This Article has been written by Mohammad Faraz, a 3rd year law student from Aligarh Muslim University Centre Murshidabad, West Bengal

ABSTRACT

On June 12, 2012, the International Court of Justice, commonly referred to as the ICJ, issued a ruling mandating the Republic of the Congo (DRC) to compensate the Republic of Guinea (Guinea) with a sum of U.S. $95,000 for both material and non-material harm inflicted upon Guinea’s national, Ahmadou Sadio Diallo. This judgment holds notable significance on several fronts. Firstly, it marks only the second instance in the Court’s history where a specific compensation amount has been determined for a party. Secondly, the Court’s decision-making process heavily relies on precedents set by other international courts and tribunals, thereby demonstrating a harmonized approach and mitigating concerns regarding the fragmentation of international law. Thirdly, the Court’s rationale behind awarding U.S. $95,000 instead of the initially requested twelve million dollars by Guinea underscores a nuanced aspect of its deliberation.

KEYWORDS

Diplomatic dispute, State responsibility, Compensation, Material and non-material harm, Legal remedies, international arbitration, Jurisdictional issues

INTRODUCTION

Diplomatic protection, a foundational principle of customary international law, was initially articulated by Emmerich de Vattel in 1758. He asserted that mistreatment of a citizen indirectly harms the State, which then bears the responsibility to safeguard that citizen. A modern interpretation is found in Article 1 of the Draft Articles on Diplomatic Protection by the International Law Commission. Here, diplomatic protection is described as the endeavor of an alien’s home state to intervene and defend their rights when another state commits an “internationally wrongful act” against them. This intervention may take the form of diplomatic actions or peaceful settlements. While diplomatic protection is recognized as a customary international law concept, there is no obligation for home states to pursue it on behalf of their affected nationals. Initially designed to shield foreign investors impacted by host state decisions, diplomatic protection remains a valuable instrument for this purpose. The significance of International Court of Justice (ICJ) decisions in this context lies in their influence on the future application of diplomatic protection by states in both judicial and non-judicial settings.

BACKGROUND

The Diallo dispute before the International Court of Justice (ICJ) revolves around Ahmadou Sadio Diallo, a Guinean businessman who resided in the Democratic Republic of the Congo (DRC) for 32 years. Diallo, who settled in the DRC in 1964, established a company named Africom-Zaire a decade later, becoming its founder and manager. In 1979, Africom-Zaire, along with two partners, formed Africontainers-Zaire (Africontainers). However, the partners withdrew in 1980, leaving Africom-Zaire with 60% ownership and Mr. Diallo with 40%, who also assumed the role of Africontainers’s manager.

Throughout the 1980s, both Africom-Zaire and Africontainers-Zaire faced challenges with major Congolese public institutions and private companies. Legal proceedings were initiated by both companies to resolve these disputes, which remain unresolved to this day. The companies are seeking damages totaling $36 billion against Congolese public entities, an amount three times the DRC’s foreign debt.

Relations between Mr. Diallo and the private companies soured, leading to a request for intervention by the Congolese government in 1995. Subsequently, on October 31, 1995, Mr. Diallo was ordered to be expelled from the DRC due to alleged breaches of public order, particularly in economic, financial, and monetary domains. This order, though labeled as a “refusal to entry,” effectively constituted an expulsion with no avenue for appeal under Congolese legislation. Before his expulsion, Mr. Diallo was arrested and imprisoned.

In the case brought before the ICJ, Guinea contended that Mr. Diallo’s detention and expulsion violated the Vienna Convention on Consular Relations. Guinea sought to exercise diplomatic protection on behalf of Mr. Diallo and his companies, Africom-Zaire and Africontainers-Zaire, to safeguard their rights and recover debts owed to them. Guinea argued that the DRC’s actions contravened various international agreements, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and failed to adhere to minimum standards of civilization.

In response, the DRC raised two preliminary objections: first, that Mr. Diallo had not exhausted local remedies, and second, that Guinea lacked standing to seek diplomatic protection for Africom-Zaire and Africontainers-Zaire. The ICJ dismissed the first objection and upheld the second.

ISSUES

Guinea highlighted that Mr. Ahmadou Sadio Diallo’s expulsion occurred while he was actively pursuing the recovery of significant debts owed to his companies, Africom-Zaire and Africontainers-Zaire, by the Congolese State and various oil companies operating within its jurisdiction, in which the State held a stake.

To establish the jurisdiction of the Court, Guinea cited declarations made by both states recognizing the compulsory jurisdiction of the International Court of Justice (ICJ) under Article 36, paragraph 2, of the Statute of the Court.

On October 3, 2002, the Democratic Republic of the Congo (DRC) raised preliminary objections regarding the admissibility of Guinea’s application. In its judgment on May 24, 2007, addressing these preliminary objections, the Court ruled that Guinea’s application was admissible concerning the protection of Mr. Diallo’s individual rights and his direct rights as a shareholder in Africom-Zaire and Africontainers-Zaire. However, the Court deemed Guinea’s application inadmissible regarding the protection of Mr. Diallo in relation to alleged violations of the rights of Africom-Zaire and Africontainers-Zaire.

JUDGEMENT

On November 30, 2010, the International Court of Justice (ICJ) delivered a judgment on the merits, ruling that the Democratic Republic of the Congo (DRC) had violated Article 9 of the International Covenant of Civil and Political Rights and Article 6 of the African Charter of Human and Peoples’ Rights by arresting and detaining Ahmadou Sadio Diallo. Additionally, the Court found that the DRC breached Article 13 of the Covenant and Article 12 of the African Charter by expelling Diallo. Guinea’s other submissions were rejected by the Court.

The ICJ determined that the DRC was obligated to provide appropriate reparation in the form of compensation to Guinea for the adverse consequences of its violations. The Court directed the parties to attempt to agree on the compensation amount within six months of the judgment. However, failing an agreement, the Court would resolve the matter following a single exchange of written submissions. As the parties couldn’t reach an agreement within the stipulated time, the Court set deadlines for the submission of Guinea’s Memorial and the DRC’s Counter Memorial in September 2011.

In its Memorial, Guinea demanded compensation exceeding U.S. $11.5 million for various damages suffered by Diallo due to his arbitrary detention and expulsion. This included amounts for mental and moral damages, loss of earnings, other material damages, and loss of potential earnings, along with unrecoverable costs resulting from the proceedings. The DRC countered Guinea’s claim, asserting that only U.S. $30,000 was owed for non-pecuniary injury, and no compensation was due for material damages.

The Court, in its deliberation, reviewed Guinea’s claims for compensation meticulously. It acknowledged Diallo’s prolonged detention and subsequent expulsion but found insufficient evidence of inhuman or degrading treatment during his confinement. Therefore, the Court’s focus was on the injury resulting from Diallo’s rights violations as an individual, specifically his detention and expulsion in 1995-1996, including loss of personal belongings.

Regarding compensation, the Court referenced precedents from various international courts and tribunals dealing with similar issues. It examined Guinea’s claims for both non-material and material injuries suffered by Diallo. For non-material injury, the Court awarded U.S. $85,000, considering the psychological suffering caused by the DRC’s wrongful actions. For material injury, the Court granted U.S. $10,000 for the loss of personal property, while rejecting claims for loss of income due to lack of evidence. Claims for deprivation of potential earnings were dismissed as they pertained to injuries to companies rather than to an individual. Additionally, the Court denied claims for costs, adhering to the principle that each party bears its own expenses.

In conclusion, the ICJ determined the compensation owed to Guinea as U.S. $95,000, to be paid by August 31, 2012, with an annual interest rate of six percent accruing after that date.

CONCLUSION

This judgment holds significant importance in the annals of the Court’s history. Firstly, it’s notable that the Court took the decisive step of determining the precise amount of compensation owed by the respondent state. This demonstrates the Court’s capacity to issue rulings mandating states to undertake specific actions to enforce its judgments. Consequently, this decision paves the way for the Court to expand upon its recent rulings concerning similar issues.

Secondly, the decision underscores the Court’s substantial reliance on judgments rendered by other international courts, tribunals, and commissions. This reliance suggests that concerns regarding fragmentation within international law may have been overstated.

Lastly, it’s noteworthy that in both instances where the Court granted compensation, it based its decisions on equitable considerations, emphasizing fairness and justice in its determinations.

Reference: 

(Republic of Guinea v. Democratic Republic of the Congo)

Parties: Republic of Guinea (Applicant) v. Democratic Republic of the Congo (Respondent)

This Article was originally written by Chiara Giorgetti published by Richhmond School of Law. The link for the same is herein https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2164&context=law-faculty-publications 

This article was originally written by STEPHEN J KNIGHT, ANGUS J O’BRIEN and published on Melbourne Journal of International Law, Volume 9. The link for the same is herein https://law.unimelb.edu.au/__data/assets/pdf_file/0005/1683185/Knight-and-OBrien.pdf 

This article was originally written by Alberto Alvarez-Jimenez and published on North Carolina Journal of International Law. The link for the same is herein https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1875&context=ncilj 

https://www.icj-cij.org/case/103

https://nsarchive.gwu.edu/sites/default/files/documents/5975776/National-Security-Archive-International-Court-of.pdf