority.
   73. The fact remains that it has not been demonstrated that Arti-
cle 10 (1) has been complied with either. The Court’s majority seems to
have taken a somewhat hurried decision on this particular point, apply-
 ng the presumption in favour of the Respondent State. In human rights
cases of the kind, presumptions apply in favour of the ostensibly weaker
party, the individual, the alleged victim. In the circumstances of the
present case, the burden of proof cannot fall upon the Applicant State ; it
 s the Respondent State that knows — or is supposed to know — the
conditions of detention, and it is, accordingly, upon it that the burden of
proof lies.
   74. After all, it is the receiving State (of residence), rather than the

  64 Cf. the Standard Minimum Rules for the Treatment of Prisoners, adopted by the

First UN Congress on the Prevention of Crime and the Treatment of Offenders, held at
Geneva in 1955, and approved by ECOSOC resolutions 663 C (XXIV) of 31 July 1957
and 2076 (LXII) of 13 May 1977, in particular Principles 20, 22-26 and 87.
  65 UN General Assembly resolution 45/111 of 14 December 1990, Basic Principles for

 he Treatment of Prisoners.
  66 Counter-Memorial of the DRC, paras. 1.12-1.13, and cf. paras. 1.32-1.33.

117

sending State (of nationality), that is supposed to know what is going on
 n its own prisons, how detainees under its custody are being treated. The
conditions of living, or of surviving, in the prisons of the world — in all
continents, anywhere in the world — have been a matter of concern
which has, for a long time, transcended legal thinking. Already in the second
half of the nineteenth century, a universal writer, F. M. Dostoyevsky,
aptly pondered, in his Souvenirs de la maison des morts (1862), on
 he basis of his own personal experience, that the degree of civilization
attained by any human society could be assessed by visiting its prisons.
This remains so nowadays, anywhere in the world.

4. The Right to Information on Consular Assistance in the Framework
            of the Guarantees of the Due Process of Law
  75. Another right vindicated and protected in the framework of the
present Diallo case is the individual right to information on consular
assistance, set forth in Article 36 (1) (b) of the Vienna Convention on
Consular Relations, which significantly provides that :
          “If the [national of the sending State] so requests, the competent
       authorities of the receiving State shall, without delay, inform the
       consular post of the sending State if, within its consular district, a
       national of that State is arrested or committed to prison or to cus-
       tody pending trial or is detained in any other manner. Any commu-
       nication addressed to the consular post by the person arrested, in
       prison, custody or detention shall be forwarded by the said authori-
       ties without delay. The said authorities shall inform the person con-
       cerned without delay of his rights under this subparagraph.”
   76. Guinea claimed that Mr. A. S. Diallo was not informed of his right
under Article 36 (1) (b) of the Vienna Convention, — neither in 1988 nor
 n 1995-1996. The DRC limited itself to asserting that various documents
demonstrated that Mr. A. S. Diallo’s case “was known not only to the
Guinean consulate in Kinshasa but also to the President of the Republic
and the Minister for Foreign Affairs of Guinea” 67. This Court has held,
on previous occasions, that Article 36 (1) (b) of the 1963 Vienna Con-
vention requires the competent authorities of a State party to advise,
without delay, a national of another State party whom such authorities
arrest or detain, of his right to the consular assistance guaranteed by that
Article (the triad of the Breard, LaGrand, and Avena cases).

  77. In this respect, in order to clarify the legal nature and content of
he right at issue, I deemed it fit, at the end of the public sitting of the
Court held on 26 April 2010, to put to the two contending Parties the
ollowing question 68 :

  67   Counter-Memorial of the DRC, p. 16, para. 1.22.
  68   Referred to in paragraph 11 of the present Judgment of the Court.

118

         “In your opinion, do the provisions of Article 36, paragraph 1 (b),
       of the 1963 Vienna Convention on Consular Relations apply
       solely to relations between the sending State or State of nationality
       and the receiving State ? Was Mr. Diallo himself informed about
       consular assistance immediately after his detention? Who is the
       holder of the right to information regarding consular assistance : the
       sending State or State of nationality, or the individual ?” 69
   78. In its written answer to my question, handed to the Court’s Regi-
 try on 27 April 2010, the Respondent State contended that : (a)
Article 36 (1) (b) of the 1963 Vienna Convention creates an “individual
 ight” (Court’s Judgment in the LaGrand case, I.C.J. Reports 2001, p. 494,
para. 77), which is, however, inextricably linked to the sending State’s right
 o communicate with its nationals through consular officers ; (b) although it
 s an individual right, it remains closely linked to the rights of the State itself ;
(c) they are interdependent rights (Court’s Judgment in the Avena case,
I.C.J. Reports 2004 (I), pp. 35-36, para. 40), involving relation between
 he individual and the sending and the receiving States ; (d) Guinea was
aware of Mr. Diallo’s situation, and the purpose of the right to informa-
 ion on consular assistance was thus achieved ; (e) if that right had not
been violated in respect of the sending State, it could not have been so in
respect of its national ; (f) Mr. Diallo had “verbally” been informed by
 he DRC, shortly after his detention, of the “possibility of seeking con-
sular assistance from his State” ; and (g) the individual and his sending
State (or State of nationality) hold the right to information in an inter-
dependent way 70.
   79. Nevertheless, the DRC did not produce any evidence in support of
 ts assertion that Mr. A. S. Diallo had been “verbally” informed promptly,
shortly after his detention, of the possibility to count on consular assist-
ance from Guinea. The DRC did not actually prove that it had duly
 nformed Mr. A. S. Diallo himself, without any delay, of his right under
Article 36 (1) (b) of the 1963 Vienna Convention, having thus had its
 nternational responsibility engaged in that respect.

   80. On its part, Guinea, in its reply to my question, stated, in its oral
arguments of 28 April 2010, that : (a) the State of residence has a duty to
 nform the individual concerned of his right to consular assistance ;
(b) it is the individual who has the right to information, as indicated in
Article 36 (1) (b) in fine of the 1963 Vienna Convention on Consular
Relations ; (c) there is a certain interdependence between the individual
right and the rights of the State (Court’s Judgment in the Avena case,
para. 40), but under Article 36 (1) (b) these latter are subordinated to the
 ormer ; (d) the information by one State to another is not sufficient,
and, in the present case, Mr. Diallo was not informed (by the State of

  69   CR 2010/3 of 26 April 2010, p. 37, para. 73.
  70   CR 2010/5 of 28 April 2010, pp. 1-2.

119

residence) about consular assistance, neither shortly after his detention
nor later on ; (e) the assertion by the DRC in this regard was not accom-
panied by any proof, and the fact is that Mr. Diallo was not informed of
his rights ; and (f) even if the sending State (of nationality) takes cogni-
zance of the situation by other means, there is an international illicit fact
on the part of the State of residence 71.

  81. It should not pass unnoticed, in this connection, that, even before
 he aforementioned obiter dicta of this Court in the LaGrand (2001) and
 he Avena (2004) cases, the first and pioneering articulation of the indi-
vidual’s right to information on consular assistance was the one devel-
oped by the Inter-American Court of Human Rights in its Advisory
Opinion No. 16, of 1 October 1999, on the Right to Information on Con-
sular Assistance in the Framework of the Guarantees of the Due Process
of Law. It was expressly invoked by the contending Parties, and relied
upon mainly by the complaining States, in the LaGrand (Germany v.
United States) and the Avena (Mexico v. United States) cases before
 his Court, as we shall see subsequently (Section VIII, infra) in the
present separate opinion.

             IV. THE HERMENEUTICS OF HUMAN RIGHTS TREATIES
  82. The invocation, by the contending Parties before the ICJ, of such
human rights treaties as the 1996 UN Covenant on Civil and Political
Rights and the 1981 African Charter on Human and Peoples’ Rights, and
 he vindication of some rights protected there under — in addition to
Article 36 (1) (b) of the 1963 Vienna Convention on Consular Relations
n the conceptual universe of human rights — brings to the fore the issue
of the proper interpretation of human rights treaties. These latter go
beyond the realm of purely inter-State relations. When one comes to the
nterpretation of treaties, one is inclined to resort, at first, to the general
provisions enshrined in Articles 31-33 of the two Vienna Conventions on
 he Law of Treaties (of 1969 and 1986, respectively), and in particular to
 he combination under Article 31 of the elements of the ordinary mean-
ng of the terms, the context, and the object and purpose of the treaties at
ssue.

   83. One then promptly finds that, in practice, while in traditional
 nternational law there has been a marked tendency to pursue a rather
restrictive interpretation which gives as much precision as possible to the
obligations of States parties, in the international law of human rights,
somewhat distinctly, there has been a clear and special emphasis on the
element of the object and purpose of the treaty, so as to ensure an effec-
 ive protection (effet utile) of the guaranteed rights, without detracting

  71   CR 2010/5 of 28 April 2010, pp. 9-13.

120

 rom the general rule of Article 31 of the two Vienna Conventions on the
Law of Treaties. In effect, whilst in general international law the elements
 or the interpretation of treaties evolved primarily as guidelines for the
process of interpretation by States parties themselves, human rights trea-
 ies, in their turn, have called for an interpretation of their provisions
bearing in mind the essentially objective character of the obligations
entered into by States parties : such obligations aim at the protection of
human rights and not at the establishment of subjective and reciprocal
rights for the States parties.
   84. Hence the special emphasis on the element of the object and pur-
pose of human rights treaties, of which the jurisprudence constante of the
European and Inter-American Courts of Human Rights has given elo-
quent testimony in the last couple of decades. The interpretation and
application of human rights treaties have indeed been guided by consid-
erations of a superior general interest or ordre public which transcend the
 ndividual interests of Contracting Parties. As indicated by the jurispru-
dence constante of the two aforementioned international human rights
 ribunals, those treaties are distinct from treaties of the classic type which
 ncorporate restrictively reciprocal concessions and compromises ; human
rights treaties, in turn, prescribe obligations of an essentially objective
character, implemented collectively, and are endowed with mechanisms
of supervision of their own. The rich case law on methods of interpreta-
 ion of human rights treaties has enhanced the protection of the human
person at international level and has enriched international law under the
 mpact of the international law of human rights.

   85. The converging case law to this effect has generated the common
understanding, in the regional systems of human rights protection, that
human rights treaties, moreover, are endowed with a special nature (as
distinguished from multilateral treaties of the traditional type) ; that
human rights treaties have a normative character and that their terms are
 o be autonomously interpreted ; that in their application one ought to
ensure an effective protection (effet utile) of the guaranteed rights ; and
 hat permissible restrictions (limitations and derogations) to the exercise
of guaranteed rights are to be restrictively interpreted. The work of the
European and Inter-American Courts of Human Rights (more recently
 oined by the African Court on Human and Peoples’ Rights) has indeed
contributed to the creation of an international ordre public based upon
 he respect for human rights in all circumstances 72 ; it has established lim-
 ts to excessive State voluntarism, and fostered the vision of the relations

  72 A. A. Cançado Trindade, “Le développement du droit international des droits de

’homme à travers l’activité et la jurisprudence des Cours européenne et interaméricaine
des droits de l’homme” (discours du président de la Cour interaméricaine des droits de
’homme) in Cour européenne des droits de l’homme — Rapport annuel 2003, Strasbourg,
CEDH, 2004, pp. 41-50.

121

between public power and the human being whereby the State exists for
 he human being, and not vice-versa.
   86. Furthermore, they have propounded the autonomous interpreta-
 ion of provisions of human rights treaties, by reference to the respective
domestic legal systems. Such autonomous meaning of the terms of human
rights treaties (as distinct from their meaning, e.g., in domestic law) has
been also endorsed, e.g., by the Human Rights Committee, under the UN
Covenant on Civil and Political Rights, for example, in the adoption of
 ts views in the Van Duzen v. Canada case (in 1982). Moreover, the
dynamic or evolutive interpretation of the respective human rights Con-
ventions (the temporal dimension) has been followed by both the Euro-
pean 73 and the Inter-American 74 Courts, so as to fulfill the evolving needs
of protection of the human being.

   87. Thus, in its pioneering Advisory Opinion No. 16, on The Right to
Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law (1999), which has inspired the international
case law in statu nascendi on the matter, the Inter-American Court clari-
fied that, in its interpretation of the norms of the American Convention
on Human Rights, it should extend protection in new situations (such as
 hat concerning the observance of the right to information on consular
assistance) on the basis of preexisting rights. The same vision has been
propounded by that Court in its subsequent and forward-looking Advi-
sory Opinion No. 18, on the Juridical Condition and Rights of Undocu-
mented Migrants (2003).
   88. The European Court of Human Rights has likewise reiteratedly
pronounced to that effect 75 ; in the Loizidou v. Turkey case (preliminary
objections, 1995), for example, the European Court of Human Rights
expressly discarded undue restrictions which would not only “seriously
weaken” its role in the discharge of its functions but “would also dimin-
 sh the effectiveness of the Convention as a constitutional instrument of

  73 E.g., cases Tyrer v. United Kingdom (1978), Airey v. Ireland (1979), Marckx v. Bel-

gium (1979), Dudgeon v. United Kingdom (1981), among others.
  74 Cf., in this sense, the obiter dicta in : IACtHR, advisory opinion OC-16/99, on the

Right to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law, of 1 October 1999, paras. 114-115, and concurring opinion of Judge
A. A. Cançado Trindade, paras. 9-11 ; IACtHR, case of the “Street Children” (Villagrán
Morales and Others v. Guatemala), judgment of 19 November 1999 (merits), paras. 193-
194 ; IACtHR, case Cantoral Benavides v. Peru, judgment of 18 August 2000 (merits),
paras. 99 and 102-103 ; IACtHR, case Bámaca Velásquez v. Guatemala, judgment of
25 November 2000 (merits), separate opinion of Judge A. A. Cançado Trindade, paras. 34-
38 ; IACtHR, case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua,
 udgment of 31 August 2001 (merits and reparations), paras. 148-149 ; IACtHR, case
Bámaca Velásquez v. Guatemala, judgment of 22 February 2002 (reparations), separate
opinion of Judge A. A. Cançado Trindade, para. 3.
  75 For example, in its judgments in the cases of Wemhoff v. The Federal Republic of

Germany (1968), Belgian Linguistic (1968), Golder v. United Kingdom (1975), Ireland v.
United Kingdom (1978) and Soering v. United Kingdom (1989), among others.

122

European public order (ordre public)” 76. There is, thus, a converging
case law of the Inter-American and European Courts of Human Rights —
and indeed of other human rights international supervisory organs — on
 he fundamental issue of the proper interpretation of human rights trea-
 ies, naturally ensuing from the overriding identity of the object and pur-
pose of those treaties.
   89. General international law itself bears witness of the principle (sub-
sumed under the general rule of interpretation of Article 31 of the two
Vienna Conventions on the Law of Treaties) whereby the interpretation
 s to enable a treaty to have appropriate effects. In the present domain of
protection, international law has been made use of in order to improve
and strengthen — and never to weaken or undermine — the safeguard of
recognized human rights 77 (in pursuance of the principle pro persona
humana, pro victima). The specificity of the international law of human
rights finds expression not only in the interpretation of human rights
 reaties in general but also in the interpretation of specific provisions of
 hose treaties 78.
   90. Both the European and the Inter-American Courts of Human Rights
have rightly set limits to State voluntarism, have safeguarded the integ-
rity of the respective human rights Conventions and the primacy of con-
siderations of ordre public over the “will” of individual States, have set
higher standards of State behaviour and established some degree of
control over the interposition of undue restrictions by States, and have
reassuringly enhanced the position of individuals as subjects of the interna-
 ional law of human rights, with full procedural capacity. In so far as
 he basis of their jurisdiction in contentious matters is concerned, eloquent
 llustrations can be found of their firm stand in support of the integrity

  76 European Court of Human Rights, Loizidou v. Turkey case (preliminary objections),

udgment of 23 March 1995, para. 75.
  77 Cf. A. A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of

nternational Protection of Human Rights (at Global and Regional Levels)”, 202 Col-
ected Courses of the Hague Academy of International Law (1987) p. 401.

  78 Pertinent illustrations can be found in, e.g., provisions which contain references to

general international law. Such is the case, for example, of the requirement of prior
 xhaustion of local remedies as a condition of admissibility of complaints or commu-
nications under human rights treaties ; the local remedies rule bears witness of the inter-
action between international law and domestic law in the present domain of protection,
which is fundamentally victim-oriented, concerned with the rights of individual human
beings rather than of States. Generally recognized principles or rules of international law
— which the formulation of the local remedies rule in human rights treaties refers to —
besides following an evolution of their own in the distinct contexts in which they apply,
necessarily suffer, when inserted in human rights treaties, a certain degree of adjustment
or adaptation, dictated by the special character of the object and purpose of those treaties
and by the widely recognized specificity of the international law of human rights. Cf.
A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in
 nternational Law, Cambridge University Press, 1983, pp. 1-443.

123

of the mechanisms of protection of the two respective regional Conven-
 ions 79.
   91. The two international human rights tribunals, by correctly resolv-
 ng basic procedural issues raised in the aforementioned cases, have aptly
made use of the techniques of public international law in order to
strengthen their respective jurisdictions of protection of the human per-
son. They have decisively safeguarded the integrity of the mechanisms of
protection of the American and European Conventions on Human
Rights, whereby the juridical emancipation of the human person vis-à-vis
her own State is achieved. They have, furthermore, achieved a remark-
able jurisprudential construction on the right of access to justice (and of
obtaining reparation) at international level.
   92. As to substantive law, the contribution of the two international
human rights Courts to this effect is illustrated by numerous examples of
 heir respective case law pertaining to the rights protected under the two
regional Conventions. The European Court has a vast and remarkable
case law, for example, on the right to the protection of liberty and secu-
rity of person (Article 5 of the European Convention), and the right to a
 air trial (Article 6). The Inter-American Court has a significant case law
on the fundamental right to life, comprising also the conditions of living,
as from its decision in the paradigmatic case of the so-called “Street Chil-
dren” (Villagrán-Morales and Others v. Guatemala, Merits, 1999) ; it has
also a rich case law on distinct forms of reparations.

          V. THE PRINCIPLE OF HUMANITY IN ITS WIDE DIMENSION

   93. The previous considerations on the hermeneutics of human rights
 reaties lead me now to address the principle of humanity in its wide
dimension. When one refers to the principle of humanity, there is a ten-
dency to consider it in the framework of international humanitarian law.
Thus, for example, it is beyond doubt that, in this framework, civilians
and persons hors de combat are to be treated with humanity. The prin-
ciple of humane treatment of civilians and persons hors de combat is pro-
vided for in the 1949 Geneva Conventions on international humanitarian
 aw (common Article 3, and Articles 12 (1), 13 (5) and 27 (1)), and
 heir Additional Protocols I (Article 75 (1)) and II (Article 4 (1)). Such
principle, moreover, is generally regarded as one of customary interna-
 ional humanitarian law.

  79 For example, the decisions of the European Court in the Belilos v. Switzerland case

 1988), in the Loizidou v. Turkey case (preliminary objections, 1995), and in the I. Ilascu,
A. Lesco, A. Ivantoc and T. Petrov-Popa v. Moldovia and the Russian Federation case
 2001), as well as the decisions of the Inter-American Court in the Constitutional Tribunal
and Ivcher Bronstein v. Peru cases (jurisdiction, 1999), in the Hilaire, Constantine and
Benjamin and Others v. Trinidad and Tobago (preliminary objection, 2001), and in the
Barrios Altos v. Peru case (merits, 2001).

124

   94. My own understanding is in the sense that the principle of human-
 ty is endowed with an even wider dimension : it applies in the most dis-
 inct circumstances, both in times of armed conflict and in times of peace,
 n the relations between public power with all persons subject to the juris-
diction of the State concerned. That principle has a notorious incidence
when these latter are in a situation of vulnerability, or even defenceless-
ness, as evidenced by relevant provisions of distinct treaties integrating
 he international law of human rights. Thus, for example, at UN level,
 he 1990 International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families provides, inter alia, in
 ts Article 17 (1), that :
         “Migrant workers and members of their families who are deprived
      of their liberty shall be treated with humanity and with respect for
      the inherent dignity of the human person and for their cultural iden-
      tity.”
   95. Likewise, the 1989 UN Convention on the Rights of the Child
stipulates (Article 37 (b)) that : “States parties shall ensure that [e]very
child deprived of liberty shall be treated with humanity and respect for
 he inherent dignity of the human person, and in a manner which takes
 nto account the needs of persons of his or her age (. . .)”. Provisions of
 he kind can also be found in human rights treaties at regional level.

   96. To recall but a couple of examples, the 1969 American Convention
on Human Rights, in providing for the right to humane treatment (Arti-
cle 5), determines inter alia that “[a]ll persons deprived of their liberty
shall be treated with respect for the inherent dignity of the human per-
son” (para. 2). Likewise, the 1981 African Charter on Human and
Peoples’ Rights disposes inter alia that “[e]very individual shall have the
right to the respect of the dignity inherent in a human being and to the
recognition of his legal status” (Article 5).
   97. And the 1969 Convention on the Specific Aspects of Refugee
Problems in Africa sets forth, inter alia, that “[t]he grant of asylum to
refugees is a peaceful and humanitarian act (. . .)” (Article II (2)). And
 he examples to the same effect multiply. The point I wish to make here
 s that the principle of humanity permeates the whole corpus juris of the
 nternational protection of the rights of the human person (encompassing
 nternational humanitarian law, the international law of human rights,
and international refugee law), at global (UN) and regional levels.

  98. In respect of the present Diallo case, in particular, it may be
pointed out that the principle of humanity underlies Article 7 of the UN
Covenant on Civil and Political Rights, which protects the individual’s
personal integrity against mistreatment as well as Article 10 of the Cov-
enant (concerning persons under detention), which begins by stating that
“[a]ll persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person” (para. 1). This

125

comprises not only the negative obligation not to mistreat (Article 7), but
also the positive obligation to ensure that a detainee, under the custody
of the State, is treated with humanity and due respect for his inherent
dignity as a human person.

   99. The principle of humanity, in effect, underlies the two General
Comments, No. 9 (of 1982, para. 3) and No. 21 (of 1992, para. 4) on Arti-
cle 10 of the Covenant (humane treatment of persons deprived of their
 iberty). The principle of humanity, usually invoked in the domain of
 nternational humanitarian law, thus extends itself also to that of inter-
national human rights law. And, as the Committee rightly stated in its
General Comment No. 31 (of 2004), “both spheres of law are complemen-
 ary, not mutually exclusive” (para. 11).

   100. The principle of humanity has met with judicial recognition. It is
not my intention here, within the confines of the present separate opinion
 n the Diallo case, to review the international case law to this effect, as
I have done so elsewhere 80. Suffice it here to recall but one selected illus-
 ration, on the basis of my own experience. The jurisprudence constante
of the Inter-American Court of Human Rights has properly warned
 hat the principle of humanity, inspiring the right to humane treatment
 Article 5 of the American Convention on Human Rights), applies
even more forcefully when a person is unlawfully detained, and kept in
an “exacerbated situation of vulnerability” (judgments in the cases of
Maritza Urrutia v. Guatemala, of 27 November 2003, para. 87 ; of
Juan Humberto Sánchez v. Honduras, of 7 June 2003, para. 96 ; Cantoral
Benavides v. Peru, of 18 August 2000, para. 90 ; and cf. Bámaca Velásquez
v. Guatemala, of 25 November 2000, para. 150).
   101. In my separate opinion in the judgment in the case of the Mas-
sacre of Plan de Sánchez (of 29 April 2004), concerning Guatemala, I
devoted a whole section (III, paras. 9-23) of it to the judicial acknowl-
edgement of the principle of humanity in the recent case law of that court
as well as of the ad hoc International Criminal Tribunal for the former
Yugoslavia. Furthermore, I therein expressed my understanding that the
principle of humanity, orienting the way one treats others (el trato
humano), “encompasses all forms of human behaviour and the totality of
 he condition of the vulnerable human existence” (para. 9).

  102. International law is not at all insensitive to that, and the principle
at issue applies in any circumstances, so as to prohibit inhuman treat-
ment, by reference to humanity as a whole, so as to secure protection to

  80 Cf. A. A. Cançado Trindade, “Le déracinement et la protection des migrants dans le

droit international des droits de l’homme”, 19 Revue trimestrielle des droits de l’homme —
Brussels (2008), pp. 289-328, esp. pp. 295 and 308-316.

126

all, including those in a situation of great vulnerability (paras. 17-20).
Humaneness is to condition human behaviour in all circumstances, in
 imes of peace as well as of disturbances and armed conflict.

   103. The principle of humanity permeates the whole corpus juris of
protection of the human person, providing one of the illustrations of the
approximations or convergences between its distinct and complementary
branches (international humanitarian law, the international law of human
rights, and international refugee law), at the hermeneutic level, and also
manifested at the normative and the operational levels. In faithfulness to
my own conception, I have, in this Court likewise, deemed it fit to
develop some reflections on the basis of the principle of humanity
 ato sensu, in my dissenting opinion 81 in the case of the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
I.C.J. Reports 2009, p. 165, as well as in my dissenting opinion 82 in the
case of Jurisdictional Immunities of the State (Germany v. Italy), Counter-
Claim, Order of 6 July 2010, I.C.J. Reports 2010 (I), p. 329.

  104. And, in the Court’s recent Advisory Opinion on Accordance with
International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, I.C.J. Reports 2010 (II), p. 403, I devoted one entire
section (XIII (4)) of my separate opinion expressly to the “fundamental
principle of humanity” (paras. 196-211) in the framework of the law of
nations 83 itself. I saw it fit to recall that the “founding fathers” of inter-
national law (F. de Vitoria, A. Gentili, F. Suárez, H. Grotius, S. Pufen-
dorf, C. Wolff) propounded a jus gentium inspired by the principle of
humanity lato sensu (paras. 73-74).

   105. It may here be pointed out that the principle of humanity is in
 ine with natural law thinking. It underlies classic thinking on humane
 reatment and the maintenance of sociable relationships, also at interna-
 ional level. Humaneness came to the fore even more forcefully in the
 reatment of persons in situation of vulnerability, or even defenselessness,
such as those deprived of their personal freedom, for whatever reason.

  106. The jus gentium, when it began to correspond to the law
of nations, came then to be conceived by its “founding fathers” as regu-
ating the international community constituted by human beings socially
organized in the (emerging) States and co-extensive with humankind,
 hus conforming the necessary law of the societas gentium. This latter
prevailed over the will of individual States, respectful of the human per-

  81   Paragraphs 24-25 and 61.
  82   Paragraphs 116, 118, 125, 136-139 and 179.
  83   Cf. also paragraphs 66-67, 74-76, 96, 176, 185 and 239-240.

127

son, to the benefit of the common good 84. The precious legacy of natural
 aw thinking, evoking the natural law of the right human reason (recta
ratio), has never faded away, and this should be stressed time and time
again, particularly in face of the indifference and pragmatism of the
“strategic” droit d’étatistes, so numerous in the legal profession in our
days.

                 VI. THE PROHIBITION OF ARBITRARINESS IN
                THE INTERNATIONAL LAW OF HUMAN RIGHTS

   107. For the consideration of the present Diallo case, a proper under-
standing of the prohibition of arbitrariness, in the framework of the
 nternational law of human rights, assumes a central importance. To that
end, I shall, next, review the notion of arbitrariness, considering the posi-
 ion of the UN Human Rights Committee and the African Commission
on Human and Peoples’ Rights, as well as the jurisprudential construc-
 ion of the Inter-American and European Courts of Human Rights on
 he matter. I shall then present my general assessment of this key issue.

                        1. The Notion of Arbitrariness
   108. The adjective “arbitrary”, derived from the Latin “arbitrarius”,
originally meant that which depended on the authority or will of the
arbitrator, of a legally recognized authority. With the passing of time,
however, it gradually acquired a different connotation ; already in the
mid-seventeenth century, it had been taken to mean that which
appeared uncontrolled (arbitrary) in the exercise of will, amounting to
capriciousness or despotism. The qualification “arbitrary” came thus to
be used in order to characterize decisions grounded on simple preference
or prejudice, defying any test of “foresee-ability”, ensuing from the
entirely free will of the authority concerned, rather than based on reason,
on the conception of the rule of law in a democratic society, on the cri-
 erion of reasonableness and the imperatives of justice, on the fundamental
principle of equality and non-discrimination.
   109. As human rights treaties and instruments conform a law of pro-
 ection (a droit de protection), oriented towards the safeguard of the
ostensibly weaker party, the victim, it is not at all surprising that the pro-
hibition of arbitrariness (in its modern and contemporary sense) covers
arrests and detentions, as well as other acts of the public power, such as
expulsions. Bearing in mind the hermeneutics of human rights treaties, as
outlined above, a merely exegetical or literal interpretation of treaty pro-
visions would be wholly unwarranted (cf. infra).

  84 A. A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte,

Brazil, Edit. Del Rey, 2006, pp. 9-14, 172, 318-319, 393 and 408.

128

  110. Such has in fact been the understanding of international supervi-
sory organs of human rights protection, as we shall see next. I shall take
as illustrations the positions of two supervisory organs (the UN Human
Rights Committee and the African Commission on Human and Peoples’
Rights), as well as the jurisprudential constructions of two international
human rights tribunals (the Inter-American and the European Courts of
Human Rights).

   111. Preliminarily, as to the determination of the breach of the right
not to be deprived arbitrarily of one’s liberty (principle of legality, pro-
hibition of arbitrariness — Article 9 (1) of the UN Covenant on Civil and
Political Rights), may it be recalled that the UN Working Group on
Arbitrary Detention 85 has expressed that view that deprivation of liberty
 s to be regarded as arbitrary “when it manifestly cannot be justified on
any legal basis” (such as, e.g., continued detention after the sentence has
been served) 86. The UN Human Rights Committee (HRC), the supervi-
sory organ of the Covenant on Civil and Political Rights, has dwelt
 urther upon the matter.

              2. The Position of the UN Human Rights Committee
   112. To start with, there are decisions which reveal the position taken
by the HRC on the matter at issue. For example, in the Mukong v. Cam-
eroon case (1994), the HRC interpreted “arbitrary” in a broad sense, as
meaning inappropriate, unjust, unpredictable and inconsistent with legal-
 ty 87. More generally, the HRC pondered, in the subsequent Jalloh v.
The Netherlands case (2002), that “arbitrary” ought to be understood as
covering “unreasonable action” 88 ; in any event, action ought to be
deemed appropriate and proportional in the circumstances of the case at
 ssue 89.

  85   Established by the former UN Commission on Human Rights, in its resolution 1991/
42.
   86 UN General Assembly doc. A/HRC/7/4/Add.1, of 16 January 2008, p. 3 ; cf. Reply of

Guinea, para. 1.19.
   87 HRC, No. 458/1991, Mukong v. Cameroon, 21 July 1994, para. 9.8.
   88 HRC, No. 794/1998, Jalloh v. The Netherlands, 26 March 2002, A/57/40, Vol. II,

p. 132, para. 8.2.
   89 Furthermore, the UN Declaration on the Human Rights of Individuals Who Are Not

Nationals of the Country in which They Live (of 13 December 1985) provides (in Article 5)
 hat :
       “aliens shall enjoy, in accordance with domestic law and subject to the relevant
       international obligations of the State in which they are present, in particular the fol-
       lowing rights : (a) the right to life and security of person, whereby no alien shall be
       subjected to arbitrary arrest or detention, and no alien shall be deprived of his or
       her liberty except on such grounds and in accordance with such procedures as are

129

  113. In the aforementioned Mukong v. Cameroon case, the Committee
expressly observed that :

          “The drafting history of Article 9 (1) confirms that ‘arbitrariness’
       is not to be equated with ‘against the law’, but must be interpreted
       more broadly to include elements of inappropriateness, injustice,
       lack of predictability and due process of law. (. . .) This means that
       remand on custody pursuant to lawful arrest must not only be lawful
       but reasonable in all the circumstances. Remand in custody must
       further be necessary in all the circumstances.” (Para. 9.8.)

   114. By means of its views on communications, the Committee has
 urther interpreted the Covenant to deal with crucial issues, such as, for
example, that of non-derogable rights and states of emergency 90. It has
made it quite clear, in respect of the issue of arbitrariness of public
authorities, that one is to avoid equating arbitrariness only with the
expression “against the law”. Thus, in the Marques de Morais v. Angola
case (2005), inter alia, it gave arbitrariness a broader interpretation, so as
 o encompass elements of injustice, lack of due process of law, inappro-
priateness, and lack of predictability.
   115. In the same line of reasoning, earlier on, in the case of R. Moj-
 ca v. Dominican Republic (1994) and in the case of Tshishimbi v. Zaire
case (1996), the Committee warned that an interpretation that would
allow States parties “to tolerate, condone or ignore” threats made by
public authorities to the personal liberty and security of non-detained
 ndividuals under the jurisdiction of the States parties concerned “would
render ineffective the guarantees of the Covenant” 91. Likewise, in the
case of L. Rajapakse v. Sri Lanka (2006), the Committee again pon-
dered that personal security was to be safeguarded in distinct circum-
stances, also beyond the context of formal deprivation of liberty
 para. 9.7)
   116. The HRC’s concerns to ensure protection to individuals against
arbitrariness on the part of State authorities is not restricted to the right
 o personal liberty, but extends to other rights protected under the Cov-
enant as well. It is present in some of its views on communications con-
cerning expulsions, under Article 13 of the Covenant (on the right of
aliens not to be expelled arbitrarily). The test of bona fides or prohibition
of abus de pouvoir on the part of those authorities was applied by the

      established by law ; (b) the right to protection against arbitrary or unlawful inter-
      ference with privacy, family, home or correspondence (...)”.
   90 Cf., e.g., [Various Authors], Droits intangibles et états d’exception (eds. D. Prémont

 t al.), Brussels, Bruylant, 1996, pp. 1 et seq.
   91 Para. 5.4, in both cases. In the L. Rajapakse v. Sri Lanka case (2006), likewise, the

Committee again pondered that personal security was to be safeguarded in distinct cir-
 umstances, also beyond the context of formal deprivation of liberty.

130

HRC in the A. Maroufidou v. Sweden case (1981) ; and in the E. Hammel
v. Madagascar case (1987) the HRC upheld the right to an effective (dom-
estic) remedy in such cases of expulsion.

          3. The Position of the African Commission on Human
                           and Peoples’ Rights
  117. There are several decisions of the African Commission on Human
and Peoples’ Rights (ACHPR) determining the occurrences of breaches
of Article 6 of the African Charter on Human and Peoples’ Rights 92, in
so far as the prohibition of arbitrary arrests or detentions is concerned.
In one of those cases in which the ACHPR established a breach of the
kind, namely, the case of L. Zegveld and M. Ephrem v. Eritrea (2003),
 he ACHPR stated quite clearly that, by means of its Article 6 :
         “The African Charter specifically prohibits arbitrary arrests and
      detentions.
         Evidence before the African Commission indicates that the 11 per-
      sons have been held incommunicado and without charge since they
      were arrested in September 2001 (. . .). The African Commission notes
      that to date it has not received any information or substantiation
      from the Respondent State demonstrating that the 11 persons were
      being held in appropriate detention facilities and that they had been
      produced before courts of law.
         Incommunicado detention is a gross human rights violation (. . .).
      The African Commission is of the view that all detentions must be
      subject to basic human rights standards (. . .). Furthermore, every
      detained person must have prompt access to a lawyer and to their
      families and their rights with regard to physical and mental health
      must be protected as well as entitlement to proper conditions of
      detention.” 93
  118. In stressing, in its decision in the same L. Zegveld and M. Ephrem
case, the prohibition of arbitrary arrests and detentions under the Afri-
can Charter (Article 6), the ACHPR warned that arbitrariness affected
 he right of access to justice itself. In the words of the ACHPR,

      “the lawfulness and necessity of holding someone in custody must be
      determined by a court of other appropriate judicial authority. The
      decision to keep a person in detention should be open to review peri-

  92 Cf., to this effect, e.g., its decisions in the cases Media Rights Agenda v. Nigeria

 2000), paras. 41-44 and 70-75 ; J. D. Ouko v. Kenya (2000), paras. 21 and 31 ; K. Ami-
nu v. Nigeria (2000), paras. 21 and 26 ; D. K. Jawara v. Gambia (2000), paras. 57-59 and
74 ; Constitutional Rights Project v. Nigeria (1999), paras. 12-16 ; Law Office of Ghazi
Suleiman v. Sudan (2003), paras. 48-50 and 67 ; K. Achuthan and Amnesty International
(on Behalf of A. Banda, and O. and V. Chirwa) v. Malawi (1994), paras. 8-9 and 12.
  93 Paragraphs 52-55.

131

       odically (. . .). Persons suspected of committing any crime must be
       promptly charged with legitimate criminal offences and the State
       should initiate legal proceedings that should comply with fair trial
       standards as stipulated by the African Commission in its [1992]
       Resolution on the Right to Recourse and Fair Trial and elaborated
       upon in its [2003] Guidelines on the Right to Fair Trial and Legal
       Assistance in Africa.” 94
   119. The practice of the African Commission in respect of the prohibi-
 ion of arbitrariness is not restricted to Article 6, on the prohibition of
arbitrary arrests and detentions. It extends, naturally, to other rights pro-
 ected under the African Charter, such as the right not to be expelled
arbitrarily from a country, as provided in Article 12 (4) of the Charter :
“A non-national legally admitted in a territory of a State party to the
present Charter, may only be expelled from it by virtue of a decision
 aken in accordance with the law.” In this connection, in the case of the
Organisation mondiale contre la torture, Association internationale des
 uristes democrates, Commission Internationale des juristes and Union
 nterafricaine des droits de l’homme v. Rwanda (1996) 95, the African
Commission clarified that :
         “This provision should be read as including a general protection
       of all those who are subject to persecution, that they may seek refuge
       in another State. Article 12 (4) prohibits the arbitrary expulsion of
       such persons from the country of asylum. (. . .).” (Para. 30.) 96

  120. In a case lodged with the Commission by the Union Interafricaine
des droits de l’homme, Fédération internationale des ligues des droits de
’homme, Rencontre africaine des droits de l’homme, and Organisation
nationale des droits de l’homme au Sénégal 97, on behalf of certain West
African nationals expelled from Angola in 1996, the ACHPR, in deciding
n favour of the complainants on 11 November 1997, pondered, after
nvoking Article 12 (4) of the Charter (para. 14), that :

       “African States in general and the Republic of Angola in particu-
       lar are faced with many challenges, mainly economic. In the face of
       such difficulties, States often resort to radical measures aimed at
       protecting their nationals and their economics from non-nationals.
       Whatever the circumstances may be, however, such measures should
       not be taken at the detriment of human rights. (. . .) By deporting

  94Paragraph 56.
  95Communications Nos. 27/89, 46/91, 49/91 and 99/93, joined.
 96 Text reproduced in : Institute for Human Rights and Development, Compilation of

Decisions on Communications of the African Commission on Human and Peoples’ Rights
1994-2001), p. 324.
 97 Communication No. 159/96.

132

      the victims, thus separating some of them from their families, the
      defendant State has violated and violates the letter of this text.”
      (Paras. 16-17.) 98
   121. Warnings of the kind have been made by the African Commission
 n its decisions also in the cases of Modise v. Botswana (2000, paras. 83-
84), Rencontre africaine pour la défense des droits de l’homme v. Zambia
 1997, paras. 30-31), K. Good v. Republic of Botswana (2010, paras. 206-208),
Institute for Human Rights and Development in Africa v. Angola (2008,
paras. 65 and 69-70). In the aforementioned case of the Rencontre africaine
pour la défense des droits de l’homme, the Commission held that the
deportations at issue breached Articles 2, 7 and 12 of the African Charter,
after pondering that “none of the deportees had the opportunity to seize
 he Zambian courts to challenge their detention or deportation” 99. And in
 he aforementioned Modise case, the Commission pondered that the decision
as to who is permitted to remain in a country “should always be made
according to careful and just legal procedures” (para. 83). In other words,
 t is not sufficient that State authorities proceed in accordance with the law,
as this latter must be in conformity with the African Charter, and reflect
 he basic requirements of justice.
   122. In the case of Amnesty International, Comité Loosli Bachelard,
Lawyers Committee for Human Rights, and Association of Members of
 he Episcopal Conference of East Africa v. Sudan (1999), concerning the
situation prevailing in Sudan between 1989 and 1993, the ACHPR
observed that Article 6 ought to be interpreted in such a way as to effect
arrests “only in the exercise of powers normally granted to the security
 orces in a democratic society”. In its view, the wording of the decree at
 ssue allowed for individuals to be arrested for “vague reasons, and upon
suspicion, not proven acts”, and that was “not in conformity with the
spirit of the African Charter” ; the Commission established “serious and
continuing violations of Article 6”, among other provisions of the Char-
 er 100. In sum, the position upheld by the ACHPR in its practice is that
 he prohibition of arbitrariness covers not only the right to personal lib-
erty, but other rights protected under the African Charter, such as, inter
alia, the right not to be arbitrarily expelled from a country.

        4. The Jurisprudential Construction of the Inter-American
                        Court of Human Rights
 123. Turning now to the jurisprudential construction of the Inter-
American Court of Human Rights (IACtHR) on the matter at issue, in
he paradigmatic case of the “Street Children” (Villagrán Morales and

  98 The Commission declared that the deportation of the victims constituted a violation

of Articles 2, 7 (1) (a), 12 (4) and (5), 14 and 18 of the African Charter.
  99 Paragraphs 29-30 and the dispositif of the Commission’s decision.
  100 Paragraphs 59-60 and the dispositif of the Commission’s decision.

133

Others v. Guatemala, merits, judgment of 19 November 1999), the IAC-
 HR held, in respect of the prohibition of unlawful or arbitrary arrest
 Article 7 (2) and (3) of the American Convention on Human Rights —
ACHR), that no one can be subjected to arrest or imprisonment that,
“although qualified as legal”, may be considered incompatible with fun-
damental human rights, for being, inter alia, “unreasonable, unfore-
seeable or out of proportion” (para. 131). This has become jurisprudence
constante of the IACtHR 101.

   124. The IACtHR was soon to reiterate its position on the matter, in
 he Bámaca Velásquez v. Guatemala case (judgment of 25 November
2000, para. 139). Later on, applying the same criterion in the Maritza
Urrutia v. Guatemala case (judgment of 27 November 2003, para. 65),
 he IACtHR found that the detention in the cas d’espèce had been car-
ried out within the framework of a pattern of arbitrariness on the part of
 he agents of the State (paras. 69-70). Likewise, in the Juan Humberto
Sánchez v. Honduras case (judgment of 7 June 2003), the IACtHR, after
reiterating (para. 78) its aforementioned obiter dictum, found the deten-
 ions arbitrary, for having been effected within a framework of abus de
pouvoir on the part of the State agents (para. 80).
   125. In the case of the Brothers Gómez Paquiyauri v. Peru (judgment
of 8 July 2004), the IACtHR established the arbitrariness of the deten-
 ion, which had occurred within the framework of a systematic practice
of human rights violations, with aggravating circumstances (paras. 88-89).
In the Massacre of Mapiripán case, concerning Colombia (judgment of
15 September 2005), the IACtHR upheld that the deprivation of liberty
had been effected in a modus operandi marked by arbitrariness, and other
grave violations of human rights (paras. 136 and 138).
   126. In the tragic case of Bulacio, concerning Argentina (judgment of
18 September 2003), the Court recalled that there are “material and for-
mal requirements” (causes, cases or circumstances, as well as procedures,
defined in law) that must be observed (under Article 7 of the American
Convention) in applying a measure or punishment that involves imprison-
ment. Detainees have the right to “humane treatment” and to live in
“conditions of detention that are compatible with their personal dignity”
 paras. 125-126). The State, being responsible for detention centres, is
“the guarantor of these rights of the detainees” (para. 126).
   127. Furthermore, in the same Bulacio case, the IACtHR deemed it fit
 o ponder that :
        “State authorities exercise total control over persons under their

  101 Cf., earlier on, in the same sense, IACtHR, case Gangaram Panday v. Suriname,

udgment of 21 January 1994, para. 47 ; IACtHR case Suárez Rosero v. Ecuador, judg-
ment of 12 November 1997, para. 43. And cf., subsequently, to the same effect, IACtHR,
 ase Acosta Calderón v. Ecuador, judgment of 24 June 2005, para. 57 ; IACtHR, case
Palamara Iribarne v. Chile, judgment of 22 November 2005, para. 215.

134

      custody. The way a detainee is treated must be subject to the closest
      scrutiny, taking into account the detainee’s special vulnerability
      (. . .). The vulnerability of the detainee aggravates when the deten-
      tion is illegal or arbitrary. Then the person is in a situation of com-
      plete defencelessness, which causes a definite risk of abridgment of
      other rights, such as those to humane and decent treatment. (. . .).
      This Court has emphasized that solitary confinement of the detainee
      must be exceptional, as it causes him or her moral suffering and
      psychological disturbances, as it places the detainee in a situation
      of particular vulnerability and increases the risk of aggression and
      arbitrariness in prisons, and because it endangers strict observance of
      the due process of law.” (Paras. 126-127.)

   128. At last, the Court added, in the Bulacio case, that detainees have
 ikewise the right to be informed of the causes and reasons of detention
“at the time it occurs”, so as to prevent and avoid arbitrariness (para. 128).
To this same effect, they are entitled to count on “immediate judicial
control” of their detention (para. 129). They have the right to notify
a third party that they are under “State custody” (para. 130), as well as to
count on appropriate medical care (para. 131). In sum, detention centres
“must meet certain minimum standards” that ensure respect for the
aforementioned rights (para. 132), so as to prevent and avoid arbitrari-
ness.
   129. In the case of Tibi v. Ecuador (judgment of 7 September 2004),
 he IACtHR found the preventive detention at issue arbitrary, as there
had been no sufficient indicia to presume that Mr. D. D. Tibi had been
 he perpetrator of, or an accomplice to, any delict, nor had it been estab-
 ished that such detention was needed (para. 107). The IACtHR deemed
 t “indispensable” to underline that the application of preventive deten-
 ion, being a very severe measure :
      “must be exceptional, since it is limited by the principles of lawful-
      ness, presumption of innocence, necessity, and proportionality, indis-
      pensable in a democratic society” (para. 106).

   130. In the adjudication by the IACtHR of the case Tibi v. Ecuador,
I gathered some energy to include, in my separate opinion, a whole sec-
 ion (I) on “The Impact of Arbitrary Detention and of the Conditions
of Incarceration on Human Conscience”, wherein I deemed it fit to
ponder :
         “D. D. Tibi, like Josef K., was detained without knowing why.
      ‘Somebody had slandered Josef K.’ — wrote Franz Kafka at the
      very beginning of The Trial (El Proceso, 1925) — ‘as without
      having done anything wrong he was detained one morning’ (Chap-
      ter I). D. D. Tibi was more fortunate than banker Josef K., but they
      both suffered something incomprehensible, if not absurd. Josef K.

135

      could only await his summary execution, shortly before which he
      exclaimed : ‘Where was the judge whom I never saw ? Where was the high
      court before which I never appeared ?’ (Chapter X). From the beg-
      inning of the saga to its end, his efforts were futile in face of the
      arbitrariness of a cruelly virtual and despairing ‘justice’.
         D. D. Tibi was less unfortunate than Kafka’s character, because
      he recovered his liberty and, also, he lives in a time in which, along-
      side the national courts (with their idiosyncrasies) there are also
      international human rights tribunals. The present Judgment which
      the Inter-American Court has just adopted, can contribute to the
      recovery of his faith in human justice. In his case, a portrait of daily
      life in the jails not only of Latin America but throughout the world,
      gives eloquent testimony of the insensitiveness, indifference, and
      irrationality of the world which surrounds us all.

         Few testimonies of the suffering resulting from arbitrary detention
      have been so eloquently described as Antonio Gramsci’s célèbres
      Letters from the Prison (1926-1936). In an even literary form, he
      wrote that, during the initial period of his detention, it already
      seemed to him that time was denser, as space no longer existed for
      him (. . .). When he took a train, after 10 years of detention (. . .), he
      experienced a ‘terrible impression’ when he saw that ‘during this
      time the vast world had continued to exist with its meadows, its for-
      ests, the common people, the groups of children, certain trees’ (. . .) ;
      he experienced a terrible impression especially when he saw himself
      in the mirror after so much time 102.
         Three decades before Gramsci, in the late nineteenth century,
      Oscar Wilde gave to the history of universal thought his own per-
      sonal testimony of the suffering caused by his incarceration, in his
      renowned De Profundis (1897). From the Reading prison, he wrote
      that, for those unfairly detained, ‘there is only one season, the sea-
      son of sorrow. (. . .) And in the sphere of thought no less than in the
      sphere of time, motion is no more’ 103.
         It is possible that the étranger D. D. Tibi experienced the same
      feeling as the étranger Mersault ; that matters pertaining to the
      detention and the process were treated ‘leaving aside’ the detainee,
      reflecting the ‘tender indifference’ of the outside world (Chapters
      IV-V). As for Gramsci, almost the only thing left to the étranger of
      Albert Camus (L’étranger, 1949) was the passing of time ; as ‘light
      and shadows alternated’, it was ‘the same day ceaselessly passing in
      the cell’, and the worst hour was when ‘the noise of the night came
      from all the floors of the prison in an entourage of silence’ (Chapter II).

  102 Antonio Gramsci, Cartas do Cárcere, Rio de Janeiro, Edit. Civilização Brasileira,

1966 (reed.), pp. 135-136 and 370.
  103 Oscar Wilde, De Profundis, Madrid, Ed. Siruela, 2000 (repr.), p. 54.

136

        Mersault also had only the memories of a life that no longer
        belonged to him (Chapter IV). For him, all days passed ‘watching, in
        their face, the decline of the colours that lead from day to night’, the
        latter being ‘like a melancholic truce’ (Chapter V).
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           In writing on his conditions of detention and his efforts to flee
        both the suffering and the degeneration of the spirit, Oscar Wilde,
        referring to the ‘Zeitgeist of a heartless period’, reflected that time
        and space are ‘mere accidental conditions of thought’, and that, in
        prison, what he had before him was only his past. 104 (. . .) This is an
        evil that knows no borders, and one that reflects the indifference and
        brutalization of the world around us. Today, the characters of
        Kafka and Camus are dispersed and forgotten in prisons of all con-
        tinents. Many of the detainees are innocent, and those who are not,
        having been aggressors, become new victims. Their survival no longer
        has a spatial dimension, and the temporal one is what they may, per-
        haps, fathom in the hidden depths of their inner life. Anyhow, their
        life, in relation to the others, no longer belongs to them. And they
        survive in closer and closer intimacy with evil and with the over-
        whelming brutalization imposed on them. The law cannot remain
        indifferent to all this, to the indifference of the world, in particular in
        the pathetically self-named ‘post-modern’ societies.

           As a matter of fact, abuses of detention and against the detainees
        are not a recent phenomenon. In his classical work Of Crimes
        and Punishments (1764), Cesare Beccaria warned about the fact that
        ‘the punishment is often greater than the crime’, and the ‘refined
        ordeals’ conceived by human intellect ‘seem to have been invented
        by tyranny rather than by justice’ 105. With the passing of time, the
        need for administrative and legislative as well as judicial control
        (endowed with particular importance) and supervision of the condi-
        tions of detention were reckoned — a control which was transposed
        from the domestic law level to that of international law in the mid-
        twentieth century.
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           As the judgment of the Inter-American Court in the present case
        of Tibi v. Ecuador reveals, the law comes to protect also those who
        are forgotten in prison, in the ‘house of the dead’ so lucidly
        denounced in the nineteenth century by Dostoyevsky. The afore-
        mentioned reaction of the law, both ratione personae and ratione
        materiae, indicates that human conscience has awakened to the
        pressing need and aim of decisively putting an end to the scourges of

  104
    De Profundis, op. cit. supra note 103, pp. 113 and 127.
  105
    Cesare Beccaria, De los Delitos y de las Penas (with comments by Voltaire), 11th repr.,
Madrid, Alianza Ed., 2000, p. 129, and cf. p. 149.

137

      arbitrary detention (. . .). A role of major relevance is here exercised
      by the general principles of law. With that, there is reason to nourish
      the hope that the D. D. Tibis, the Joseph K.s, and the Mersaults,
      will gradually diminish in number, until they no longer suffer in the
      prisons of the ‘post-modern’, insensitive, indifferent and brutalized
      world in which we live.” 106

                 5. The Jurisprudential Construction of the
                     European Court of Human Rights

   131. For its part, on the matter at issue, the European Court of
Human Rights, in finding (para. 54) a breach of Article 5 (1) of the Euro-
pean Convention of Human Rights, for example, in its judgment (of
25 June 1996) in the case of Amuur v. France, pointed out that that provi-
sion on the right to liberty was meant to ensure that no one should be
dispossessed of liberty in an arbitrary way (para. 42). Any such depriva-
 ion of liberty — the European Court of Human Rights added in the
Amuur case :
      “should be in keeping with the purpose of Article 5, namely, to pro-
      tect the individual from arbitrariness (. . .). Where a national law
      authorizes deprivation of liberty — especially in respect of a foreign
      asylum-seeker — it must be sufficiently accessible and precise, in
      order to avoid all risk of arbitrariness. These characteristics are of
      fundamental importance with regard to asylum-seekers at airports,
      particularly in view of the need to reconcile the protection of funda-
      mental rights with the requirements of States’ immigration policies”
      (para. 50).

   132. Seventeen years earlier, in the Winterwerp v. The Netherlands
case (judgment of 24 October 1979), the European Court of Human
Rights found no violation of Article 5 (1) of the European Convention of
Human Rights (para. 52), as the delay at issue had not involved an arbi-
 rary deprivation of liberty in the case, and the detention had been
effected, in its view, “in accordance with a procedure prescribed by law”
 paras. 49-50). Yet, the European Court of Human Rights deemed it fit
 o express its view that :
      “the words ‘in accordance with a procedure prescribed by law’ essen-
      tially refer back to domestic law (. . .). However, the domestic law
      must itself be in conformity with the Convention. (. . .). [A]ny meas-
      ure depriving a person of his liberty should issue from and be
      executed by an appropriate authority and should not be arbitrary.”
      (Para. 45.)

  106 IACtHR, case of Tibi v. Ecuador (judgment of 7 September 2004), separate opinion

of Judge A. A. Cançado Trindade, paras. 2-6, 9, 12-13 and 36.

138

  133. In the Saadi v. United Kingdom case, the Chamber of the Euro-
pean Court of Human Rights considered (judgment of 11 July 2006) the
Applicant’s claims of arbitrariness, and in particular that “there should
be a ‘necessity’ test” for detention (para. 46) ; this latter “must be com-
patible with the overall purpose of Article 5, which is to protect the indi-
vidual from arbitrariness” (para. 40). The case was then referred to the
Grand Chamber of the European Court of Human Rights, which, though
endorsing the finding that there had been no breach of Article 5 (1) in the
case (but rather a breach of Article 5 (2) — judgment of 29 January
2008), elaborated further on the notion of arbitrariness.

  134. In this new judgment, of 2008, in the Saadi case, the Grand
Chamber of the European Court of Human Rights, besides invoking the
principle of bona fides (on the part of the national authorities — paras. 74
and 77), warned that simple compliance with national law was “not
sufficient”, as :
      “the notion of ‘arbitrariness’ in Article 5 (1) extends beyond lack of
      conformity with national law, so that a deprivation of liberty may be
      lawful in terms of domestic law but still arbitrary and thus contrary
      to the Convention. (. . .). The notion of arbitrariness in the context
      of Article 5 varies to a certain extent depending on the type of deten-
      tion involved (. . .).
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         One general principle established in the case law is that detention
      will be ‘arbitrary’ where, despite complying with the letter of national
      law, there has been an element of bad faith or deception on the part
      of the authorities (. . .). The condition that there be no arbitrariness
      further demands that both the order to detain and the execution of
      the detention must genuinely conform with the purpose of the restric-
      tions permitted by the relevant subparagraph of Article 5 (1) (. . .).

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
          The notion of arbitrariness (. . .) also includes an assessment
      whether detention was necessary to achieve the stated aim. The deten-
      tion of an individual is such a serious measure that it is justified only
      as a last resort where other, less severe measures have been considered
      and found to be insufficient to safeguard the individual or public
      interest which might require that the person concerned be detained
      (. . .). The principle of proportionality further dictates that where deten-
      tion is to secure the fulfillment of an obligation provided by law,
      a balance must be struck between the importance in a democratic
      society of securing the immediate fulfillment of the obligation in
      question, and the importance of the right to liberty (. . .).” (Paras. 67-
      70.)
  135. Earlier on, in the Baranowski v. Poland case (judgment of

139

28 March 2000), in establishing a breach of Article 5 (1) and (4) of the
European Convention of Human Rights (paras. 58, 77 and 86), the Euro-
pean Court of Human Rights reiterated the obligation to conform the
substantive and procedural rules of domestic law (under Article 5 (1) of
 he Convention — para. 50). Furthermore, it found an absence, in the
domestic law at issue, of “any precise provisions” laying down whether
“detention ordered for a limited period at the investigation stage could
properly be prolonged at the stage of the court proceedings” ; this, in the
Court’s view, did not satisfy the test of “foresee ability” (para. 55). It
 hen stressed that :

      “for the purposes of Article 5 (1) of the Convention, detention which
      extends over a period of several months and which has not been
      ordered by a court or by a judge or any other person ‘authorized
      (. . .) to exercise judicial power’ cannot be considered ‘lawful’ in the
      sense of that provision” (para. 57).
   136. The prohibition of arbitrariness has been upheld by the European
Court of Human Rights not only in respect of the right to personal lib-
erty (Article 5), but also in relation to other rights protected under the
European Convention. Thus, in a triad of cases : Boultif v. Switzerland
 Chamber’s judgment of 2 August 2001, para. 46), Uner v. The Nether-
 ands (Grand Chamber’s judgment of 18 October 2006, para. 57), and
Maslov v. Austria (Grand Chamber’s judgment of 23 June 2008, para. 69),
 he European Court of Human Rights took the care to elaborate on, and
 o establish the criteria to be pursued in assessing whether an expulsion
measure was “necessary” (a “pressing social need”) in a democratic society,
and proportionate to the “legitimate aim pursued”, so as to avoid
and to discard arbitrariness.
   137. In the triad of the Al-Nashif cases (Chamber’s judgment of
20 June 2002, paras. 119 and 121), Musa and Others (Chamber’s judg-
ment of 11 January 2007), and Bashir and Others (Chamber’s judgment
of 14 June 2007, para. 41), the three concerning Bulgaria, the respective
Chambers of the European Court, bearing Article 8 (right to respect for
private and family life) of the European Convention of Human Rights in
mind, warned that, when fundamental rights are at stake, domestic law
would run against the rule of law (la prééminence du droit) if the margin
of appreciation left to the Executive knew of no limits ; domestic law
should thus provide sufficient guarantees against arbitrariness. In the Al-
Nashif case, it added that the phrase “in accordance with the law”
 mplied that the legal basis ought to be “accessible” and “foreseeable”, and
 hat “there must be a measure of legal protection against arbitrary
 nterferences by public authorities with the rights safeguarded by the
Convention” (para. 119), even in case of an interpretation of “national
security measures” which turns out to be “unlawful or contrary to com-
mon sense and arbitrary” (paras. 123-124).
   138. The same warning against such an interpretation of “national

140

security” measures was reiterated by the European Court of Human
Rights in the case of C.G. and Others v. Bulgaria (Chamber’s judgment
of 24 April 2008). In the aforementioned Musa and Others case, the
European Court of Human Rights further warned against “un acte
administratif non motivé, délivré en dehors de toute procédure contra-
dictoire et non susceptible de recours” (para. 60). The Court has expressed
 ts concern also in relation to domestic policies on immigration and resi-
dence (as in, e.g., the case of Berrehab v. The Netherlands, judgment of
21 June 1988, paras. 28-29).
   139. In the same line of reasoning, in the case of Lupsa v. Romania
 Chamber’s judgment of 8 June 2006), the European Court of Human
Rights reiterated the ponderation sedimented in its jurisprudence con-
stante on this matter, to the effect that :
      “the expression ‘in accordance with the law’ requires firstly that the
      impugned measure should have a basis in domestic law, but also
      refers to the quality of the law in question, requiring that it be acces-
      sible to the persons concerned and formulated with sufficient preci-
      sion to enable them — if need be, with appropriate advice — to
      foresee, to a degree that is reasonable in the circumstances, the con-
      sequences which a given action may entail.
         Admittedly, in the particular context of measures affecting national
      security, the requirement to foresee ability cannot be the same as in
      many other fields (. . .). Nevertheless, domestic law must afford a
      measure of legal protection against arbitrary interferences by public
      authorities with the rights guaranteed by the Convention. In matters
      affecting fundamental rights it would be contrary to the rule of law,
      one of the basic principles of a democratic society enshrined in the
      Convention, for a legal discretion granted to the executive to be
      expressed in terms of an unfettered power (. . .). The existence of
      adequate and effective safeguards against abuse, including in par-
      ticular procedures for effective scrutiny by the courts, is all the more
      important since a system of secret surveillance designed to protect
      national security entails the risk of undermining or even destroying
      democracy on the grounds of defending it (. . .).” (Paras. 32-34.)

                           6. General Assessment
   140. The interpretation of the UN Covenant on Civil and Political
Rights by the Human Rights Committee, and of the African Charter on
Human and Peoples’ Rights by the African Commission on Human and
Peoples’ Rights, as well as the jurisprudential construction of the Inter-
American and the European Courts of Human Rights, point towards a
firm prohibition of arbitrariness in distinct circumstances. It is by no
means restricted to the right to personal liberty. It extends likewise to
other protected rights under the respective human rights treaties or con-
ventions.
   141. It covers likewise, of course, the right not to be expelled arbitrar-

141

 ly from a country, the right to a fair trial, the right to respect for private
and family life, the right to an effective remedy, or any other protected
right. This is, epistemologically, the correct posture in this respect, given
 he interrelatedness and indivisibility of all human rights. To attempt to
advance a restrictive view of the prohibition of arbitrariness, or an atom-
 zed approach to it, would be wholly unwarranted. And it would run
against the outlook correctly pursued by international human rights
supervisory organs such as the UN Human Rights Committee and the
African Commission on Human and Peoples’ Rights, and by interna-
 ional human rights tribunals such as the Inter-American and the Euro-
pean Courts.

   142. Human nature being what it is, everyone needs to guard protec-
 ion against arbitrariness on the part of State authorities. In a wider hori-
zon, human beings need protection ultimately against themselves, in their
relations with each other. There is hardly any need to require an express
provision to the effect of prohibiting arbitrariness in respect of distinct
rights, or else to require the insertion of the adjective “arbitrary” in dis-
 inct provisions, in order to enable the exercise of protection against arbi-
 rariness, in any circumstances, under human rights treaties. The letter
 ogether with the spirit of those provisions under human rights treaties,
converge in pointing to the same direction : the absolute prohibition of
arbitrariness, under the international law of human rights as a whole.
Underlying this whole matter is the imperative of access to justice
 ato sensu, the right to the Law (le droit au Droit, el derecho al Derecho),
 he right to the realization of justice in a democratic society.

        VII. THE MATERIAL CONTENT OF THE PROTECTED RIGHTS

  143. Relevant elements of the practice of the UN Human Rights Com-
mittee (its General Comments, as well as its views or decisions on indi-
vidual communications or petitions) can here be recalled, for the deter-
mination of the material content of the vindicated and protected rights
under the Covenant on Civil and Political Rights in the present Diallo
case, namely, the right to liberty and security of person, the right not to
be expelled from a State without a legal basis, and the right not to be
subjected to mistreatment. In a subsequent section (VIII, infra) I shall
cover the jurisprudential construction of the right to information on con-
sular assistance in the conceptual universe of human rights.

   144. Under the present section, may I begin by pointing out that, in
 he course of the previous examination of the vindication of the protected
rights in the present case (III, supra), reference was made to a couple of
views or decisions of the Human Rights Committee on individual com-
munications or petitions. This is an adequate stage of the present sepa-
rate opinion to return to that point, with attention turned to the material

142

content of those rights, and either to stress the pertinence of such views
or decisions aforementioned for the cas d’espèce, or else to bring to the
 ore other views or decisions of the Committee not yet referred to, which
may have pertinence to the present purposes.

              1. The Right to Liberty and Security of Person
   145. In the course of the preceding examination of the present case,
reference was made to a couple of views or decisions of the Human
Rights Committee on individual communications or petitions. May I
return to this point now, either stressing the pertinence of such decisions
already mentioned for the cas d’espèce, or else bringing to the fore other
decisions by the Committee not yet referred to, likewise pertinent to the
present purposes.
   146. As to Article 9 of the Covenant (right to liberty and security of
person), attention may be drawn, e.g., to two leading cases, namely, those of
Adolfo Drescher Caldas v. Uruguay (1983) and of Mukong v. Cameroon
 1994). In the former case, the petitioner had been kept incommunicado
under detention for six weeks, without the possibility of petitioning for a
habeas corpus, and was subsequently charged before a military judge.
The Committee found a breach of Article 9 (4) of the Covenant for lack
of recourse to habeas corpus, and reasoned that :

         “Article 9 (2) of the Covenant requires that anyone who is arrested
      shall be informed sufficiently of the reasons for his arrest to enable
      him to take immediate steps to secure his release if he believes that
      the reasons given are invalid or unfounded. It is the view of the
      Committee that it was not sufficient simply to inform Adolfo
      Drescher Caldas that he was being arrested under the prompt secu-
      rity measures without any indication of the substance of the com-
      plaint against him.” (Para. 13.2.)
  147. And, later on, in the Mukong v. Cameroon case (1994), the
Committee found that the Respondent State had arbitrarily deprived the
petitioner of his freedom, in violation, inter alia, of Article 9 (1) of
 he CCPR ; the Committee noted that the mere fact that a State party
had complied with its domestic law did not mean that the arrest and
detention of an individual was not arbitrary (para. 9.8). Moreover, in its
General Comment No. 8, of 1982, on the Right to Liberty and Security of
Person (Article 9 of the Covenant), the Human Rights Committee pondered
 hat Article 9 :
      “has often been somewhat narrowly understood in reports by States
      parties, and they have therefore given incomplete information. The
      Committee points out that paragraph 1 is applicable to all depriva-
      tions of liberty, whether in criminal cases or in other cases (. . .). In
      particular the important guarantee laid down in paragraph 4, i.e.,
      the right to control by a court of the legality of the detention, applies

143

      to all persons deprived of their liberty by arrest or detention. Further-
      more, States parties have, in accordance with Article 2 (3), also to
      ensure that an effective remedy is provided in other cases in which an
      individual claims to be deprived of his liberty in violation of the
      Covenant.

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         If so-called preventive detention is used, for reasons of public
      security, (. . .) it must not be arbitrary, and must be based on
      grounds and procedures established by law (para. 1), (. . .) informa-
      tion of the reasons must be given (para. 2) (. . .) and court control of
      the detention must be available (para. 4) (. . .) as well as compensa-
      tion in the case of a breach (para. 5). And if, in addition, criminal
      charges are brought in such cases, the full protection of Article 9 (2)
      and (3), as well as Article 14, must also be granted.” (Paras. 1 and 4.)

 2. The Right Not to Be Expelled from a State without a Legal Basis

  148. Four years later, the Human Rights Committee issued its General
Comment No. 15, of 1986, on the Position of Aliens under the Covenant
to include not only foreigners, but also refugees and stateless persons).
Under the Covenant (Article 13), the Human Rights Committee observed
hat :
      “the rights set forth in the Covenant apply to everyone, irrespective
      of reciprocity, and irrespective of his or her nationality or stateless-
      ness.
         Thus, the general rule is that each one of the rights of the Cov-
      enant must be guaranteed without discrimination between citizens
      and aliens.
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         (. . .) Article 13 (. . .) is applicable to all procedures aimed at the
      obligatory departure of an alien, whether described in national law
      as expulsion or otherwise. If such procedures entail arrest, the safe-
      guards of the Covenant relating to deprivation of liberty (Articles 9
      and 10) may also be applicable. (. . .) [I]f the legality of an alien’s
      entry or stay is in dispute, any decision on this point leading to his
      expulsion or deportation ought to be taken in accordance with Arti-
      cle 13. It is for the competent authorities of the State party, in good
      faith and in the exercise of their powers, to apply and interpret the
      domestic law, observing, however, such requirements under the Cov-
      enant as equality before the law (Article 26).

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

144

         Its purpose [of Article 13] is clearly to prevent arbitrary
      expulsions. (. . .) An alien must be given full facilities for pursuing
      his remedy against expulsion so that this right will in all the circum-
      stances of his case be an effective one. (. . .) Discrimination may not
      be made between different categories of aliens in the application of
      Article 13.” (Paras. 1-2 and 9-10.)

  149. Also in respect of Article 13 of the Covenant, reference can
 urther be made to three other cases dealt with by the Human Rights
Committee, namely, those of Hammel v. Madagascar (1987), of Cañon
García v. Ecuador (1991) and of Mansour Ahani v. Canada (2004). In
 he first of these cases, that of Hammel v. Madagascar, the Committee,
having found breaches of Articles 9 (4) and 13 of the Covenant, because :
(a) the petitioner had been unable to take proceedings before a court to
determine the lawfulness of his arrest ; and (b) for “grounds that were
not those of compelling reasons of national security, he was not allowed
 o submit the reasons against his expulsion and to have his case reviewed
by a competent authority within a reasonable time” (para. 20).

   150. The relevance of the Hammel v. Madagascar case to the present
Diallo case before this Court is manifest, given the fact that the Human
Rights Committee not only suggested that, in order to deny an individual
 he right to challenge his expulsion, the State party ought to demonstrate
 hat there were “compelling reasons of national security” but also con-
cluded that, in casu, the reasons adduced by Madagascar were not rea-
sons of “national security”. This seems to contradict the view, advanced
by the DRC in the present case before this Court, that the State con-
cerned would be the sole and final judge in relation to acts presumably
 hreatening its national security.
   151. In the second of the aforementioned cases — that of Cañon
García v. Ecuador — the Human Rights Committee, noting that the
Respondent State had not sought to refute the petitioner’s allegations
pertaining to Articles 7, 9 and 13 of the Covenant, found accordingly
 hat the Respondent State had incurred in breaches of those provisions
 paras. 5 (2) and 6 (1)). And, in the third case, that of Mansour Ahani v.
Canada, the Human Rights Committee found a breach of Article 13 of
 he Covenant, which encompassed not only the certificate attesting the
grounds for expulsion, but also “the Minister’s decision on risk of harm”
prior to the deportation of the petitioner to the country wherefrom he
sought refuge. The Committee did not accept that “compelling reasons of
national security existed to exempt the State party from its obligation
under that Article to provide the procedural protections in question”,
and reasoned that the petitioner should be afforded such protections
 para. 10.8, and cf. paras. 10.9 and 12).
   152. In its General Comment No. 31, of 2004, the Nature of the Gen-
eral Legal Obligation Imposed on the States Parties to the Covenant, the
Human Rights Committee further clarified its position on the material

145

content of the right not to be expelled from a State without a legal basis.
The Committee added therein that States parties have an :
      “obligation not to extradite, deport, expel or otherwise remove a
      person from their territory, where there are substantial grounds for
      believing that there is a real risk of irreparable damage, such as that
      contemplated by Articles 6 and 7 of the Covenant, either in the
      country to which removal is to be effected or in any country to
      which the person may be subsequently removed” (para. 12).
This has a bearing on the issue of the interrelationship between the pro-
ected rights under the Covenant, to which I shall next turn attention.

          3. The Interrelationship between the Protected Rights
   153. I have already referred to the vindication, in the present case, of
 he right not to be subjected to mistreatment, stricto sensu, under Articles 7
and 10 (1) of the Covenant on Civil and Political Rights (supra). The
Human Rights Committee has a vast practice on those provisions ; at
regional level, that right has been the object of an extensive case law of
 he European and the Inter-American Courts of Human Rights, as well
as of the African Commission on Human and Peoples’ Rights to date. It
 s beyond the purpose of this separate opinion to dwell upon this mat-
 er. May I only add that, mistreatment lato sensu can be inferred also
 rom a combination of those Articles of the Covenant with its own pro-
visions concerning some other protected rights.

   154. For example, in the already mentioned case of Hammel v. Mada-
gascar (supra), the Human Rights Committee related Articles 9 (4) to Art-
 cle 13 of the Covenant, finding breaches of both of them : of Article 9 (4),
because the victim was unable to challenge his arrest (during his deten-
 ion preceding his expulsion), he was unable to take proceedings before
a court to determine the lawfulness or otherwise of his arrest ; and of
Article 13, because, for grounds that “were not those of compelling
reasons of national security”, he was “not allowed to submit the reasons
against his expulsion”, and “to have his case reviewed by a competent
authority within a reasonable time” (paras. 19 (4) and 20).

   155. Likewise, Article 13 of the Covenant appears intertwined, e.g.,
with Article 12 (on the right to freedom of movement). Those two Arti-
cles, together, safeguard a set of individual rights related essentially to
 reedom of movement. Article 12 (1) states that “[e]veryone within the
 erritory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence”. And Article 12 (4) adds
 hat “[n]o one shall be arbitrarily deprived of the right to enter his own
country”.
   156. It cannot pass unnoticed, in the circumstances of the present case,
 hat Article 12 (4) of the Covenant extends an unrestricted protection

146

against expulsion to aliens who, like Mr. A. S. Diallo, have developed
such a close relationship with the State of residence that has practically
become his “home country” : in the cas d’espèce, Mr. A. S. Diallo came
 o the State of residence at the age of 17, having been living there for 30
years 107. Likewise, in the previous case of Hammel v. Madagascar (1987),
Mr. E. Hammel had been a practicing attorney in Madagascar for 19 years,
until his expulsion on 11 February 1982, without having been indicted
nor brought before a magistrate on any charge (para. 18.2).

   157. A holistic view of the protected rights under the Covenant seems
 o have helped to clarify aspects of concrete cases brought into the cog-
nizance of the Human Rights Committee. For example, in so far as a
possible breach of other human rights enshrined into the Covenant is
concerned, the Committee has found that there can be a violation of a
person’s right to family life (Article 17), when the expulsion of a person
results in a separation from her family. Although the mere fact that one
member of the family is entitled to remain in the territory of a State party
does not necessarily mean that requiring other members of the family to
 eave involves such interference 108, the Committee specified that :
       “the relevant criteria for assessing whether or not the specific inter-
       ference with family life can be objectively justified must be consid-
       ered, on the one hand, in light of the significance of the State party’s
       reasons for the removal of the person concerned, and, on the other,
       the degree of hardship the family and its members would encounter
       as a consequence of such removal.” 109

             VIII. THE JURISPRUDENTIAL CONSTRUCTION OF THE
          RIGHT TO INFORMATION ON CONSULAR ASSISTANCE IN THE
                 CONCEPTUAL UNIVERSE OF HUMAN RIGHTS

         1. The Individual Right beyond the Inter-State Dimension
   158. In its substantial and ground-breaking Advisory Opinion No. 16,
of 1 October 1999, on the Right to Information on Consular Assistance
 n the Framework of the Due Process of Law, the Inter-American Court
of Human Rights (IACtHR), after reviewing the legislative history and
evolving application of Article 36 (1) (b) of the 1963 Vienna Convention
on Consular Relations, pondered that the bearer (titulaire) of the rights
mentioned therein :
       “is the individual. In effect, this Article is unequivocal in stating that
       rights to consular information and notification are ‘accorded’ to the

 107  Reply of Guinea, para. 1.122.
 108  Cf. Winata v. Australia, CCPR/C/72/D/930/2000, 21 July 2001, para. 7.1.
 109  Cf. Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004, para. 9.8 ; and
f. also Byahuranga v. Denmark, communication No. 1222/2003, 1 November 2004, para. 11.9.

147

      interested person. In this respect, Article 36 is a notable exception to
      what are essentially State’s rights and obligations accorded else-
      where in the Vienna Convention on Consular Relations. As inter-
      preted by this Court in the present Advisory Opinion, Article 36 is a
      notable advance over international law’s traditional conceptions of
      this subject.

         The rights accorded to the individual under subparagraph (b) of
      Article 36 (1), cited earlier, tie in with the next subparagraph [(c)]
      (. . .) That exercise of this right is limited only by the individual’s
      choice.
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         The Court therefore concludes that Article 36 of the Vienna Con-
      vention on Consular Relations endows a detained foreign national
      with individual rights that are the counterpart of the host State’s
      correlative duties. This interpretation is supported by the Article’s
      legislative history. There, although in principle some States believed
      that it was inappropriate to include clauses regarding the rights of
      nationals of the sending State, in the end the view was that there was
      no reason why that instrument should not confer rights upon indi-
      viduals.” (Paras. 82-84.)
   159. And the IACtHR added that the consular communication,
referred to by Article 36 of the 1963 Vienna Convention,
      “does indeed concern the protection of the rights of the national of
      the sending State and may be of benefit to him. This is the proper
      interpretation of the functions of ‘protecting the interests’ of that
      national and the possibility of receiving ‘help and assistance’, par-
      ticularly with arranging appropriate ‘representation before the tribu-
      nals’.” (Para. 87.)
In sum, in its Advisory Opinion No. 16, of 1999, the IACtHR thus held
 hat Article 36 of the 1963 Vienna Convention recognizes to the foreigner
under detention individual rights — among which the right to informa-
 ion on consular assistance — to which correspond duties incumbent
upon the receiving State (irrespective of its federal or unitary structure)
 paras. 84 and 140).
   160. The IACtHR pointed out that the evolutive interpretation and
application of the corpus juris of the international law of human rights 110
have had “a positive impact on international law in affirming and develop-
 ng the aptitude of this latter to regulate the relations between States and

  110 The Court stated that “human rights treaties are living instruments, whose inter-

pretation ought to follow the evolution of times and the current conditions of life”
 para. 114). The Court made it clear that, in its interpretation of the norms of the Amer-
can Convention on Human Rights, it should aim at extending protection in new situations
on the basis of preexisting rights.

148

human beings under their respective jurisdictions” (para. 115). The IAC-
 HR thus adopted the “proper approach” in considering the matter sub-
mitted to it in the framework of “the evolution of the fundamental rights of
 he human person in contemporary international law” (paras. 114-115).

   161. The IACtHR sustained the view that, for the due process of law
 o be preserved, “a defendant must be able to exercise his rights and
defend his interests effectively and in full procedural equality with other
defendants” (para. 117). In order to attain its objectives, “the judicial
process ought to recognize and correct the factors of real inequality” of
 hose taken to justice (para. 119) ; thus, the notification, to persons
deprived of their liberty abroad, of their right to communicate with
 heir consul, contributes to safeguard their defence and the respect for
 heir procedural rights (paras. 121-122). The individual right to infor-
mation under Article 36 (1) (b) of the Vienna Convention on Consular
Relations thus renders effective the right to the due process of law
 para. 124) 111.
   162. The IACtHR thereby linked the right at issue to the evolving
guarantees of due process of law. This Advisory Opinion No. 16 of the
IACtHR, truly pioneering, has served as inspiration for the emerging
 nternational case law, in statu nascendi, on the matter 112, and is having a sen-
 ible impact on the practice of States in the region on the issue. That historical
Advisory Opinion, furthermore, reveals the impact of the international law of
human rights in the evolution of public international law itself, specifically for
having the IACtHR been the first international tribunal to warn that, if non-
compliance with Article 36 (1) (b) of the Vienna Convention on Consular Rela-
 ions of 1963 takes place, it occurs to the detriment not only of a State party but
also of the human beings at issue 113.

                       2. The Humanization of Consular Law
  163. That Advisory Opinion was followed, four years later, in the
same line of thinking, by Advisory Opinion No. 18 of the IACtHR, of
17 September 2003, on the Juridical Condition and Rights of Undocu-
mented Migrants. This latter opened new ground for the protection of

   111 The non-observance or obstruction of the exercise of this right affects the judicial

guarantees (para. 129).
   112 As promptly acknowledged by expert writing ; cf., e.g., G. Cohen-Jonathan, “Cour

 uropéenne des droits de l’homme et droit international général (2000)”, 46 Annuaire
 rançais de droit international (2000), p. 642 ; M. Mennecke, “Towards the Humanization
of the Vienna Convention of Consular Rights — The LaGrand Case before the Interna-
 ional Court of Justice”, 44 German Yearbook of International Law/Jahrbuch für inter-
nationales Recht (2001), pp. 430-432, 453-455, 459-460 and 467-468 ; Ph. Weckel, M. S. E. Hel-
ali and M. Sastre, “Chronique de jurisprudence internationale”, 104 Revue générale de
droit international public (2000), pp. 794 and 791 ; Ph. Weckel, “Chronique de jurispru-
dence internationale”, 105 Revue générale de droit international public (2001), pp. 764-
765 and 770.
   113 As the ICJ subsequently also admitted, in the LaGrand case.

149

migrants, in acknowledging the prevalence of the rights inherent to
human beings, irrespective of their migratory status 114. The Court made
 t clear that States ought to respect and ensure respect for human
rights in the light of the general and basic principle of equality and non-
discrimination, and that any discriminatory treatment with regard to
 he protection and exercise of human rights generates the international
responsibility of the States. In the view of the IACtHR, the fundamental
principle of equality and non-discrimination has entered into the domain
of jus cogens.
   164. The IACtHR added that States cannot discriminate or tolerate
discriminatory situations to the detriment of migrants, and ought to
guarantee the due process of law to any person, irrespective of his or her
migratory status. This latter cannot be a justification for depriving a per-
son of the enjoyment and exercise of his or her human rights, including
 abour rights. Undocumented migrant workers have the same labour
rights as the other workers of the State of employment, and this latter
ought to ensure respect for those rights in practice. States cannot subor-
dinate or condition the observance of the principle of equality before the
 aw and non-discrimination to the aims of their migratory or other poli-
cies 115.
   165. Advisory Opinion No. 18 propounded the same dynamic or evo-
 utive interpretation of international human rights law heralded by the
IACtHR four years earlier, in its Advisory Opinion No. 16 of 1999 116. In
2003, the IACtHR reiterated and expanded its forward-looking outlook,

   114 This more recent advisory opinion No. 18 is likewise having an impact on the

 heory and practice of international law in the present domain of protection of the human
 ights of migrants as also promptly acknowledged by expert writing ; cf., e.g., L. Hen-
nebel, “L’humanisation du droit international des droits de l’homme — Commentaire sur
 ’avis consultatif no. 18 de la Cour Interaméricaine relatif aux droits des travailleurs
migrants”, 15 Revue trimestrielle des droits de l’homme (2004) No. 59, pp. 747-756 ;
S. H. Cleveland, “Legal Status and Rights of Undocumented Migrants — Advisory Opinion
OC-18/03 [of the] Inter-American Court of Human Rights”, 99 American Journal of
 nternational Law (2005), pp. 460-465 ; C. Laly-Chevalier, F. da Poïan and H. Tigroudja,
“Chronique de la jurisprudence de la Cour interaméricaine des droits de l’homme (2002-
2004)”, 16 Revue trimestrielle des droits de l’homme (2005), No. 62, pp. 459-498.
   115 In addition, the four individual opinions presented were, significantly, all of them,

 oncurring opinions. In my own lengthy concurring opinion, as [then] President of the
Court, I dwelt upon nine points, namely : (a) the civitas maxima gentium and the uni-
versality of the human kind ; (b) the disparities of the contemporary world and the vul-
nerability of migrants ; (c) the reaction of the universal juridical conscience ; (d) the
 onstruction of the individual subjective right of asylum ; (e) the position and the role of
 he general principles of law ; (f) the fundamental principles as substratum of the legal
order itself ; (g) the principle of equality and non-discrimination in the international law
of human rights ; (h) the emergence, the content and the scope of jus cogens ; and (i) the
 mergence and the scope of obligations erga omnes of protection (their horizontal and
vertical dimensions).
   116 In that sixteenth and pioneering Advisory Opinion, of major importance, the Inter-

American Court clarified that, in its interpretation of the norms of the American Conven-
 ion, it should extend protection in new situations (such as that concerning the observance

150

 n its Advisory Opinion No. 18, on the Juridical Condition and Rights of
Undocumented Migrants, constructed upon the evolving concepts of jus
cogens and of obligations erga omnes of protection (in their horizontal
and vertical dimensions). This jurisprudential construction points in a
clear direction : consular assistance and protection have become much
closer to human rights protection.
   166. It so happens that consular assistance and protection have indeed
undergone a process of jurisdictionalization, integrating, in the light of
 he outlook advanced by the Inter-American Court, the enlarged concep-
 ion of the due process of law, proper of our times. This is gradually being
grasped in contemporary expert writing, which now rightly acknowledges
 hat, while diplomatic protection remains ineluctably discretionary, pur-
suing an unsatisfactory inter-State dimension, consular assistance and
protection are now linked to the obligatory guarantees of due process of
 aw, in the framework of the international law of human rights 117. The
ultimate beneficiaries of this evolution are the individuals facing adver-
sity, particularly those deprived of their personal liberty abroad.

          3. The Irreversibility of the Advance of Humanization
  167. Advisory Opinion No. 16 (of 1 October 1999) of the IACtHR, on
 he Right to Information on Consular Assistance in the Framework of the
Due Process of Law, was extensively relied upon by the contending
parties in the proceedings (written and oral phases) before the ICJ in the
LaGrand and Avena cases. In the LaGrand case, it was invoked in both
 he Memorial of Germany (of 16 September 1999, para. 4.13) and in the
Counter-Memorial of the United States (of 27 March 2000, para. 102,
No. 110) ; and it was object of further attention in the oral arguments of
both Germany 118 and the United States 119.
  168. Likewise, in the Avena case, that Advisory Opinion of the IAC-
 HR was invoked, in the course of the written phase of the proceedings
before the ICJ, by Mexico in its Application (paras. 65, 77 and 271) as
well as in its Memorial (of 20 June 2003, paras. 157-158, 194, 332, 336
and 344), and by the United States in its Counter-Memorial (para. 6.84).
Mexico further invoked it in its oral arguments before the ICJ 120. The
ICJ was obviously quite aware of the inspiring contents of Advisory

of the right to information on consular assistance) on the basis of preexisting rights
(supra).
   117 Cf. E. Decaux, “La protection consulaire et les droits de l’homme”, in : Société

 rançaise pour le droit international (SFDI), La protection consulaire (Journée d’études
de Lyon de 2005), Paris, Pedone, 2006, pp. 56-57, 64 and 69-72.
   118 CR 2000/26 of 13 November 2000, paras. 10-14 ; CR 2000/27 of 13 November 2000,

paras. 21, 23 and 29 ; CR 2000/30 of 16 November 2000, paras. 4-5 and 10-11.
   119 CR 2000/29 of 14 November 2000, para. 6.23 ; CR 2000/31 of 17 November 2000,

paras. 4.7.
   120 CR 2003/24 of 15 December 2003, paras. 34-36 and 39 ; CR 2003/25 of 15 Decem-

ber 2003, para. 451.

151

Opinion No. 16 of the IACtHR, on The Right to Information on Consu-
 ar Assistance in the Framework of the Guarantees of the Due Process of
Law (1999), when it issued its Judgments in the LaGrand (2001) and
Avena (2004) cases, though it did not care to refer to that relevant judicial
precedent, as it should have, on both occasions.
   169. In the line of the aforementioned ground-breaking Advisory Opin-
 on No. 16 of the IACtHR, the ICJ also identified, in the LaGrand case
 Judgment of 27 June 2001), the “individual rights” under Article 36 (1)
of the 1963 Vienna Convention (I.C.J. Reports 2001, p. 494, para. 77).
But the ICJ’s reasoning remained à mi-chemin, not pursuing it up to the
point of inserting those individual rights into the conceptual universe of
human rights. Subsequently, in the Avena case (Judgment of 31 March
2004), the Court related the individual rights thereunder to the corre-
sponding obligations incumbent upon the State concerned (I.C.J. Reports
2004 (I), p. 46, para 76).
   170. In the same Avena case, the Court was then faced with Mexico’s
contention — well in conformity with the aforementioned Advisory
Opinion No. 16 of 1999 of the IACtHR (supra) — that :
      “the right to consular notification and consular communication
      under the Vienna Convention is a fundamental human right that
      constitutes part of due process in criminal proceedings and should
      be guaranteed in the territory of each of the Contracting Parties to
      the Vienna Convention ; according to Mexico, this right, as such, is
      so fundamental that its infringement will ipso facto produce the
      effect of vitiating the entire process of the criminal proceedings con-
      ducted in violation of this fundamental right. ” (Ibid., pp. 60-61,
      para. 124.)
   171. The Court, after summarizing Mexico’s argument grounded in
 he aforementioned Advisory Opinion No. 16 of the IACtHR, took a
step backwards when it added suddenly, in a rather dogmatic and authori-
 arian tone :
         “Whether or not the Vienna Convention rights are human rights
      is not a matter that this Court need decide. The Court would, how-
      ever, observe that neither the text nor the object and purpose of the
      Convention, nor any indication in the travaux préparatoires, sup-
      port the conclusion that Mexico draws from its contention in that
      regard.” (Ibid., p. 61, para. 124.)
And the Court promptly concluded, ex cathedra, that Mexico’s submis-
sion could not therefore be upheld (ibid., p. 61, para. 125).
   172. Yet, if the Court was not prepared to examine Mexico’s conten-
 ion, and felt — for whatever reasons that escape my comprehension —
 hat it did not need to decide on it, it should not have made such a state-
ment without indicating on which assumptions it was based. The author-
 ty of argument is always far more persuasive than the argument of
authority. The fact is that the Court’s statement is, data venia, without

152

oundation. It does not resist closer examination, either in respect of the
ext of Article 36 (1) (b) of the 1963 Vienna Convention, or in respect of
ts object and purpose, or in respect of its travaux préparatoires.

a) The text of the 1963 Vienna Convention
   173. As to the text, it has already been pointed out that it is the indi-
vidual who has the right to information on consular assistance, as indi-
cated in Article 36 (1) (b) in fine of the 1963 Vienna Convention (supra).
The last phrase of Article 36 (1) (b) leaves no doubt that it is the indi-
vidual, and not the State, who is the titulaire of the right to be informed
on consular assistance. However intertwined may this provision be with
States parties’ obligations, this is clearly an individual right. If this indi-
vidual right is breached, the guarantees of the due process of law will
 neluctably be affected.

  174. As the Inter-American Court rightly pondered, in this respect, in
ts Advisory Opinion No. 16 of 1999,
         “The International Covenant on Civil and Political Rights recog-
      nizes the right to the due process of law (Article 14) as a right that
      ‘derive[s] from the inherent dignity of the human person’. That Arti-
      cle enumerates a number of guarantees that apply to ‘everyone
      charged with a criminal offence’, and in that respect is consistent
      with the principal international human rights instruments.
         In the opinion of this Court, for ‘the due process of law’ a defend-
      ant must be able to exercise his rights and defend his interests effec-
      tively and in full procedural equality with other defendants. It is
      important to recall that the judicial process is a means to ensure,
      insofar as possible, an equitable resolution of a difference. The body
      of procedures, of diverse character and generally grouped under the
      heading of the due process, is all calculated to serve that end. To
      protect the individual and see justice done, the historical develop-
      ment of the judicial process has introduced new procedural rights.
      Examples of the evolving nature of judicial process are the rights not
      to incriminate oneself, and to have an attorney present when one
      speaks. These two rights are already part of the legislation and juris-
      prudence of the more advanced legal systems. And so, the body of
      judicial guarantees given in Article 14 of the International Covenant
      on Civil and Political Rights has evolved gradually. It is a body of
      judicial guarantees to which others of the same character, conferred
      by various instruments of international law, can and should be
      added.

         In this regard the Court has held that the procedural requirements
      that must be met to have effective and appropriate judicial guaran-
      tees ‘are designed to protect, to ensure, or to assert the entitlement to
      a right or the exercise thereof ’ and are ‘the prerequisites necessary to

153

      ensure the adequate protection of those persons whose rights or obli-
      gations are pending judicial determination’.
         To accomplish its objectives, the judicial process must recognize
      and correct any real disadvantages that those brought before the bar
      might have, thus observing the principle of equality before the law
      and the courts and the corollary principle prohibiting discrimination.
      The presence of real disadvantages necessitates countervailing meas-
      ures that help to reduce or eliminate the obstacles and deficiencies that
      impair or diminish an effective defense of one’s interests. Absent those
      countervailing measures, widely recognized in various stages of the
      proceeding, one could hardly say that those who have the disadvan-
      tages enjoy a true opportunity for justice and the benefit of the due
      process of law equal to those who do not have those disadvantages.
         This is why an interpreter is provided when someone does not
      speak the language of the court, and why the foreign national is
      accorded the right to be promptly advised that he may have consular
      assistance. These measures enable the accused to fully exercise other
      rights that everyone enjoys under the law. Those rights and these,
      which are inextricably inter-linked, form the body of procedural
      guarantees that ensures the due process of law.
         In the case to which this Advisory Opinion refers, the real situa-
      tion of the foreign nationals facing criminal proceedings must be
      considered. Their most precious juridical rights, perhaps even their
      lives, hang in the balance. In such circumstances, it is obvious that
      notification of one’s right to contact the consular agent of one’s
      country will considerably enhance one’s chances of defending one-
      self and the proceedings conducted in the respective cases, including
      the police investigations, are more likely to be carried out in accord
      with the law and with respect for the dignity of the human person.
         The Court therefore believes that the individual right under analy-
      sis in this Advisory Opinion must be recognized and counted among
      the minimum guarantees essential to providing foreign nationals the
      opportunity to adequately prepare their defense and receive a fair
      trial.
         The incorporation of this right into the Vienna Convention on
      Consular Relations — and the discussions that took place as it was
      being drafted — are evidence of a shared understanding that the right
      to information on consular assistance is a means for the defense of
      the accused that has repercussions — sometimes decisive repercus-
      sions — on enforcement of the accused’s other procedural rights.
         In other words, the individual’s right to information, conferred
      upon in Article 36 (1) (b) of the Vienna Convention on Consular
      Relations, makes it possible for the right to the due process of law
      upheld in Article 14 of the International Covenant on Civil and Politi-
      cal Rights, to have practical effects in tangible cases ; the minimum
      guarantees established in Article 14 of the International Covenant can
      be amplified in the light of other international instruments like the

154

        Vienna Convention on Consular Relations, which broadens the scope
        of the protection afforded to those accused.” (Paras. 116-124.)

b) The object and purpose of the 1963 Vienna Convention
   175. As to the object and purpose of the Vienna Convention on Con-
sular Relations, they are affected, to the point of not being fulfilled, in
case of a breach of the individual right to information on consular assist-
ance (Article 36 (1) (b) of the Convention). Its object and purpose lie in
 he commonality of interests of all the States parties to the 1963 Vienna
Convention, in the sense that compliance by the States parties, with
all the obligations set forth there under — including the obligation of
compliance with the individual right at issue — is to be secured. Accord-
 ngly, in so far as consular assistance is concerned, the preservation
of, and compliance with, the individual right to information on it
 Article 36 (1) (b)) becomes essential to the fulfillment of the object and
purpose of the Vienna Convention on Consular Relations.

c) The travaux préparatoires of the 1963 Vienna Convention
   176. The travaux préparatoires of that provision of the 1963 Vienna
Convention contain valuable indications to the same effect. Those travaux
préparatoires have been insufficiently explored in expert writing, but were
 he object of close attention on the part of the Advisory Opinion No. 16, of
1999, of the Inter-American Court of Human Rights (IACtHR), on The
Right to Information on Consular Assistance in the Framework of the Guar-
antees of the Due Process of Law. The aforementioned conclusions, on the
matter at issue, arrived at by the IACtHR, were grounded on an in-depth
analysis of the travaux préparatoires of the 1963 Vienna Convention.
   177. Besides the elements of those travaux referred to by the IACtHR
 n its Advisory Opinion No. 16 of 1999 121 (and also discussed in the
pleadings before the Court 122), I deem it fit to add, in this separate
opinion in the present Diallo case, which the ICJ has just resolved, the
 ollowing ones, which I find relevant for the clarification of the point at
 ssue, examined herein. In the debates of the 1963 UN Conference on
Consular Relations, held in Vienna, the Delegate of Greece (Mr. Spyri-
dakis), for example, stated that Article 36 (1) (b) of the [then] Draft Con-
vention was intended : “to establish an additional safeguard for the rights
of the individual and to reinforce the ideal of humanism” 123.

  121 Paragraph 90, notes 71-73.
  122 Cf. e.g., IACtHR, Advisory Opinion No. 16, on The Right to Information on Con-
 ular Assistance in the Framework of the Guarantees of the Due Process of Law (1999),
Series B (Pleadings, Oral Arguments and Documents), 2000, pp. 39, 66-67, 74, 88, 90-91,
93-94, 117, 129, 131, 146, 167 and 206-207.
  123 United Nations Conference on Consular Relations (Vienna, 4 March-22 April 1963),

Vol. I — UN, Official Records, New York, 1963, p. 39.

155

In stressing the relevance of that provision, he added that that work of
codification of international law on consular relations had taken into
account the promotion and protection of human rights, and “future gen-
erations would be grateful” for that 124.
   178. The Delegate of Australia (Mr. Woodberry), in the same line,
stressed the importance, in the present context of consular assistance, of
securing respect for the fundamental rights of the individual, emanating
 rom a “principle upon which the United Nations was based” 125. The
Delegate of Korea (Mr. Chin), in turn, deemed it fit to point out that the
duty of the receiving State under Article 36 (1) (b) of the Draft Conven-
 ion was : “extremely important, because it related to one of the funda-
mental and indispensable rights of the individual” 126.
   179. In the same line of reasoning, the Delegate of Tunisia (Mr. Bouziri)
also singled out the great importance of consular assistance, as detention
was “a serious infringement of the freedom and dignity of the indi-
vidual” ; the measures provided for in Article 36 (1) (b) of the Draft
Convention were thus “necessary to protect the rights of foreigners” 127.
The same point was made by the Delegates of the United Kingdom
 Mr. Evans) 128 and of Kuwait (Mr. S. M. Hosni) 129. The Delegate of
France (Mr. de Menthon) stressed the need to secure respect for one of
 he fundamental rights of the individual, and thus to reinforce further
 nformation on consular assistance 130.
   180. The Delegate of Spain (Mr. Pérez Hernández) regarded the right
 o information on consular assistance and to enjoy willingly such assist-
ance, as “one of the most sacred rights of foreign residents in a coun-
 ry 131. The Delegate of Vietnam (Mr. Vu-Van-Mau) made the point that,
as titulaire of the right to information on consular assistance, it was the
 ndividual himself who was to decide whether he wished or not to count
on the assistance of his consul : one was here faced with “the rights of the
detained person” 132. Likewise, the Delegate of India (Mr. Krishna Rao)
also stated that it was for the individual concerned to decide whether to
avail himself or not of consular assistance 133.
   181. In connection with this latter, the Delegates of Ecuador
 Mr. Alvarado Garaicoa) 134 and Ukraine (Mr. Zabigailo) 135 saw it fit to

 124   United Nations Conference on Consular Relations, note 123 supra, p. 339.
 125 Ibid., pp. 331-332.
 126 Ibid., p. 338.
 127 Ibid., p. 339.
 128 Ibid., p. 339.
 129 Ibid., p. 332.
 130 Ibid., pp. 38, 332 and 344.
 131 Ibid., p. 332, and cf. also pp. 335 and 344.
 132 Ibid., p. 37.
 133 Ibid., p. 339, and cf. p. 333.
 134 Ibid., p. 333.
 135 Ibid., p. 46.

156

refer to the 1948 Universal Declaration of Human Rights. The Delegate
of Switzerland (Mr. Serra), on his turn, referred, in the present context of
consular assistance, to “the freedom of the human person” and “the
expression of the will of the individual”, as “fundamental principles”
 aken into account by the “instruments concluded under the auspices of
 he United Nations” 136. He added emphatically that :
        “[t]he Swiss Delegation was prepared to agree to any proposal which
        referred to the freely expressed wish of the person concerned. That
        was the object of its amendment for the addition of a new paragraph
        (. . .). What mattered was that the essential principle which (. . .) was
        laid down in a number of bilateral conventions should be stated in
        the text being prepared by the Conference. [It] would be unable to
        accept any formula which ignored the will of the persons con-
        cerned.” 137

d) General assessment
   182. All the aforementioned interventions, at an advanced stage of the
preparatory work of the 1963 Vienna Convention on Consular Relations
— which, in historical perspective, preceded in three years the adoption
of the two UN Covenants on Human Rights (on Civil and Political
Rights, as well as on Economic, Social and Cultural Rights, respec-
 ively) — indicated that, already at that time, there was awareness among
participating Delegations as to the need to insert the right to information
on consular assistance into the conceptual universe of human rights.
There were, in the debates of 1963 at the Vienna Conference, no less than
19 interventions pointing in this same direction.

  183. In addition to those interventions, the UN High Commissioner
 or Refugees submitted a memorandum to the 1963 Vienna Conference,
wherein it singled out that draft Article 36 of the Draft Convention was
one of its two provisions that had a direct bearing upon its own work, in
so far as the protection of the rights of nationals of the sending State in
 he State of residence were concerned 138. There was indeed an awareness
of the imperative of human rights protection, even before the adoption of
 he Convention on the Elimination of All Forms of Racial Discrimination
(CERD) in 1965 and of the two UN Covenants on Human Rights in

  136   Cf. United Nations Conference on Consular Relations, note 123 supra, p. 335.
  137  Ibid., p. 335. On the Swiss amendment, cf. United Nations Conference on Consular
Relations (Vienna, 4 March-22 April 1963), Vol. II — UN, Official Records, New York,
1963, p. 83. The comment to draft Article 36 of the Draft Convention observed that “[s]i
 es droits prévus au présent article doivent s’exercer conformément aux lois et règlements
de l’Etat de résidence, cela ne veut pas dire que ces lois et règlements pourraient mettre à
néant les droits dont il s’agit” ; ibid., p. 25.
   138 Cf. doc. A/CONF.25/L.6, reproduced in United Nations Conference on Consular

Relations, op. cit. supra, note 137, p. 53.

157

1966, at the early stage of the legislative phase of UN human rights
 reaties.

  184. Such awareness, and the legal consequences of the consideration
of the matter within the conceptual universe of human rights, were
grasped and properly developed, more than three decades later, by the
IACtHR in its Advisory Opinion No. 16 on The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due
Process of Law (1999) — consolidated by its Advisory Opinion No. 18
on the Juridical Condition and Rights of Undocumented Migrants
 2003) — which contributed decisively to the process of humanization of
consular law 139, going well beyond the inter-State dimension.

   185. The aforementioned Advisory Opinion No. 16 (1999) was brought
 o the attention of the ICJ in proceedings before this latter, and paved
 he way its reasonings in the resolution of the triad of the Breard/
LaGrand/Avena cases. Such advance of humanization of consular law
 s bound to be an irreversible one. Human conscience, the universal juri-
dical conscience (as the ultimate material source of international law),
was soon awakened so as to fulfill a pressing need to this effect. Human
conscience was soon attentive to fulfill the needs of protection of human
beings in all circumstances, including in situations of deprivation of per-
sonal liberty abroad. Such irreversibility of the advance of humanization,
 n the present domain of international law, among others, is a reassuring
one.
   186. It leaves no room for steps backwards, or hesitations. From the
preceding review, it is clear that, contrary to what this Court stated in
paragraph 124 (cit. supra, para. 171) in its Judgment of 2004 in the Avena
case (dismissing a submission by Mexico), the point at issue — concern-
 ng a provision of a UN Convention of universal scope, such as the 1963
Vienna Convention on Consular Relations — is a point which this Court,
as the principal judicial organ of the United Nations, needs indeed to
pronounce upon or decide.

  187. It could have done so in the present Diallo case — since the point
was raised before it in the course of the oral phase of the proceedings of
 he cas d’espèce — but it preferred to give a rather summary treatment
 o the consideration of Article 36 (1) (b) of the 1963 Vienna Convention.
Moreover — and contrary again to what this Court asserted in 2004 in
 he Avena case — both the text, and object and purpose of the 1963
Convention, as well as several indications in its travaux préparatoires (cf.
supra), clearly support the view (then advanced by Mexico, on the basis

  139 Cf. A. A. Cançado Trindade, “The Humanization of Consular Law : The Impact of

Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on Inter-
national Case Law and Practice”, 6 Chinese Journal of International Law (2007), pp. 1-16.

158

of the Advisory Opinion No. 16, of 1999, of the IACtHR) that the right
 o information on consular assistance belongs to the conceptual universe
of human rights, and non-compliance with it ineluctably affects judicial
guarantees vitiating the due process of law.

   188. It is not for this Court to keep on cultivating, in obiter dicta,
hesitations or ambiguities, such as those of paragraph 124 of its Avena
Judgment of 2004. Furthermore, in this transparent age of internet, to
attempt capriciously to overlook or to ignore the contribution of other
contemporary international tribunals to the progressive development of
 nternational law — in the sense of the irreversible advance of its
humanization — seems to attempt to avoid the penetrating sunlight
with a fragile blindfold.

              IX. THE NOTION OF “CONTINUING SITUATION” :
          THE PROJECTION OF HUMAN RIGHTS VIOLATIONS IN TIME

   189. Having examined the material content of the human rights pro-
 ected in the cas d’espèce, as well as the jurisprudential construction of
 he right to information on consular assistance in the conceptual universe
of human rights, I may now turn to the next point, before moving on to
 he question of the right to reparation in the present Diallo case : I allow
myself to turn now to the notion of “continuing situation”, in the frame-
work of the projection of human rights violations in time. This is an issue
which has not yet been satisfactorily resolved in contemporary interna-
 ional case law and legal doctrine, and thus requires careful attention in
our days.
   190. We have already seen that the ACHPR, in the case of Amnesty
International, Comité Loosli Bachelard, Lawyers Committee for Human
Rights, and Association of Members of the Episcopal Conference of East
Africa v. Sudan (1999), established the occurrence of “serious and con-
 inuing violations of Article 6” 140 of the African Charter (cf. para. 122,
supra). This was not the only occasion wherein the notion of “continuing
situation” marked presence in the practice of the ACHPR.
   191. To recall but another example, in its decision in the L. Zegveld
and M. Ephrem v. Eritrea case (2003), the ACHPR, having found that
11 persons were being held, since September 2001, under “secret deten-
 ion without any access to the courts, lawyers or family”, added :

         “Regrettably, these persons’ rights are continually being violated
       even today, as the Respondent State is still holding them in secret

 140   Emphasis added.

159

        detention in blatant violation of their rights to liberty and recourse
        to fair trial.” 141
   192. Likewise, in its practice the UN Human Rights Committee has
acknowledged the existence of “continuing” or “persistent” violations of
human rights under the Covenant on Civil and Political Rights. It has
also referred to “continuing” or “persistent effects” of certain human
rights breaches under the Covenant, in relation with the difficulties it has
at times faced to examine ratione temporis certain individual communi-
cations lodged with it 142. In fact, in its practice, the Committee has dis-
played its keen awareness of the time factor in the settlement of cases
raising issues of competence ratione temporis.

  193. In this respect, reference can also be made to the Committee’s
General Comment No. 26 (of 1997), on the continuity of obligations, with
an incidence in the law of treaties (cf. para. 3). Reference can further be
made to its General Comment No. 31 (of 2004), where the Committee
espoused the view that the individual’s right to an effective remedy
        “may in certain circumstances require States parties to provide for
        and implement provisional or interim measures to avoid continu-
        ing situations and to endeavour to repair at the earliest possible
        opportunity any harm that may have been caused by such viola-
        tions” 143.
   194. In sum, in the exercise of its functions, the Committee has, in my
view, aptly identified, in its interpretation of the Covenant on Civil and
Political Rights, the proper time and space dimensions in all its conse-
quences. Examples of the former are provided by its endorsement of the
notions of continuing situation and persistent effects, in its handling of
communications, as well as, in certain circumstances, of potential victims.
As to the latter, an example is provided by its endorsement of the extra-
 erritorial application of the protected rights. It is beyond the scope of
 he present separate opinion to embark on an examination of this latter.
   195. I have, in fact, devoted considerable attention to the notion of
“continuing situation” in my recent dissenting opinion in the case of
Jurisdictional Immunities of the State (Germany v. Italy) (Counter-
Claim, Order of 6 July 2010, I.C.J. Reports 2010 (I), p. 329), having devoted
 our sections of it (VII-X) to : (a) the origins of that concept in interna-
 ional legal doctrine (paras. 60-64) ; (b) its configuration in international
 itigation and case law, in public international law as well as in Interna-
 ional Human Rights Law (paras. 65-83) ; (c) its configuration in inter-

  141   Para. 57 ; emphasis added.
  142   For a recent assessment, cf. L. Hennebel, La jurisprudence du Comité des droits de
 ’homme des Nations Unies — Le Pacte international relatif aux droits civils et politiques
  t son mécanisme de protection individuelle, Brussels, Bruylant/Nemesis, 2007, pp. 374-
381.
    143 Para. 19 ; emphasis added.

160

national legal conceptualization at normative level ; and (d) its presence
n that case. It is not my intention to repeat here the analysis I developed
 herein.

   196. Suffice it here to refer to my considerations on the jurisprudential
construction of “continuing situation” on the part of both the Euro-
pean and the Inter-American Courts of Human Rights (paras. 73-83).
Particularly illustrative are, inter alia, the three judgments of the Inter-
American Court in the leading case of Blake v. Guatemala (preliminary
objections, of 2 July 1996 ; merits, of 24 January 1998 ; and reparations,
of 22 January 1999), and the recent judgment of the Grand Chamber
of the European Court in Varnava and Others v. Turkey case (of
18 September 2009). It is not at all surprising that the notion of “continuing
situation” has been developed to a larger extent in the domain of the
 nternational protection of human rights. This significant jurisprudential
development cannot pass unnoticed to the ICJ in our days.
   197. In the consideration of the present Diallo case, the point at issue
 s reflected in the joint declaration of five Members of this Court 144,
appended to the present Judgment. I feel obliged to add yet another
remark thereto, in the line of the observations developed in this section
 IX) of my separate opinion. The griefs suffered by Mr. A. S. Diallo in
 he present case disclose a factual nexus between the arrests and deten-
 ions of 1988-1989 and those of 1995-1996, prior to his expulsion from
 he country of residence in 1996. Those griefs, extended in time, were in
breach of the applicable law in the present case (Articles 9 and 13 of the
Covenant on Civil and Political Rights, Articles 6 and 12 (4) of the Afri-
can Charter on Human and Peoples’ Rights, Article 36 (1) (b) of the
Vienna Convention on Consular Relations), as interpreted in pursuance
of the hermeneutics of human rights treaties.

   198. At the time of his arrests and detention, Mr. A. S. Diallo was not
 nformed of the charges against him, nor could he have availed himself
without delay of his right to information on consular assistance. His
griefs were surrounded by arbitrariness on the part of State authorities.
Moreover, there was a chain of causation, a causal nexus, in that conti-
nuity of occurrences, to be borne in mind (with a direct incidence on the
reparation due to Mr. A. S. Diallo), which the Court’s majority regret-
 ably failed to consider. The projection of human rights in time also
raises the issue of the prolonged lack of access to justice.

  199. This causal nexus could at least have been considered as evidence
put before the Court, but was simply discarded by the Court’s major-

  144 Cf. joint declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trin-

dade and Yusuf.

161

 ty 145. The Court could at least have taken into account — in my view it
should have — the circumstances of the arrests and detention in 1988-
1989 in its consideration of the arrests and detention of 1995-1996, prior
 o Mr. A. S. Diallo’s expulsion from the DRC in 1996. Keeping the
aforementioned factual nexus and causal nexus in mind, it could hardly
be denied that there was a continuing situation of breaches of
Mr. A. S. Diallo’s individual rights (specified supra), in the period extend-
 ng from 1988 to 1996.

                      X. THE INDIVIDUAL AS VICTIM :
                 REFLECTIONS ON THE RIGHT TO REPARATION

   200. I have now come to the consideration of the issue of the right to
reparation in the cas d’espèce. As to resolutory points 7 and 8 (duty to
make appropriate reparation) of the dispositif of the Court’s Judgment in
 he present Diallo case, which were adopted with my concurring vote, I
 eel obliged, in addition, to express my concern that the provision of
adequate reparation is still to wait further, till the Court eventually
decides later on this aspect (pursuant to resolutory point 7), in case the
contending Parties fail to reach an agreement on this issue within the
 orthcoming six months. To my mind, this resembles an arbitral, rather
 han a truly judicial procedure, and looks somewhat disquieting to me.

   201. This is particularly so, if we bear in mind the prolonged length of
 ime that the handling of this case by the Court has taken. Since Guinea’s
Application of 1998 until the delivery by the Court of its decision of 2007
on preliminary objections, almost a decade was consumed 146. Subse-
quently, from the deposit of the DRC’s Counter-Memorial of 2008 until
 he end of the oral phase of pleadings before the Court in 2010, another
 hree years have passed 147. At last, the Court has just delivered today,
30 November 2010, its present Judgment on the merits of the cas d’espèce.
   202. The basic claim underlying the present Diallo case has thus
remained, for consideration by this Court, before this latter for almost 12
years, from the end of December 1998 to the end of November 2010.
It could hardly be denied that this has been a prolonged and cumber-
some procedure, and a particularly time-consuming one, for reasons not
attributable to the Court itself, except for its apparent outlook of such

  145  Despite what it partly conceded in para. 82 of the present Judgment.
  146  Guinea’s Application instituting proceedings was lodged with the Court on
28 December 1998, and the deposit of its Memorial took place on 23 March 2001. The
DRC raised its preliminary objections on 3 October 2002, to which Guinea opposed its
Written Statement of 7 July 2003. Four years later, on 24 May 2007, the Court delivered
 ts Judgment on preliminary objections.
   147 The DRC’s Counter-Memorial dates from 27 March 2008, Guinea’s Reply was

deposited on 19 November 2008, and the DRC’s Rejoinder on 5 June 2009 ; the oral argu-
ments of the Parties in pleadings before the Court lasted from 19 to 29 April 2010.

162

procedure inadequately resembling rather that of an arbitral tribunal —
something which is, in my view, to be avoided, particularly when repar-
ation for human rights breaches is at stake. The Court is the master of its
own jurisdiction, and of its own procedure, and unreasonable prolongation
of time-limits for the performance of procedural acts is to be curtailed and
avoided.
   203. By virtue of the decision taken by the Court in resolutory point 8
of the dispositif of the present Judgment, the determination of reparation
 s now extended for another period of up to six months, to start with. This
does not appear reasonable to me, as the subject (titulaire) of the rights
breached in the present case is not the Applicant State, but the indi-
vidual concerned, Mr. A. S. Diallo, who is also the ultimate beneficiary
of the reparations due. It is thus all too proper to keep in mind the indi-
vidual’s right to reparation in the light of the applicable law in the cas
d’espèce — the international law of human rights, in particular the
Covenant on Civil and Political Rights and the African Charter on
Human and Peoples’ Rights (in addition to the Vienna Convention on
Consular Relations).
   204. This issue takes us beyond the domain of international proce-
dural law, into that of juridical epistemology, encompassing one’s own
conception of international law in our times. Here, the Applicant State is
 he claimant, but the victim is the individual. The Applicant State claims
 or reparation, but the titulaire of the right to reparation is the indi-
vidual, whose rights have been breached. The Applicant State suffered no
damage at all, it rather incurred costs and expenses, in espousing the
cause of its national abroad. The damage was suffered by the individual
himself (subjected to arbitrary arrests and detention, and expulsion from
 he State of residence), not by his State of nationality.

   205. The individual concerned is at the beginning and at the end of the
present case, and his saga has not yet ended, as a result also of the
unreasonable prolongation of the proceedings before this Court. As it
can be seen from my own voting on the distinct resolutory points of the
dispositif of the present Judgment, these latter have left me with mixed
 eelings, for the lack of consistency of the Court’s reasoning on the
successive points submitted to its decision. It is about time for this
Court to overcome the acrobaties intellectuelles ensuing from an undue
 eliance on the old Vattelian fiction, revived by the PCIJ in the Mavrommatis
fiction 148 (not a principle, simply a largely surpassed fiction).

  148 In the words of the Permanent Court of International Justice (PCIJ) in the case of

 he Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment No. 2,
1924, P.C.I.J., Series A, No. 2,
         “It is an elementary principle of international law that a State is entitled to protect
      its subjects, when injured by acts contrary to international law committed by another
      State, from whom they have been unable to obtain satisfaction through the ordinary
      channels. By taking up the case of one of its subjects and by resorting to diplomatic

163

   206. It can no longer keep on reasoning within the hermetic para-
meters of the exclusively inter-State dimension. The recognition of the
damage suffered by the individual (paragraph 98 of the Judgment) has ren-
dered unsustainable the old theory of the State’s assertion of its “own rights”
(droits propres), with its underlying voluntarist approach. The titulaire
of the right to reparation is the individual, who suffered the damage,
and State action in diplomatic protection is to secure the reparation due
 o the individual concerned 149. Such action in diplomatic protection aims
at reparation for a damage, usually already consummated, to the detri-
ment of the individual ; consular assistance and protection, much closer now-
adays to human rights protection, are exercised in a rather preventive
way, so as to avoid a probable or a new damage to the individual
concerned. This affinity of contemporary consular assistance and protec-
 ion with human rights protection is largely due to the historical rescue of
 he individual, of the human person, as subject of international law.

   207. Had the Court pursued the hermeneutics of the human rights trea-
 ies, invoked by the contending States throughout the whole of its pro-
ceedings (cf. supra), in the whole Judgment, this latter would have been
entirely a much more consistent and satisfactory one. In particular, the
unreasonable prolongation of the presentation of this case before this
Court, and of its examination thereof, now added to the prolongation of
 he settlement of the reparation due to the individual concerned, brings to
 he fore a concern I have raised, more than once, within the Court : as I
sought to demonstrate, and warn, in my dissenting opinion (paras. 46-64)
 n the case concerning Questions relating to the Obligation to Prosecute
or Extradite (Belgium v. Senegal) (Provisional Measures, Order of
28 May 2009, I.C.J. Reports 2009, p. 139) as well as in my dissenting
opinion (para. 118) in the case of Jurisdictional Immunities of the State
(Germany v. Italy) (Counter-Claim, Order of 6 July 2010, I.C.J. Reports
2010 (I), p. 329), the time of human justice is not at all the time of human
beings.

      action or international judicial proceedings on his behalf, a State is in reality assert-
      ing its own rights — its right to ensure, in the person of its subjects, respect for the
      rules of international law.
         The question, therefore, whether the present dispute originates in an injury to a
      private interest, which in point of fact is the case in many international disputes, is
      irrelevant from this standpoint. Once a State has taken up a case on behalf of one of
      its subjects before an international tribunal, in the eyes of the latter the State is sole
      claimant.” (P. 12.)
   149 Cf. S. Touzé, La protection des droits des nationaux à l’étranger — Recherches sur

 a protection diplomatique, Paris, Pedone, 2007, pp. 23, 228-229, 255-257, 319, 322-324
and 453-456 ; and cf. C. Santuli, “Entre protection diplomatique et action directe : la
 eprésentation — Eléments épars du statut international des sujets internes”, in : Société
 rançaise pour le droit international (SFDI), Le sujet en droit international (colloque du
Mans, 2004), Paris, Pedone, 2005, pp. 93-95.

164

   208. In the present Diallo case, the criteria followed by the Human
Rights Committee on the matter at issue may provide an indication to
 his Court for the determination of an appropriate reparation for the
breaches of the rights under the Covenant (cf. supra) suffered by the victim.
Ultimately, this may amount to a proper compensation (in the unlike-
 ihood of restitutio in integrum) — among other forms of reparation (such
as satisfaction, public apology, rehabilitation of the victim, guarantees
of non-repetition of the harmful acts, among others) — for the violations
of the rights there under, that is, for material and moral damages, fixed
 o some extent on the basis of considerations of equity.

   209. In cases of the kind, such reparations are to be granted from the
perspective of the victims, human beings (their original claims, needs and
aspirations). This discloses a wider horizon in the matter of reparations,
when human rights are at stake. The most advanced international case
 aw on such distinct forms of reparation, in cases pertaining to human
rights breaches (individually and collectively) is, at present, that of the
Inter-American Court of Human Rights (cf. infra). As we are here con-
cerned with the UN Covenant on Civil and Political Rights, suffice it
now to recall that, in the same line of reasoning, the Human Rights Com-
mittee, in its General Comment No. 31 (of 2004), on the nature of the gen-
eral legal obligation (under Article 2) incumbent upon States parties to
 he Covenant, reminded that Article 2 (3) of the Covenant provides for
reparations to individuals whose Covenant rights have been violated, and
 urther noted in this respect that reparations can consist of :

      “restitution, rehabilitation and measures of satisfaction, such as
      public apologies, public memorials, guarantees of non-repetition and
      changes in relevant laws and practices, as well as bringing to justice
      the perpetrators of human rights violations” (para.16).

   210. As already quoted, Article 9 (5) of the Covenant on Civil
and Political Rights stipulates that “[a]nyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compen-
sation”. I have already sustained the need to consider Article 9 of the
Covenant as a whole (paras. 35-49, supra), including, now, its paragraph 5.
 n its practice, whenever breaches of Article 9 (and other provisions of the
Covenant, such as, inter alia, Article 13) have been found, the Human
Rights Committee has determined compensation (as a form of repara-
 ion) utilizing the general formula :
        “In accordance with the provisions of Article 2 of the Covenant,
      the State party is under an obligation to take measures to remedy
      the violations suffered by [the petitioner].”

165

   211. Article 2 of the Covenant sets forth a general obligation to the
States parties 150 , which is added to the specific obligations in relation to
each of the rights guaranteed there under. The aforementioned general
 ormula allows for flexibility, in the determination of the measures of
compensation or other forms of reparation to the victim(s) concerned.
The ultimate aim is, naturally, whenever possible, the restitutio in inte-
grum, but, when that is not possible, recourse is to be made to the provi-
sion of other adequate forms of reparation, as I have just indicated.
   212. In any case, and whatever the circumstances might be, it is to
be borne in mind that the duty to make reparation reflects a funda-
mental principle of general international law, promptly captured by the
Permanent Court of International Justice (PCIJ), early in its case law,
and endorsed by the case law of the ICJ 151. That obligation to make
reparation is governed by international law in all its aspects (such as,
e.g., its scope, forms and characteristics, and the determination of the
beneficiaries). Accordingly, compliance with it cannot be made subject
 o modification or suspension, in any circumstances, by any Respon-
dent States, through the invocation of provisions (or difficulties) of
 heir own domestic law 152.

  150   Article 2 of the Covenant on Civil and Political Rights states that :
         “1. Each State party to the present Covenant undertakes to respect and to ensure
             to all individuals within its territory and subject to its jurisdiction the rights
             recognized in the present Covenant, without distinction of any kind, such as
             race, colour, sex, language, religion, political or other opinion, national or
             social origin, property, birth or other status.

          2. Where not already provided for by existing legislative or other measures, each
             State party to the present Covenant undertakes to take the necessary steps, in
             accordance with its constitutional processes and with the provisions of the
             present Covenant, to adopt such legislative or other measures as may be neces-
             sary to give effect to the rights recognized in the present Covenant.
          3. Each State party to the present Covenant undertakes :
             (a) To ensure that any person whose rights or freedoms as herein recognized
                  are violated shall have an effective remedy, notwithstanding that the vio-
                  lation has been committed by persons acting in an official capacity ;

             (b) To ensure that any person claiming such a remedy shall have his rights
                 thereto determined by competent judicial, administrative or legislative
                 authorities, or by any other competent authority provided for by the legal
                 system of the State, and to develop the possibilities of judicial remedy ;
             (c) To ensure that the competent authorities shall enforce such remedies
                 when granted.”
  151 Cf. Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A,

No. 9, p. 21 ; Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A,
No. 17, p. 29 ; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Second Phase, Advisory Opinion, I.C.J. Reports 1950, p. 228 ; among others.
  152 Cf. Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, P.C.I.J., Series B,

No. 15, pp. 26-27 ; Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J.,
Series B, No. 17, pp. 32 and 35 ; Free Zones of Upper Savoy and the District of Gex,
Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12, and Free Zones of Upper

166

                 XI. BEYOND THE INTER-STATE DIMENSION :
                INTERNATIONAL LAW FOR THE HUMAN PERSON

  213. The present A. S. Diallo case shows that diplomatic protection
was initially resorted to herein, keeping in mind property rights or invest-
ments, but the dynamics of the case, at the stage of its merits, underwent
a metamorphosis, and it reassuringly turned out to be a case, ultimately,
of human rights protection, of the rights inherent to the human person,
concerning its liberty and legal security. It is reassuring to see that even a
 ool conceived in the inter-State optics like diplomatic protection, may
 urn out to be utilized to safeguard human rights.

   214. Whether the outcome of this case corresponded to the original
motivations that gave rise to it, is hard to tell. The handling of each case
 n the course of international adjudication has a dynamics of its own.
Yet, the outcome of the cas d’espèce is indeed reassuring, in so far as the
rights protected are concerned, and it contains a couple of lessons that
cannot here pass unnoticed. Let me now address them briefly, as I per-
ceive them.
   215. To start with, attempts to revitalize traditional diplomatic protec-
 ion, with its ineluctable discretionary nature, should not be undertaken
underestimating human rights protection — as suggested to the Interna-
 ional Law Commission (ILC) in 2000 153. In my understanding, the
greatest legacy of the international legal thinking of the twentieth cen-
 ury, to that of this new century, lies in the historical rescue of the human
person as subject of rights emanating directly from the law of nations
 the droit des gens), as a true subject (not only “actor”) of contemporary
 nternational law. The emergence of the international law of human
rights has considerably enriched contemporary international law, at both
substantive and procedural levels.

  216. Secondly, once we move into the much wider (and more satisfac-
 ory and gratifying) conceptual universe of the international law of
human rights, we have to guard ourselves against inclinations towards

Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167 ;
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig
Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24.
   153 The suggestion tried to make one believe that remedies provided by human rights

 reaties and instruments were “weak”, while diplomatic protection offered a “more effec-
 ive remedy”, as “most States” would treat it “more seriously” than a complaint against
 heir conduct to “a human rights monitoring body” ; ILC, “First Report on Diplomatic
Protection” (rapporteur J. R. Dugard), UN doc. A/CN.4/506, of 7 March 2000, para. 31.
The suggestion simply begs the question, and ignores the considerable achievements under
 he international law of human rights in recent decades (including remarkable changes in
domestic legislation and administrative practices in numerous countries), that would
never have been accomplished under discretionary diplomatic protection.

167

any partial or atomized outlook 154, such as the one, e.g., put to the ILC
one decade ago, to the effect that
        “[w]hile the European Convention on Human Rights may offer real
        remedies to millions of Europeans, it is difficult to argue that the
        American Convention on Human Rights or the African Charter on
        Human and Peoples’ Rights have achieved the same degree of
        success” 155.

   217. This is simply not true. One could easily be led into such hurried
“conclusion” on the basis of statistical data, but statistics are, in my view,
 o be approached with great caution, if not critically, as they tend to
reveal as much as they conceal. Not all advances in the domain of human
rights protection are amenable to quantification. To me, quality prevails
over quantity. No one would question the considerable achievements in
 he European system of human rights protection, as disclosed by its vast
and remarkable case law, e.g., on the right to personal liberty and secu-
rity and the right to a fair trial 156.

  218. Yet, there is no reason, or basis, to underestimate or minimize
remarkable achievements attained likewise in the inter-American and the
African systems of human rights protection. There is general recognition
 oday that the most advanced case law on reparations (in its distinct
 orms, and including in collective cases) and on provisional measures of
protection (encompassing the members of several human collectivities) is
 hat of the Inter-American Court of Human Rights 157. Likewise, the
African Commission on Human and Peoples’ Rights has settled cases of

   154 If one remains imprisoned in the Vattelian dream-world of exclusive inter-State rela-

 ions, one is easily led to the vision that “as long as the State remains the dominant actor
 n international relations” diplomatic protection “remains the most effective remedy for
 he promotion of human rights” (UN doc. A/CN.4/506, para. 32) — a vision which simply
does not hold true. It overlooks the considerable achievements around the world, in recent
decades, under the international law of human rights, reassessed by the United Nations,
 nter alia, in its II World Conference on Human Rights (Vienna, 1993).

  155   Cf. ibid., para. 25.
  156   Articles 5 and 6 of the European Convention of Human Rights.
   157 Carefully constructed, in particular, as from the period 1998-2006. On forms of

 eparation in cases concerning individuals or individualized victims (as distinguished from
 hose concerning members of whole communities), cf. the IACtHR’s judgments in the
 ases of Loayza Tamayo v. Peru (27 November 1998), Suárez Rosero v. Ecuador (20 Janu-
ary 1999), “Street Children” (Villagrán Morales and Others v. Guatemala) (26 May
2001), Cantoral Benavides v. Peru (3 December 2001), Bámaca Velásquez v. Guatemala
 22 February 2002), Hilaire, Benjamin and Constantine et al. v. Trinidad and Tobago
 21 June 2002), Myrna Mack Chang v. Guatemala (25 November 2003), Maritza Urrutia
v. Guatemala (27 November 2003) ; and, on forms of reparation in cases concerning a

168

special gravity (on the fundamental right to life itself, and other protected
rights) 158 that hardly find any parallel either at the UN or at other
regional levels.

   219. One is thus to avoid the traditional Euro-centric outlook, so com-
mon in the study of the law of nations of the past, and so typical of the
static vision of so-called “realists”, and one is to pursue a respectful uni-
versalist perspective, not only of UN procedures, but also of regional
systems of human rights protection, as these latter operate also within the
 ramework of the universality of human rights. The present Diallo case
affords evidence to this effect, as it has just been resolved by the World
Court on the basis of the relevant provisions of a universal instrument
 the UN Covenant on Civil and Political Rights) together with a regional
 nstrument (the African Charter on Human and Peoples’ Rights), and a
UN codification Convention (the Vienna Convention on Consular Rela-
 ions).

   220. Thirdly, in order to provide adequate reparation to the victims of
violated rights, we have to move into the domain of the international law
of human rights ; we cannot at all remain in the strict and short-sighted
confines of diplomatic protection, as a result of not only its ineluctable
discretionary nature, but also its static inter-State dimension. Repara-
 ions, here, require an understanding of the conception of the law of
nations centred on the human person (pro persona humana). Human
beings — and not the States — are indeed the ultimate beneficiaries of
reparations for human rights breaches to their detriment.

  221. The Vattelian fiction of 1758 (expressed in the formula — “Qui-
conque maltraite un citoyen offense indirectement l’Etat, qui doit protéger

plurality of victims, or members of whole communities, cf. the IACtHR’s judgments in
 he cases of Aloeboetoe and Others v. Suriname (10 March 1993), Mayagna (Sumo) Awas
Tingni Community v. Nicaragua case (1 February 2000), Massacre of Plan de Sánchez v.
Guatemala (19 November 2004), Yakye Axa Indigenous Community v. Paraguay (17 June
2005), Massacre of Mapiripán v. Colombia (15 September 2005), Massacre of Pueblo
Bello v. Colombia (31 January 2006), Moiwana Community v. Suriname (8 February
2006), Sawhoyamaxa Indigenous Community v. Paraguay (20 March 2006), Ituango Mas-
 acres v. Colombia (1 July 2006).
   158 Cf. the case of The Democratic Republic of the Congo v. Burundi, Rwanda and

Uganda (communication No. 227/99) : the African Commission was therein faced with an
 nter-State communication, in a case involving the use of armed force by the respondent
States. In its decision of May 2003, it found the respondent States in breach of Articles 2,
4, 5, 12 (1) and (2), 14, 16, 17, 18 (1) and (3), 19, 20, 21, 22 and 23 of the African Charter.
The ACHPR found that “the killings, massacres, rapes, mutilations and other grave
human rights abuses committed while the respondent States’ armed forces were still in
 ffective occupation of the eastern provinces of the complainant State” were also incon-
 istent with international humanitarian law (para. 79).

169

ce citoyen” 159) has already played its role in the history and evolution of
 nternational law. The challenge faced today by the World Court is of a
different nature, going well beyond such inter-State dimension. It requires
 rom the Court preparedness to explore the ways of incorporating, in its
modus operandi — starting with its own reasoning — the acknowledge-
ment of the consolidation of the international legal personality of indi-
viduals, and the gradual assertion of their international legal capacity —
 o vindicate rights which are theirs and not their own State’s — as sub-
 ects of rights and bearers of duties emanating directly from international
 aw, in sum, as true subjects of international law.

                          XII. CONCLUDING OBSERVATIONS

   222. In this perspective, and as a starting-point in this direction, in its
present Judgment in the A.S. Diallo case the Court was right in concen-
 rating its attention, in particular, in the breaches found of Articles 9 and
13 of the UN Covenant on Civil and Political Rights, and Articles 6
and 12 (4) of the African Charter of Human and Peoples’ Rights, as well
as Article 36 (1) (b) of the Vienna Convention on Consular Relations.
They concern the rights of Mr. A. S. Diallo as an individual, as a human
person. The breaches of his individual rights as associé of the two com-
panies come to the fore by way of consequence, having been likewise
affected.

   223. The subject of the rights, that the Court has found to have been
breached by the Respondent State in the present case, is not the Appli-
cant State : the subject of those rights is Mr. A. S. Diallo, an individual.
The procedure for the vindication of the claim originally utilized (by the
Applicant State) was that of diplomatic protection, but the substantive
 aw applicable in the present case — as clarified after the Court’s Judg-
ment of 2007 on preliminary objections, in the course of the proceedings
 written and oral phases) as to the merits — is the international law of
human rights.
   224. Whenever the Court diverted, in parts of the present Judgment,
 rom the proper hermeneutics of human rights treaties, it incurred into
 nconsistencies (such as those of resolutory points 1, 5 and 6 of the dis-
positif of the present Judgment). Those deviations disclosed a somewhat
crooked line of reasoning, which could and should have been avoided.
Once the applicable law is identified and conformed, as in the present
case, by human rights treaties, the Court is to interpret and apply them in
pursuance of the general rule of interpretation of treaties (Article 31 of
 he two Vienna Conventions on the Law of Treaties, of 1969 and 1986),
bearing in mind their special nature.

  159   E. Vattel, Le droit des gens (1758), Book II, para. 71.

170

   225. After all, human rights treaties do apply in the framework of
 ntra-State relations (such as, in the present case, the relations between
 he DRC and Mr. A. S. Diallo). In properly interpreting and applying
such treaties, the Court is thereby giving its contribution to the develop-
ment of the aptitude of international law to regulate relations at intra-
State, as well as inter-State, levels. In the present case, in the framework
of the international law of human rights, the contending Parties have
sought to substantiate the arguments on the basis of the relevant provi-
sions of two human rights treaties — the UN Covenant on Civil and
Political Rights and the African Charter on Human and Peoples’
Rights — as well as on the basis of the provision on an individual right
enshrined into the Vienna Convention on Consular Relations (Arti-
cle 36 (1) (b)), and construed in the conceptual universe of human rights.
   226. The present case concerns, thus, the human rights (to liberty and
security of person ; not to be expelled from a State without a legal basis ;
not to be subjected to mistreatment ; and to information on consular
assistance in the framework of the guarantees of the due process of law)
of which the titulaire is Mr. A. S. Diallo. Had the Court pursued the
proper hermeneutics of human rights treaties throughout the whole Judg-
ment, in all likelihood it would have arrived at a conclusion distinct from
 hat found in resolutory points 1, 5 and 6 of the dispositif of the present
Judgment, and I would not have needed to vote against them.
   227. The fact that the contentious procedure before the Court keeps
on being exclusively an inter-State one — not by an intrinsic necessity,
nor by a juridical impossibility of being of another form — does not
mean that the reasoning of the Court ought to develop within an essen-
 ially and exclusively inter-State optics, above all when it is called to pro-
nounce, in the peaceful settlement of the corresponding disputes, on
questions which go beyond the interests of the contending States, and
which pertain to the fundamental rights of the human person, and even
 o the international community as a whole.
   228. The relations governed by contemporary international law, in
distinct domains of regulation, transcend to a large extent the purely
 nter-State dimension (e.g., in the international protection of human rights,
 n the international protection of the environment, in international human-
 tarian law, in international refugee law, in the law of international
 nstitutions, among others), and the ICJ, called upon to pronounce
upon those relations, is not bound to restrain itself to an anachronistic
 nter-State optics. The anachronism of its mechanism of operation ought
not to, and cannot, condition its reasoning, so as to enable it to exert
 aithfully and fully its functions of principal judicial organ of the
United Nations.
   229. In any case, the present Judgment, in so far as resolutory points
2, 3, 4 and 7 of its dispositif are concerned, with which I concur, consti-
 utes a valuable contribution of its case law to the settlement of disputes
originated at intra-State level, when human rights are at stake. This is
 ndeed a human rights case, decided today, on 30 November 2010, by the

171

ICJ, despite the strict and anachronistic inter-State procedure before this
 atter. The fact that a human rights case has at last been decided by the
ICJ itself is particularly significant to me.

   230. It shows that, at times, reality can appear better than the pros-
pects. The human mind does not conform itself to a straightjacket. One is
not to lose faith in the progressive development of international law,
despite the bias of the majority of the legal profession. The fact that a
human rights case has now been decided by the ICJ itself, further shows
 hat contemporary international law has notably developed to such an
extent that States themselves see it fit to make use of a contentious pro-
cedure of the kind, originally devised in 1920 and confirmed in 1945 for
 heir own and exclusive utilization, in order to obtain from the Court its
decision on human rights, on rights inherent to the human person, onto-
 ogically anterior and superior to the State itself.
   231. This amounts, furthermore, to a clear and reassuring acknowl-
edgement of the existence of common and superior values that States
 hemselves no longer hesitate to recognize. This is, in so far as the present
case is concerned, very much to the credit of both Guinea and the DRC,
 wo African States that have thereby given a good example to be fol-
 owed in other continents and latitudes. It is in line with the evolving
 nternational law for the human person (pro persona humana), the new
 us gentium of this beginning of the twenty-first century.

       XIII. EPILOGUE : TOWARDS A NEW ERA OF INTERNATIONAL
         ADJUDICATION OF HUMAN RIGHTS CASES BY THE ICJ

   232. Having endeavoured to identify the lessons extracted from the
present Diallo case (supra), I could not conclude this separate opinion
without a brief epilogue on its historical transcendence. The case resolved
 oday by the ICJ had as claimant a State, and as victim — and benefici-
ary of reparation — an individual. As I pointed out at the beginning of
 his separate opinion, this is the first time in its history that the World
Court has resolved a case on the basis of the applicable law conformed
by two human rights treaties together, one at universal level (the UN
Covenant on Civil and Political Rights) and the other at regional level
 the African Charter on Human and Peoples’ Rights), in addition to the
relevant provision (Article 36 (1) (b)) of the Vienna Convention on Con-
sular Relations, situated also in the domain of the international protec-
 ion of human rights.

   233. It is reassuring that, due originally to the exercise of diplomatic
protection ; the cause of Mr. A. S. Diallo reached this Court. This was as
 ar as diplomatic protection, a traditional instrument, went, and could
go. We cannot expect more from it than what it can provide. It is, after
all, as traditional as the rationale of the procedure before this Court.

172

Individuals keep suffering a capitis diminutio, as they still need to rely on
 hat traditional instrument to reach this Court, whilst they already have
 ocus standi in judicio or even jus standi before other contemporary inter-
national tribunals. This shows that there is epistemologically no impedi-
ment for individuals to have either locus standi or jus standi before the
World Court as well ; what is lacking is the animus to render that possi-
ble, given the usual prevalence of mental inertia.

   234. Notwithstanding, there is something both reassuring and novel in
 he present Diallo case now resolved by this Court : as from the proceed-
 ngs on the merits (written and oral phases), the case has been to a large
extent heard, and adjudicated upon, in the conceptual framework of the
 nternational law of human rights. It is this latter, and not diplomatic
protection, that is apt to safeguard the rights of persons under adversity,
or socially marginalized or excluded, or in situations of the utmost vulner-
ability.
   235. Diplomatic protection was here originally exercised by Guinea
 o protect a successful businessman, devoted to making money for
many years, who, later on, fell in disgrace abroad, in the country of his
residence, the DRC. Diplomatic protection remains ontologically dis-
cretionary, and thus limited in scope and possibilities. What has diplo-
matic protection been doing to safeguard the human rights of millions
of documented and undocumented migrants, struggling to survive
 hrough their own labour, and daily humiliated around the world ? Vir-
 ually nothing.
   236. The only protection that “the wretched of the earth” 160 have been
finding is the one provided under certain international instruments and
 reaties of the international law of human rights. Attention is thus to be
shifted from the differing de facto capabilities of States to extend protec-
 ion to their nationals abroad, into the satisfaction of the basic needs of
protection of those forgotten by the world, the poor and the oppressed,
who have already lost faith in human justice. This is a great challenge to
 nternational justice today, a challenge that can effectively be faced only
 n the realm of the international law of human rights, beyond the purely
 nter-State dimension.
   237. Moreover, this is the first time in its history that the World
Court has expressly taken into account the contribution of the case law
of two international human rights tribunals, the European and the Inter-
American Courts, to the perennial struggle of human beings against arbi-
 rariness. The ICJ, much to its credit, has done so, in paragraph 68
of the present Judgment, in relation to the interpretation, by the European
and the Inter-American Courts, respectively, of Article 1 of Protocol No. 7 to

  160 To paraphrase a humanist of the twentieth century, Frantz O. Fanon, Les damnés

de la terre, 1961.

173

 he European Convention of Human Rights, and of Article 22 (6) of the
American Convention on Human Rights, which it regarded as consistent
with what it has found in paragraph 65 of the present Judgment 161. Para-
graph 65 refers to the protection of the human person against arbitrary
 reatment, encompassing the prohibition of arbitrary expulsion 162.

   238. This discloses a new mentality in relation to another relevant
 ssue. The co-existence of multiple international tribunals, fostering access
 o international justice on the part of a growing number of justiciables
around the world in distinct domains of human activity, bears evidence
of the way contemporary international law has developed in the old
search for the realization of international justice. Contemporary interna-
 ional tribunals have much to learn from each other.

   239. Article 92 of the UN Charter states that this Court, the ICJ, is “the
principal judicial organ of the United Nations”. In addition, Article 95 of
 he UN Charter leaves the door open to Member States to entrust the
solution of their differences to “other tribunals by virtue of agreements
already in existence or which may be concluded in the future”. Ours has
become the age of international tribunals, and this is a highly positive
phenomenon, as what ultimately matters is the enlarged or expanded
access to justice, lato sensu, comprising the realization of justice.
   240. Misleading and deleterious expressions, such as “proliferation of
 nternational tribunals”, “forum shopping”, and “fragmentation of inter-
national law”, should be definitively discarded, not only for their super-
ficiality (despite the regrettable fascination which they seem to have been
exerting upon a large and hectic segment of the legal profession), but also
because they do not at all belong to the lexicon of international law. And
 hey simply miss the point — the overriding imperatives of justice. Con-
 emporary international tribunals should pursue their common mission —
 he realization of international justice — working together, without
antagonisms, self-sufficiencies or protagonist moves.

   241. This is another lesson that can be extracted from the adjudication
of the present Diallo case. It is indeed reassuring that the ICJ has dis-
closed a new vision of this particular issue, in so far as international
human rights tribunals are concerned. This is particularly important at a

   161 By reference to the corresponding provisions of the Covenant on Civil and Political

Rights and of the African Charter on Human and Peoples’ Rights.
   162 Particularly relevant, for a study of the right to freedom of movement and residence

under Article 22 of the American Convention on Human Rights, are the judgment of the
 nter-American Court, of 15 June 2005, in the case of the Moiwana Community v. Suri-
name (paras. 107-121), as well as the IACtHR’s order (on provisional measures of pro-
 ection), of 18 August 2000, in the case of Haitians and Haitian-Origin Dominicans in the
Dominican Republic (paras. 9-11), and concurring opinion of Judge A. A. Cançado Trin-
dade (paras. 2-25).

174

 ime when States rely, in their submissions to this Court, on relevant pro-
visions of human rights conventions, as both Guinea and the DRC have
done in the present case, in their arguments centred on the UN Covenant
on Civil and Political Rights and the African Charter on Human and
Peoples’ Rights (in addition to the relevant provision of the Vienna Con-
vention on Consular Relations, in the framework of the international
protection of human rights).

   242. This is not the only example wherein this has occurred. On
29 May 2009, the ICJ delivered its Order (on provisional measures) in the
case concerning Questions relating to the Obligation to Prosecute or
Extradite, wherein Belgium and Senegal presented their submissions con-
cerning the interpretation and application of the relevant provisions of
 he 1984 UN Convention against Torture. And, very recently, a few days
ago, in the public sittings before this Court of 13 to 17 September 2010,
Georgia and the Russian Federation submitted their oral arguments in
 he case concerning the Application of the International Convention on
 he Elimination of All Forms of Racial Discrimination, another UN
human rights treaty. It is reassuring that States begin to rely on human
rights treaties before this Court, heralding a move towards an era of pos-
sible adjudication of human rights cases by the ICJ itself. The interna-
 ional juridical conscience has at last awakened to the fulfillment of this
need.
   243. The ICJ, in the exercise of its contentious as well as advisory
 unctions in recent years, has referred either to relevant provisions of a
human rights treaty such as the Covenant on Civil and Political Rights,
or to the work of its supervisory organ, the Human Rights Committee 163.
These antecedents are not to pass unnoticed, in acknowledging the turning-

   163 Thus, as to contentious cases, in its Judgment in the case of Armed Activities on the

Territory of the Congo (The Democratic Republic of the Congo v. Uganda) (I.C.J.
Reports 2005, p. 168), the Court held that the Covenant provisions were applicable to the
 ase. Shortly afterwards, in its Judgment in the case of the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro) (I.C.J. Reports 2007 (I), p. 43) the Court recalled the wording
of Articles 2 and 3 of the Covenant to support its interpretation of the meaning of the
word “undertakes” in the Convention against Genocide (Article 1). As to its advisory
 unction, the ICJ held, in its Advisory Opinion on Legal Consequences of the Construc-
 ion of a Wall in the Occupied Palestinian Territory (I.C.J. Reports 2004 (I), p. 136) that
 he Covenant is not unconditionally suspended in times of conflict (para. 106), and that
 he Covenant applies outside the States parties’ territory when they exercise their jurisdic-
 ion therein, as emerges from the legislative history of the Covenant, as well as from the
 onsistent practice of the Human Rights Committee (paras. 107-111 and 134). Earlier on,
 n its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (I.C.J.
Reports 1996 (I), p. 226), the ICJ referred to Article 6 (on the right to life) of the Cov-
 nant. Very recently, in my separate opinion in the Court’s Advisory Opinion on Accord-
ance with International Law of the Unilateral Declaration of Independence in Respect of
of Kosovo (I.C.J. Reports 2010 (II), p. 403) I deemed it fit to refer to Article 1 of the two
UN Covenants on Human Rights as well as to the Human Rights Committee’s position

175

point which has just occurred in the present Diallo case : the Court, in the
Judgment being delivered today, 30 November 2010, has gone much further,
beyond the United Nations system, in acknowledging the contribution
of the jurisprudential construction of two other international tribunals,
 he Inter-American and the European Courts of Human Rights. It has
also dwelt upon the contribution of an international human rights super-
visory organ, the African Commission on Human and Peoples’ Rights.
The three regional human rights systems operate within the frame-
work of the universality of human rights.

  244. Contemporary international tribunals should pursue their com-
mon mission — the realization of international justice — in a spirit of
respectful dialogue, learning from each other, keeping in mind the per-
ennial lesson of Socrates, so perspicaciously grasped by Karl Popper in
 he twentieth century :
         “Every solution of a problem creates new unsolved problems. The
      harder the original problem and the bolder the attempt to solve it, the
      more interesting these new problems are. The more we learn about
      the world, and the deeper our learning, the more conscious, clear and
      well-defined will be our knowledge of what we do not know, our
      knowledge of our ignorance. The main source of our ignorance
      lies in the fact that our knowledge can only be finite, while our ignorance
      must necessarily be infinite.” 164
  245. By cultivating this dialogue, attentive to each other’s work in pur-
suance of a common mission, contemporary international tribunals will
provide avenues not only for States, but also for human beings, every-
where, and in respect of distinct domains of international law, to recover
 heir faith in human justice. They will thus be enlarging and strengthen-
 ng the aptitude of contemporary international law to resolve disputes
occurred not only at inter-State level, but also at intra-State level. And
 hey will thus be striving towards securing to States as well as to human
beings what they are after : the realization of justice.

                         (Signed) Antônio Augusto CANÇADO TRINDADE.

on the States’ automatic succession in respect of human rights treaties and on the extra-
 erritorial application of human rights (p. 583, para. 154 and p. 599, para. 191).
   164 K. R. Popper, On the Sources of Knowledge and of Ignorance, Oxford University

Press, 1960, pp. 150-151.

176