INTERNATIONAL COURT OF JUSTICE
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Press Release
Unofficial
No. 2016/38
7 December 2016
Immunities and Criminal Proceedings (Equatorial Guinea v. France)
The Court finds that France must guarantee the protection of the premises presented
as housing the diplomatic mission of Equatorial Guinea in France
THE HAGUE, 7 December 2016. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, has today delivered its Order on the request for the indication
of provisional measures submitted by Equatorial Guinea in the case concerning Immunities and
Criminal Proceedings (Equatorial Guinea v. France).
The Court first recalls that, on 13 June 2016, Equatorial Guinea instituted proceedings
against France with regard to a dispute concerning the immunity from criminal jurisdiction of the
Vice-President of the Republic of Equatorial Guinea, Mr. Teodoro Nguema Obiang Mangue, and
the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at
42 avenue Foch in Paris. On 29 September 2016, Equatorial Guinea submitted a Request for the
indication of provisional measures, asking the Court, inter alia, to order that France suspend all the
criminal proceedings brought against the Vice-President of Equatorial Guinea; that France ensure
that the building located at 42 avenue Foch in Paris is treated as premises of Equatorial Guinea’s
diplomatic mission in France and, in particular, assure its inviolability; and that France refrain
from taking any other measure that might aggravate or extend the dispute submitted to the Court.
In its Order,
The Court indicates, unanimously, that France shall, pending a final decision in the case, take
all measures at its disposal to ensure that the premises presented as housing the diplomatic
mission of Equatorial Guinea at 42 avenue Foch in Paris enjoy treatment equivalent to that
required by Article 22 of the Vienna Convention on Diplomatic Relations, in order to ensure
their inviolability.
The Court also unanimously rejects the request of France to remove the case from the General
List. - 2 -
Reasoning of the Court
1. Prima facie jurisdiction
The Court notes that Equatorial Guinea seeks to found the Court’s jurisdiction, first, on the
United Nations Convention against Transnational Organized Crime, in respect of its claim relating
to the immunity of Mr. Teodoro Nguema Obiang Mangue, and, second, on the Optional Protocol
concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic
Relations, in respect of its claim relating to the inviolability of the premises located at
42 avenue Foch in Paris. The Court therefore addresses whether the jurisdictional clauses
contained in these instruments confer upon it prima facie jurisdiction to rule on the merits,
enabling it — if the other necessary conditions are fulfilled — to indicate provisional measures.
It observes in this regard that both Article 35, paragraph 2, of the Convention against
Transnational Organized Crime and Article I of the Optional Protocol make the Court’s jurisdiction
conditional on the existence of a dispute arising out of the interpretation or application of the
Convention to which they relate. It therefore seeks to establish whether, prima facie, such a dispute
existed on the date the Application was filed.
(1) The Convention against Transnational Organized Crime
The Court notes that Equatorial Guinea asserts that a dispute exists between the Parties
concerning the application of Article 4 of the Convention against Transnational Organized Crime,
on which provision it relies to claim the immunity of the Vice-President of Equatorial Guinea.
The Court indicates that the purpose of Article 4 of the Convention is to ensure that the
States parties to that Convention perform their obligations in accordance with the principles of
sovereign equality, territorial integrity of States and non-intervention in the domestic affairs of
other States. In its view, the provision does not appear to create new rules concerning the
immunities of holders of high-ranking office in the State or incorporate rules of customary
international law concerning those immunities. Any dispute which might arise with regard to “the
interpretation or application” of Article 4 of the Convention could relate only to the manner in
which the States parties perform their obligations under that Convention. It appears to the Court,
however, that the alleged dispute does not relate to the manner in which France performed its
obligations under the articles of the Convention invoked by Equatorial Guinea. The alleged
dispute, rather, appears to concern a distinct issue, namely whether the Vice-President of Equatorial
Guinea enjoys immunity ratione personae under customary international law and, if so, whether
France has violated that immunity by instituting proceedings against him. Consequently, the Court
considers that, prima facie, a dispute capable of falling within the provisions of the Convention
against Transnational Organized Crime and therefore concerning the interpretation or the
application of Article 4 of that Convention does not exist between the Parties. Thus, it does not
have prima facie jurisdiction under Article 35, paragraph 2, of that instrument to entertain
Equatorial Guinea’s request relating to the immunity of Mr. Teodoro Nguema Obiang Mangue.
(2) The Optional Protocol to the Vienna Convention on Diplomatic Relations
The Court recalls that Equatorial Guinea claims that a dispute exists between the Parties
regarding the application of Article 22 of the Vienna Convention on Diplomatic Relations, which
guarantees the inviolability of diplomatic premises. It further recalls that Article I of the Optional
Protocol provides that the Court has jurisdiction over disputes relating to the interpretation or
application of that Convention. Accordingly, it seeks to ascertain whether, on the date the
Application was filed, such a dispute appeared to exist between the Parties as to the legal status of - 3 -
the building located at 42 avenue Foch in Paris. While Equatorial Guinea has maintained at
various times that the building houses the premises of its diplomatic mission and must therefore
enjoy the immunities afforded under Article 22 of the Vienna Convention, France has consistently
refused to recognize that this is the case, and claims that the property has never legally acquired the
status of “premises of the mission”. In the view of the Court, there is therefore every indication
that, on the date the Application was filed, a dispute existed between the Parties.
However, the Court must also ascertain whether such a dispute is one over which it might
have jurisdiction ratione materiae on the basis of Article I of the Optional Protocol. In this regard,
the Court notes that the rights apparently at issue may fall within the scope of Article 22 of the
Vienna Convention, which guarantees the inviolability of diplomatic premises, and that the acts
alleged by the Applicant in respect of the building on avenue Foch (searches, attachment, etc.)
appear to be capable of contravening such rights. It therefore considers that there exists, prima
facie, a dispute between the Parties capable of falling within the provisions of the Vienna
Convention and concerning the interpretation or application of Article 22 thereof.
Consequently, the Court considers that it has prima facie jurisdiction under Article I of the
Optional Protocol to the Vienna Convention to entertain this dispute. It is of the view that it may,
on this basis, examine Equatorial Guinea’s request for the indication of provisional measures, in so
far as it concerns the inviolability of the building located at 42 avenue Foch in Paris. It adds that,
there being no manifest lack of jurisdiction, the Court cannot accede to France’s request that the
case be removed from the List.
2. The rights whose protection is sought and the measures requested
Having found that it does not have prima facie jurisdiction to entertain the alleged violations
of the Convention against Transnational Organized Crime, the Court addresses only
Equatorial Guinea’s alleged right to “the inviolability of the premises of its diplomatic mission”, in
respect of which Article 22 of the Vienna Convention is invoked.
It first considers whether the right claimed by Equatorial Guinea on the merits, and for which
it is seeking protection, is plausible. It is of the view that, given that the right to the inviolability of
diplomatic premises is a right contained in Article 22 of the Vienna Convention, that Equatorial
Guinea claims that it has used the building in question as premises of its diplomatic mission in
France since 4 October 2011, and that France acknowledges that, from the summer of 2012, certain
services of the Embassy of Equatorial Guinea appear to have been transferred to 42 avenue Foch, it
appears that Equatorial Guinea has a plausible right to ensure that the premises which it claims are
used for the purposes of its mission are accorded the protections required by Article 22 of the
Vienna Convention. The Court then turns to the issue of the link between the rights claimed and
the provisional measures requested. In this regard, it considers that, by their very nature, these
measures are aimed at protecting the right to the inviolability of the building which Equatorial
Guinea presents as housing the premises of its diplomatic mission in France. It concludes that a
link exists between the right claimed by Equatorial Guinea and the provisional measures being
sought.
3. Risk of irreparable prejudice and urgency
The Court is of the view that the record before it shows that France does not accept that the
building forms part of the premises of Equatorial Guinea’s diplomatic mission in France, and
refuses to grant it the immunity — and thus the corresponding protection — afforded to such
premises under the Vienna Convention. Consequently, there is a continuous risk of intrusion. It
notes that while the Parties disagree as to whether any searches have been conducted recently, they
recognize that such acts did indeed occur in 2011 and 2012. And, given that it is possible that,
during the hearing on the merits, the Tribunal correctionnel may, of its own initiative or at the
request of a party, request further investigation or an expert opinion, it is not inconceivable that the - 4 -
building on avenue Foch will be searched again. If that were to happen, and if it were established
that the building houses the premises of Equatorial Guinea’s diplomatic mission, the daily activities
of that mission — the representation of a sovereign State — would risk being seriously impeded, as
a result, for example, of the presence of police officers or the seizure of documents, some of which
might be highly confidential.
The Court considers that it follows from the foregoing that there is a real risk of irreparable
prejudice to the right to inviolability of the premises that Equatorial Guinea presents as being used
as the premises of its diplomatic mission in France. Indeed, any infringement of the inviolability of
the premises may not be capable of remedy, since it might not be possible to restore the situation to
the status quo ante. Furthermore, that risk is imminent, in so far as the acts likely to cause such a
prejudice to the rights claimed by Equatorial Guinea could occur at any moment. The criterion of
urgency is therefore also satisfied in the present case.
The Court concludes from all the above considerations that the conditions required by its
Statute for it to indicate provisional measures in respect of the building located at 42 avenue Foch
in Paris have been met.
Composition of the Court
The Court was composed as follows: Vice-President Yusuf, Acting President;
President Abraham; Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue,
Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Judge ad hoc Kateka;
Registrar Couvreur.
*
Judge X UE appends a separate opinion to the Order of the Court; Judges G AJA and
G EVORGIAN append declarations to the Order of the Court; Judge ad hoc K ATEKA appends a
separate opinion to the Order of the Court.
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A summary of the Order appears in the document entitled “Summary No. 2016/6”, to which
summaries of the separate opinions and declarations are annexed. This press release, the summary
and the full text of the Order are available on the Court’s website (www.icj-cij.org), under the
heading “Cases”.
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Note: The Court’s press releases do not constitute official documents.
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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in
April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are without appeal for the parties concerned); and,
second, to give advisory opinions on legal questions referred to it by duly authorized - 5 -
United Nations organs and agencies of the system. The Court is composed of 15 judges elected for
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The ICJ, a court open only to States for contentious proceedings, and to certain organs and
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an independent institution which assists in the establishment of arbitral tribunals and facilitates
their work, in accordance with the Hague Convention of 1899).
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Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Information Officer (+31 (0)70 302 2337)
Mr. Avo Sevag Garabet, Associate Information Officer (+31 (0) 70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)
Immunities and Criminal Proceedings (Equatorial Guinea v. France) - The Court finds that France must guarantee the protection of the premises presented as housing the diplomatic mission of Equatorial Guinea in France