Diallo Case Research Articles

Shareholders' rights in international law: (con)temporary reflections in the Diallo case

In the 21st century there is still an ongoing intensive discussion among practitioners and scholars as to whether, under international law, an independent right to property exists. When the International Court of Justice (hereinafter – ICJ) announced its decisions in the Ahmadou Sadio Diallo case (Republic of Guinea v. Democratic Republic of Congo, 2007, 2010, 2012; hereinafter – Diallo), these debates intensified. This article analyzes the decisions of the Diallo case, as this case is a valuable source which: (a) help to determine the approach of the most authoritative Court towards the right to property in international law, and (b) assist in evaluating the chance of defending the rights of shareholders in the ICJ. After examination, several observations are made. First, althought Guinea claims that the core issue in the case is a violation of property rights, the ICJ is not willing to elaborate on the right to property, its scope, or its content. This silence leads to further queries on the understanding of the concept of a global right to property. Second, the World Court rules that diplomatic protection based on the rule of protection by substitution does not amount to an international custom. A conclusion is made that the Diallo case is not a repetition of a standard discussed in the Barcelona Traction, Light and Power Company, Limited case (Belgium v. Spain, 1970; hereinafter – Barcelona Traction), but rather a reflection of a narrowed standard of Barcelona Traction. Therefore, the ICJ is not an amiable forum for the protection of the property rights of shareholders.

Awarding Compensation in a Fragmented Legal System: The Diallo Case

The Diallo Case is an example of the increasing use of the ICJ in issues on human rights. The Case is remarkable since it is the first time that the Court has fixed an amount of compensation since the Corfu Channel Case (1949). The main focus of the present article is on the principles for determining compensation in the Judgment of 2012, while taking into account the practice by other courts and tribunals. It is argued that awarding of compensation is different from determining issues of substantive law. Judgments on compensation will not be contradictory, but may be inconsistent and may lead to forum shopping. The Judgment shows that the Court had little difficulty in applying the practice by other courts and tribunals as providing guidance, rather than an obstacle in reaching its decision.

Diplomatic Protection and International Investment Arbitration: Preliminary Observations of Diallo Case

The ICJ judgment of Diallo case gives us the opportunity to discern the coordination and competition between traditional diplomatic protection and international investment protection regime. In this preliminary observations, I summary three possible approaches of the ICJ tribunal concerning the protection of foreign investors and the protection of host state local companies - formalistic approach, conservative approach and positive approach, involving several parameters, include but not limited to, the rights of investors’ direct to diplomatic protection as a shareholder, the rights of investors’ direct to diplomatic protection for the interest of the company, and the rights of investors to claim the indirect damages adduced by infringement to the company. Considering the core status of sovereign state in the evolution of international law, this article argues that the states should have and de facto have the driving forces to the evolution of CIL about whether or not investor-state arbitration and diplomatic protection of shareholder’s nationality state for the host state company constituting customs. Considering the incentives and implications of three possible approaches as well as the location and orientation of ICJ, we argue that the conservative approach is the best approach, in general, for the ICJ, to coordinate the competing interests between investors and host states and in large sense, two international regimes of investment protection - diplomatic protection and international investment arbitration.

Ahmadou Sadio Diallo

For the first time since the Corfu Channel case of 1949, the International Court of Justice (Court) has awarded damages. The Court did so on June 19, 2012, in its third judgment in the Diallo case, brought by the Republic of Guinea for human rights violations committed against a Guinean citizen by the Democratic Republic of the Congo (DRC). The judgment was also the Court’s first on damages in a human rights case.

Jurisdiction, Procedure and the Transformation of International Law: From Nottebohm to Diallo in the ICJ

Kurt Lipstein’s involvement as counsel in Nottebohm on diplomatic protection before the International Court of Justice demonstrated to him the limitations of international justice. Changing concepts of state sovereignty, individual rights, jurisdiction, procedure and evidence are incrementally remedying these limitations. This article shows how international law provides more effective protection of individual rights, mainly through the analysis of the Diallo case of 2010.

Human Rights and the International Court of Justice The Ahmadou Sadio Diallo Case

Human Rights and the International Court of Justice The Ahmadou Sadio Diallo Case

The Subject Matters: The ICJ and Human Rights, Rights of Shareholders, and the Diallo Case

AbstractOn 30 November 2010, the International Court of Justice issued its decision in the merits phase of the Ahmadou Sadio Diallo case. This decision turned on the questions of whether the DRC had violated Mr Diallo's human rights and his rights as a shareholder and manager in two corporations he owned in the DRC. This paper analyses the decision of the Court in the light of the choices it made and the methodology it applied, and demonstrates that both issues raise fundamental questions. The Court's decision on Mr Diallo's human rights is often ambitious to the detriment of clarity, whereas the part of the judgment dealing with corporate rights does not seem to move beyond its 1970 predecessor in Barcelona Traction. While understandable, this is also regrettable and the consequences for individuals doing business and/or residing in foreign countries may be substantial.

II. INTERNATIONAL COURT OF JUSTICE, CASE CONCERNING AHMADOU SADIO DIALLO (REPUBLIC OF GUINEA V DEMOCRATIC REPUBLIC OF THE CONGO) JUDGEMENT OF 30 NOVEMBER 2010

This is the first time in its history, to the best of my knowledge, that the 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, the 1981 African Charter on Human and Peoples' Rights, both in the framework of the universality of human rights.This is the opening paragraph of Judge Cançado Trindade's Separate Opinion in the Diallo case. The ICJ's judgment is a remarkable decision contributing to the widening and deepening of international law and has consequences for several fundamental questions, including the role of the ICJ and international law in making human rights effective, erga omnes and jus cogens rules, customary law, evidence, and several substantive rules. In bringing the transformation of international law one step further, the Diallo judgment develops the ICJ as ‘the principal judicial organ of the United Nations’1 at the top of an open international law system. To achieve this, the Court had to overcome a series of jurisdictional and procedural hurdles.2 All the permanent judges of the ICJ agreed that Congo had violated the prohibition on arbitrary detention and expulsion and that the violations gave rise to a right of compensation. The ICJ's use of sources from other international and regional bodies as sources of authority, indicates solutions to fragmentation problems.

Minimum Standard of Treatment of Aliens, Fair and Equitable Treatment of Foreign Investors, Customary International Law and the Diallo Case before the International Court of Justice

Minimum Standard of Treatment of Aliens, Fair and Equitable Treatment of Foreign Investors, Customary International Law and the Diallo Case before the International Court of Justice

Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case

In the Diallo case, the ICJ was required to answer the question of whether the Republic of Guinea could exercise diplomatic protection not only on behalf of its national, Diallo, but also on behalf of two corporations which were incorporated in the Democratic Republic of the Congo but which were owned by a national of the Republic of Guinea. While the Court decided, in line with Barcelona Traction, that the exercise of diplomatic protection for violation of direct rights of shareholders was admissible, it did not accept the claim on behalf of the companies ‘by substitution’. In its reasoning it took a rather restrictive view of the existing exceptions to the rule that protection can only be exercised on behalf of nationals.

Understanding the diallo case: the trial, the community and the police

Click to increase image sizeClick to decrease image sizeKeywords: Jury trial Police community relations Social psychology of police behavior Stress