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

Published online by Cambridge University Press:  11 August 2011

Mads Andenas
Mads Andenas
Affiliation:
Professor, University of Oslo, and a Member of the UN Working Group on Arbitrary Detention. Formerly The Director of The British Institute of International and Comparative Law and a former General Editor of The International and Comparative Law Quarterly.
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Extract

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.

Type
Current Developments: International Courts and Tribunals
Information
International & Comparative Law Quarterly , Volume 60 , Issue 3 , July 2011 , pp. 810 - 819
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 Art 92 of the UN Charter.

2 The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) indicates the limits to the transformation in the ICJ's approach to jurisdiction this far.

3 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Rep 2005, 168.

4 Weiler, JHH ‘The Geology of International Law: Governance, Democracy and Legitimacy’ (2004) 64 Heidelberg Journal of International Law 547–62Google Scholar.

5 See the discussion in Gaja, G, ‘The Position of Individuals in International Law: An ILC Perspective’, (2010) 21 EJIL 11CrossRefGoogle Scholar; C Amerasinghe, Diplomatic Protection (2008) 329–33; Condorelli, L, ‘La protection diplomatique et l’évolution de son domaine d'application actuelle' (2003) 86 Rivista di diritto internazionale 5Google Scholar; G Gaja, ‘Droit des Etats et droits des individus dans le cadre de la protection diplomatique’ in J-F Flauss (ed) La Protection Diplomatique: Mutations Contemporaines et Pratiques Nationales 64 (Bruylant, Brussels, 2003); A Verdross and B Simma, Universelles Völkerrecht: Theorie und Praxis 801–02 (Duncker & Humblot, Berlin, 1984).

6 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168.

7 See separate opinion by Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, [2005] ICJ Rep 168, 334.

8 Judge Cançado Trindade in his Separate Opinion provides an extensive discussion of the prohibition of arbitrariness in the international law of human rights (paras 26–36). He advances a general prohibition of arbitrariness when rights are restricted, following from the legality requirement. A closer reading for instance of the case law of the European Court goes far to bearing this out. First, the due process requirements under Protocol 7 to the European Convention are set so high that there is no need for further substantive protection in any of the cases. Secondly, there is no limitation to procedural rights under the prohibition of arbitrary detention under Art 5 of the European Convention which practically always will come into play in the expulsion cases.

9 E Bjorge, ‘Case Concerning Ahmadou Sadio Diallo’, (2011) AJIL xx.

10 Neither did it, strictly speaking, require the Court to deal with the customary international law status of the prohibition.

11 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010, para 162.

12 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, Judgment, [1970] ICJ Rep 33–34, para 38.

13 Elettronica Sicula SPA (ELSI) (United States of America v Italy), Order of 20 December 1988, [1988] ICJ Rep 158.

14 In both the 2007 Judgment on Preliminary Objections and the 2010 Judgment on Merits there is discussion of the managing director, the sole member, and the private limited liability company in the company law of the Congo. See M Andenas and F Wooldridge European Comparative Company Law (CUP, Cambridge 2009) on the French (p 111) and Belgian (p 124) private companies that the Congolese system and terminology of company law builds upon.

15 Individual judges have more freedom in their opinions that are appended to the judgments.

16 The European Human Rights Court has an open practice, whereas the EU Court of Justice has been most closed and restrictive in this respect but now openly relies on judgments from the Human Rights Court. Many national courts have treated law as a closed system and not cited international or foreign courts, and in some countries this remains a contested issue. But most national, and international, courts have increasing rates of citation of decisions by courts from other jurisdictions, see for a discussion of this development, M Andenas and D Fairgrieve, “There is a World Elsewhere’—Lord Bingham and Comparative Law’, in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law – A Liber Amicorum, (Oxford University Press, Oxford 2009), 831.

17 See the discussion in Guillaume, G, ‘The Use of Precedent by International Courts and Arbitrators’ [2011] Journal of International Dispute Settlement, 5–23CrossRefGoogle Scholar.

18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep [2004] 13.

19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Rep [2007] 9, para 88 and 198. Here the ICJ cites and relies on the ICTY on the intent required for the crime of genocide in Kupreškić et al (IT-95-16-T, Judgment, 14 January 2000, para 636.) The ICJ also refers to the European Court of Human Rights in the context of accounting for the parties' submissions but does not rely on or make any further use of these references. It also cites the ICTY and the ICTR on the requirement of ‘substantiality’ in establishing intent Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras 8–11 and the cases of Kayishema, Byilishema, and Semanza there referred to.

20 See the issues formulated in J Crawford's opening essay ‘International Law as an Open System’ in his collected essays International Law as an Open System (CMP, London 2002).

21 Maroufidou v Sweden, No. 58/1979, para 9.3.

22 This is one of their arguments in the discussion of a substantive protection against arbitrary expulsion, see above.

23 Human Rights Committee, General Comment No 15: The position of aliens under the Covenant.

24 Kenneth Good v Republic of Botswana, No 313/05, para 204.

25 World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v Rwanda, No 27/89, 46/91, 49/91, 99/93.

26 Guillaume (n 96) 19, states that the ICJ ‘always abstained itself from the smallest reference to the rationales employed by the regional jurisdictions’. The ICJ's Registrar would previously informally advise judges that ‘the Court does not cite regional courts in their judgments’. In the secretariats of the different UN human rights bodies there are different views on this, and this is reflected in their decisions and general comments. But here too the system of citations is opening up, and the ICJ will certainly influence this development.

27 Again, with Sir Chris Greenwood and Sir Kenneth Keith disagreeing in the interpretation of the case law.

28 The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) shows how the current disagreement in international law divides the ICJ judges, and the limits to the transformation in the ICJ's approach to jurisdiction this far. The ICJ concluded that it lacked jurisdiction under art 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) because, in the Court's view, Georgia was required, but had failed to, enter into negotiations with Russia over its claims under the CERD. The ICJ practically split down the middle with President Owada, Judges Simma, Abraham and Donoghue and Judge ad hoc Gaja disagreeing.

29 The current ICJ President, Hisashi Owada, concluded his remarks to the UN group of government legal advisers at the Seminar on the Contentious Jurisdiction of the International Court of Justice on 26 October 2010, available at (accessed 15 April 2011), by underlining the importance of the recognition of the Court's compulsory jurisdiction: ‘It is the inter-connected web of optional clause declarations and compromissory clauses which create a foundation upon which the Court can develop a continuous jurisdiction that does not have to be re-established with each new dispute as does jurisdiction by special agreement.’

30 In the core discipline, the ICJ's jurisprudence on the binding character of provisional measures following LaGrand (Germany v United States of America), Judgment, [2001] ICJ Rep 46 has been generally received by other international bodies with adjudicative functions.

31 Spurring a considerable literature, see, in particular, A Orakhelashvili, Peremptory Norms in International Law (OUP, Oxford 2006) and among the articles in E Cannizzaro (ed) The Law of Treaties Beyond the Vienna Convention (OUP, Oxford 2011), P Picone, ‘The Distinction between Jus Cogens and Obligations Erga Omnes’, at 411, and E Cannizzaro, ‘A Higher Law for Treaties?’ at 425. See also the precise analysis in P Daillier, M Forteau and A Pellet, Droit International Public (LGDJ, Paris, 2009).

32 The former President of the ICJ, G Guillaume, adds in ‘The Use of Precedent by International Courts and Arbitrators’ [2011] Journal of International Dispute Settlement 5–23, 20, that ‘the Court's policy of precedent essentially aims to assure a constructive dialogue with arbitration tribunals dealing with interstate disputes, primarily in border disputes. For their part, these tribunals are very attentive to the jurisprudence of the Court; by this method, coherence is satisfactorily assured in those matters’. This more narrow view of the role of the ICJ illustrates how radical a departure from previous doctrine that is taken in the new case law that Diallo contributes to. This can be contrasted with the views of the current President, see fn 29 above.