Immunities and Criminal Proceedings (Equatorial Guinea v. France)
Judgment of 11 December 2020
by Tutku Bektas*
Introduction
On 11 December 2020, the International Court of Justice handed down its judgment on the case between Equatorial Guinea and France concerning the immunity of the Second Vice-President of Equatorial Guinea, Mr. Teodoro Nguema Obiang Mangue and the legal status of the building located at 42 avenue Foch in Paris, as part of diplomatic premises and State property of Equatorial Guinea.
The issue before the Court was the status of the building at 42 avenue Foch as premises of the diplomatic mission of Equatorial Guinea under the Vienna Convention on Diplomatic Relations. The Court was further invited to rule on whether the actions taken by the French authorities, including the attachment of the building as part of criminal legal proceedings issued against Mr Obiang, were in breach of France’s obligations under Article 22 of the Vienna Convention.
Factual background
The origins of the dispute date back to 2010, when the Paris Public Prosecutor initiated a judicial investigation against Mr Obiang regarding the handling misappropriated public funds of Equatorial Guinea. The investigation was based on a complaint filed by Transparency International France claiming that Mr Obiang invested the proceeds of money laundering into various objects of considerable value and a building located at 42 avenue Foch in Paris. Pursuant to ongoing criminal legal proceedings, the French authorities confiscated a number of assets of considerable value and ordered the attachment of the building at 42 avenue Foch.
Equatorial Guinea brought an application before the International Court of Justice challenging the legality of the actions of the French authorities. In its judgment of 6 June 2018 on preliminary objections, the Court decided it lacked jurisdiction on the basis of the Palermo Convention regarding the claim on immunity of Mr Obiang. The Court only declared admissible the claim concerning the status of the building at 42 avenue Foch as part of diplomatic premises of Equatorial Guinea under the Vienna Convention.
Judgment
The Court held by 9 votes to 7 that the building at 42 avenue Foch has never acquired the status of diplomatic mission under the Vienna Convention. It followed by 12 votes to 4 that France did not breach any of its obligations under the Vienna Convention, and all other submissions of Equatorial Guinea were dismissed.
Article 22 of the Vienna Convention establishes inviolability of the premises of diplomatic missions. It further establishes the immunity of the premises of diplomatic missions “from search, requisition, attachment or execution” (art 22(3)). The definition of “premises of the mission” is provided in Article 1(i) of the Convention, as “the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission”.
Having observed that Article 1(i) was silent on the roles of the sending and receiving States on the designation of mission premises and that Article 22 of the Vienna Convention provided no explicit guidance on this, the Court interpreted the relevant provisions in their context and in light of the object and purpose of the Convention in accordance with the general rule of treaty interpretation [62]. The Court noted that the Convention is based on the notion of mutual consent [63], with the object of contributing to friendly relations between States [66]. Accordingly, the Court did not favour an interpretation allowing for a sending State’s unilateral designation of the premises of the mission under the circumstances where a receiving State objects to the designation [66].
Significantly, the Court placed a limit on the receiving State’s power of objection to the unilateral designation of the premises of the diplomatic mission of a sending State. The Court provided that the receiving State’s objection must be exercised reasonably and in good faith, must be timely and must not be arbitrary or discriminatory in character. In cases where the criteria are satisfied, a property does not acquire the legal status of premises of the mission under the Convention, and consequently, it does not benefit from the protection afforded under Article 22 [73-74].
While applying the criteria to the facts at hand, the Court observed that France consistently expressed its objection to the designation of 42 avenue Foch as part of the premises of the Equatorial Guinea’s diplomatic mission from 4 October 2010, the date on which Equatorial Guinea notified its intention, to 6 August 2012, the date of the attachment of the building by the French authorities [89]. The Court considered that the objection made by France was timely, given that France promptly communicated its objection a week after the notification concerning the legal status of the building from Equatorial Guinea [92].
The Court further dismissed Equatorial Guinea’s arguments that the objection by France was arbitrary or discriminatory in character. The circumstances demonstrated that France had reasonable grounds for objection on the grounds of ongoing criminal investigation and proceedings and that Equatorial Guinea was aware of these grounds [107-108]. Moreover, the objection did not have a discriminatory impact on Equatorial Guinea since it did not prevent it from holding a diplomatic mission since it already had another diplomatic mission located in Paris [116]. On the basis of the analysis above, the Court held that the building did not acquire the status of premises of the mission under the Convention.
Dissenting opinions, declarations and separate opinions
In total, seven dissenting opinions, declarations and separate opinions were issued, mainly focusing on the issue of ‘consent’ of the receiving State and the issues of ‘use’ of a building as premises of the mission. According to President Yusuf, the criteria formulated by the majority regarding a receiving state’s power to object had “no basis in the text of the Convention”. Rather, the determination required a question of threshold, namely whether the building in question was used for the purposes of the mission. Similarly, Judge Bhandari was dissatisfied with the criteria on the ground that it may prevent the designation of diplomatic status of a property without the consent of the receiving State, which is not provided in the Convention.
According to the textual reading by Judge Gaja, given the Convention explicitly requires consent only in specific circumstances of a property outside the capital, the requirement does not necessarily apply to property located in capital cities. Judge Sebutinde was in the view that, irrespective of its ownership, the building should have been afforded the status of premises of the mission once it is effectively used as such by Equatorial Guinea. Judge ad hoc Kateka also focused on the “use” of premises requirement under the Convention.
In her dissenting opinion, Vice-President Xue emphasized the legality of the transaction between Mr Obiang and Equatorial Guinea regarding the purchase of the building. She considered that the dispute went beyond the realms of Vienna Convention and touched upon customary rules on jurisdictional immunities of a State and its property. On the former, the Court had narrowed down its jurisdiction in the preliminary objection phase.
* Tutku Bektas (BA Oxford; LL.M NYU) is Research Assistant to Dr. Nilufer Oral, Director of the Centre for International Law at NUS