On Friday, December 11, 2020, the International Court of Justice issued its judgment in Equatorial Guinea v. France, concerning “the immunity from criminal jurisdiction of the Second Vice-President of the Republic of Equatorial Guinea in charge of Defence and State Security [Mr. Teodoro Nguema Obiang Mangue], and the legal status of the building which houses the Embassy of Equatorial Guinea in France.” The dispute originated with a complaint by Transparency International (filed with the Paris Public Prosecutor) against several African Heads of State and their family members alleging that they had misappropriated public funds in their country of origin and invested the proceeds of such misappropriation in France. The complaint was declared admissible in the French courts and an investigation followed, which led to the search and seizure of a number of items from a building in France that Equatorial Guinea argued was used for the performance of diplomatic functions. France disagreed and performed further searches and seizures. Indeed, the Paris Tribunal de grande instance concluded that the building in question “had been wholly or partly paid for out of the proceeds of the alleged offences under investigation and that its real owner was Mr. Teodoro Nguema Obiang Mangue.” The Court therefore ordered the attachment of the building—a decision which was upheld by the Paris Court of Appeal. Mr. Teodoro Nguema Obiang Mangue was then successfully tried for money laundering offenses before the Paris Tribunal correctionnel, which “ordered, inter alia, the confiscation of all the movable assets seized during the judicial investigation and of the attached building [in question].” The Paris Court of Appeal upheld the conviction and the confiscation order. The ICJ considered two issues: (1) the circumstances under which a property acquires the status of “premises of the mission” under the Vienna Convention, and (2) the status of the building at issue in the case. The ICJ concluded that the building “never acquired the status of ‘premises of the mission’ under the Vienna Convention” and that therefore, France was not in breach of its obligations under that Convention. In particular, the ICJ held that
an objection by a receiving State to the designation of property as forming part of the premises of a foreign diplomatic mission prevents that property from acquiring the status of the “premises of the mission”, within the meaning of Article 1 (i) of the Vienna Convention, provided that this objection is communicated in a timely manner and is neither arbitrary nor discriminatory in character. The Court has found that the objection by France in the present case meets these conditions.
A separate opinion was filed by President Yusuf, who felt that the majority misinterpreted the definitional provision in Article 1(i) of the Vienna Convention and that it should have been determined, “as a threshold matter, whether the building . . . was ‘used for the purposes of the mission’.” President Yusuf felt that the Judgment’s requirement of “prior approval” or the “power to object” of France “has no basis in the text of the Convention.”
Vice-President Xue filed a dissenting opinion which focused on her observation that the transaction between Equatorial Guinea and France concerning the purchase of the building was carried out legally, and that therefore, Equatorial Guinea had the right to designate it as it wished and that the consent of France was not required to do so.
Judge Gaja filed a similar declaration regarding the issue of consent, noting that Article 12 of the Vienna Convention explicitly requires consent in the specific circumstance of a building being located outside the state’s capital city. Accordingly, “consent is not necessary in the much more frequent case of buildings situated in the capital city.”
Judge Sebutinde filed a separate opinion focusing on the date at which the building acquired the status of “premises of the mission.”
Judge Bhandari filed a dissenting opinion, arguing that the test adopted by the majority (i.e., “that an objection by the receiving State, which is timely and neither arbitrary nor discriminatory, could prevent certain property from acquiring the status of mission premises” “inexorably leads to the conclusion that a property may never acquire diplomatic status without the consent of the receiving State,” a conclusion which is not borne out by the Vienna Convention or customary law.
Judge Robinson also filed a dissenting opinion, arguing that the evidence points to a conclusion that the building did have the requisite status under the Convention.
Finally, Judge ad hoc Kateka’s dissent disagreed with the majority’s reading of the Convention with regard to the consent requirement, and argued that the majority put aside the “use” requirement, which is specifically mentioned in Article 1. In his view, the majority placed too much emphasis on the preamble in its interpretation of the Convention.