An Analysis of the ICJ’s Judgment on the Merits of the Immunities and Criminal Proceedings (Equatorial Guinea v. France) Case: All for nothing?

The International Court of Justice (ICJ) delivered its judgment on the merits of the Immunities and Criminal Proceeding (Equatorial Guinea v. France) case on Friday the 11^th of December. The 45-minute hearing was the end of a 12-year affair.

The facts covered by the court go back to the December 2008 filing of a complaint for money laundering with the Paris Public Prosecutor. Transparency International France alleged that Mr. Teodoro Nguema Obiang Mangue, the son of the President of Equatorial Guinea and the Minister of State for Agriculture and Forestry at the time, had invested in France the proceeds of misappropriation of public funds in Equatorial Guinea. After a judicial investigation was opened, Mr. Obiang Mangue’s property in Paris, the building at 42 avenue Foch, was searched and luxury vehicles were seized late September-early October 2011. Even though the Embassy of Equatorial Guinea sent a Note Verbale on 4 October 2011 to state that the building was used for the functions of its diplomatic mission, the French Ministry of Foreign Affairs refused to recognise the property’s inviolability on the grounds that it was within the private domain, and therefore, subject to ordinary law.

After a series of events involving the moving of the official residence of the Equatoguinean Permanent Delegate to UNESCO to 42 avenue Foch, and further searches and seizures by the French authorities, the High Court of Paris (Tribunal de grande instance) found that the building at 42 avenue Foch had been bought by Mr. Obiang Mangue with the proceeds of the alleged crimes and ordered the “attachment of the building” (saisie pénale immobilière) on 19 July 2012, as a way to assure that a confiscation could later take place. Merely a week after, on 27 July, the Embassy of Equatorial Guinea informed the French authorities that their offices had moved to 42 avenue Foch. The French Ministry of Foreign Affairs objected this move as the property was the subject of an attachment order, and refused to recognise the building as the ‘premises of the mission’. During all of this, by presidential decree, Mr. Obiang Mangue was first promoted to Second Vice-President of Equatorial Guinea and later to the Vice-President in June 2016, a week after the filing of the application instituting proceedings before the ICJ.

Through this application Equatorial Guinea hoped to achieve three goals: the termination of the French criminal proceedings that investigated issues deemed to be under Equatoguinean jurisdiction, and the recognition of the respective immunity and inviolability of Mr. Obiang Mangue and 42 avenue Foch in these proceedings. France’s main counterargument was that Equatorial Guinea had abused its rights not only by promoting Mr. Obiang Mangue to grant him immunity ratione personae but also by moving their embassy to the property after the beginning of the criminal investigation in order to protect it from seizure by means of inviolability. Late 2016, the Court ordered provisional measures to guarantee the inviolability of 42 avenue Foch until the conclusion of the international judicial proceedings on the basis of the Vienna Convention on Diplomatic Relations (VCDR), but not for Mr. Obiang Mangue’s immunity, for lack of prima facie jurisdiction on the basis of the Convention against Transnational Organized Crime (Palermo Convention). Vice-President Xue (Judge, at the time) and Judge ad hoc Kateka disagreed with the latter conclusion. In June 2018, the Court found that it lacked jurisdiction pursuant to the Palermo Convention but recognised that it did have jurisdiction under the VCDR regarding 42 avenue Foch, and left the questions of abuse of process and of abuse of rights to the merits stage. Vice-President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka appended a joint dissenting opinion, criticising the majority position regarding the Palermo Convention. Mr. Obiang Mangue had already been found guilty by the French courts by then, but the execution of the confiscation measure against 42 avenue Foch was on hold.

With last weeks judgment, the Court answers the only lingering question: does the building at 42 avenue Foch benefit from inviolability due to its status as ‘premises of the mission’ despite the French Government’s continuous objection?

1/ The Merits

The Court’s judgment is partially surprising because it arrives at an expected conclusion in an unexpected way. It starts with considering ‘in which circumstances a property acquires the status of “premises of the mission” within the meaning of Article 1 (i)’ of the VCDR (para. 41) and proceeds with the habitual interpretative process according to customary rules of treaty interpretation, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT).

Despite giving a definition of what ‘premises of the mission’ are, the Court finds that the VCDR is ‘of little assistance’ when it comes to determining how a property acquires this status (para. 62). The introduction of the requirement of consent for answering the question of how first appears as the Court turns to contextual interpretation, since according to Article 2 of the VCDR ‘[t]he establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent’. The Court determines that this provision excludes a ‘unilateral designation by the sending State despite the express objection of the receiving State’ (para. 63). Equatorial Guinea had suggested that as the VCDR expressly points out when the receiving state’s consent is necessary in other provisions (including articles 12 and 19), a contrario, the lack of this requirement regarding the designation of the premises would mean that consent isn’t necessary in this case. The Court was not convinced by this reasoning (para. 68) and does not consider the silence of the treaty to be decisive; imposing the unilateral designation interpretation of Article 41 proposed by Equatorial Guinea would go against the object and purpose of the treaty, which is the development of friendly relations among nations. Subsequent State practice allows the Court to reinforce its position as many States have created an express requirement for their approval for the use of premises for diplomatic purposes. While not amounting to an ‘agreement of the parties’ within the meaning of Article 31, paragraph 3 (b) of the VCLT to require the receiving State’s consent, according to the Court there is enough practice to establish that the diplomatic premises cannot be designated unilaterally (para. 69).

Given all of this, the Court practically invents a three-step reasonableness test: the objection of the receiving State to a sending State’s designation of the premises of it diplomatic mission must be timely, non-arbitrary, and non-discriminatory. If the objection passes the test, then the property is denied the status of ‘premises of the mission’ (para. 74). What is striking is that, beyond referring to jurisprudence establishing that States must exercise discretionary powers reasonably and good faith, the Court does not adequately explain where the three criteria come from, and the short reference to Article 47 of the VCDR regarding non-discrimination is hardly sufficient (para. 73).

Applying this reasonableness test, the Court finds quite quickly that the French objection was timely (para. 92), and that there were reasonable grounds for France’s objection which made it non-arbitrary (para. 110). Some inconsistencies in the French position were disregarded as they did not, in the Court’s view, amount to tacit recognition of the building as ‘premises of the mission’. All in all, as France did not treat differently another State in the same situation, the objection was deemed non-discriminatory (para. 115). Regarding arbitrariness or discrimination, the Court furthermore takes into consideration that the objection did not deprive Equatorial Guinea of diplomatic premises in France; the French Government continued to recognise the previous location as ‘premises of the mission’ (para. 116). The objection hence passed the reasonableness test and the Equatoguinean authorities had never secured the necessary consent to establish 42 avenue Foch as ‘premises of the mission’.

In finding that 42 avenue Foch never acquired the status of ‘premises of the mission’, the Court judges that France has not breached its obligations under the VCDR. Although unsuccessful at the preliminary objections stage (despite Judge Donoghue’s forceful dissent) France’s main defensive strategy–abuse of rights–if not directly addressed, was thus indirectly answered.

2/ The Dissent

Interestingly, while the Court found that the property never acquired the status of ‘premises of the mission’ in a close call with 9 votes to 7, it decided 12 to 6 that France had not violated the VCDR. The math doesn’t seem to add up. Who are the 3 that (1) considered 42 avenue Foch to be premises of the Equatoguinean mission but (2) concluded that France hadn’t violated the VCDR and what motivated their decision?

President Yusuf, and Judges Gaja and Sebutinde voted against for this first point and in favour of the second and have all appended a declaration or a separate opinion to the judgment, among others. All three of them consider that the property became the diplomatic mission’s premises starting from 27 July 2012 – the date of the Note Verbale notifying that the offices of the Embassy were henceforth located at 42 avenue Foch – and as the relevant events occurred before that date, France did not violate the VCDR. Although all three reject consent as a criterion, they did so to varying degrees. Judge Gaja simply underlines some of the faults in the majority opinion’s argument regarding this requirement. Judge Julia Sebutinde, while explaining that state practice could establish an obligation to give/receive consent, only allows for objections that are based on the fact that premises aren’t actually used for the diplomatic mission. Another justification, like the French one based on ownership, cannot be grounds for refusing consent, in her view. President Abdulqawi Yusuf gives a much more fiery opinion by asserting that the requirement of consent ‘appears to have been plucked out of thin air’ and severely criticises the majority (para. 2, separate opinion). He demonstrates, through national and international case law, that the provisions have never been interpreted to include a requirement of consent from the receiving state and stresses the fact that the Equatoguinean diplomatic mission is now located at 42 avenue Foch. To conclude, he rightly questions what the judgment will mean for the development of friendly relations among nations. He does have a point: today it is undeniable that the property is factually being used as the ‘premises of the mission’, so where do we go from here?

The dissenting judges, Vice-President Xue, Judges Bhandari and Robinson, as well as Judge ad hoc Kateka–some of the usual suspects–all conclude a violation of the VCDR by France, but for different reasons. Through their criticism of the majority opinion on the requirement of consent, Judge Robinson and Judge ad hoc Kateka date the acquisition of the ‘premises of the mission’ status to 4 October 2011–the date of the Note Verbale stating that the building was used for the performance of the functions of the Equatoguinean diplomatic mission. Judge Bhandari agrees with President Yusuf, and Judges Gaja and Sebutinde on the date of 27 July 2012, but doesn’t explain what then constitutes violation of the VCDR by the French authorities. Although not clear, it appears that he may see a violation in the upholding of the objection after 27 July 2012. Finally, Vice-President Xue finds that the division of the case into two at the jurisdiction stage–separating the criminal case against Mr. Obiang Mangue from the seizure of the building at 42 avenue Foch–is regrettable. She argues that by narrowing down its jurisdictional basis the Court shunned critical aspects of the dispute, which are ‘the rights and obligations of a State under international law in handling criminal cases concerning a foreign State and its property’ (para. 12, dissenting opinion).

Conclusion

The case is over, but is it? The consent requirement and reasonableness test are unsatisfactory, especially because they’re trying to solve a non-issue: as President Yusuf puts it, ‘it is the criterion of being “used for the purposes of the mission” […] that qualifies a building as diplomatic premises’ (separate opinion, para. 59). But given the solution, the immediate concern should be: what will happen to the diplomatic mission located at 42 avenue Foch? Even if the property title is transferred to the French Government, the ownership of the building is irrelevant for the ‘premises of the mission’ status. The real issue is that the property never gained this status and Equatorial Guinea cannot claim any benefits stemming from it. There appears to be, at the end of the day, an irresolvable discrepancy between the facts (that the Equatoguinean mission factually operates from 42 avenue Foch) and the law (that 42 avenue Foch never legally obtained ‘premises of the mission’ status). Can law be detached from reality? The Court’s practice amounts to a troubling ‘yes’.