By Bartholomew Madukwe
International Court of Justice (ICJ) on Wednesday ruled they had jurisdiction to hear a case brought by Equatorial Guinea against France.
ICJ JUDGMENT
The Court finds that it has jurisdiction, on the basis of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, to entertain the Application of Equatorial Guinea, in so far as it concerns the status of the building located at 42 Avenue Foch in Paris as premises of its mission, and that this part of the Application is admissible”.
ISSUE
The suit at the ICJ was on whether the French government violated diplomatic protocols when it raided a residence in Paris belonging to the son of Equatorial Guinea’s president, as part of a corruption investigation.
Judge Hisashi Owada held that “the Judgment has found that there has not been enough evidence to establish this contention of France. However, whether this contention of France is justified or not is not the point at issue in the present situation. France’s objection on abuse of rights to immunity and inviolability by Equatorial Guinea, if upheld, could arguably result in a total rejection of Equatorial Guinea’s claim as an “invalid claim” rather than the procedural interruption of further proceedings of the present case before dealing with the merits aspects of the claim.
“It is for these reasons that I joined the conclusion of the Court that France’s third preliminary objection be rejected in its entirety, without passing any judgment on the validity of the contention of France in its third preliminary objection, which, if sustained, could have much wider legal implications.”
Judge James Crawford stated that “It was a sufficient ground to reject Equatorial Guinea’s separate argument based on exclusive jurisdiction to point out that neither Article 6 nor Article 15 of the Palermo Convention
confer exclusive jurisdiction over predicate offences on the State where those offences were
committed”.
ICJ Vice President Xue, Judges Sebutinde and Robinson and Judge AD HOC Kateka unanimously maintained that “In particular, we
disagree with the majority’s finding in paragraph 102 of the Judgment that “the aspect of the dispute between the Parties relating to the asserted immunity of the Vice-President of Equatorial Guinea and the immunity claimed for the building at 42 Avenue Foch from measures of constraint as State property does not concern the interpretation or application of the Palermo Convention”, a finding that has led the Court to conclude that it lacks jurisdiction on the basis of Article 35 of that Convention to entertain Equatorial Guinea’s Application”
Judge Giorgio Gaja ruled that “the issue of the ownership concerning the building located at 42 Avenue Foch must be distinguished from the issue of inviolability and immunity of the premises of the mission. While the latter comes within the scope of the Optional Protocol, the part of the dispute over the ownership of the building is not so covered. Under the Optional Protocol the Court does not have jurisdiction to decide on that part of the dispute”.
JUDGES DECLARATION IN FULL
JOINT DISSENTING OPINION OF VICE-PRESIDENT XUE,
JUDGES SEBUTINDE AND ROBINSON
AND JUDGE AD HOC KATEKA
Jurisdiction under the United Nations Convention against Transnational Organized Crime
Dispute concerning the interpretation or application of the Palermo¾(Palermo Convention)
Overarching and pervasive effect of Article 4 (1) of the Palermo¾Convention
Article 4 (1) is not¾ Principle of sovereign equality of States has a discrete value ¾Convention
Sovereign¾set aside by other provisions of the Convention which leave matters to domestic law
Par in parem non habet¾equality of States in other international instruments
Intrinsic linkage with the customary international rules on foreign State¾imperium
Principle sets limits for the performance of other obligations under the Palermo¾immunities
Performance must be consistent with the¾ Articles 6, 11, 12, 14, 15 and 18 ¾Convention
The Court has jurisdiction.¾principle of sovereign equality
Subject-matter of the¾ Jurisdiction ratione materiae ¾Palermo Convention
Matter for objective determination by the Court and integral part of the Court’s judicial¾dispute
Court has not precisely identified the subject-matter of the dispute.¾function
Table of Contents
I. The subject-matter of the dispute ………………………………………………………………………………… 2
II. The scope and purpose of the Convention ……………………………………………………………………. 4
III. The interpretation of the obligation under Article 4 (1) ………………………………………………… 5
IV. Relevant international instruments……………………………………………………………………………. 11
V. The overarching and pervasive effect of Article 4 (1) on the other provisions ………………… 12
VI. Articles relied on by Equatorial Guinea as establishing a dispute between the Parties
under the Palermo Convention ………………………………………………………………………………….. 14
Conclusion …………………………………………………………………………………………………………….. 17
- With much regret, we have voted against the conclusion in point 1 of paragraph 154 of the
Judgment. In this joint dissent, we explain the legal reasoning behind our vote. In particular, we
disagree with the majority’s finding in paragraph 102 of the Judgment that “the aspect of the
dispute between the Parties relating to the asserted immunity of the Vice-President of
Equatorial Guinea and the immunity claimed for the building at 42 Avenue Foch from measures of constraint as State property does not concern the interpretation or application of the Palermo
Convention”, a finding that has led the Court to conclude that it lacks jurisdiction on the basis of
Article 35 of that Convention to entertain Equatorial Guinea’s Application. Our views reflected in this opinion do not in any way reflect our respective views on the merits of the case. - There are four areas of disagreement between the majority and ourselves.
By defining “abuse of process” and “abuse of rights” narrowly and by isolating each of
these concepts from the other, I believe that the Court has overlooked the core of France’s third
preliminary objection:
“it is not the individual elements which France has brought to this Court’s attention,
considered in isolation, that constitute an abuse of process. Taken as a whole,
however, they establish that Equatorial Guinea’s Application to the Court is abusive,
since it in fact forms part of a strategy to use the principle of diplomatic immunities as
a contrivance for the benefit of an individual who is not a diplomat, and thereby to
obstruct the criminal proceedings initiated against him in France and avoid the
potential confiscation of the personal property he has acquired there.
France requests you to find that, by seising the Court, Equatorial Guinea has
committed an abuse of process, the purpose of which is to have the Court provide
cover for the applicant State’s improper and abusive use of the law of diplomatic
immunities.”(CR2018/2,pp.53-54,paras.21,24(Pellet)1Â .)
- The Respondent refers to a “contrivance” by the Applicant that is part of a “strategy” that
culminates in the seising of the Court. The Respondent’s allegations raise this question: is the
conduct in which the Applicant engaged as a predicate for the assertion of certain rights of such a character that the Court should not exercise its jurisdiction to determine whether the Applicant has those rights? This is a question of admissibility. Its answer does not call for a decision as to
whether the rights asserted by Equatorial Guinea have been established (a matter for the merits). - Some questions of admissibility arise only when they are raised by a party. Other aspects
of admissibility touch on the fundamental role and function of the principal judicial organ of the
United Nations:
“There are inherent limitations on the exercise of the judicial function which the
Court, as a court of justice, can never ignore. There may thus be an incompatibility
between the desires of an applicant, or, indeed, of both the parties to a case, on the one
hand, and on the other hand the duty of the Court to maintain its judicial character.
The Court itself, and not the parties, must be the guardian of the Court’s judicial
integrity.” (Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 1963, p. 29.) - The allegations by France raise questions about whether the Court can consider the
Application without compromising its judicial integrity. The Respondent’s harsh words could
perhaps be discounted as the hyperbole of oral advocacy, but the facts before the Court cannot be so easily set aside. The evidence that bears on the question of the admissibility (as framed in
paragraph 6 above) is before the Court at this stage of the proceedings and is not in dispute. The
relevant facts are evident on the face of documents submitted to the Court by the Applicant,
including statements by representatives of the applicant State. I summarize those facts here.
9. Mr. Teodoro Nguema Obiang Mangue is the son of the President of Equatorial Guinea.
In 2004, he became the sole shareholder of the Swiss companies that co-own the Building in Paris
(Memorial of Equatorial Guinea, Vol. I, paras. 2.15-2.16). At that time, he was serving as Minister
Footnotes omitted. All translations are by the Registry.
DECLARATION OF JUDGE GIORGIO GAJA
 Article 22 of the Vienna Convention on Diplomatic¾Premises of a diplomatic mission
Whether Article 22 covers the issue of ownership of the building.¾Relations
In section (c) of its submissions Equatorial Guinea complains about France’s failure “to
recognize the status of the building located at 42 Avenue Foch in Paris as the property of the
Republic of Equatorial Guinea, and as the premises of its diplomatic mission”. I agree with the
Judgment of the Court that the Optional Protocol to the Vienna Convention on Diplomatic
Relations gives the Court jurisdiction over the part of the dispute between the Parties relating to the use of the building as premises of the diplomatic mission of Equatorial Guinea. However, the Judgment does not specify that the issue concerning the ownership of the building is not covered by the Optional Protocol.
When defining the premises of the diplomatic mission, Article 1 (i) of the Vienna
Convention indicates that these are “the buildings or parts of buildings and the land ancillary
thereto, irrespective of ownership, used for the purposes of the mission”. Ownership of the
premises does not necessarily belong to the sending State. Missions are often located on rented or leased property. Issues concerning the ownership of buildings that are used for a mission are
regulated by the municipal law of the host State, unless the matter is governed by a treaty (this case is not relevant for present purposes).
When Article 22, paragraph 3, of the Vienna Convention sets out that “[t]he premises of the
mission, their furnishings and other property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment or execution”, it does not grant total
immunity to the building. It only refers to forcible measures that interfere with the use of the
building for the diplomatic mission.
Article 22, paragraph 1, of the Vienna Convention states that “[t]he premises of the mission
shall be inviolable”. It does not exclude that the mission should have to move out because of a
change in the ownership of the property. The relevant provisions of the Vienna Convention do not imply that, once a building has been used for a diplomatic mission, the sending State is entitled to continue to use it indefinitely for that purpose. Ownership of the premises may change over time.
Except for what may be provided for in a treaty, there is no obligation for the receiving State to let the sending State continue to use a specific building for its mission. Use of the premises will
depend on contractual arrangements that the sending State may conclude with the owner. The sale of the property where the premises of a diplomatic mission are located could lawfully lead to terminating the use of the building for that purpose.
Thus, the issue of the ownership concerning the building located at 42 Avenue Foch must be
distinguished from the issue of inviolability and immunity of the premises of the mission. While
the latter comes within the scope of the Optional Protocol, the part of the dispute over the
ownership of the building is not so covered. Under the Optional Protocol the Court does not have jurisdiction to decide on that part of the dispute.
(Signed) Giorgio GAJA.
DECLARATION OF JUDGE JAMES CRAWFORD
 Article 4 (1) not merely a without prejudice¾Article 4 of the Palermo Convention
Article 4 as a¾ Article 4 (1) imposes an obligation in accordance with its terms ¾clause
Legislative history of¾safeguard against intervention on the territory of another State party
Legislative history of Article 2 of the United Nations¾Article 4 of the Palermo Convention
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).
1. In this case, Equatorial Guinea relies on Article 4 of the Palermo Convention to attract the
protection of certain rules of international law. Its principal argument is that Article 4 incorporates by reference the customary international rules relating to the immunities of States and State officials, since these derive from the principle of sovereign equality with which Article 4 (1) requires States parties to comply1
.
2. This argument assumes that Article 4 (1) gives legal effect, for the purposes of the
application of the Palermo Convention, to the principles of customary international law to which it refers, namely sovereign equality, territorial integrity and non-intervention in the domestic affairs of other States. Strictly speaking, it was not necessary for the Court to decide whether this is so, since for the reasons given in paragraphs 92-102 of the Judgment, with which I fully agree,
Article 4 does not incorporate the rules relating to the immunities of States and their officials.
Moreover, it was a sufficient ground to reject Equatorial Guinea’s separate argument based on
exclusive jurisdiction to point out that neither Article 6 nor Article 15 of the Palermo Convention confer exclusive jurisdiction over predicate offences on the State where those offences were committed (see paragraphs 115-117 of the Judgment).
- However, it has been suggested that Article 4 (1) is merely a without prejudice clause,
which does not impose an obligation on States parties to the Palermo Convention to act in
conformity with the principles of sovereign equality, territorial integrity and non-intervention in
any event. If this were the case, it would have been a simpler and more direct ground for denying
the Court’s jurisdiction under the Palermo Convention, since it would have undercut the very
assumption on which Equatorial Guinea’s Article 4 arguments were based. - The Court has not taken this course, and in my view rightly not. Article 4 (1) on the face
of it imposes an obligation; it is in mandatory language (“shall carry out their obligations”) and the principles of sovereign equality, territorial integrity and non-intervention are established legal
principles with a determinate content. In this as in other respects, Article 4 is quite unlike Article IÂ of the Treaty of Amity which was considered in Oil Platforms (Islamic Republic of Iran v.
United States of America, Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 803).
Article I proclaimed “firm and enduring peace and sincere friendship” between the parties. It did
not refer to any specific principles or rules of international law, but was aspirational in character. - The Palermo Convention, like the 1988 Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, from which Article 4 (1) was transposed, has as its object to promote co-operation between States to facilitate effective measures to combat transboundary
True, Equatorial Guinea did not actually use the term “incorporation by reference”, resorting instead to synonyms such as “contained within the principles referred to in Article 4” (CR 2018/3, p. 28, para. 1 (Wood); ibid.,
p. 30, para. 8 (Wood)), or “part and parcel of the principles of sovereign equality and non-intervention” (CR 2018/5,
p. 21, para. 16 (Wood)). It was more an argument of incorporation by inference
DECLARATION OF JUDGE HISASHI OWADA
- While I have voted in favour of all the dispositifs as contained in paragraph 154 of the
Judgment, I wish to elaborate on some salient points of the Judgment, with a view to adding clarity to what I wanted to convey through the language of the Judgment. First, I wish to show how have come to the conclusion that France’s first preliminary objection be upheld, especially in the context of the alleged violations by France of the provisions other than Article 4 of the Palermo Convention; second, I wish to put my own view on why the conclusion of the Judgment that France’s third preliminary objection is to be rejected is justified, in particular in view of the
essential nature of this objection in relationship to the specific structure of preliminary objections as stipulated in Article 79, paragraph 9, of the Rules of Court as revised in 1978 from the original formulation.
(A) The relevance of Article 4 of the Palermo Convention
to the alleged violation
(1) The scope of obligations of Article 4 as such
2. The relevance of Article 4 to the alleged violation of the Convention as claimed by
Equatorial Guinea is, in my view, twofold. First, I concur with paragraph 102 of the Judgment that “Article 4 does not incorporate the customary international rules relating to immunities of States and State officials”. The Court did not accept the argument advanced by the Applicant that Article 4 had the legal effect of amounting to the so-called “incorporation by reference” of
customary rules of international law. This term, when used as a technical legal term, means,
according to the Black’s Law Dictionary, “[t]he method of making one document of any kind
become a part of another separate document by referring to the former in the latter, and declaring
that the former shall be taken and considered as a part of the latter as if it were fully set out therein”
(Black’s Law Dictionary (5th ed., 1979), p. 690). As the Judgment clearly demonstrates in its
interpretation of Article 4 in accordance with its ordinary meaning, I agree that Article 4 does not amount to a provision that justifies the legal effect of such “incorporation by reference”. - Second, however, this is not the end of the story in relation to the issue of relevance of
Article 4 claimed by Equatorial Guinea. The aforementioned finding of the Judgment does not free the Court from its task of scrutinizing Equatorial Guinea’s claims based on provisions other than Article 4 of the Convention, in the context of the legal obligation arising under Article 4 as defined by the Judgment. The Judgment clearly accepted that, Article 4 (1) of the Palermo Convention, unlike Article I of the Treaty of Amity between Iran and the United States, which was interpreted by the Court in the case concerning Oil Platforms as “preambular in character merely formulating a general aim”, imposes a legal obligation on States parties to perform other obligations of the Convention “in a manner consistent with the principles [as referred to therein]” (paragraph 92 of the Judgment). Thus, some of the Applicant’s claims based on the provisions other than Article 4 of the Convention have been advanced independently of Equatorial Guinea’s specific interpretation of Article 4 based on the doctrine of “incorporation by reference”. Given this latter obligation prescribed by Article 4, the provisions other than Article 4, such as Articles 6, 7, 8 and 25, read in conjunction with Article 4 as interpreted by the Court, will thus become relevant in evaluating France’s acts complained of by Equatorial Guinea.
4. The principles of sovereign equality and non-intervention referred to in Article 4 (1) of the
Convention are not intended to have the effect of incorporating the specific rules of customary
international law relating to immunities. Neither the travaux préparatoires of Article 4 (1) of the
Palermo Convention, nor those of Article 2 of the Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances of 1988, which “inspire[d]” Article 4 of the Palermo
Convention, indicate otherwise (see United Nations (1988), United Nations Conference for the
Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance,
Vienna, 25 November-20 December 1988, Official Records, Vol. II, pp. 155-156, 171, 176-177).
This means that States parties to the Palermo Convention are obligated to carry out their
obligations under Articles 6, 7, 8, 15 and 25 of the Convention “in a manner consistent with the
principles of sovereign equality and non-intervention”. The question is, therefore, in deciding on
the jurisdiction conferred upon the Court under Article 35 of the Palermo Convention, to determine whether there is a dispute concerning “the interpretation or application [of these articles] of this Convention” and to determine whether the acts of France complained of by Equatorial Guinea do or do not fall within the scope of Articles 6 and 15 of the Convention read in conjunction with Article 4 as interpreted by the Judgment.
(2) Articles 5, 6, 8 and 23, read in conjunction with Article 4
5. To identify the scope of the jurisdiction conferred upon the Court under Article 35 of the
Palermo Convention, it is necessary to examine the nature and the scope of the obligations
prescribed by the provisions of the Convention, where “interpretation or application is at issue”
between the parties as “subject-matter of the dispute”. It is important to take note of the fact that
the Palermo Convention was adopted by State parties “convinced of the urgent need to strengthen
cooperation to prevent and combat such activities more effectively at the national, regional and
international levels” (United Nations doc. A/RES/55/25, 15 November 2000). The purpose of the Convention is clearly set out in its Article 1 as “promot[ing] cooperation to prevent and combat transnational organized crime more effectively”.
6. In implementation of this approach to these “predicate crimes”, the Palermo Convention
obligates States to “criminalize these crimes in their respective domestic legal systems”, thus
establishing a level playing field for strengthening international cooperation under the Convention,rather than a more traditional approach of “international legislation” (e.g. the Genocide Convention of 1949), by which State parties are obligated directly by the participation in the Convention to carry out (i.e. to exercise jurisdiction over) the obligation to prevent and punish the criminals in their respective domestic legal system.
7. This interpretation is confirmed by the travaux préparatoires. The record of discussion in
the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime shows that several delegations raised concern that the draft article on jurisdiction “could be understood to allow States Parties to apply their domestic laws to the territory of other States”. In response, it was pointed out that what became Article 4 (1) “emphasized the principles of sovereign equality, territorial integrity and non-intervention in the domestic affairs of other States and that those principles applied also to any exercise of jurisdiction” (United Nations
doc. A/AC.254/4/Rev.4, p. 20, fn. 102). Indeed, the focus was on what became Article 4 as a
safeguard against intervention on the territory of another State.
8. A series provisions for the mechanism of international co-operation, in the implementation
of this obligation to criminalize these offences and to establish jurisdiction, such as extradition
(Article 16), transfer of sentenced persons (Article 17), mutual legal assistance (Article 18), and
joint investigations (Article 20) follow these series of provisions which obligates States parties to establish the criminalization of offences under the Convention (such as Article 6) and to establish jurisdiction over them (such as Article 15). The structure of the Convention thus indicates that the Palermo Convention requires the States parties to adopt legislative, administrative, or judicial 3 –
measures to establish their jurisdictions over these offences, without directly concerning itself with the actual modalities of its exercise.
9. This construction contrasts with some other international conventions that oblige States
parties to prevent or punish crimes prescribed under the conventions. For instance, Article I of the Convention on the Prevention and Punishment of the Crime of Genocide (1949) obligates the contracting parties “to prevent and to punish” genocide, as a crime under international law.
Article 2, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) obligates each State party to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. Unlike these conventions, the obligations under the Palermo Convention is essentially addressed to criminalizing offences and to establishing jurisdiction over them in their domestic legal systems. The prevention and combatting of transnational organized crime is intended to be attained as a result of such international co-operation in establishing jurisdiction to “criminalize” these acts in their domestic legal systems.
10. This analysis leads me to conclude that the proper appreciation of the aforementioned
nature of the Convention is crucial in determining the scope of the compromissory clause of the
Palermo Convention contained in its Article 35 “concerning the interpretation or application” of the Palermo Convention. Since the relevant articles of the Convention is of the nature to obligate States parties to establish their jurisdictions over offences within their domestic legal systems by adopting legislative, administrative, or judicial measures, the actual exercise of such jurisdiction which is the actual subject-matter of the dispute in the present case (see Judgment, paragraph 67) cannot fall within the scope of the compromissory clause of this Convention.
11. Articles 5, 6, 8 and 23 obligate States parties both to prevent and combat the “predicate
crime” predetermined by the Convention, by enacting legislative or other administrative, judicial
measures to criminalize offences as defined in other provisions of the Convention, including
offences committed “outside the jurisdiction of the State Party in question” under certain
conditions (Article 6 (2) (c)). It is significant that Article 4 (1) functions here as a safeguard to
allow a State party to establish its jurisdiction over criminal offences committed in the territory of another State, to the extent that it is carried out in a manner that can be regarded as consistent with the principles, inter alia, of sovereign equality and of non-intervention. In this respect,
Article 6 (2) (c) of the Convention provides that “offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this article had it been committed there”.
This sets the dual criminality requirement as the limitation on the prescriptive power of Article 6 in establishing jurisdiction over offences committed on the territory of another State. While there is no explicit reference to Article 4 (1), it seems clear that Article 6 (2) (c) is to be construed in a
manner to reflect the spirit of Article 4 (1) which provides a safeguard against foreign intervention by way of extraterritorial jurisdiction. To the extent that a State party limits its exercise of criminal jurisdiction over offences of laundering of proceeds of crime committed abroad in conformity with the language of Article 6 (2) (c), the State can be said to be under the obligation to carry out its obligation in a manner consistent with the principles of sovereign equality and non-intervention prescribed by Article 4 (1) of the Convention. This prescriptive of “dual criminality” can be said to set the limits of the establishment of jurisdiction in terms of the criminalization of the acts of money laundering as a category of crimes to be provided for in both jurisdictions. However, this 4 -does not mean that this extends to the actual exercise of jurisdiction on concrete acts of money laundering allegedly committed. It is possible, at any rate arguable, that it could constitute the crime of money laundering, which could be a question that could only be determined by examining the merits of the case, but not belonging to the scope of jurisdiction.
(3) Article 15 read in conjunction with Article 4
12. The same holds true with regard to Article 15 of the Convention, which allows a State
party to establish its jurisdiction over offences committed in the territory of another State
(Article 15 (2)). At first glance, this provision might appear to provide a basis for jurisdictional
intervention on a foreign territory by way of establishing extraterritorial jurisdiction. Nevertheless,
such capacity of a State party to extend its jurisdiction is circumscribed by Article 15 (2) (c) (i)
and (ii), which allows the State to do so only when a certain offence is committed abroad,
inter alia, “with a view to the commission of [a certain offence] within its territory”. Put
differently, the establishment of jurisdiction having an extraterritorial reach is permitted only to the extent that the effect of offences is directed against the territory of the State exercising such
jurisdiction. Admittedly, this arrangement is explicitly linked with the principles referred to in
Article 4 through the express qualification that it is “[s]ubject to article 4 of th[e] Convention” in
the chapeau of Article 15 (2). It is to be noted, however, that the principle of sovereign equality
which is contained in Article 4 and which is thus referenced by the qualifying language of
Article 15 (2) is a general principle of international law. While it helps to identify the scope of the permissible exercise of jurisdiction based on the effect of offences committed abroad, it does not amount to the direct application of concrete rules that emerge from this principle in such a way as to affect the manner in which this extraterritorial jurisdiction has to be exercised.
13. Based on this analysis on the scope of Articles 6 and 15 read in conjunction with
Article 4 of the Palermo Convention, it is my view that the conclusion reached by the Judgment is justified. To put it differently, these provisions deal only with the formal establishment (be it
legislative, administrative or judicial), but not the actual exercise, of such jurisdiction by a judicial breach of the State parties, including concrete acts which allegedly may have a certain
extraterritorial reach. In the present case, by comparison, the acts of the French court complained of by Equatorial Guinea is the initiation of the actual exercise of criminal proceedings against
Mr. Teodoro Nguema Obiang Mangue, which is properly characterized as the exercise rather than the establishment of jurisdiction by France. Even if such exercise of criminal jurisdiction by France were to amount to an exercise of jurisdiction with a certain extraterritorial reach that arguably could constitute an internationally wrongful act, provided that Mr. Teodoro Nguema Obiang Mangue were entitled to immunity as argued by Equatorial Guinea, such act cannot fall within the jurisdictional scope of these provisions for the purpose of determining the jurisdictional scope conferred upon the Court under Article 35 of the Convention.
(B) France’s third preliminary objection based on “abuse of rights”
14. I concur with the dispositif contained in the Judgment which states that it simply
“rejects” France’s third preliminary objection. The Judgment does not declare that “[this] objection does not possess an exclusively preliminary character”. The relevant part of the Judgment however does not explain in detail why the Court has not chosen the course to declare that the objection on alleged “abuse of rights” does not possess an exclusively preliminary character pursuant to Article 79, paragraph 9, of the Rules of Court. Paragraph 151 of the Judgment simply states that “abuse of rights cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits” (emphasis added). In my view, this point would seem to require further elaboration on the reasoning of the Court on this point. 5 –
15. It often happens in a contentious case before the Court that a preliminary objection is
raised either on the ground of the lack of jurisdiction or inadmissibility in circumstances where the existence of a substantive right at issue and the manner in which its exercise has been denied. In such situations it is sometimes hard to establish the issue of jurisdiction or admissibility of claim without an extensive examination in fact and in law of the merits of the case. Such an examination is very often neither feasible nor appropriate at an early stage of preliminary objections when the parties have no opportunity to elaborate respective arguments without getting into the merits. This is the raison d’être of Article 79, paragraph 9, of the Rules of Court, which provides, in addition to either to uphold or reject the objection raised, that the Court has the third option to declare that the objection at issue “does not possess an exclusively preliminary character”. (See Eduardo Jiménez
de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”,
American Journal of International Law, Vol. 67 (1973), pp. 11-19.)
16. At a first glance, Equatorial Guinea’s original alleged claims to the immunity of
Mr. Teodoro Nguema Obiang Mangue and to the inviolability of the building located at
42 Avenue Foch in Paris and France’s obligation thereto could appear to fall under such category.
It could appear that it required a further extensive examination of the facts and the law surrounding the legal status of Mr. Obiang Mangue and the building in relation to the establishment of the jurisdiction of the Court on the basis of Article 35 of the Palermo Convention and Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations.
17. The Court however did not take this third course, as envisaged in Article 79, paragraph 9,
of the Rules of Court, to declare that France’s third objection did not possess an exclusively
preliminary character. In essence, what is significant in France’s argument on the abuse of rights is that France advances a thesis that Equatorial Guinea’s claim in its entirety relates to the
fundamental issue of the legal validity of Equatorial Guinea’s claim as a “valid legal claim” that is capable of seising the Court as a legitimate claim. Thus, France argues that
“it is not the individual elements which France has brought to this Court’s attention,
considered in isolation, that constitute an abuse of process. Taken as a whole,
however, they establish that Equatorial Guinea’s application to the Court is abusive,
since it in fact forms part of a strategy to use the principle of diplomatic immunities as
a contrivance for the benefit of an individual who is not a diplomat, and thereby to
obstruct the criminal proceedings initiated against him in France and avoid the
potential confiscation of the personal property he has acquired there” (CR 2018/2,
p. 53, para. 21 (Pellet)).
In other words, the Applicant’s claim, as understood and presented by France, has an essential legal
flaw that vitiates the whole claim of Equatorial Guinea as a “valid claim” that can seize the Court,
in light of the surrounding circumstances of the case. This is a “far cry” from the system of
preliminary objection to jurisdiction or admissibility envisaged under Article 79 of the Rules of
Court and cannot be said to fall within the framework of the system of preliminary objections
provided under the Rules (Incidental Proceedings).
18. For an objection to be covered by Article 79, it is to be “an objection [that] must . . .
possess a ‘preliminary’ character” (Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom; Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgments, I.C.J. Reports 1998, p. 26, para. 47). If an objection does not possess such a “preliminary” character, it cannot fall within the mechanism of preliminary objections provided for in Part III, Section D (Incidental Proceedings), Subsection 2 (Preliminary Objections) of the Rules of Court. Aside from the legal soundness of France’s argument on this point, it is clear that this 6 – claim of France in the form in which it is presented by her can no longer be in its nature “apreliminary objection” in a procedural sense. In this legal situation the Judgment has no option to declare that such objection does not possess an “exclusively preliminary character” pursuant to paragraph 9 of Article 79. The examples of these “abuse of rights” cases as cited by France (Phoenix Action, Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award of 15 April 2009;
Renée Rose Levy and Grecitel S.A. v. Republic of Peru, ICSID Case No. ARB/11/17, Award of
9 January 2015) also testify to the fact that the relevant arbitral tribunals accepted the argument of the Respondent not as a preliminary objection to be determined before proceeding to the merits, but as an issue that touches the very basis of the claims advanced by the Applicant. It is true that Article 79 is said to cover “any objection” raised by the parties, such objection must possess the effect that “will be, if the objection is upheld, to interrupt further proceedings in the case, and which it will therefore be appropriate for the Court to deal with before enquiring into the merits” (Panevezys-Saldutiskis Railway (Estonia v. Lithuania), Preliminary Objections, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16). This clearly is not the situation that the Court is faced with here.
- Thus in the present case, I consider that France’s objection based on the abuse of rights
does not possess such a “preliminary” character. The alleged substantive right in question is
Equatorial Guinea’s right to the immunity ratione personae of the Vice-President in charge of
National Defence and Security and to immunity and inviolability of the building located at
42 Avenue Foch in Paris. This has been challenged by France that such a claim is tarnished by the abuse of rights. According to France, the Applicant exploited such rights purely and exclusively for the purposes of manipulating the ostensible rights granted, with a view to shielding Mr. Teodoro Nguema Obiang Mangue and his properties from the French criminal proceedings.
For France, such use of immunity and inviolability is nothing else than abusive because the purpose of privileges and immunities under the Vienna Convention, which is to safeguard the independence of the State and its representatives abroad, and not to benefit the individuals who enjoy them (Preliminary Objections of the French Republic, paras. 78-80), is completely ignored and manipulated to block the unlawful activities to be brought to justice. - The Judgment has found that there has not been enough evidence to establish this
contention of France. However, whether this contention of France is justified or not is not the point at issue in the present situation. France’s objection on abuse of rights to immunity and inviolability by Equatorial Guinea, if upheld, could arguably result in a total rejection of Equatorial Guinea’s claim as an “invalid claim” rather than the procedural interruption of further proceedings of the present case before dealing with the merits aspects of the claim.
21. It is for these reasons that I joined the conclusion of the Court that France’s third
preliminary objection be rejected in its entirety, without passing any judgment on the validity of the contention of France in its third preliminary objection, which, if sustained, could have much wider legal implications.
(Signed) 6 –
claim of France in the form in which it is presented by her can no longer be in its nature “a
preliminary objection” in a procedural sense. In this legal situation the Judgment has no option to
declare that such objection does not possess an “exclusively preliminary character” pursuant to
paragraph 9 of Article 79. The examples of these “abuse of rights” cases as cited by France
(Phoenix Action, Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award of 15 April 2009;
Renée Rose Levy and Grecitel S.A. v. Republic of Peru, ICSID Case No. ARB/11/17, Award of
9 January 2015) also testify to the fact that the relevant arbitral tribunals accepted the argument of the Respondent not as a preliminary objection to be determined before proceeding to the merits, but as an issue that touches the very basis of the claims advanced by the Applicant. It is true that Article 79 is said to cover “any objection” raised by the parties, such objection must possess the effect that “will be, if the objection is upheld, to interrupt further proceedings in the case, and which it will therefore be appropriate for the Court to deal with before enquiring into the merits”
(Panevezys-Saldutiskis Railway (Estonia v. Lithuania), Preliminary Objections, Judgment, 1939,
P.C.I.J., Series A/B, No. 76, p. 16). This clearly is not the situation that the Court is faced with here.
19. Thus in the present case, I consider that France’s objection based on the abuse of rights
does not possess such a “preliminary” character. The alleged substantive right in question is
Equatorial Guinea’s right to the immunity ratione personae of the Vice-President in charge of
National Defence and Security and to immunity and inviolability of the building located at
42 Avenue Foch in Paris. This has been challenged by France that such a claim is tarnished by the abuse of rights. According to France, the Applicant exploited such rights purely and exclusively for the purposes of manipulating the ostensible rights granted, with a view to shielding Mr. Teodoro Nguema Obiang Mangue and his properties from the French criminal proceedings.
For France, such use of immunity and inviolability is nothing else than abusive because the purpose of privileges and immunities under the Vienna Convention, which is to safeguard the independence of the State and its representatives abroad, and not to benefit the individuals who enjoy them (Preliminary Objections of the French Republic, paras. 78-80), is completely ignored and manipulated to block the unlawful activities to be brought to justice.
20. The Judgment has found that there has not been enough evidence to establish this
contention of France. However, whether this contention of France is justified or not is not the point at issue in the present situation. France’s objection on abuse of rights to immunity and inviolability
by Equatorial Guinea, if upheld, could arguably result in a total rejection of Equatorial Guinea’s
claim as an “invalid claim” rather than the procedural interruption of further proceedings of the
present case before dealing with the merits aspects of the claim.
21. It is for these reasons that I joined the conclusion of the Court that France’s third
preliminary objection be rejected in its entirety, without passing any judgment on the validity of the contention of France in its third preliminary objection, which, if sustained, could have much wider legal implications.
(Signed) Hisashi OWADA.
OPINION INDIVIDUELLE DE M. LE JUGE ABRAHAM
Désaccord avec le raisonnement suivi par la Cour¾Accord avec le dispositif de l’arrêt
pour conclure que le différend n’entre pas dans le champ ratione materiae de l’article 4 de la
Accord avec la conclusion selon laquelle les règles du droit¾convention de Palerme
international coutumier relatives aux immunités de l’Etat et de leurs agents ne sont pas
Distinction injustifiée opérée par la Cour entre les¾incorporées dans l’article 4 de la convention
règles relatives aux immunités et les autres règles du droit international coutumier qui découlent
des principes de l’égalité souveraine, de la non-intervention et de l’intégrité territoriale énoncés Ã
Absence d’incorporation, par renvoi à ces principes, de quelque règle ou principe de¾l’article 4
Article 4 ayant pour fonction de préserver¾droit international coutumier dans la convention
l’application des obligations existant en vertu du droit international coutumier.
1. J’approuve, dans ses grandes lignes, le présent arrêt, et j’ai voté en faveur de tous les
points du dispositif. J’estime en effet que le différend soumis à la Cour par la Guinée équatoriale
n’entre pas dans les prévisions de l’article 35 de la convention des Nations Unies contre la
criminalité transnationale organisée (la «convention de Palerme»), parce qu’il ne concerne pas
«l’interprétation ou l’application de [ladite] Convention», et que, par suite, cette clause ne saurait
fonder la compétence de la Cour en la présente instance ; mais que, en revanche, le protocole de
signature facultative à la convention de Vienne sur les relations diplomatiques fournit une base de compétence permettant à la Cour de connaître de la requête en ce qu’elle a trait au statut de
l’immeuble du 42 avenue Foch, dont il est prétendu par la Guinée équatoriale qu’il fait partie des
«locaux de [sa] mission» diplomatique à Paris et qu’il bénéficie à ce titre des protections accordées
à de tels locaux par l’article 22 de la convention en cause.
2. Il est cependant une partie du raisonnement suivi par l’arrêt que je considère comme
inutilement compliquée, non dénuée parfois d’obscurité et même, à certains égards, juridiquement erronée. Il s’agit des raisons sur la base desquelles l’arrêt conclut que le différend à elle soumis n’entre pas dans le champ ratione materiae de l’article 4 de la convention de Palerme et, par suite, n’entre pas dans les prévisions de la clause compromissoire de l’article 35 de la même convention.
Je pense que la Cour aurait pu et dû suivre un raisonnement plus simple qui l’aurait conduite
à la même conclusion par une voie différente : je vais expliquer à présent laquelle.
3. Pour convaincre la Cour qu’elle était compétente sur la base de l’article 35 de la
convention de Palerme pour connaître de la partie de sa requête relative à la prétendue violation par la France des immunités et protections dont bénéficieraient, selon elle, tant son vice-président de la République que l’immeuble du 42 avenue Foch, la Guinée équatoriale n’a pas prétendu que la France aurait méconnu l’une quelconque des obligations spécifiques mises à la charge des Etatsparties par la convention de Palerme, c’est-à -dire par les articles 5 à 31 de cet instrument, et quivisent dans leur ensemble, comme le dit l’article premier, à «promouvoir la coopération afin de prévenir et de combattre plus efficacement la criminalité transnationale organisée».
4. Elle a prétendu que la France a méconnu l’article 4 de la convention, qui est une
disposition générale figurant sous l’intitulé «Protection de la souveraineté», et dont le paragraphe 1, celui qui a été invoqué par la demanderesse, dispose que «[l]es Etats Parties exécutent leurs
obligations au titre de la présente Convention d’une manière compatible avec les principes de
l’égalité souveraine et de l’intégrité territoriale des Etats et avec celui de la non-intervention dans.
