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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.

Information

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

A. Introduction

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’Footnote 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.Footnote 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.

In Diallo, the prohibition against inhumane and degrading treatment was confirmed (in an obiter statement) as customary public international law with a choice of words that opens for a hardening of customary law to jus cogens. The ICJ arguably went further than the UN Human Rights Committee (HRC) and European Court of Human Rights (ECtHR), as clarified by the Joint Declaration of Judges Keith and Greenwood disagreeing with the majority on this point, in developing a substantive prohibition on arbitrary expulsion going beyond the procedural requirements. The legality requirement is developed, as is the review of national interpretations of domestic law, and the approach to evidentiary issues in human rights cases. Consular and human rights protection are combined, and not to categorize or attribute in a taxonomic exercise reducing effective protection. The facts of Diallo allowed the ICJ to adopt the substantive approach to erga omnes obligations of Judge Simma's dissenting opinion Congo v Uganda,Footnote 3 offering solutions to challenges of fragmentation and effectiveness.

The open use of sources of law, including regional human rights courts as authority, goes in the same direction. Moving freely across the boundaries that divide the law, or geological layers as Joseph Weiler described them in his celebrated 2004 article,Footnote 4 the ICJ contributes to common sources and methods and to the foundation for a level of unity or coherence of international law.

B. The Facts and Findings

Mr Diallo, a Guinean citizen resident in the Congo for 32 years, founded two companies: an import-export company and a company specializing in container transport of goods. Mr Diallo was the managing director and, in the end, the sole member of these private limited liability companies. As the managing director of the two companies, Mr Diallo initiated various steps, including judicial ones, to recover alleged debts from the State and several companies. He was arrested and imprisoned on 25 January 1988. More than a year later the public prosecutor in Kinshasa ordered his release. On 31 October 1995 the Prime Minister issued an expulsion order against Mr Diallo, who was again detained, and on 31 January 1996, deported to Guinea.

Only States may be parties to cases before the ICJ, and Mr Diallo's case came before the Court by virtue of Guinea seeking to exercise diplomatic protection of his rights. The Court ruled in its 2007 Judgment on Preliminary Objections that Guinea could exercise diplomatic protection for Mr Diallo's direct rights as a member of the private limited liability companies, and rejected the Congolese objections on grounds of failure to exhaust local remedies.

In the 2010 Judgment on Merits, all the claims failed that were based on Mr Diallo's direct rights as a member or as managing director of the private limited liability companies. Congolese restrictions on these rights did not constitute a violation of any protected right to property. Claims concerning the 1988–89 arrest were submitted too late and rejected. But the 1995–96 detention and expulsion were found to be arbitrary and in violation of the ICCPR and the African Charter, and gave rise to a right of compensation. There was however no violation of the prohibition of degrading or inhumane treatment.

C. Consular Protection and Human Rights

Already in the 2007 Judgment on Preliminary Objections, the ICJ had moved away from the formalistic and traditional limitationsFootnote 5 on diplomatic protection. Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights. (paragraph 39.) In his Separate Opinion to the Judgment of 2010 (on the merits), Judge Cançado Trindade explains the new approach:

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 applicant State: the subject of those rights is Mr AS 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 law applicable in the present case,—as clarified after the Court's Judgment 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. (paragraph 223.)

In Congo v Uganda,Footnote 6 Uganda could not satisfy the Court about the Ugandan nationality of the victims of human rights abuses. So in that case the traditional application of diplomatic protection became an effective limiting mechanism. In his separate opinion in Congo v Uganda, Judge Simma argued for the application of humanitarian and human rights law as obligations erga omnes which by their very nature are the concern of all States.Footnote 7 In Diallo, the Guinean nationality of Mr Diallo was not in question, and the Court could then consider the human rights violations. Mr Diallo had not been informed at the time of his arrest of his right to request consular assistance from his country. The ICJ held that the Congo was in breach of article 36(1)(b) of the Vienna Convention on Consular Relations of 1963, to which both Guinea and the DRC were parties (paragraphs 90–98).

D. Arbitrary Expulsion and Detention, and Degrading and Inhuman Treatment

The ICJ provided an extensive analysis of the alleged violation of international human rights obligations, first addressing Mr Diallo's rights as an individual (paragraphs 21–98), and then his rights as a member or as managing director of the private limited liability companies (paragraphs 99–159). The Court discussed the legality requirement, not accepting the claim for a national security exception, and taking the opportunity to clarify that the prohibition against arbitrary expulsion does not only provide procedural rights but a substantive right, requiring the Court to review whether the expulsion was justified on its merits.

Article 13 ICCPR and the African Charter article 12 require that an expulsion of an alien can only take place ‘in accordance with the law’. The Court set out three conditions that follow from this requirement of legality. First, compliance with national law is a necessary condition but not a sufficient one. Second, domestic law must also be compatible with the other requirements of the Covenant and the African Charter. Third, an expulsion must not be arbitrary in nature (paragraph 65).

The Court relied on the jurisprudence of other international and regional human rights bodies, such as the United Nations Human Rights Committee and the African Commission on Human and Peoples' Rights. It also found support in the interpretation by the European Court of Human Rights and the Inter-American Court of Human Rights of their respective human rights conventions (paragraph 68). Judges Sir Chris Greenwood and Sir Kenneth Keith in their Joint Declaration argued that this jurisprudence did not go beyond procedural guarantees.Footnote 8 Erik Bjorge agrees with Greenwood and Keith that the Court goes further than the international and regional human rights bodies. He concludes that ‘by developing international human rights in this way, the Court in Diallo forcefully has staked its claim as an arbiter of human rights to be reckoned with’.Footnote 9 It is not surprising that members and staff of human rights bodies have already given Diallo much attention, and it is difficult to imagine that any of these human rights bodies would do anything but gratefully adopt the view of the Court.

The Court held that there had been violations of both procedural and substantive guarantees. There was breach of the domestic law requirements of consultation and the provision of reasons (paragraph 73), and of the right to be heard (paragraph 74). The Court did not accept that there were ‘compelling reasons of national security’ for an exception (paragraph 74).

The Court also held there was a violation of article 9 of the Covenant and of article 6 of the African Charter against arbitrary detention. Again there were breaches of domestic procedures (including the requirement that Mr Diallo's detention be reviewed every 48 hours as required by DRC's Legislative Order of 12 September 1983). Account had to be taken of the ‘number and seriousness of irregularities’ tainting them. Mr Diallo had been ‘held for a particularly long time’. The Government had ‘made no attempt to ascertain whether his detention was necessary’, and the decisions had not been ‘reasoned in a sufficiently precise way’ (paragraph 82). The proceedings against Mr Diallo were not criminal but he still had a right to be notified of reasons for arrest, and burden was on the state to show that this had been done (paragraphs 72 and 84).

The Court, in the aftermath of the decade of ‘anti-terror’ measures, then took this opportunity to state that ‘there is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments.’ The Court's use of the words ‘even apart’ is a useful reminder that we are dealing with a rule of customary international law. The use of words ‘in all circumstances’ can refer to a rule's peremptory or jus cogens status in the sense of its unconditional applicability and lack of reciprocity, even if other States breach the rule in question, or if a contrary rule or instrument is invoked to bypass the rule. But in Diallo there was no normative conflict that would require the Court to address further the peremptory or jus cogens status or nature of the prohibition of inhuman and degrading treatment. This is left to further elaboration by the Court at some later occasion, and by the human rights bodies the Court now relies so expressly on for its development of this part of international law.Footnote 10

The Court discussed the provisions of article 7 ICCPR (against torture and degrading treatment), article 10 (treatment of detainees: with humanity and respect for dignity) and African Charter article 5 (‘dignity inherent in a human being’). In the event, the Court held that no breach of the prohibition of inhuman and degrading treatment ‘had been demonstrated’.

The Court also established a new evidentiary position for claims to succeed in human rights cases. The burden of proof was placed on the claimant in Pulp Mills,Footnote 11 but this could not apply to human rights cases in general, and, in particular, not when a party claims not to have been afforded procedural guarantees (paragraph 55).

The Court referred to the limits on its review of a State's interpretation of its own domestic law (paragraph 70). It is for each State, in the first instance, to interpret its own domestic law and the ICJ will ‘not substitute its own interpretation for that of the national authorities, especially when that interpretation is given by the highest national courts’. The threshold for the review is that ‘a State puts forward a manifestly incorrect interpretation of its domestic law, particularly for the purpose of gaining an advantage in a pending case’. The ICJ concluded that DRC domestic law was breached in two important respects. (no consultation and not sufficient reasons, paragraph 73, and breach of the right to be heard, paragraph 74).

E. Companies and Investor Rights: Barcelona Traction and Legal Personality

Guinea could exercise diplomatic protection for Mr Diallo's direct rights as a member of the private limited liability companies, and the ICJ rejected the Congolese objections on grounds of failure to exhaust local remedies. The Court rejected in its 2007 Judgment on Preliminary Objections the claims held by companies owned by Mr Diallo or where he held a controlling position. The Court did not allow Guinea's claim to extend its protection to the two limited liability companies. They were legal persons, formed and established in the Congo, and separate from their shareholder and manager, Mr Diallo. The Court based this on Barcelona Traction.Footnote 12 In Elettronica Sicula Footnote 13 the Chamber of the Court had applied the treaty protection developed in bilateral investment treaties for protection of shareholder claims for compensation for violations against a company (protection by substitution). Guinea also referred to the ILC's draft Articles on Diplomatic Protection and case law from various human rights bodies. But in Diallo the Court did not extend protection by substitution to a rule of customary international law. This left Mr Diallo's direct rights as a member or as managing director of the private limited liability companies. In the 2010 Judgment on Merits, all the claims based on Mr Diallo's direct claims failed.Footnote 14

The Joint dissenting opinion of Judges Al-Khasawneh and Yusuf revisited the Court's reading of Barcelona Traction. They first of all pointed out that the Court in Barcelona Traction saw the need to attribute the diplomatic protection to one state. With one country of incorporation or establishment determining the nationality of the company, and shareholders from many countries, there could be good reasons to choose the former over the latter. In the present case, shareholders of different nationalities were not a concern, as there was a single owner in Mr Diallo. Judges Al-Khasawneh and Yusuf pointed out that the developments in the field of foreign investments have abandoned the distinction between the corporate personality of the company on the one hand, and that of the shareholders on the other, leading to a discrepancy between the customary international law standard and the standard contained in most investment treaties.

F. Remedies

Remedies were discussed under the heading ‘reparation’ (the term used in the text is ‘compensation’, paragraphs 160–4). With the findings in the judgment these are limited to the issues of detention and expulsion. The parties were given a short deadline to reach a settlement.

The Court brought up the length of proceedings. The application was lodged in 1998. With such delay, remedies can hardly be effective in a human rights case as this. There is all reason to undertake reforms of different kinds to reduce delay, some of which is due to the deference the ICJ procedures show to State parties, and less appropriate where the fundamental rights of a private individual is involved. It must be recalled that both national and other international courts have considerable delays in human rights cases, although the 22 years in the ICJ, starting some 10 years after the end of the detention with the final expulsion, must be at the extreme end.

G. Sources of Authority

Courts follow different practices when it comes to citation of other courts. ICJ judgmentsFootnote 15 have traditionally not referred to decisions by other courts, national or international, or for that matter to academic scholarship.Footnote 16 It has for some time cited and relied on arbitral decisions.Footnote 17 In the Wall Case (2004)Footnote 18 the ICJ for the first time cited the UN Human Rights Committee (HRC), both its decisions in individual cases, its ‘constant practice’ on extraterritorial application, and its statements on the interpretation of the ICCPR at issue (paragraph 109–110). The Court also cited the Committee on Economic, Social and Cultural Rights (CESCR, paragraph 112) and the UN Special Human Rights Mandates or Rapporteurs. The ICJ placed clear reliance on the statements of the two UN committees in the interpretation of their respective 1966 UN Covenant, and relied in the determination of factual matters on the CESCR and the UN Special Human Rights Mandates or Rapporteurs. Then in Bosnia and Herzegovina v Serbia and Montenegro (2007), the ICJ cited both the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).Footnote 19 The ICJ ‘found itself unable to subscribe to the view expressed’ by the ICTY on state responsibility (para 403), but relied on the ICTY for its findings of facts, and on both the ICTY and the ICTR for the elements of the international criminal offences.

In Diallo, the multiplicity of sources reflects the nature of public international law as an open system.Footnote 20 The ICJ relies on the HRC's jurisprudence, including Maroufidou v Sweden Footnote 21 with Sir Chris Greenwood and Sir Kenneth Keith disagreeing in the interpretation.Footnote 22 The ICJ also refers to General Comment No. 15.Footnote 23 This is fully justified by the importance of achieving ‘the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’. Though the ICJ is in no way obliged in the exercise of its judicial functions to model its own ‘interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.’ Its conclusions are ‘corroborated’ by the ‘jurisprudence’ or ‘case law’ of the HRC. The Court will ‘take due account of the interpretation of … independent bodies … created … to monitor’ the human rights treaties. (paragraph 66).

Congo had ratified the African Charter on Human and Peoples' Rights so it followed that the practice of the African Commission on Human and Peoples' Rights was relevant, and the ICJ cites Kenneth Good Footnote 24 and World Organization against Torture v Rwanda.Footnote 25 (paragraph 67.) It did not necessarily follow that the ICJ should make any use of the jurisprudence of the Inter-American Court of Human Rights or the European Court of Human Rights. Seen from the vantage point of the ICJ,Footnote 26 they would be regional mechanisms, and there may be opposition from countries from outside their jurisdiction. However, the ICJ took the opposite starting point in dealing with the regional courts. It found further support in the case law of the Inter-American and European Courts, which was ‘consistent’ with the ICJ's own findings (paragraph 68).Footnote 27

H. Conclusions

In Diallo it becomes much clearer how the open method the ICJ has adopted, puts it at the top of the international law system. The development of customary international law by the ICJ is now more likely to include human rights law, international trade law and other fields of international law which, until recently, seemed to fragment into autonomous regimes. The Court has provided itself with the tools to contribute to some level of unity and coherence of international law.

The first feature of this transformation of public international law is in the relaxation of the restrictions of state consent. The law of the ICJ is no longer predominantly on the jurisdictional issues: it is concerned with substantive law. Diallo in 2010 and Georgia v Russia Footnote 28 in 2011 illustrate a gradual development. In the latter case the majority of the Court rejected the claim with reference to the requirement of exhausting the treaty procedures that Georgia had not followed. But the argument in the latter case as well, both by a strong minority, and also a cautious majority, points towards further lowering of the barriers of state consent when jurisdictional clauses are interpreted. The outcome will be the gradual strengthening of the ICJ's contentious jurisdiction.Footnote 29

Other features apparent in the judgment are the ICJ's confirmation of customary international law in different areas of law, also outside the traditional core public international law discipline,Footnote 30 as in Diallo, and the development of erga omnes, jus cogens and peremptory norms.Footnote 31 The provisions about peremptory norms in the 1969 Vienna Convention (in articles 53 and 64) have played a role in some states withholding their ratification. The provisions about erga omnes and peremptory norms in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission brings the gradual development of the law further forward. The recognition of jus cogens by arbitral tribunals and international courts before the ICJ itself did so in Congo v Rwanda, is yet another. The objections against jus cogens by countries such as France and Norway have in practice been withdrawn, in recognition of the court decisions.

The citation of other courts and international bodies is another feature opening up for a dialogue across treaty regimes and other jurisdictions.Footnote 32 The other courts and international bodies in this relationship may respond by taking a closer account of international law and its fundamental principles in applying the treaty base they may have for their activities. International courts and other bodies are increasingly provided with the tools of applying international law and securing coherence and unity, and with the ICJ having this as its main business.

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.