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Vanhonnaeker, Lukas
2020.
Shareholders' Claims for Reflective Loss in International Investment Law.
Article contents
The Subject Matters: The ICJ and Human Rights, Rights of Shareholders, and the Diallo Case
Published online by Cambridge University Press: 05 August 2011
Abstract
On 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.
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- HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
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- Copyright © Foundation of the Leiden Journal of International Law 2011
References
1 Case Concerning Ahmadou Sadio Diallo (Merits) (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, available online at www.icj-cij.org (not yet published) (hereafter, ‘Diallo (Merits)’).
2 The Court had considerable difficulties establishing the facts, but relied on its assessment reflected in the decision on admissibility. See Case Concerning Ahmadou Sadio Diallo (Preliminary Objections) (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 24 May 2007, paras. 13–32, available online at www.icj-cij.org (not yet published) (hereafter, ‘Diallo (Preliminary Objections)’).
3 Ibid.
4 See Vermeer-Künzli, A. M. H., ‘Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case’, (2007) 20 LJIL 941CrossRefGoogle Scholar.
5 For an appraisal of this decision, see ibid.
6 Diallo (Preliminary Objections), supra note 2, paras. 27, 29.
7 Ibid., paras. 28, 29, 34.
8 Despite its being of interest, the paper will not discuss the dismissal of Guinea's claim considering the earlier detention of Mr Diallo (between 1988 and 1989). It was a contentious issue before the Court, as demonstrated by a voting record of eight votes to six, with Judges Al-Khasawneh, Simma, Bennouna, Cançado-Trindade, Yusuf, and Judge ad hoc Mahiou voting against. For a criticism on the Court's approach here, see the Joint Declaration of Judges Keith and Greenwood and the Joint Declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf. Also, the issue of the failure of the DRC to allow Mr Diallo to contact his consulate, in violation of the Vienna Convention on Consular Relations, will not be discussed. The Court only discussed it very briefly and apparently considered the issue an acte éclairé.
9 Case Concerning Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v. Spain), [1970] ICJ Rep. 3 (hereafter, ‘Barcelona Traction’).
10 Guinea submitted its declaration on 4 December 1998, the DRC on 8 February 1989; see www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=CG.
11 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, available online at www.icj-cij.org (not yet published) (hereafter, ‘Genocide case’). The Court decided it had no jurisdiction to entertain the Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) on a procedural matter. Other relevant cases include the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [2005] ICJ Rep. 168; and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep. 136 (hereafter, ‘Wall Advisory Opinion’). Also, see, e.g., the Tehran Hostages case, in which the United States argued that the way in which their diplomatic and consular staff were held constituted inhuman treatment; see Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), [1980] ICJ Rep. 3, paras. 23, 91. In the LaGrand and Avena cases, the Court, rightly in the opinion of the present author, refused to consider consular assistance from a human-rights perspective. LaGrand Case (Germany v. United States of America), [2001] ICJ Rep. 466, para. 78 (hereafter, ‘LaGrand case’); and Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), [2004] ICJ Rep. 12, para. 124 (hereafter, ‘Avena case’).
12 International Covenant on Civil and Political Rights, New York, 16 December 1966, UNTS Vol. 999, 171. Entry into force on 23 March 1976. Guinea ratified on 24 January 1978, the DRC on 1 November 1976.
13 African [Banjul] Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5. Entry into force 21 October 1986. Guinea ratified on 16 February 1982, the DRC on 20 July 1987.
14 Mémoire de la République de Guinée, 23 March 2001, 39–53 (hereafter, ‘Memorial’), and again in the Réplique de la République de Guinée, 19 November 2008, 28, 53.
15 Diallo (Merits), supra note 1, paras. 12–14.
16 Ibid., para. 98.
17 Case Concerning Elettronica Sicula S.p.A (ELSI) (United States v. Italy), [1989] ICJ Rep. 15, para. 59 (hereafter, ‘ELSI case’).
18 Avena case, supra note 11, para. 57.
19 ELSI case, supra note 17, para. 60.
20 Avena case, supra note 11, para. 57.
21 Genocide case, supra note 11, paras. 202–230.
22 Ibid., para. 206.
23 Ibid., para. 210. For a critical view on this part of the judgment in the Genocide case, see Milanovic, M., ‘State Responsibility for Genocide: A Follow-Up’, (2007) 18 EJIL 669CrossRefGoogle Scholar.
24 Diallo (Merits), supra note 1, at para. 54.
25 Aktaş v. Turkey, No. 24351/94, ECHR 2003–V, para. 272.
26 Ibid.
27 Case of Aksoy v. Turkey, No. 21987/93, ECHR 1996-VI, para. 61; see also more recently Case of D.H. and Others v. Czech Republic, No. 57325/00, Decision of 13 November 2007 (not yet published, available online at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en), para. 177: ‘As to the burden of proof in this sphere [i.e., non-discrimination], the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified.’
28 See Rules of the Court, Art. 62 for request for evidence and Art. 66 for obtaining evidence by the Court itself.
29 Diallo (Merits), supra note 1, para. 55.
30 By way of illustration, reference could also be made to the Nicaragua case, in which the Court explicitly stated that it should consider the fact that Nicaragua was required to take a negative fact into account in its weighing of evidence. In that case, however, this did not result in a complete shifting of the burden of proof. See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] ICJ Rep. 14, para. 147.
31 Diallo (Merits), supra note 1, para. 55.
32 Ibid., paras. 58–59.
33 Ibid., para. 60.
34 Ibid., para. 74.
35 Ibid., para. 50.
36 Ibid., para. 84.
37 Ibid.
38 For the exhaustion of local remedies related to Mr Diallo's human rights, see Diallo (Preliminary Objections), supra note 2, paras. 41–48. The Court further noted that neither party elaborated on the necessity to exhaust local remedies related to his rights as associé, and it therefore did not consider this issue as a preliminary objection; see paras. 74–75.
39 Diallo (Merits), supra note 1, para. 73.
40 Ibid., para. 82.
41 Ibid., para. 85. This point will not be further discussed.
42 Diallo (Merits), supra note 1, para. 65.
43 Ibid.
44 Ibid.
45 In this context, it is interesting to note that the Court, in the Wall Advisory Opinion, supra note 11, paras. 133–137, also relied on other human-rights mechanisms for its interpretation of the facts and the law, but these were very specific: Reports of Special Rapporteurs that dealt with the Palestinian Territories and a general comment by the HRC on the provision relevant for the discussion.
46 General Comment No. 15: The Position of Aliens under the Covenant: 04/11/1986, para. 10.
47 Diallo (Merits), supra note 1, Joint Declaration of Judges Keith and Greenwood, paras. 7–11.
48 Diallo (Merits), supra note 1, para. 66.
49 Maroufidou v. Sweden, Communication No. 58/1979, 8 April 1981, para. 10.1.
50 General Comment No. 15: The Position of Aliens under the Covenant: 04/11/1986, para. 9.
51 Ibid., para. 10.
52 Diallo (Merits), supra note 1, Joint Declaration of Judges Keith and Greenwood, para. 12.
53 Diallo (Merits), supra note 1, para. 43.
55 Diallo (Merits), supra note 1, at para. 82.
56 Ibid.
57 Ibid., para. 66.
58 Ibid., para. 161 (emphasis added).
59 Ibid., para. 87.
60 See, e.g., Tunkin, G., ‘Is General International Law Customary Law Only?’, (1993) 4 EJIL 534CrossRefGoogle Scholar; and C. Tomuschat, ‘What Is General International Law?’, in Guerra y Paz: 1945–2009, Obra homenaje al Dr. Santiago Torres Bernardez (2010), 329–48. The latter also includes analysis of the sparse earlier uses of the term by the ICJ.
61 Diallo (Merits), supra note 1, paras. 87 and 88.
62 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, [2006] ICJ Rep. 6, para. 64.
63 Memorial, supra note 14, para. 3.31.
64 CR 2010/5, Wednesday 28 April 2010 at 4 p.m. (Pellet), para. 23.
65 In the discussion of the respective rights, the Court consistently applied the French terminology. ‘Associé’ refers to shareholder, whereas ‘gérant’ is comparable to manager.
66 Draft Articles on Diplomatic Protection with Commentaries, ILC Report 2006, UN Doc. GA/A/61/10, Suppl. No. 10, at 66–7.
67 Diallo (Merits), supra note 1, para. 116.
68 Ibid., paras. 103–115. This it had already established in the Preliminary Objections phase.
69 Ibid., paras. 109 (Africom-Zaire) and 110 (Africontainers-Zaire).
70 Ibid., para. 113.
71 Ibid., para. 103.
72 Ibid., para. 115.
73 Ibid., para. 121.
74 LaGrand case, supra note 11, at para. 74.
75 Avena case, supra note 11, at para. 95.
76 Diallo (Merits), supra note 1, Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf, at 6.
77 Ibid.
78 Diallo (Merits), supra note 1, at para. 124.
79 Ibid., para. 133.
80 Ibid., para. 134.
81 Ibid., para. 135.
82 Ibid., para. 137.
83 Ibid., para. 138.
84 Ibid., para. 147. Note the word ‘detentions’, which is plural. Is this an error, or did the Court here actually refer to both periods of detention, including the one in 1988?
85 Ibid., Dissenting Opinion of Judge Benounna, para. 6.
86 Cf. the requirements applicable to the invocation of impossibility of performance under the law of treaties or force majeure and necessity under the law on state responsibility.
87 See supra note 6 and accompanying text.
88 Memorial, supra note 14, section II.3.
89 Ibid., section II.4.
90 Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf phrased it as follows: ‘For the DRC authorities, it was obviously a matter of removing Mr. Diallo from Congolese territory once and for all, so that he could no longer pursue the debts owed to his companies by the State and Congolese companies’, Diallo (Merits), supra note 1, Joint Declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade and Yusuf, para. 7.
91 The DRC defines the financial claims as ‘détentrices’. Exceptions Préliminaires présentées par La République Démocratique du Congo, 1 October 2002, para. 1.59.
92 Diallo (Merits), supra note 1, para. 156.
93 Barcelona Traction, supra note 9, para. 46.
94 Diallo (Merits), supra note 1, para. 157.
95 Ibid., paras. 157–159. Note that the Court does not consider the issue of practically defunct corporations, just as it had not in Barcelona Traction.
96 For a famous criticism of Barcelona Traction on this point, see Mann, F. A., ‘The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case’, (1973) 67 AJIL 259CrossRefGoogle Scholar.
97 Diallo (Preliminary Objections), supra note 2, paras. 86–90.
98 Dissenting Opinion of Judges Al-Khasawneh and Yusuf, supra note 76, at 7.
99 Diallo (Preliminary Objections), supra note 2, paras. 86–90.
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