What to Expect in Upcoming Provisional Measures Proceedings in Equatorial Guinea v France (No. 2)
by Cecily Rose, Assistant Professor of Public International Law, Grotius Centre, Leiden University
Published on 19 October 2022
These days, it seems that applications instituting proceedings before the International Court of Justice (ICJ) are almost always accompanied by a request for a provisional measures order. The recent case instituted by Equatorial Guinea against France before the ICJ is no exception to this standard practice. This blog post focuses on Equatorial Guinea’s request for a provisional measure order and offers some thoughts on what might be expected from the upcoming provisional measures proceedings at the ICJ.
In its application, filed on 29 September 2022, Equatorial Guinea alleges that France has failed to comply with its obligations under the 2003 United Nations Convention against Corruption (UNCAC), in particular ,Article 57 which concerns the return and disposal of recovered assets. The assets at issue in this case represent Equatoguinean public funds that were misappropriated and laundered by Teodoro Nguema Obiang Mangue, the Vice President of Equatorial Guinea and the son of the President of Equatorial Guinea. The assets partly take the form of a mansion located on avenue Foch in Paris. Following years of criminal litigation in France, which culminated in Obiang Mangue’s conviction for money laundering and the confiscation of the building, French authorities recently announced the sale of the building. Equatorial Guinea seeks to stop this sale, and to ensure that the confiscated property is returned to it (see here for details). In its request for provisional measures, Equatorial Guinea asks the ICJ to order France to suspend the competitive bidding procedure with respect to the building on avenue Foch, and to ensure that it is not offered for sale. In addition, Equatorial Guinea asks the Court to order France not to aggravate or extend the dispute, or make it more difficult to resolve.
In pleading its case at the provisional measures stage, Equatorial Guinea will have to show that: (1) the Court has prima facie jurisdiction; (2) the rights that Equatorial Guinea seeks to protect are plausible and linked to the measures requested by it; (3) there is a risk of irreparable prejudice; and (4) the matter is urgent. The following considers each of these requirements in turn.
Prima Face Jurisdiction
The parties’ arguments about prima facie jurisdiction will center on whether the requirements of UNCAC’s compromissory clause have been met. Equatorial Guinea and France have been parties to UNCAC since 2018 and 2005, respectively (see here). Article 66 of UNCAC provides that states parties to UNCAC may refer disputes about the interpretation or application of the treaty to the ICJ, provided that two conditions are met. First, the parties to the dispute must have attempted negotiation for a reasonable period of time, and second, their inability to organize an arbitration must have lasted for at least six months. Equatorial Guinea’s request for provisional measures briefly notes that negotiations could not be completed within a reasonable time, and that it did not receive any response from France following its request for arbitration in January 2022. The ICJ’s assessment of prima facie jurisdiction in this case will likely involve a fact-intensive inquiry focused on whatever diplomatic correspondence the parties unearth about Equatorial Guinea’s proposal to arbitrate, and France’s response, or lack thereof. A fact-intensive inquiry would be in keeping with the Court’s approach to prima facie jurisdiction in other cases in recent years (see here and here).
Plausibility and Link
The second criterion requires Equatorial Guinea to demonstrate the existence of a plausible right that is linked to the measures requested by it. This criterion could be challenging because Article 57 of UNCAC imposes limited mandatory obligations on states parties that are requested to return confiscated proceeds of corruption. As a result, the corresponding rights, held by requesting states parties, such as Equatorial Guinea, are relatively limited.
UNCAC only obliges a ‘requested state’ (e.g., France), to return assets that represent embezzled public funds (or embezzled public funds that have been laundered) where two conditions are fulfilled (Article 57(3)(a)). First, the requested state must have confiscated the funds as a result of a request for international cooperation for purposes of confiscation (under Article 55 of UNCAC). Second, the requested state must have confiscated the funds on the basis of a final judgment in the requesting state (e.g., Equatorial Guinea). Where these two conditions are met, then the requested state is obliged to return the confiscated assets to the requesting state, and to do so without imposing any conditions upon the return. Where these two conditions are not met, Article 57 does not mandate the return of embezzled funds, or embezzled funds that have been laundered. Instead, the return of such assets is left to the discretion of the destination state.
Where return is non-mandatory, a requested state is only required to ‘give priority consideration’ to returning the confiscated property to the requesting state, to its prior legitimate owners or to compensating the victims of the crime (Article 57(3)(c)). This is an obligation of conduct rather than an obligation of result. The requested state is not obliged to return the recovered assets to a particular recipient, or to return them at all.
In the case at hand, Equatorial Guinea could possess a plausible right to the confiscated assets if it were entitled to their return. But such a right would only exist if the return of the assets by France were legally obliged. The conditions set out in Article 57(3)(a) do not, however, appear to be met in this instance because Equatorial Guinea has not obtained a final judgment in corruption and/or money laundering proceedings against Obiang Mangue. Even though a final judgment has indeed been obtained in France, the formal procedural requirement of Article 57 has nevertheless not been met, such that no plausible right appears to be held by Equatorial Guinea under this sub-paragraph of Article 57.
Under Article 57(3)(c), however, requesting states such as Equatorial Guinea do indeed appear to hold a right to be given ‘priority consideration’ as a recipient of the confiscated property. But this right does not entail an entitlement to be the actual recipient of the recovered assets. Assuming that Equatorial Guinea is able to demonstrate a right to priority consideration, it would then need to show that this right is linked to the measures requested, which are geared towards ensuring that France does not sell the property. It remains to be seen whether the Court’s analysis will go further than this, into the question of whether this right has plausibly been violated. In order to demonstrate a violation of this provision by a requested state, it would seemingly be necessary to show that the requested state manifestly failed to give adequate consideration to the requesting state as a recipient. For an argument about non-compliance to succeed, the level of non-cooperation that would have to be displayed by a requested state would likely have to be relatively extreme.
Risk if Irreparable Prejudice and Urgency
With respect to the matter of urgency, the disputing parties can be expected to provide more information about the imminence of the upcoming sale of the property. Given that the ICJ’s proceedings typically last for at least a few years, it seems likely that the sale of the building would go forward well before the Court gives its final decision in this case.
Alongside the matter of plausible rights, the issue of irreparable harm could be a focal point for arguments by the parties at the provisional measures stage. With respect to irreparability, Equatorial Guinea would have to be able to show that the damage that would be caused by the sale would not be purely financial in character. Unlike harm to the lives and physical integrity of people, financial harm can potentially be fully repaired, as money is fungible. Equatorial Guinea can be expected to elaborate, in particular, on its apparent claim that the building represents the natural wealth and resources of its people (Provisional measures request, para. 24).
Final Remarks
At both the provisional measures and merits stages (assuming this case goes forward to the merits), this case promises to be interesting. This case represents the first time that parties are litigating a dispute under UNCAC, and asset recovery matters tend to raise a host of difficult questions about how states ought to handle the return of stolen assets. In addition, the Court’s provisional measures order in this case can be expected to contribute, in part, to our understanding of the boundaries of the concept of irreparable harm. For practitioners and scholars interested in the procedural issues raised by provisional measures, and/or the substantive aspects of asset recovery, this will be a case to follow.