Counter-Memorial of France

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
15619 Corr.
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
IMMUNITIES AND CRIMINAL PROCEEDINGS
(EQUATORIAL GUINEA v. FRANCE)
COUNTER-MEMORIAL OF THE FRENCH REPUBLIC
6 December 2018
[Translation by the Registry]
Table of Contents
INTRODUCTION .................................................................................................................................... 3
I. Procedural history ....................................................................................................................... 3
II. Overview and structure of the Counter-Memorial .................................................................... 4
CHAPTER 1. STATEMENT OF THE FACTS OF THE CASE ........................................................................ 6
● Context and origin of the criminal proceedings initiated before the French courts .................. 6
● The building at 42 avenue Foch is a private residence ............................................................. 7
● Failure to assert the diplomatic status of the building at 42 avenue Foch during the
searches and seizures carried out between 28 September and 3 October 2011 ........................ 8
● Equatorial Guinea’s claim of diplomatic status as from 4 October 2011 and France’s
express refusal to uphold that claim .......................................................................................... 9
● Equatorial Guinea’s differing presentations of the building at 42 avenue Foch and
France’s consistent and expressly stated rejection of those claims .......................................... 10
● The seizure between 14 and 23 February 2012 of movable property belonging to
Mr. Teodoro Nguema Obiang Mangue kept at 42 avenue Foch .............................................. 11
● The attachment of the building at 42 avenue Foch on 19 July 2012 and its
consequences ........................................................................................................................... 12
● Equatorial Guinea’s new presentation of the use of the building at 42 avenue Foch and
France’s persistent rejection of that claim ............................................................................... 13
● Latest developments in the criminal proceedings in France .................................................... 15
CHAPTER 2. SUBJECT-MATTER OF THE DISPUTE ................................................................................ 17
I. The Court’s Judgment on the preliminary objections ................................................................ 17
II. The irrelevance of rules other than those deriving from the Vienna Convention on
Diplomatic Relations ............................................................................................................... 18
III. The irrelevance of the building’s ownership in assessing the alleged violations of the
Vienna Convention on Diplomatic Relations .......................................................................... 21
CHAPTER 3. NO BREACH OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS WITH
REGARD TO THE BUILDING AT 42 AVENUE FOCH .......................................................................... 24
I. The granting of the status of diplomatic premises is subject to compliance with two
cumulative conditions .............................................................................................................. 24
A. The granting of diplomatic status to a building cannot be unilaterally imposed on
the receiving State ............................................................................................................... 25
1. Equatorial Guinea’s “declaratory” theory is contrary to the letter and spirit of
the Vienna Convention on Diplomatic Relations .......................................................... 26
2. The “declaratory” theory is not borne out by State practice ....................................... 28
B. The granting of diplomatic status to a building — and the ensuing inviolability
régime — is dependent on its actual assignment ................................................................ 35
1. A building constitutes diplomatic premises only if it is effectively used for the
purposes of the mission ................................................................................................. 35
2. State practice establishes the criterion of effective use ................................................ 37
II. The building at 42 avenue Foch never acquired the status of diplomatic premises and
therefore does not enjoy inviolability under the Vienna Convention on Diplomatic
Relations .................................................................................................................................. 43
- ii -
A. France has expressly opposed the granting of diplomatic status to the building at
42 avenue Foch ................................................................................................................... 43
B. France has not breached its obligations under Article 22 of the Vienna Convention
on Diplomatic Relations since the building at 42 avenue Foch did not have
diplomatic status when the measures of search and seizure were carried out .................... 45
1. The facts of the case show that the premises at 42 avenue Foch were not
actually assigned for the purposes of Equatorial Guinea’s diplomatic mission
when they were searched and attached ........................................................................ 47
2. France has not breached its obligations under Article 22 of the Vienna
Convention on Diplomatic Relations ............................................................................ 50
CHAPTER 4. EQUATORIAL GUINEA’S RELIANCE ON THE PROVISIONS OF THE VIENNA
CONVENTION ON DIPLOMATIC RELATIONS WITH REGARD TO THE BUILDING LOCATED AT
42 AVENUE FOCH CONSTITUTES AN ABUSE OF RIGHTS ................................................................. 53
I. The principle of the prohibition of abuse of rights and its application to the Vienna
Convention on Diplomatic Relations ....................................................................................... 53
II. The abuse of rights committed by Equatorial Guinea .............................................................. 56
A. The acts constituting an abuse of rights with regard to the building at 42 avenue
Foch .................................................................................................................................... 56
B. The contradictory positions taken by Equatorial Guinea on the assignment of the
building at 42 avenue Foch ................................................................................................. 57
C. The circumstances in which Equatorial Guinea acquired ownership of the building
at 42 avenue Foch ............................................................................................................... 62
D. The seisin of the Court as a constituent element of the abuse of rights committed by
Equatorial Guinea ............................................................................................................... 67
CHAPTER 5. FRANCE BEARS NO INTERNATIONAL RESPONSIBILITY ................................................... 71
I. The alleged harm ....................................................................................................................... 71
II. The content of the responsibility .............................................................................................. 73
SUBMISSIONS ...................................................................................................................................... 77
LIST OF ANNEXES ............................................................................................................................... 78
INTRODUCTION
0.1. By an Order dated 6 June 2018, the Court fixed 6 December 2018 as the time-limit for
the filing by the French Republic of its Counter-Memorial. That is the subject of these written
pleadings.
I. Procedural history
0.2. On 13 June 2016, Equatorial Guinea filed an Application against France before the
International Court of Justice with regard to a dispute 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”. As basis for the Court’s
jurisdiction in the case, Equatorial Guinea invoked Article 35 of the Convention against
Transnational Organized Crime and the Optional Protocol to the Vienna Convention on Diplomatic
Relations, concerning the Compulsory Settlement of Disputes.
0.3. On 29 September 2016, Equatorial Guinea submitted a Request for the indication of
provisional measures, asking the Court, “pending its judgment on the merits, to indicate the
following provisional measures:
(a) that France suspend all the criminal proceedings brought against the
Vice-President of the Republic of Equatorial Guinea, and refrain from launching
new proceedings against him, which might aggravate or extend the dispute
submitted to the Court;
(b) 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 those premises, together with their furnishings and
other property thereon, or previously thereon, are protected from any intrusion or
damage, any search, requisition, attachment or any other measure of constraint;
(c) that France refrain from taking any other measure that might cause prejudice to the
rights claimed by Equatorial Guinea and/or aggravate or extend the dispute
submitted to the Court, or compromise the implementation of any decision which
the Court might render”.
0.4. After the public hearings which were held from 17 to 19 October 2016, the Court, by an
Order dated 7 December 2016, rejected Equatorial Guinea’s request for the legal proceedings
before the French courts to be suspended, finding that it did not have prima facie jurisdiction to
entertain Equatorial Guinea’s request relating to the immunity from criminal jurisdiction which
Mr. Teodoro Nguema Obiang Mangue is said by the Applicant to enjoy as Second Vice-President
of the Republic of Equatorial Guinea in charge of Defence and State Security1.
0.5. Regarding the building located at 42 avenue Foch, the Court considered that the
conditions for indicating provisional measures were met and ordered France, pending a final
1 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 December 2016, I.C.J. Reports 2016 (II), p. 1160, para. [50].
7
8
- 2 -
decision in the case, to 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”2.
0.6. On 3 January 2017, Equatorial Guinea filed its Memorial in the Registry of the Court.
0.7. Pursuant to the provisions of Article 79, paragraph 1, of the Rules of Court, and the
Court’s Order of 1 July 2016 fixing time-limits for the proceedings, on 31 March 2017 France
raised preliminary objections to the Court’s jurisdiction, contending in particular that
(a) there is no dispute, within the meaning of Article I of the Optional Protocol to the Vienna
Convention on Diplomatic Relations (VCDR), between Equatorial Guinea and France
concerning the interpretation or application of the inviolability régime for diplomatic premises
set out in Article 22 of the Convention;
(b) the real dispute between the Parties concerns a question which arises before Article 22 of the
Convention can be invoked, regarding recognition of the building located at 42 avenue Foch in
Paris as premises of Equatorial Guinea’s diplomatic mission in France;
(c) the provisions of the VCDR do not cover that question;
(d) and, consequently, the Court has no jurisdiction to entertain the claims made by Equatorial
Guinea on the basis of that Convention.
0.8. By a Judgment dated 6 June 2018, the Court concluded that it
“lack[ed] jurisdiction pursuant to the Palermo Convention to entertain Equatorial
Guinea’s Application. The Court further conclude[d] that it ha[d] jurisdiction pursuant
to the Optional Protocol to the Vienna Convention to entertain the submissions of
Equatorial Guinea relating to the status of the building at 42 Avenue Foch in Paris as
diplomatic premises, including any claims relating to the seizure of certain furnishings
and other property present on the above-mentioned premises. Finally, the Court
[found] that Equatorial Guinea’s Application [was] not inadmissible on grounds of
abuse of process or abuse of rights”.
II. Overview and structure of the Counter-Memorial
0.9. The French Republic will first recall the pertinent facts underlying the present case
(Chapter 1) and the limits of the subject-matter of the dispute as it results from the Court’s
Judgment of 6 June 2018 regarding its jurisdiction (Chapter 2).
0.10. Second, the French Republic will show that the alleged violations of the VCDR in
respect of the building located at 42 avenue Foch are unfounded (Chapter 3).
2 Ibid., para. 99.
9
- 3 -
0.11. Third, it will be demonstrated that the Republic of Equatorial Guinea’s reliance on the
VCDR with regard to the building at 42 avenue Foch is an abuse of rights (Chapter 4).
0.12. Lastly, since France is of the view that all of Equatorial Guinea’s submissions must be
rejected, this Counter-Memorial will address the Republic of Equatorial Guinea’s claims for
reparation only in the alternative (Chapter 5).
- 4 -
CHAPTER 1
STATEMENT OF THE FACTS OF THE CASE
1.1. Article 49 of the Rules of Court provides that:
“1. A Memorial shall contain a statement of the relevant facts . . .
2. A Counter-Memorial shall contain: an admission or denial of the facts stated in the
Memorial; any additional facts, if necessary . . .”.
1.2. In many respects, the statement of facts at the beginning of Equatorial Guinea’s
Memorial is incomplete, often biased and sometimes contradictory. Yet the facts are particularly
important in this case in view of the questions of law raised before the Court. It is thus important to
recall the various procedural steps of the judicial investigation opened against
Mr. Teodoro Nguema Obiang Mangue, whereby the French authorities found that the building at
42 avenue Foch was not actually being used for any diplomatic activities when the legal
proceedings contested by Equatorial Guinea were brought. It is also useful to revisit Equatorial
Guinea’s successive and inconsistent statements about the building’s alleged assignment for
diplomatic use.
Context and origin of the criminal proceedings initiated
before the French courts
1.3. As a preliminary point, France considers it useful to recall that the Embassy of
Equatorial Guinea in France has been located at 29 boulevard de Courcelles since 29 March 20013.
The residence of the Ambassador in France, for its part, has been located at 8 bis rue de Verzy
since 28 April 20064, and Equatorial Guinea’s Permanent Delegate to UNESCO resides at 46 rue
des Belles Feuilles in Paris.
1.4. The criminal proceedings brought against Mr. Teodoro Nguema Obiang Mangue before
the French courts, which led to the attachment (saisie pénale immobilière) of the building at
42 avenue Foch — which served as his private residence — and to the seizure of certain movable
property belonging to him, arose from a complaint with civil-party application filed on 2 December
2008 before the senior investigating judge of the Paris Tribunal de grande instance by the French
association Transparency International France against several individuals, including
Mr. Teodoro Nguema Obiang Mangue, for acts of handling misappropriated public funds, money
laundering, misuse of corporate assets, breach of trust and concealment5.
3 Note Verbale No. 3227 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 28 June 2002 (Ann. 1). Thus, when Equatorial Guinea sought to obtain an exemption
from the registration fees relating to the acquisition of this building, the Protocol Department of the French Ministry of
Foreign Affairs confirmed that “[t]he official character of the premises in question has been recognized since 29 March
2001”.
4 Note Verbale from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign Affairs of the
French Republic, 27 Dec. 2006 (Ann. 2).
5 Complaint with civil-party application filed by Transparency International France and Mr. Grégory Ngbwa
Mintsa with the Paris Tribunal de grande instance, 2 Dec. 2008, p. 22 (Preliminary Objections of France (POF), Ann. 1).
10
11
- 5 -
1.5. France is neither the first nor the only State whose judicial institutions have had
occasion to examine the lavish spending of Mr. Teodoro Nguema Obiang Mangue. Indeed, in 2007,
the French authorities were also informed of criminal investigations already under way in the
United States and South Africa, looking into Mr. Teodoro Nguema Obiang Mangue and the assets
he had accumulated in those countries. Today, he is also the subject of criminal investigations in
Switzerland and Brazil.
1.6. The complaint filed in France was ruled admissible by an order of the investigating
judge dated 5 May 2009, and its admissibility was confirmed by a judgment of the Chambre
criminelle of the Cour de cassation rendered on 9 November 2010, in particular on the grounds that
the offences under investigation would be likely to cause direct and personal harm to the
association on account of the specific object and purpose of its mission. A judicial investigation
was opened and two investigating judges were assigned to the case following the filing of the
Public Prosecutor’s final submissions on 1 December 2010.
The building at 42 avenue Foch is a private residence
1.7. The investigations carried out by the Office central de répression de la grande
délinquance financière (the serious financial crime squad) focused on the movable and immovable
property proved to have been acquired by Mr. Teodoro Nguema Obiang Mangue on the territory of
the French Republic between 1997 and October 2011.
1.8. They confirmed that Mr. Teodoro Nguema Obiang Mangue had assets of considerable
value in France. The preliminary investigation, followed by the judicial investigation, thus
demonstrated that Mr. Teodoro Nguema Obiang Mangue had, among other things, purchased
jewellery for over €10 million and works of art for over €15 million. The investigations also
established that most of the invoices for these goods were addressed to Mr. Teodoro Nguema
Obiang Mangue at 42 avenue Foch.
1.9. After verifying with the Direction générale des finances publiques (the French tax
authorities), investigators were able to establish that a six-storey townhouse used for residential
purposes was located at that address.
1.10. The first three floors consist of some 20 rooms, including four large living or dining
areas, a master bedroom with an en-suite bathroom, a gym, a hammam, a discotheque with a movie
screen, a bar, a middle-eastern style sitting room, a hair salon, two kitchens and several bedrooms
with bathrooms. The fourth, fifth and sixth floors contain apartments. Lastly, between the ground
floor and the entresol, a duplex has been created, along with a games room and a home cinema. It
should be noted that the description of the building drawn up by police officers at the time of the
searches makes no mention of offices, work space or meeting areas.
1.11. Heard by investigators on 24 May 2011, the manager of an interior design firm
confirmed that she had worked on the interior design of the building at 42 avenue Foch on behalf of
Mr. Teodoro Nguema Obiang Mangue. The documents seized from the firm’s premises showed
that Mr. Teodoro Nguema Obiang Mangue made two €1 million down payments, on 3 May 2010
and 4 July 2011, so that the firm could purchase furniture and works of art on his behalf.
12
- 6 -
1.12. The investigations also confirmed that Mr. Teodoro Nguema Obiang Mangue was the
owner of a collection of luxury vehicles. The address listed on the many invoices discovered during
the investigation once again led investigators to 42 avenue Foch, establishing an indisputable link
between Mr. Teodoro Nguema Obiang Mangue, the townhouse and the assets it contained.
1.13. In light of the foregoing, there can therefore be no doubt that the building at 42 avenue
Foch was the private residence of Mr. Teodoro Nguema Obiang Mangue when the judicial
authorities turned their attention to the circumstances of its acquisition. This was confirmed by the
searches that they subsequently requested.
Failure to assert the diplomatic status of the building at 42 avenue Foch during the
searches and seizures carried out between 28 September and 3 October 2011
1.14. Equatorial Guinea took no steps to obtain recognition of the diplomatic status of the
building at 42 avenue Foch until searches involving property belonging to Mr. Teodoro Nguema
Obiang Mangue were carried out in autumn 2011.
1.15. On 28 September 2011, investigators conducted an initial on-site inspection at
42 avenue Foch to draw up an inventory of the vehicles present at that address, with a view to their
seizure. These legal proceedings relating to the assets of Mr. Teodoro Nguema Obiang Mangue led
to the seizure, on 28 September and 3 October 2011, of 18 luxury vehicles stored in the courtyard
of the property and in car parks nearby.
1.16. The Embassy of Equatorial Guinea reacted to these measures of execution in a letter
delivered in person on 28 September 2011 to the French Minister for Foreign Affairs, making no
mention of any assignment for diplomatic use and no reference to the VCDR or even to the
acquisition of the building. However, it did condemn “[i]n particular . . . the searches and
attachments targeting the person of its Minister for Agriculture, Minister of State”6, Mr. Teodoro
Nguema Obiang Mangue.
1.17. It was in this context, linked to criminal proceedings, that, on 28 September 2011, the
French Ministry of Foreign Affairs turned its attention to the building at 42 avenue Foch.
6 Letter from the Embassy of the Republic of Equatorial Guinea delivered in person to Mr. Alain Juppé, Minister
for Foreign Affairs of the French Republic, 28 Sept. 2011 (Memorial of Equatorial Guinea (MEG), Ann. 32).
13
- 7 -
1.18. In its Memorial, Equatorial Guinea now appears to suggest that the vehicles seized
belonged to the Embassy7. Yet, according to the record of search and seizure8, none of the
11 vehicles parked in the courtyard of the townhouse — a Peugeot, a Mercedes, two Ferraris, two
Bentleys, a Maserati, two Bugattis, including one bearing the inscription “special edition 669 Made
for Mr. Teodoro Nguema Obiang”, a Porsche and an Aston Martin — had diplomatic plates.
Moreover, the invoices show that they belonged to Mr. Teodoro Nguema Obiang Mangue.
Equatorial Guinea’s claim of diplomatic status as from 4 October 2011 and
France’s express refusal to uphold that claim
1.19. On 4 October 2011, the day after the search and seizures had been conducted and a
week after Equatorial Guinea had drawn the attention of the French authorities to the criminal
proceedings involving the building at 42 avenue Foch, the Embassy of the Republic of Equatorial
Guinea claimed for the first time that the building had diplomatic status. It even asserted that these
premises, although not registered with the Protocol Department, had for a long time been assigned
for diplomatic use: a Note Verbale of 4 October 2011 stated that “the Embassy has for a number of
years had at its disposal a building located at 42 avenue Foch, Paris (16th arr.), which it uses for the
performance of the functions of its diplomatic mission, a fact which it has hitherto not formally
notified to [the] Department”9.
1.20. On 5 October 2011, investigators returned to 42 avenue Foch and noted that two
makeshift signs marked “République de Guinée Équatoriale — locaux de l’ambassade” (Republic
of Equatorial Guinea — Embassy premises) had been affixed to the entrance porch.
1.21. According to the testimony given by the building’s caretaker, “the previous day, a
driver and two employees of the Embassy of the Republic of Equatorial Guinea had come to the
premises . . . and had affixed the signs on all of the entrances to the upper floors and outbuildings
belonging to Teodoro NGUEMA OBIANG MANGUE”10.
1.22. Furthermore, the record of the on-site inspection states that “[t]he official address of
the Embassy of Equatorial Guinea, 29 boulevard de Courcelles, Paris (8th arr.), also appeared on
the two signs”11 affixed to the entrance of the townhouse.
7 [MEG, p. 39, para. 3.54]:
“On 28 and 29 September 2011, the French courts instructed the police to enter the building in
order to attach items of property, notwithstanding the protests raised by Equatorial Guinea in a letter from
its counsel which was submitted in the proceedings. In their record, the police mentioned that the cars did
not belong to the Embassy and that the building belonged to Mr. Teodoro Nguema Obiang Mangue.”
8 See the record of on-site inspection and attachment of vehicles of Mr. Teodoro Obiang Nguema located at
42 avenue Foch, 75016 Paris, 28 Sept. 2011 (Doc. No. 33 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
9 See Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
10 Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 Oct. 2017, p. 31. [This
and any subsequent extracts from this judgment have been translated by the Registry.]
11 Record of on-site inspection at 42 avenue Foch, 75016 Paris, 5 Oct. 2011 (Ann. 3).
14
15
- 8 -
1.23. On 11 October 2011, the Protocol Department of the French Ministry of Foreign
Affairs responded to Equatorial Guinea’s Note Verbale dated 4 October 2011, recalling that
“the . . . building [at 42 avenue Foch] does not form part of the premises of Equatorial
Guinea’s diplomatic mission.
It falls within the private domain and is, as such, subject to ordinary law. The
Protocol Department thus regrets that it is unable to grant the Embassy’s request.”12
Equatorial Guinea’s differing presentations of the building at 42 avenue Foch and
France’s consistent and expressly stated rejection of those claims
1.24. On 17 October 2011, the premises in question were presented by the Embassy of
Equatorial Guinea in France as housing the new residence of the Permanent Delegate to UNESCO.
However, the Permanent Delegate’s residence was registered by UNESCO with the Protocol
Department as being located at 46 rue des Belles Feuilles in Paris. The Embassy explained that:
“[p]ending the arrival of [the Ambassador’s] successor, the Embassy will be headed
by Ms Mariola BINDANG OBIANG, Permanent Delegate of the Republic of
Equatorial Guinea to UNESCO in the capacity of Chargée d’affaires ad interim, and
we wish to inform you that the official residence of the Permanent Delegate to
UNESCO is on the premises of the diplomatic mission located at 40-42 avenue
FOCH, 75016, which is at the disposal of the Republic of Equatorial Guinea.”13
1.25. On 31 October 2011, the Ministry of Foreign Affairs then reminded the Embassy of
Equatorial Guinea that,
“in accordance with Article 19 of the Vienna Convention of 18 April 1961 on
Diplomatic Relations, only a member of the mission’s diplomatic staff may be
designated Chargé d’affaires ad interim by the sending State. The appointment of
Ms BINDANG OBIANG is thus contrary to the above-mentioned Vienna
Convention.”14
1.26. By the same Note Verbale, the French Ministry of Foreign Affairs explained that:
“If there was a change in the address of Ms BINDANG OBIANG’s residence,
the Permanent Delegation of the Republic of Equatorial Guinea to UNESCO must
give official notification thereof to that organization’s Protocol Department, which
should, in turn, advise our Protocol Department in an official Note Verbale.
Indeed, the Embassy may not communicate on behalf of the Permanent
Delegation.”
12 Note Verbale No. 5007 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 11 Oct. 2011 (Doc. No. 2 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
13 Note Verbale No. 387/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 17 Oct. 2011 (Doc. No. 3 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
14 Note Verbale No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 31 Oct. 2011 (Doc. No. 4 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
16
- 9 -
1.27. However, UNESCO, which was nonetheless directly concerned, was not informed by
Equatorial Guinea of the purported change of residence of its Permanent Delegate until
four months later, on 14 February 2012, which was also the first day of further searches and
seizures at 42 avenue Foch.
1.28. On 20 February 2012, the French Ministry of Foreign Affairs once again reiterated its
position that
“the building located at 42 avenue Foch in Paris, 16th [i]s not part of the mission’s
premises, that it ha[s] never been recognized as such by the Ministry of Foreign and
European Affairs, and that it c[an] not be considered as the residence of
Ms BINDANG OBIANG since, according to the official documents notifying her
appointment and the assumption of her duties as transmitted several days earlier by
UNESCO — to which Ms BINDANG OBIANG is attached — her residence is
located at 46 rue des Belles Feuilles, Paris 16th.”15
1.29. It was further noted that:
“the avenue Foch building was presented by the Embassy on 7 October 2011 as
premises used for the performance of the duties of its diplomatic mission (the
Embassy acknowledges that this had never been officially notified), and then, on
17 October 2011, as the official residence of Ms BINDANG OBIANG.
Finally, the Note Verbale from UNESCO’s Protocol Department dated
15 February 2012 and sent to the Protocol Department transmitting [the Note Verbale]
of the Permanent Delegation dated 14 February 2012 officially presenting the address
at 42 avenue Foch as that of Ms BINDANG OBIANG’s residence cannot be taken
into account because the date of 14 February is the date on which searches of that
same building began.”
The seizure between 14 and 23 February 2012 of movable property belonging
to Mr. Teodoro Nguema Obiang Mangue kept at 42 avenue Foch
1.30. Between 14 and 23 February 2012, a further search was conducted on the premises of
the townhouse, which, according to the testimony given by employees of the firm Foch Service,
continued to be used in a private capacity by Mr. Teodoro Nguema Obiang Mangue16. As noted in
the investigation file:
“Findings made at the site confirmed that Teodoro NGUEMA OBIANG
MANGUE enjoyed free disposal of the property.
However, no official documents were discovered concerning the State of
Equatorial Guinea or indicating that the building might serve as a venue for official
representation.
15 Note Verbale No. 802 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 20 Feb. 2012 (Doc. No. 13 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
16 See the judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 Oct. 2017, p. 33.
17
- 10 -
The findings also made it possible to take stock of the extravagant purchases
made by Teodoro NGUEMA OBIANG MANGUE in a personal capacity over several
years, and to confirm that he did indeed occupy the premises.”17
1.31. In addition to the many works of arts, for which invoices establish a clear link between
the townhouse where they are on display and Mr. Teodoro Nguema Obiang Mangue, investigators
found men’s clothing all in the same size, some of which was monogrammed with
Teodoro Nguema Obiang Mangue’s name or the initials TNO.
1.32. Moreover, lawyers representing Mr. Teodoro Nguema Obiang Mangue before the
French courts did not dispute his ownership of the movable property seized. Indeed, as the
judgment of the Tribunal correctionnel of 27 October 2017 states:
“It is not disputed that the following movable assets which have been attached
represent the proceeds and object of the offence and/or belong to the convicted person
within the meaning of Articles 131-21 and 324-7 of the Penal Code:
 the movable assets (furnishings, works of art, etc.) attached during the search
conducted in the townhouse of which Teodoro NGUEMA OBIANG MANGUE
had free disposal;
 the collector vehicles representing a purchase price of some €7.5 million and
handed over to AGRASC [agency for the management and recovery of seized and
confiscated assets] for disposal;
 the debt of €377,000 owed by the firm PINTO, also in the hands of AGRASC.”18
1.33. When asked about Mr. Teodoro Nguema Obiang Mangue’s assets, an employee of
Foch Service also told investigators that, between the searches conducted in autumn 2011 and those
carried out in February 2012, a number of valuable items and works of art had been removed from
the property at 42 avenue Foch to be stored at the residence of the Ambassador of Equatorial
Guinea in Paris.
1.34. Lastly, on 16 February 2012, a person identified “as an employee of
Mr. Teodoro Nguema Obiang Mangue” arrived at 42 avenue Foch and explained that the chief
executive of Foch Service “had asked him to come and collect two suitcases belonging to
Mr. Teodoro Nguema Obiang Mangue, which were located in the security guard’s lodge”.
1.35. The police authorities then noted that those suitcases “contained men’s items (suits,
T-shirt, shirt, pair of shoes and a typewritten list of the clothing in each of the suitcases, dated
10 February 2012)”19.
17 Ibid., p. 31.
18 Ibid., p. 98.
19 See the record of further search of the townhouse located at 42 avenue Foch, 75016 Paris, 15 Feb. 2012
(Doc. No. 4[4] of the additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial
Guinea’s request for the indication of provisional measures).
18
19
- 11 -
The attachment of the building at 42 avenue Foch
on 19 July 2012 and its consequences
1.36. On 19 July 2012, an attachment order (ordonnance de saisie pénale immobilière) was
issued against the building at 42 avenue Foch, on the grounds that the investigations had
demonstrated that the building owned by six Swiss and French companies had been wholly or
partly paid for out of the proceeds of the offences under judicial investigation and represented the
laundered proceeds of the offences of misuse of corporate assets, breach of trust and
misappropriation of public funds. The order stated that Mr. Teodoro Nguema Obiang Mangue
enjoyed free disposal of the building.
1.37. Under French law, the seizure of assets in the context of a criminal investigation is
aimed at ensuring the enforcement of any subsequent measure of confiscation and may apply to
any confiscatable assets. The specific procedure for attaching immovable property is set out in
Articles 706-15020 et seq. of the Code of Criminal Procedure, in addition to Articles 706-141 to
706-147, which are applicable to all special seizures.
1.38. Attachment (saisie pénale immobilière) covers the full value of the immovable
property seized, until such time as the property is definitively released or confiscated.
Article 706-145 states that “[n]o one may validly dispose of property seized in the context of
criminal proceedings”. As a consequence, the property seized is rendered inalienable. As in civil
cases, attachment in criminal proceedings does not have the effect of transferring ownership; the
owner of the estate to which the property belongs remains the owner of the property seized but
cannot exercise all the rights attached to that title.
1.39. When an attachment is ordered without deprivation of title, as expressly stated in the
order issued on 19 July 2012, the owner of the attached property can still make use of it, but cannot
sell the property or transfer ownership of it.
20 Art. 706-150 of the French Code of Criminal Procedure provides that:
“During an expedited or preliminary investigation, the liberty and custody judge, at the request of
the Public Prosecutor, may, by a reasoned order, authorize the attachment, at the initial expense of the
Treasury, of immovable property whose confiscation is provided for by Article 131-21 of the Penal Code.
The investigating judge may, during the investigation, order such an attachment under the same
conditions.
The order made pursuant to the first paragraph is notified to the Public Prosecutor’s Office, to the
owner of the attached property and, if they are known, to any third parties having rights thereto, who may
refer the order to the Chambre de l’instruction by declaration at the registry of the court within ten days
of being notified thereof. Such an appeal does not have suspensive effect. Appellants may, in this context,
only ask to be provided with the procedural documents relating to the attachment they are contesting. If
they are not appealing, the owner of the property or any third party may nevertheless be heard by the
Chambre de l’instruction, but may not ask to be furnished with the procedural documents.” [This and any
subsequent provisions of the French Code of Criminal Procedure cited in this Counter-Memorial have
been translated by the Registry.] (The text is available, in French, at the following address:
https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI0…
GITEXT000006071154.)
20
- 12 -
Equatorial Guinea’s new presentation of the use of the building at
42 avenue Foch and France’s persistent rejection of that claim
1.40. A week after the attachment had taken place, the Embassy of Equatorial Guinea
presented the premises at 42 avenue Foch as housing its offices. Indeed, by Note Verbale dated
27 July 2012, its footer still showing the Embassy’s address as 29 boulevard de Courcelles in Paris
(8th arr.), the Embassy of Equatorial Guinea stated that:
“as from Friday 27 July 2012, the Embassy’s offices are located at 42 avenue Foch,
Paris (16th arr.), a building which it is henceforth using for the performance of the
functions of its diplomatic mission in France”21.
1.41. The French Ministry of Foreign Affairs responded by Note Verbale of 6 August 2012,
stating that
“the building located at 42 avenue Foch, Paris (16th arr.), was the subject of an
attachment order (ordonnance de saisie pénale immobilière), dated 19 July 2012. The
attachment was recorded and entered in the mortgage registry on 31 July 2012.
. . . The Protocol Department is thus unable officially to recognize the
building . . . as being the seat of the chancellery as from 27 July 2012.
The seat of the chancellery thus remains at 29 boulevard de Courcelles, Paris
(8th arr.), the only address recognized as such.”22
1.42. The French Ministry of Foreign Affairs thereafter consistently reiterated its position in
every exchange with Equatorial Guinea on the status of the building at 42 avenue Foch.
1.43. Thus, when the Protocol Department of the French Ministry of Foreign Affairs was
asked about the property tax exemptions to which premises designated for diplomatic use are
entitled, it reminded Equatorial Guinea, in its Note Verbale dated 13 June 2014, that
“[t]he premises of the Embassy located at 29 boulevard de Courcelles in Paris
(8th arr.) and the residence of the Ambassador at 8 bis avenue de Verzy in Paris
(17th arr.) are thus exempt from property tax”23.
1.44. Moreover, when, on 21 April 2016, the Embassy of Equatorial Guinea requested
specific measures of protection for the premises at 42 avenue Foch, the French Ministry of Foreign
Affairs reaffirmed that it
“does not consider the building located at 42 avenue Foch in Paris (16th arr.) as
forming part of the premises of Equatorial Guinea’s diplomatic mission in France”24.
21 Note Verbale No. 501/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 27 July 2012 (Doc. No. 22 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
22 Note Verbale No. 3503 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 6 Aug. 2012 (Doc. No. 24 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
23 Note Verbale No. 5638 from the Ministry of Foreign Affairs and International Development of the French
Republic to the Embassy of the Republic of Equatorial Guinea, 13 June 2014 (Ann. 4).
21
- 13 -
1.45. After the Court made its Order indicating provisional measures, the Ambassador of
Equatorial Guinea in France was received twice, at his request, by the Department for Africa and
the Indian Ocean at the Ministry for Europe and Foreign Affairs. During these meetings, he asked
the French authorities to confirm that they now recognized the diplomatic status of the townhouse
at 42 avenue Foch.
1.46. Thus, by Note Verbale dated 15 February 2017, the Embassy of Equatorial Guinea in
France observed that
“this matter [was] raised at the last two meetings with officials from the Department
for Africa and the Indian Ocean, and . . . assurances [were given by] the Director that
a Note recognizing its current status would be sent to the diplomatic mission located at
42 avenue Foch”25.
1.47. In response to that Note Verbale, the Ministry for Europe and Foreign Affairs stated on
2 March 2017 that
“[i]n keeping with its consistent position, France does not consider the building
located at 42 avenue Foch in Paris (16th arr.) to form part of the premises of the
diplomatic mission of the Republic of Equatorial Guinea in France.
In accordance with the Order made by the International Court of Justice on
7 December 2016, and pending the Court’s final decision in the case, France will
ensure that the premises located at 42 avenue Foch receive treatment equivalent to that
required by Article 22 of the Vienna Convention on Diplomatic Relations, in order to
ensure their inviolability.”26
1.48. Faced with Equatorial Guinea’s changing and contradictory assertions, the French
Ministry of Foreign Affairs consistently recalled that it did not consider the premises of 42 avenue
Foch as forming part of Equatorial Guinea’s diplomatic mission and that those premises could not
officially form part of the mission on account of the criminal measures taken against them. The
only premises France has officially agreed to recognize as such are those located at 29 boulevard de
Courcelles in Paris.
Latest developments in the criminal proceedings in France
1.49. During the oral proceedings on the request for the indication of provisional measures,
the Agent of the French Republic had the opportunity to inform the Court of the status of the
criminal proceedings against Mr. Teodoro Nguema Obiang Mangue in France and the possible
subsequent developments27.
24 Note Verbale No. 2016-313721 from the Ministry of Foreign Affairs and International Development of the
French Republic to the Embassy of the Republic of Equatorial Guinea, 27 Apr. 2016 (Ann. 5).
25 Note Verbale No. 069/2017 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs and International Development of the French Republic, 15 Feb. 2017 (Ann. 6).
26 Note Verbale No. 2017-158865 from the Ministry of Foreign Affairs and International Development of the
French Republic to the Embassy of the Republic of Equatorial Guinea, 2 Mar. 2017 (Ann. 7).
27 CR 2016/15, 18 Oct. 2016, pp. 13-17 (Alabrune).
22
- 14 -
1.50. France stated that following Mr. Teodoro Nguema Obiang Mangue’s referral to the
Paris Tribunal correctionnel, any first instance conviction could not occur before the end of the
first quarter of 2017.
1.51. On 27 October 2017, i.e. towards the end of the second half of 2017, the
32nd Chambre correctionnelle of the Paris Tribunal correctionnel rendered its judgment finding
Mr. Teodoro Nguema Obiang Mangue guilty of money laundering offences committed between
1997 and October 2011; it accordingly sentenced him to a three-year suspended prison term and a
suspended fine of €30 million. The Tribunal also ordered the confiscation of all assets seized,
including the entire immovable property located at 42 avenue Foch.
1.52. On 3 November 2017, this judgment was appealed by Mr. Teodoro Nguema Obiang
Mangue and cross-appealed by the Financial Prosecutor’s Office.
1.53. This appeal (appel) is the ordinary form of review by which a court of second instance
may amend or annul the decision rendered by a court of first instance. The appeal court is tasked
with hearing the case for a second time.
1.54. Appeal is one of the forms of review which has the broadest effects. It is a corrective
remedy that challenges the first instance res judicata with a view to obtaining a new ruling on fact
and law.
1.55. Furthermore, an appeal has the effect of suspending the sentence handed down at first
instance, meaning that the disputed decision cannot be enforced during the appeal period.
1.56. As stated by the Agent of the French Republic during the hearings on the request for
the indication of provisional measures, in all likelihood the case will not appear on the list of the
Paris Cour d’appel until the second half of 2019.
1.57. The decision rendered on appeal could be contested through a further appeal (pourvoi)
before the Chambre criminelle of the Cour de cassation. In such an event, and since the suspensive
effect applies to all aspects of the criminal proceedings, the judgment handed down by the Cour
d’appel would thus still not be enforced.
1.58. In light of the foregoing, a final decision of the French courts would therefore not be
expected until 2020.
23
24
- 15 -
CHAPTER 2
SUBJECT-MATTER OF THE DISPUTE
2.1. In both its Application and its Memorial, Equatorial Guinea describes its dispute with
France as follows:
“The dispute between Equatorial Guinea and France, arising from certain
ongoing criminal proceedings in France, concerns the immunity from criminal
jurisdiction of the Second Vice-President of the Republic of Equatorial Guinea in
charge of Defence and State Security, and the legal status of the building which
houses the Embassy of Equatorial Guinea in France, both as premises of the
diplomatic mission and as State property”28.
2.2. Pursuant to Article 79, paragraph 1, of the Rules of Court, on 31 March 2017 France
raised preliminary objections to the jurisdiction of the Court and the admissibility of the
Application instituting proceedings filed by Equatorial Guinea on 13 June 2016.
I. The Court’s Judgment on the preliminary objections
2.3. In its Judgment rendered on 6 June 2018, the Court upheld France’s first preliminary
objection in the following terms:
“Having analysed the aspect of the dispute in respect of which Equatorial
Guinea invoked the Palermo Convention as a basis of jurisdiction (see paragraph 68
above), the Court concludes that this aspect of the dispute is not capable of falling
within the provisions of the Palermo Convention. The Court therefore lacks
jurisdiction pursuant to the Palermo Convention to entertain Equatorial Guinea’s
Application and must uphold France’s first preliminary objection.”29
2.4. There is no doubt that “it is for the Court itself to determine on an objective basis the
subject-matter of the dispute between the parties, by isolating the real issue in the case and
identifying the object of the claim”30 on the basis of the application, “while giving particular
attention to the formulation of the dispute chosen by the applicant”31. Consequently, the
subject-matter of the dispute as it stands at this stage of the proceedings must be assessed in light of
the Court’s Judgment dated 6 June 2018. The scope of the Court’s jurisdiction excludes:
“[t]he aspect of the dispute for which Equatorial Guinea invokes the Palermo
Convention as the title of jurisdiction[, which] involves various claims on which the
Parties have expressed differing views in their written and oral pleadings. First, they
disagree on whether, as a consequence of the principles of sovereign equality and
non-intervention in the internal affairs of another State, to which Article 4 of the
28 Application of Equatorial Guinea (AEG), para. 2. See also MEG, para. 0.2.
29 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 118.
30 Ibid., para. 48.
31 Ibid. See also Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection,
Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26; Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 848, para. 38.
25
26
- 16 -
Palermo Convention refers, Mr. Teodoro Nguema Obiang Mangue, as Vice-President
of Equatorial Guinea in charge of National Defence and State Security, is immune
from foreign criminal jurisdiction. Second, they hold differing views on whether, as a
consequence of the principles referred to in Article 4 of the Palermo Convention, the
building at 42 Avenue Foch in Paris is immune from measures of constraint. Third,
they differ on whether, by establishing its jurisdiction over the predicate offences
associated with the offence of money laundering, France exceeded its criminal
jurisdiction and breached its conventional obligation under Article 4 read in
conjunction with Articles 6 and 15 of the Palermo Convention.”32
2.5. With regard to the second aspect of the dispute, the Court declared in its Judgment of
6 June 2018 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 filed by the Republic of Equatorial Guinea on 13 June 2016, in so far
as it concerns the status of the building located at 42 Avenue Foch in Paris as
premises of the mission, and that this part of the Application is admissible”33.
The Court defines it as follows:
“The aspect of the dispute for which Equatorial Guinea invokes the Optional
Protocol to the Vienna Convention as the title of jurisdiction involves two claims on
which the Parties have expressed differing views. First, they disagree on whether the
building at 42 Avenue Foch in Paris constitutes part of the premises of the mission of
Equatorial Guinea in France and is thus entitled to the treatment afforded for such
premises under Article 22 of the Vienna Convention. They also disagree on whether
France, by the action of its authorities in relation to the building, is in breach of its
obligations under Article 22.”34
2.6. Later in this Counter-Memorial, France will establish that it has not committed any
breach of Article 22 of the VCDR. First, however, some clarification is needed regarding the
precise subject-matter and scope of the dispute.
II. The irrelevance of rules other than those deriving from the
Vienna Convention on Diplomatic Relations
2.7. In its Application instituting proceedings, Equatorial Guinea makes the following
submissions in respect of the building at 42 avenue Foch:
“(c) With regard to the building located at 42 avenue Foch in Paris,
(i) to adjudge and declare that, by attaching the building located at 42 avenue
Foch in Paris, the property of the Republic of Equatorial Guinea and used for
the purposes of that country’s diplomatic mission in France, the French
Republic is in breach of its obligations under international law, notably the
32 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 68.
33 Ibid., para. 154 (emphasis added).
34 Ibid., para. 70.
27
- 17 -
Vienna Convention on Diplomatic Relations and the United Nations
Convention, as well as general international law;
(ii) to order the French Republic 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 in Paris, and, accordingly, to
ensure its protection as required by international law;
(d) In view of all the violations by the French Republic of international obligations
owed to the Republic of Equatorial Guinea,
(i) to adjudge and declare that the responsibility of the French Republic is
engaged on account of the harm that the violations of its international
obligations have caused and are continuing to cause to the Republic of
Equatorial Guinea;
(ii) to order the French Republic to make full reparation to the Republic of
Equatorial Guinea for the harm suffered, the amount of which shall be
determined at a later stage.”35
Equatorial Guinea makes the same submissions in its Memorial36.
2.8. In its Request for provisional measures, dated 29 September 2016, Equatorial Guinea
claims that:
“[t]he personal immunity of the Vice-President and the inviolability of the building
located at 42 avenue Foch in Paris, the subject of this request for the indication of
provisional measures, derive from the principles of the sovereign equality of States
and non-interference in States’ internal affairs, which are fundamental principles of
the international legal order and to which reference is explicitly made in the Palermo
Convention. The immunity and inviolability of the diplomatic mission are
well-established in customary international law, as codified by the Vienna Convention
on Diplomatic Relations.”37
Equatorial Guinea thus asserts, in the same paragraph, that the alleged inviolability of the building
at 42 avenue Foch is based on both the Palermo Convention and the VCDR.
2.9. Since the Court has found that it “lacks jurisdiction pursuant to the Palermo Convention
to entertain Equatorial Guinea’s Application”38, it is no longer seised of the aspect of the dispute
said to be covered by that treaty basis — including the alleged violation of the building as
purported property of Equatorial Guinea used for government non-commercial purposes — in the
context of these proceedings.
35 AEG, para. 41; MEG, para. 9.42. See also CR 2016/14, 17 Oct. 2016 (provisional measures), pp. 21-22, para. 5
(Wood); CR 2016/15, 18 Oct. 2016 (provisional measures), p. 19, para. 5 (Wood).
36 MEG, p. 182.
37 AEG, para. 13 (emphasis added).
38 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 118.
28
- 18 -
2.10. The same is clearly true of Equatorial Guinea’s claims based on “general international
law”39. As France has repeatedly recalled40, the Court’s jurisdiction in this case is limited to settling
the dispute before it on the basis of the relevant treaty clauses; it has no jurisdiction to apply
general international law autonomously. Since the Court has definitively ended Equatorial Guinea’s
attempt to artificially link its reliance on general international law to the Palermo Convention41, all
that remains is the aspect of the dispute relating to the VCDR as such.
2.11. Throughout its written pleadings, Equatorial Guinea has created considerable confusion
regarding the obligations under the provisions of the VCDR which France is alleged to have
violated in this case. In its Application, for example, Equatorial Guinea asserts that France
“breached its obligations owed to Equatorial Guinea under the VCDR . . . in particular Article 22
thereof”42. In its Memorial, Equatorial Guinea states that “[t]he dispute before the Court concerns
the interpretation and application of several provisions of the VCDR, including but not limited to
Article 1 (i) and Article 22”43, and mentions Article 20 (flag and emblem of the sending State)44
and Article 21 (facilitation of the acquisition of premises)45 of the Convention without once
seeking to demonstrate in what way France might have contravened these provisions. Next came a
reference to Article 23 (exemption from taxes), with no further explanation, in the observations
filed in response to the preliminary objections46. Lastly, during the hearings, the Applicant once
again offered nothing more than the terse statement that “the provisions contained in Articles 20,
21 and 23 are violated incidentally, because the inviolability guaranteed by Article 22 is not
respected”47.
2.12. France has already amply demonstrated that there is no dispute between it and
Equatorial Guinea regarding those three provisions of the Convention48. The dispute — whose
subject-matter must be assessed on the day the Court was seised — concerns only the status of the
building at 42 avenue Foch and the régime of inviolability potentially associated with that status, to
the exclusion of any other question. This is precisely how the Judgment rendered on 6 June 2018 is
to be understood. In that Judgment, the Court “recalls that the aspect of the dispute” relating to the
VCDR
“concerns whether the building at 42 Avenue Foch, Paris, constitutes part of the
premises of the mission of Equatorial Guinea in France and is thus entitled to the
treatment provided for under Article 22 of the Vienna Convention. It also concerns
39 See in particular AEG, para. 39; MEG, paras. 8.63, 8.66.
40 See POF, paras. 5, 54-55, 64. See also CR 2018/2, p. 15, para. 13, and p. 16, para. 17 (Alabrune); p. 17, para. 2
(Ascensio); pp. 32-33, para. 8 (Bodeau-Livinec); p. 45, para. 2 (Pellet); and CR 2018/4, pp. 10-12, paras. 4-6 (Pellet).
41 See in particular Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
Objections, Judgment of 6 June 2018, para. 96.
42 AEG, para. 38 (emphasis added).
43 MEG, para. 5.46 (emphasis added).
44 Ibid., para. 8.18.
45 Ibid., para. 8.32.
46 Written Statement of Equatorial Guinea on the Preliminary Objections of France (WSEG), para. 1.57.
47 CR 2018/3, p. 47, para. 10 (Kamto).
48 See POF, paras. 139-142, and CR 2018/2, pp. 39-40, paras. 25-26 (Bodeau-Livinec).
29
30
- 19 -
whether France, by the actions of its authorities in relation to the building, is in breach
of its obligation under Article 22.”49
III. The irrelevance of the building’s ownership in assessing the alleged violations
of the Vienna Convention on Diplomatic Relations
2.13. This first observation has major implications for some of the submissions made by
Equatorial Guinea. The Applicant has, however, thus far been careful to maintain a certain amount
of confusion between the bases for its claims in respect of the building located at 42 avenue Foch50.
In its Application instituting proceedings, for instance, it stated that:
“The building located at 42 avenue Foch in Paris was, until 15 September 2011,
co-owned by five Swiss companies of which Mr. Teodoro Nguema Obiang Mangue
had been the sole shareholder since 18 December 2004. On 15 September 2011, he
transferred his shareholder’s rights in the companies to the State of Equatorial Guinea.
Since then, the building has been used by the diplomatic mission of Equatorial
Guinea.”51
2.14. This conflates the question of the building’s ownership with that of the premises’
assignment. In Equatorial Guinea’s view, since Mr. Teodoro Nguema Obiang Mangue “transferred
his shareholder’s rights . . . to the State of Equatorial Guinea” on 15 September 2011, Equatorial
Guinea has, “[s]ince then, [been the owner of] the building” or, at the very least, the owner of the
Swiss companies whose shares it acquired. Be that as it may, the question of the building’s
assignment under the VCDR is entirely separate.
2.15. At this stage of the proceedings, a clear distinction must be made between the two
aspects of the dispute. As France has repeatedly asserted52, the question of who actually owns the
building at 42 avenue Foch is immaterial in determining whether the property is capable of forming
part of the premises of Equatorial Guinea’s diplomatic mission in France and might therefore
benefit from the régime of protection provided for in Article 22 of the VCDR. Article 1 (i) of the
Convention leaves no ambiguity in this regard:
“(i) The ‘premises of the mission’ are 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.”53
2.16. Equatorial Guinea itself has acknowledged that there is no correlation between
ownership, on the one hand, and diplomatic status and régime, on the other54; hence it cannot now
claim that France’s alleged failure to respect the right of ownership of this building might be in
breach of an obligation under the VCDR. In its Judgment of 6 June 2018, the Court did not
consider it necessary to state that the aspects of Equatorial Guinea’s Application relating to the
49 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 120 (emphasis added).
50 See POF, paras. 45-52.
51 AEG, para. 20.
52 See POF, para. 141; CR 2018/2, p. 38, para. 23 (Bodeau-Livinec).
53 Article 1 (i) of the VCDR of 18 Apr. 1961 (emphasis added).
54 See in particular MEG, para. 8.32; WSEG, para. 3.24; CR 2018/3, p. 46, para. 7 (Kamto).
31
- 20 -
building’s ownership fell outside the provisions of the VCDR. Indeed, the clear distinction drawn
by the Court between the claims based on the Palermo Convention and those said to fall within
the VCDR55 is sufficient to conclude that the alleged failure to respect the immunity of the building
as property of the State of Equatorial Guinea was founded on the first basis of jurisdiction, not the
second. As Judge Gaja noted in his declaration appended to the Judgment:
“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.”56
2.17. Moreover, in the submissions presented in its Memorial, Equatorial Guinea requested
the Court to order:
“the French Republic to recognize the status of the building located at 42 avenue Foch
in Paris as the property of the Republic of Equatorial Guinea . . . and, accordingly, to
ensure its protection as required by international law”57.
2.18. Yet the lack of correlation between the question of the building’s ownership and that of
its assignment under the VCDR58 has an important consequence for one aspect of the dispute that
Equatorial Guinea has sought to bring before the Court. In its Order of 7 December 2016 indicating
provisional measures, the Court requested that “the execution of any measure of confiscation . . . be
stayed”59 until it has rendered its final decision in the case. France has since complied with that
request, the Paris Tribunal correctionnel having stated in its decision of 27 October 2017 ordering
the confiscation of the building at 42 avenue Foch that “the pending proceedings [before the
International Court of Justice] made the execution of any measure of confiscation by the French
State impossible but not the imposition of that penalty”60. However, as the Agent of the French
Republic recalled at the hearings on the preliminary objections,
“even should it become final, confiscation would simply transfer ownership of the
building at 42 avenue Foch to the State, without prejudice to the prevailing situation
with regard to the occupation and use of the premises”61.
55 See Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment
of 6 June 2018, paras. 52-53.
56 Ibid., declaration of Judge Gaja.
57 MEG, p. 182.
58 See above, paras. 2.12-2.15.
59 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 December 2016, I.C.J. Reports 2016 (II), p. 1170, para. 95.
60 See CR 2018/2, p. 11, para. 5 (Alabrune) and Immunities and Criminal Proceedings (Equatorial Guinea v.
France), Preliminary Objections, Judgment of 6 June 2018, para. 40.
61 CR 2018/2, p. 12, para. 5 (Alabrune). See Article L. 1124-1 of the Code général de la propriété des personnes
publiques (General Code of Public Property) (https://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=
LEGITEXT000006070299&idArticle=LEGIAR TI000006361154&dateTexte=29990101&categorieLien=cid).
32
- 21 -
2.19. Equatorial Guinea, moreover, expressly acknowledged that the measure of confiscation
concerned the building’s ownership, and made no mention of its use62. It follows from this shared
view that confiscation of the building at 42 avenue Foch cannot in itself constitute a violation of the
relevant provisions of the VCDR: even if France were to take ownership of the building at the end
of the judicial proceedings instituted against Mr. Teodoro Nguema Obiang Mangue, such a
circumstance would in itself make no difference to the régime of diplomatic inviolability invoked
by Equatorial Guinea, which is contingent on the use of the premises in question, not on their
ownership. In a case relating to the nationalization by Romania of a building used by an American
organization with diplomatic status in Romania, the European Court of Human Rights (ECHR)
noted in this regard that:
“even if the organisation in question did indeed enjoy such immunity, this in no sense
acted as a bar to the transfer to the applicant of ownership rights over the disputed
property. As that transfer did not in itself entail the eviction of the tenant, it was open
to the latter, in the event of a dispute over the occupancy of the building, to submit
defence arguments, including arguments relating to its alleged immunity from
jurisdiction.”63
2.20. In view of the foregoing, and as the Court found in its Judgment of 6 June 2018, only
“Equatorial Guinea’s claim based on the Vienna Convention concern[ing] France’s alleged failure
to respect the inviolability of the building at 42 Avenue Foch in Paris as premises of Equatorial
Guinea’s diplomatic mission”64 remains within the scope of its jurisdiction. The aspects of the
dispute relating to ownership are excluded from it. While the question of the building’s ownership
is indicative of the abusive nature of Equatorial Guinea’s approach65, it is in itself irrelevant to the
régime of diplomatic inviolability invoked by the Applicant.
*
* *
2.21. It is therefore within the strict limits of the subject-matter of the dispute, as identified
by the Court in its Judgment of 6 June 2018 on the basis of Equatorial Guinea’s Application and
Memorial, that the alleged violations of the provisions of Article 22 of the VCDR in respect of the
building at 42 avenue Foch must be assessed.
62 “[I]n French criminal law, confiscation is a penalty which involves transfer of the ownership of the asset in
question, to the benefit of the French State.” (CR 2018/3, p. 26, para. 43 (Tchikaya).)
63 ECHR, Hirschhorn v. Romania, application No. n°29294/02, decision of 26 July 2007, para. 60. See also
German Federal Constitutional Court, Jurisdiction over Yugoslav Military Mission (Germany) Case, Case No. AVR XI
(1963/64), 30 Oct. 1962, International Law Reports (ILR), Vol. 38, pp. 162-170 (“None of this would adversely affect the
mission in the performance of its diplomatic functions. So far as concerns the performance of its functions, it is irrelevant
whether the sending State or any other person is registered as the owner of the mission premises”).
64 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 53.
65 See below, Chap. 4, paras. 4.28-4.45.
33
- 22 -
CHAPTER 3
NO BREACH OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS
WITH REGARD TO THE BUILDING AT 42 AVENUE FOCH
3.1. As the Court stated in its Judgment of 6 June 2018, the aspect of the dispute over which
the Court upheld its jurisdiction concerns two claims on which France and Equatorial Guinea have
expressed divergent views. The Court thus notes that
“[f]irst, they disagree on whether the building at 42 Avenue Foch in Paris constitutes
part of the premises of the mission of Equatorial Guinea in France and is thus entitled
to the treatment afforded for such premises under Article 22 of the Vienna
Convention. They also disagree on whether France, by the action of its authorities in
relation to the building, is in breach of its obligations under Article 22.”66
3.2. Thus circumscribed, the definition of the subject-matter of the dispute delimits precisely
the legal scope of the dispute submitted to the Court, which concerns, first, the question of whether
the building at 42 avenue Foch can be considered part of the premises of the diplomatic mission of
Equatorial Guinea in France, and, second, whether the search and attachment of that building was
in breach of the relevant obligations of Article 22 of the VCDR.
3.3. Regarding the first question, France strongly contests the so-called declaratory theory
advanced by Equatorial Guinea, according to which the sending State can unilaterally impose on
the receiving State its choice of premises for its diplomatic mission. In accordance with the VCDR,
and in line with the practice of many other States, the régime for establishing the diplomatic
premises of foreign State missions in France is subject to compliance with two cumulative
conditions. A building can have the status of diplomatic premises only if, first, France, as the
receiving State, has not expressly objected to its being considered part of the diplomatic mission,
and, second, it is actually used for diplomatic purposes (I). France has never consented to granting
the status of diplomatic premises to the building at 42 avenue Foch, which could in no way have
been considered as being used for diplomatic purposes when it was searched and attached by the
French judicial authorities. Consequently, the building at 42 avenue Foch never acquired the status
of diplomatic premises and France could not have been in breach of its obligations under the
VCDR (II).
I. The granting of the status of diplomatic premises is subject to compliance
with two cumulative conditions
3.4. In the part of its Application on the “legal bases” of that pleading, Equatorial Guinea
makes only one substantial reference to the VCDR, which is the following:
66 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 70.
34
35
- 23 -
“by the fact that its judicial authorities have seized a building used for the purposes of
the diplomatic mission of Equatorial Guinea in France, and by failing to recognize the
building as the premises of the diplomatic mission, the French Republic has breached
its obligations owed to Equatorial Guinea under the Vienna Convention on Diplomatic
Relations of 18 April 1961, in particular Article 22 thereof”67.
3.5. This bald assertion raises questions. A thorough examination of the facts of the case
clearly shows that France has always refused to grant the status of diplomatic premises to the
building at 42 avenue Foch and that it was not assigned for the purposes of Equatorial Guinea’s
mission in Paris at the time it was searched and attached. In accordance with the spirit and letter of
the VCDR, identification of a building as mission premises — and entitlement to the resulting
régime of protection — presupposes, first, that the receiving State does not expressly object to
granting it diplomatic status (A) and, second, that the building is actually assigned for the purposes
of the diplomatic mission (B).
A. The granting of diplomatic status to a building cannot be unilaterally imposed on the
receiving State
3.6. In its reply to the question put by Judge Donoghue, Equatorial Guinea asserts that
“regarding the status of premises of a diplomatic mission, the régime of the Vienna Convention is
declaratory”68. By this it is to be understood that “the premises used for diplomatic services are
those designated as such by the sending State to the receiving State”69, and that this designation
alone establishes the benefit of diplomatic status for a building, without the express or implicit
consent of the receiving State being required. Stretching the logic of this “declaratory” view still
further, Equatorial Guinea contends that “there is no need for a procedure”70, stating, for example,
that the notification sent to the Ministry of Foreign Affairs of the French Republic on 4 October
2011 regarding the building at 42 avenue Foch was merely a matter of “courtesy”71: in Equatorial
Guinea’s view, Article 1 (i) of the Convention may even “be understood as entitling the sending
State to provide its own definition of the premises of its diplomatic mission”72.
3.7. The sole benefit of this understanding of the régime for identifying diplomatic premises
is that the sending State can claim diplomatic status for any premises, without the receiving State
ever being able to object, even when such claims are abusive73. Such an interpretation, however,
appears legally unrealistic: in accordance with the letter and spirit of the VCDR, it is impossible for
67 AEG, para. 38.
68 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 23.
69 WSEG, para. 1.63; “there is no need for a recognition process” (ibid., para. 3.14).
70 CR 2018/3, p. 50, para. 23 (Kamto).
71 MEG, para. 8.35. In its Note Verbale of 4 Oct. 2011, the Embassy of Equatorial Guinea nevertheless explained
to the Ministry of Foreign Affairs that “[s]ince the building forms part of the premises of the diplomatic mission,
pursuant to Article 1 of the Vienna Convention on Diplomatic Relations of 18 April 1961, the Republic of Equatorial
Guinea wishes to give you official notification so that the French State can ensure the protection of those premises, in
accordance with Article 22 of the said Convention.” (Note Verbale No. 365/11 (Doc. No. 1 of the additional documents
communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional
measures); emphasis added.)
72 WSEG, para. 1.61.
73 As France has pointed out, Equatorial Guinea could thus simply declare that it has established its diplomatic
mission on the first floor of the Eiffel Tower for those premises to be considered as enjoying diplomatic status
(CR 2016/17, p. 12, para. 11 (Pellet)).
36
- 24 -
the sending State to impose its choice of premises of its diplomatic mission on the receiving
State (1). Moreover, Equatorial Guinea’s “declaratory” theory is not borne out by State practice (2).
1. Equatorial Guinea’s “declaratory” theory is contrary to the letter and spirit of the Vienna
Convention on Diplomatic Relations
3.8. Even though this question is crucial to the application of the privileges and immunities
under the VCDR, the Convention provides no details on the procedure for granting diplomatic
status and related protections to the premises in which a State wishes to establish its diplomatic
mission.
3.9. Equatorial Guinea believes that it can infer from this lack of procedural detail that the
sending State is recognized as having complete freedom in designating or changing the premises of
its mission, and that the receiving State is obliged, unconditionally, to ensure compliance with all
the protections derogating from ordinary law that are granted to such premises by the VCDR. Yet
the ordinary meaning to be given to the terms of Article 1 (i), interpreted in light of the object and
purpose of the Convention, runs counter to this “declaratory” view. Thus, in accordance with the
essentially consensual letter and spirit of the VCDR, the premises that the sending State wishes to
use for its diplomatic mission can be used as such only when the receiving State gives its consent
and, above all, does not expressly object to that choice, after notification has been given by the
sending State.
3.10. In the case concerning United States Diplomatic and Consular Staff in Tehran, the
Court solemnly declared that “[t]here is no more fundamental prerequisite for the conduct of
relations between States than the inviolability of diplomatic envoys and embassies, so that
throughout history nations of all creeds and cultures have observed reciprocal obligations for that
purpose”74. There is no doubt that this régime imposes particularly stringent obligations on the
receiving State, of which Article 22 is one of the most obvious examples. This is perfectly natural
since the aim is to ensure the smooth and efficient functioning of diplomatic missions necessary to
the development of peaceful relations between States. Nevertheless, while the receiving State thus
has to accept significant restrictions on the exercise of its territorial sovereignty, the sending State,
for its part, must use the rights conferred on it in good faith. The Convention’s preamble clearly
underscores this when it expresses the conviction that “the purpose of such privileges and
immunities is not to benefit individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States”75.
3.11. The bond of trust that needs to be forged between sending and receiving States is thus
broken when the sending State seeks to use the privileges offered by the Convention for the benefit
of private individuals, without any relation whatsoever to “the efficient performance” of diplomatic
functions. In keeping with this ratio legis, it is understandable that the designation of buildings as
premises of a mission is not left to the sole discretion of the sending State. Jean Salmon explains in
this regard that
“[w]hile the mission is entitled to characterize what it regards as premises used for the
purposes of the mission, that characterization is merely provisional and unilateral, and
the receiving State, which may have the power to refuse the necessary authorizations,
74 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional
Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 38, para. 19.
75 VCDR, 18 Apr. 1961, fourth paragraph of the preamble.
37
38
- 25 -
can contest it . . . Agreement must be sought. In the absence of agreement, it seems to
us that here too the receiving State should have the last word. The underlying issue is
actually the functions of the mission and the qualitative and quantitative extension of
those functions, in respect of which the receiving State has a say, in particular because
it has onerous obligations to protect such premises.”76
3.12. Indeed, the VCDR sets out clearly the obligations incumbent on the receiving State: in
addition to the general obligation to accord “full facilities for the performance of the functions of
the mission”77, it has “a special duty to take all appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any disturbance of the peace of the mission
or impairment of its dignity”78.
3.13. If Equatorial Guinea’s view were to be upheld, should it be accepted that the receiving
State would be compelled to take steps derogating from ordinary law, which are sometimes
particularly hard to implement in practice, without even having the possibility of approving the
choice made by the sending State? Should it also be accepted that the receiving State cannot object
to the choice of the sending State, even if that choice is likely to violate public policy? The
Convention is built around the principle of respect for sovereign will and the development of
diplomatic relations based on mutual consent. Article 2 provides in particular that “[t]he
establishment of diplomatic relations between States, and of permanent diplomatic missions, takes
place by mutual consent”. Discussions in the International Law Commission (ILC) attest to the
need for mutual agreement in the establishment of diplomatic relations, a notion deeply embedded
in State practice79. On this basis, it would seem strange that either of the two States could impose
on the other the choice of premises for its mission.
3.14. To counter this obvious interpretation of the Convention and justify its declaratory
own-definition theory, Equatorial Guinea attempts to draw on Article 12 of this instrument80. Its
reasoning is as follows:
“Article 12 of the VCDR grants the receiving State the power to consent to the
establishment of the premises of a diplomatic mission only when offices of the
mission are established in localities other than those in which the mission is
established. This provision is irrelevant for the purposes of the present case, since
Equatorial Guinea has neither established, nor sought to establish, offices forming part
of its mission ‘in [other] localities’. It simply transferred its mission to other premises
owned by it in the city of Paris. A contrario, it can be inferred from the terms of
Article 12 that the opening of offices of a mission in the same locality, or the transfer
76 J. Salmon, Manuel de droit diplomatique, Brussels, Bruylant, 1994, p. 190. [This and any subsequent extracts
from this publication have been translated by the Registry.]
77 Art. 25.
78 Art. 22, para. 2.
79 See the discussions in the ILC, in particular on the subject of current Art. 2: “no right of legation can be
exercised without agreement between the parties” (Yearbook of the International Law Commission (YILC), 1958, Vol. II,
A/CN.4/SER.A/1958/Add.l, p. 90 (commentary on Art. 2, para. 1)); the ILC having previously noted that this article
confirms general State practice (YILC, 1957, Vol. II, A/CN.4/SER.A/1957/Add. l, p. 133 (commentary on Art. 1)).
80 “The sending State may not, without the prior express consent of the receiving State, establish offices forming
part of the mission in localities other than those in which the mission itself is established.”
39
- 26 -
of premises within the same locality, is not subject to the consent of the receiving
State.”81
3.15. However, Equatorial Guinea fails to point out that, in the circumstances to which it
refers, Article 12 requires “the express consent of the receiving State”82. The a contrario reasoning
it puts forward does not therefore stand up. In fact, the text of Article 12 clearly supports the need
for the receiving State’s consent to the establishment of premises of the diplomatic mission of the
sending State. In the specific circumstances of establishing diplomatic premises outside the capital
of the territorial State, it is perfectly understandable that that State’s express agreement is required.
This does not mean that in ordinary circumstances, when the mission must be established in the
capital, such consent is not necessary; it is still necessary but can be given implicitly. The practice
of many States corroborates this consensual view.
2. The “declaratory” theory is not borne out by State practice
3.16. As France has previously had occasion to observe83, a number of States make the
establishment of premises of foreign diplomatic missions on their territory explicitly subject to
some form of consent, which determines the starting date of the régime of inviolability to which
those premises will subsequently be entitled. Equatorial Guinea is aware of this but tries to
downplay the extent of these national practices, in particular by arguing that this is done only by
“some Western countries”84, whose intention, it claims, is “to provide a framework rather than
contradict the right that the VCDR grants the sending State to assign property as premises of its
diplomatic mission”85.
3.17. A close examination of these practices leads to utterly different conclusions. The very
fact that they exist shows that, contrary to the “declaratory” own-definition theory advanced by
Equatorial Guinea, the VCDR does not confer on the sending State any right to designate on its
own and at its convenience the buildings that are to house its mission. If it were so, those national
practices would, by definition, be contrary to the Convention, which the Applicant does not appear
to argue86. It merely presents them as an “exception”87, stating that “[i]n the event of a
81 MEG, para. 8.36. During the hearings on the preliminary objections, Equatorial Guinea again explained that
“[w]hen the Convention’s drafters wanted to restrict a State’s freedom to establish the premises of its diplomatic mission,
they did so explicitly. They did so, for example, with regard to the establishment of premises of a diplomatic mission in
locations other than the capital of the receiving State, by virtue of Article 12 of the Vienna Convention on Diplomatic
Relations.” (CR 2018/3, para. 20 (Pellet).)
82 Emphasis added. Art. 12 reads as follows: “The sending State may not, without the prior express consent of the
receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is
established.”
83 See POF, paras. 163-164.
84 MEG, para. 8.42. Equatorial Guinea cites Canada, Spain, the United States, the United Kingdom, Switzerland
and Sweden, as well as India and South Africa.
85 Ibid.
86 In its observations on the preliminary objections, it nevertheless asserts, without further clarification, that
“[t]here is no basis for a receiving State to establish a specific procedure unilaterally” (WSEG, para. 1.61). As noted
by one author, “Art. 41.1 requires persons enjoying privileges and immunities to respect the laws of the receiving
State. The view has therefore been taken by a number of receiving States that provided that the obligations imposed
by Article 21 of the Convention in regard to acquisition of mission premises are observed, it is fully compatible with
Article 1 (i) and with the Convention as a whole to control the particular premises in which foreign missions carry out
their functions.” (E. Denza, Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, Oxford
University Press, Oxford, 4th ed., 2016, pp. 16-17; emphasis added.)
40
41
- 27 -
disagreement between States regarding the establishment of such premises, the point of view of the
receiving State does not necessarily prevail”88, and that the sending State retains “the freedom to
choose its diplomatic premises . . . when the receiving State has no applicable national legislation
in this area”89. The VCDR of course states nothing of the kind and nowhere in the Convention is
there any recognition of the freedom of choice claimed by Equatorial Guinea, certainly not in the
radical form the Applicant seeks to uphold. There is nothing to prevent the receiving State from
exercising some control over the designation of buildings that the sending State intends to use for
the purposes of its diplomatic mission, if only so that it can verify that the conditions, both legal
and practical, are met for it to guarantee the inviolability of the said premises; whether it does so
through specific legislation, on the basis of guidelines or through the usual diplomatic channels is
immaterial from the point of view of international law. Many States thus seek to retain some
control over the sending State’s intended choice of diplomatic mission.
3.18. Far from confirming the declaratory view of a right to establish premises of a
diplomatic mission, the common feature of the national practices considered here is that, on the
contrary, they corroborate the existence of a régime based on agreement between the parties, in
accordance with the object and purpose of the Vienna Convention90. The practices of the
United States and the United Kingdom have already been mentioned91; suffice to recall that the
1982 US Foreign Missions Act provides that “[t]he Secretary shall require any foreign mission . . .
to notify the Secretary prior to any proposed acquisition, or any proposed sale or other disposition,
of any real property by or on behalf of such mission”92. Section 1 of the Diplomatic and Consular
Premises Act adopted by the United Kingdom in 1987 provides that
“where a State desires that land shall be diplomatic or consular premises, it shall apply
to the Secretary of State for his consent to the land being such premises . . . In no case
is land to be regarded as a State’s diplomatic or consular premises for the purposes of
87 MEG, para. 8.44; see also WSEG, para. 3.18.
88 WSEG, para. 3.18.
89 CR 2018/3, p. 49, para. 19 (Kamto).
90 As one author explains “[p]rovided that the power of control is exercised in such a manner that sending States
are able to acquire premises adequate and suitable to their needs . . . a system of control is not against the letter or spirit of
the Convention. It is in the interests of both sending and receiving States that mission premises are placed in locations
where they do not cause friction with local inhabitants and where the receiving State may discharge without undue
difficulty its duty of protection . . . A system of notification and agreement may also have the advantage of fixing
precisely when the status of mission premises begins and ends.” (E. Denza, op. cit., p. 147.)
91 See POF, para. 164.
92 Foreign Missions Act 22 U.S.C. 4301-4316, available at https://www.state.gov/documents/
organization/17842.pdf, § 4305 (a) (1). According to § 4305 (a) (2), “[f]or purposes of this section, ‘acquisition’ includes
any acquisition or alteration of, or addition to, any real property or any change in the purpose for which real property is
used by a foreign mission” (emphasis added). The text goes on to state that “[t]he foreign mission (or other party acting
on behalf of the foreign mission) may initiate or execute any contract, proceeding, application, or other action required
for the proposed action — (A) only after the expiration of the 60-day period beginning on the date of such notification (or
after the expiration of such shorter period as the Secretary may specify in a given case); and (B) only if the mission is not
notified by the Secretary within that period that the proposal has been disapproved; however, the Secretary may include
in such a notification such terms and conditions as the Secretary may determine appropriate in order to remove the
disapproval”.
42
- 28 -
any enactment or rule of law unless it has been so accepted or the Secretary of State
has given that State consent under this section in relation to it.”93
Other States, in various parts of the world, have formalized the need for their consent to the
establishment of premises of foreign diplomatic missions on their territory and specified the
procedural arrangements for the dialogue that must take place between the sending and receiving
States. While not aiming to be exhaustive, here are some examples:
 In South Africa, Section 12 of the Diplomatic Immunities and Privileges Act of 2001
provides:
“(1) All foreign missions or consular posts, the United Nations and all
specialised agencies or organisations referred to in this Act, must submit a written
request to the Director-General [of International Relations and Co-operation] for
acquiring, constructing, relocating, renovating, replacing, extending or leasing
immovable property in the Republic . . . (2) Any such request must consist of a
narrative and graphic description of, and indicate the reasons for, the proposed
acquisition, construction, relocation, renovation, replacement, extension or leasing.
(3) No deed of transfer of land may be registered . . . in the name of any such
government, mission or post, the United Nations or any such specialised agency,
organisation, person or representative unless the Director-General has informed the
Registrar of Deeds in writing that the property has been recognised for the use of an
embassy, chancellery, legation, office or official residence and that the
Director-General approves of such registration.”94
 In Germany, the Protocol Handbook of the Federal Foreign Office (1 January 2013) states:
“The use for official purposes of property (land, buildings and parts of
buildings) for diplomatic missions and career consular posts is possible only with the
prior agreement of the Federal Foreign Office (authorization for use) . . . The Federal
Foreign Office may attach obligations and conditions to its authorization for use . . .
Buildings or parts of buildings not used for diplomatic or consular purposes are
subject without reservation to German law. They are not entitled to any of the tax
exemptions, any immunity from measures of constraint or any protection of buildings
accorded to diplomatic missions and career consular posts.”95
 In Australia, the Protocol Guidelines: Diplomatic Missions in the Australian Capital Territory
(ACT) state:
“Any chancery to be located on Territory Land, but not within commercial
premises such as an office building, will need approval from the ACT Government.
93 Diplomatic and Consular Premises Act, 15 May 1987, Secs. 1 (1) and (3) (available at
http://www.legislation.gov.uk/ukpga/1987/46). Sec. 1 (3) states that “if (a) a State ceases to use land for the purposes of
its mission or exclusively for the purposes of a consular post; or (b) the Secretary of State withdraws his acceptance or
consent in relation to land, it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments
and rules of law”. For a commentary on this text, see, for example, C. Lewis, State and Diplomatic Immunity, London,
LLP, 3rd ed., 1990, which notes in particular that the certificate of the Secretary of State “is conclusive in any
proceedings” (p. 149).
94 Diplomatic Immunities and Privileges Act, 2001, Act No. 37, 2001, Government Gazette, Vol. 437, 29 Nov.
2001, No. 22876, available at: http://www.saflii.org/za/legis/num_act/diapa2001363.pdf.
95 Protocol Handbook of the Federal Foreign Office of the Federal Republic of Germany, published on 1 Jan.
2013, para. 12.1 (Ann. 8). The Handbook subsequently sets out the procedure for applying for authorization for use,
“strongly recommend[ing] that applications should be submitted a long time prior to the purchase or lease of premises”
(ibid., para. 12.1.1; emphasis in the original). [Translations by the Registry.]
43
- 29 -
Missions should contact Protocol Branch to ensure that ACT Government approval
will be forthcoming.”96
 In Brazil, the 2010 Manual of Rules and Procedures on Privileges and Immunities, A Practical
Guide for the Diplomatic Corps Accredited in Brazil informs foreign diplomatic missions that
“the establishment of seats of Diplomatic Missions (Chancery and Residence),
Consulates, and foreign Trade Offices on Brazilian territory, as well as the leasing,
acquisition, and localization of real property for such purpose are subject to prior
MRE authorization”97.
 In Canada, the guidelines on Property: Acquisition, Disposition and Development of Real
Property in Canada by a Foreign State (2017) provide that
“[a] foreign state shall seek, through normal diplomatic channels, the written consent
of the Department of Foreign Affairs, Trade and Development prior to the acquisition,
disposition and development of real property in Canada to be used as the premises of
the mission, consular premises and the residence of the career head of the consular
post”98;
they further state that
“[w]ith respect to acquisition requests, the real property concerned would not normally
be considered ‘inviolable’ for the purpose of the Vienna Convention during the
examination process, nor would the Government of Canada have a special duty to
ensure its protection during such period. It is therefore the responsibility of the foreign
state to plan accordingly”99.
 In Spain, Chapter 11 of the Practical Guide for the Diplomatic Corps Accredited in Spain
(2017) states:
“Circular Note Verbale 10/7, of 11 April 2011, reminded Diplomatic Missions,
Consular Posts and International Agencies with headquarters or offices in Spain that
the purchase or lease of real estate for official use, by EU countries and by non-EU
countries, are subject to the relevant prevailing national and municipal provisions.
Thus, it noted that it is necessary to address the competent municipal authorities in
96 Protocol Guidelines: Diplomatic Missions in the Australian Capital Territory, available at:
https://dfat.gov.au/about-us/publications/corporate/protocol-guidelines…-
territory.aspx, para. 11.1.2.
97 Manual of Rules and Procedures on Privileges and Immunities, A Practical Guide for the Diplomatic Corps
Accredited in Brazil, available at: https://sistemas.mre.gov.br/kitweb/datafiles/Cgpi/en-us/file/Manual.pdf, p. 73.
98 Guidelines on Property: acquisition, disposition or development of real property in Canada by a foreign state,
available at: https://www.international.gc.ca/protocol-protocole/policies-politiques/….
aspx?lang=eng, para. 3.1. The Canadian Government adds that “[t]his includes temporary moves and
relocations of missions and official residences due to renovation or other reasons” (ibid.).
99 Ibid., para. 3.3.
44
- 30 -
advance to ensure that the property to be purchased or leased can be used for the
intended purpose.”100
 In Norway, the guide Diplomat in Norway (2018) informs foreign missions that
“[l]ocal regulations may apply to the use of real estate by foreign nationals. The
purpose of the use of the property and other aspects may also be subject to regulations,
and it may be necessary to obtain relevant permits from the municipal planning and
building authorities”101.
 In the Netherlands, the Protocol Guide for Diplomatic Missions and Consular Posts (2018)
states that “[d]iplomatic missions may choose their own office and residential accommodation,
under several conditions”, which are as follows:
“Offices should in principle be situated within the municipality of The Hague.
Residential accommodation must in principle be situated in the environs of The Hague
(that is, within the municipalities of The Hague, Wassenaar, Leidschendam, Voorburg,
Rijswijk or Zoetermeer), so that the Dutch authorities can meet their obligation to
uphold the inviolability of such offices and residential accommodation and where
necessary to protect them.”102
 In the Czech Republic, the document entitled “Protection and Security of Diplomatic
Missions”, available on the website of the Ministry of Foreign Affairs, provides a detailed
description of the procedures to follow when a diplomatic mission wants to change premises:
“To enable the Czech Republic to take all appropriate steps to protect the
premises of the mission as required by the Vienna Convention on Diplomatic
Relations, a diplomatic mission, consular post or international organization preparing
to relocate its chancery or residence must announce the new address to the Diplomatic
Protocol well in advance. The Diplomatic Protocol, in cooperation with the competent
authorities, will consider whether the new property is suitable for the purpose namely
in terms of security, transport accessibility and operational needs. The new property
cannot be recognized as premises of the mission in terms of the Vienna Convention on
Diplomatic Relations without the consent of the receiving State, conveyed to the
mission through the Diplomatic Protocol. It is important to note that on approving the
relocation, the Diplomatic Protocol will not automatically change the mission’s
address in the Diplomatic List. The mission must first send to the Diplomatic Protocol
a verbal note formally announcing the date on which the change of address takes
effect.”103
100 Practical Guide for the Diplomatic Corps Accredited in Spain, available at: http://www.exteriores.gob.es/
Portal/es/Ministerio/Protocolo/Documents/GU%C3%8DA%20PR%C3%81CTICA%20CD%202017.%20INGL%C3%89
S.pdf, p. 73. The same document further states that “[p]rior to the purchase or lease of a property, a Note Verbale shall be
sent to the Deputy Director-General for Chancellery indicating the exact location of the property, in order to assess
whether it is feasible in terms of town planning” (ibid., p. 74).
101 Diplomat in Norway, 2018, available at: https://www.regjeringen.no/en/dep/ud/about_mfa/
diplomatic_relations/diplomat-in-norway/id2354407/, para. 31.
102 Protocol Guide for Diplomatic Missions and Consular Posts, available at: https://www.government.nl/
documents/leaflets/2015/04/15/protocol-guide-for-diplomatic-missions-en-consular-posts, p. 4.
103 Protection and Security of Diplomatic Missions, available at: https://www.mzv.cz/jnp/cz/o_ministerstvu/
organizacni_struktura/diplomaticky_protokol/x2_protection_and_sec urity_of_diplomatic.html, Sec. 2.1.1. (emphasis
added).
45
- 31 -
 In Switzerland, Article 16 of the Federal Act on the Privileges, Immunities and Facilities and
the Financial Subsidies granted by Switzerland as a Host State (Host State Act, HSA) of
22 June 2017 provides that “institutional beneficiaries”104 must submit an application to the
Federal Department of Foreign Affairs (FDFA) when they wish to “acquire land and buildings
for the purposes of their official activities”105;
“[t]he [FDFA] shall consult the relevant authority in the canton concerned and verify
that the acquirer is an institutional beneficiary within the meaning of Article 2,
paragraph 1, and that the acquisition is for official purposes. It shall then issue a
ruling. Approval of the application is conditional on the necessary authorisations, i.e.
building permits and safety clearance being obtained from the competent
authorities.”106
 In Turkey, in a section entitled “Approval of the Ministry”, the Guide to Diplomatic Missions
in Turkey (2015) provides:
“All Missions shall notify and request the consent [of] the Ministry prior to a
proposed lease, purchase, sale or other forms of acquisition or disposition of a real
property. This requirement applies to properties acquired for chancery or residential
use by the foreign government for its diplomatic and consular missions in Turkey.
Missions shall also notify and request the consent [of] the Ministry in advance to
alterations, renovations, additions on existing real estate or changes in their use.”107
3.19. All the States cited above are parties to the VCDR. Irrespective of their number and the
varying conditions and procedures they apply, all of them have laid down the principle of the
receiving State’s consent to the choice — by acquisition or other forms of taking possession — of
the buildings the sending State intends to actually use as premises of its mission. Clearly, none of
them considered that such a practice might be contrary to the Convention, or that a simple
“declaration” by the sending State would be sufficient to establish the diplomatic status of the
premises concerned and the concomitant régime of inviolability, regardless of the receiving State’s
response. Above all, these laws, guidelines and practical guides do not appear to have been
104 Which, according to Art. 2, para. 1 d., include diplomatic missions.
105 Art. 16, para. 1. Acquisition is defined as “any acquisition of a title to a building, part of a building or a piece
of land, a right of habitation or a usufruct to a building or a part thereof, or the acquisition of other rights which confer on
the holder equivalent status to that of owner, such as a long-term lease of land or buildings if the terms of such lease go
beyond the scope of practice in civil matters . . . A change of use is deemed an acquisition for these purposes.” (Art. 17,
paras. 1 and 2.)
106 Art. 16, para. 3. See also Art. 25 of the Ordinance to the Federal Act on the Privileges, Immunities and
Facilities and the Financial Subsidies granted by Switzerland as a Host State. In a Note of 28 July 1989 sent to the
Consulate General of State X in Geneva, the FDFA explained that “[t]he acquisition by a foreign State of a building
intended for its diplomatic mission is not sufficient for that State to be able to claim the inviolability of the premises. The
purchase agreement must be followed up by the effective establishment of the offices of the chancellery for inviolability
to take effect. It might nonetheless be considered that refurbishment of the diplomatic mission already gives rise to such
inviolability. The same applies when the sending State signs a lease agreement for the purposes of its diplomatic mission.
The agreement per se is not sufficient to lead to inviolability; here too, the criterion of actual assignment must be met”
(reproduced in L. Caflisch, “La Pratique Suisse en Matière de Droit International Public 1990”, Swiss Review of
International and European Law (SRIEL), Vol. 1, 1991, pp. 545-546.)
107 Guide to Diplomatic Missions in Turkey, available at: http://cd.mfa.gov.tr/Files/diplomaticguide.pdf,
Sec. 17.1. See also Sec. 17.2 on the applicable procedure.
46
- 32 -
contested by the States to which they are addressed, which confirms, if confirmation were needed,
that they are compatible with the Convention108.
3.20. Equatorial Guinea — which has embassies in Germany, South Africa, Spain, the
United Kingdom and the United States109 — knows of these practices; even though it attempts to
downplay their importance110, it cannot therefore be unaware of the fact that the consent of the
receiving State to a building being assigned for the purposes of the sending State’s diplomatic
mission does not entail a breach of the VCDR. Faced with such a rigorous conclusion, the
Applicant attempts a formal argument against France: since the latter “has no legislation to which it
could have referred Equatorial Guinea, unlike some States which require consent to the assignment
of a building as premises of a diplomatic mission”111, “the power to verify that premises are
actually assigned to a diplomatic mission, as claimed by France, is arbitrary”112.
3.21. As recalled previously113, this formalistic distinction is completely immaterial from the
point of view of international law: either the practice of consent of the receiving State, irrespective
of the specific procedures, is in breach of the VCDR or it is compatible with it. It is common
knowledge that in States which have not legally formalized their practices in this area — such as
the People’s Republic of China — the host State reserves the right to ascertain whether the sending
State’s choice of premises for its mission is acceptable, both in fact and in law.
3.22. In its Memorial, Equatorial Guinea states that the texts governing the establishment of
premises of foreign diplomatic missions are usually intended to ensure that it is not “permitted for
[such premises] to be established in a sensitive area or near sensitive buildings”114. This is quite
correct. However, it hardly seems feasible to consider that States which have not formalized their
practice in this area have relinquished the possibility of disallowing the diplomatic missions of
foreign States to be established in areas that are sensitive or strategic for the defence of their
national interests, just as it cannot be considered that they have relinquished that same right when
the choice of the sending State is intended to obstruct ongoing legal proceedings. The receiving
State thus retains the right to assess whether the sending State’s choice of premises for its
diplomatic mission is acceptable in light of what may be termed public policy considerations.
3.23. Finally, although Equatorial Guinea attempts to downplay the importance of these
practices and the role of the receiving State’s consent, it nonetheless fails to provide any example
of a State whose practice is to accept that foreign States can freely establish their diplomatic
missions in premises of their choosing, without any oversight. Equatorial Guinea itself has not
indicated whether it is possible for foreign States to establish their diplomatic missions in any
108 Eileen Denza notes, for example, with regard to the United Kingdom’s Diplomatic and Consular Premises Act
that its “compatibility with the Vienna Convention has not been challenged by other governments” (Diplomatic Law.
Commentary on the Vienna Convention on Diplomatic Relations, op. cit., p. 148).
109 Equatorial Guinea’s embassies are listed on the official website of the Government of the Republic of
Equatorial Guinea (https://www.guineaecuatorialpress.com/noticia.php?id=130). The French version of the site
(consulted on 30 Oct. 2018) still states that the Embassy of Equatorial Guinea in France is located at 29 boulevard de
Courcelles, Paris 75018.
110 See para. 3.16 above.
111 MEG, para. 8.41.
112 Ibid., para. 8.50. See also CR 2018/5, p. 29, para. 17 (Kamto).
113 See POF, para. 165.
114 MEG, para. 8.42.
47
- 33 -
premises whatsoever in Malabo, without there being any need to notify the authorities of Equatorial
Guinea of such a decision, if only “[a]s a courtesy”, and without it being possible for those same
authorities to object to the choice of those premises115.
B. The granting of diplomatic status to a building — and the ensuing inviolability régime —
is dependent on its actual assignment
3.24. Furthermore, it is not sufficient for a State to acquire or lease a building with a view to
establishing its diplomatic mission there for that building to be considered to form part of the
premises of the mission and as such to enjoy inviolability. Its diplomatic mission must be
effectively established there (1). This condition of effective use is also confirmed by State
practice (2).
1. A building constitutes diplomatic premises only if it is effectively used for the purposes of the
mission
3.25. The definition of diplomatic premises in Article 1 (i) of the VCDR simply states that
they must be understood as being “the buildings or parts of buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of the mission”.
3.26. As previously noted116, the definition in Article 1 (i) was not included in the draft
articles on diplomatic intercourse and immunities adopted by the ILC in 1958117, which merely
contained an indication in the commentary to draft Article 20 (“Inviolability of the mission
premises”) that “[t]he expression ‘premises of the mission’ includes the buildings or parts of
buildings used for the purposes of the mission, whether they are owned by the sending State or by a
third party acting for its account, or are leased or rented”118. During the discussions held within the
ILC on the draft, the question “of the exact moment from which inviolability of the premises
started”119 was touched on briefly and gave rise to different positions: Roberto Ago “understood
that it was the practice of the sending State to notify the receiving State that certain premises had
been acquired for use as the headquarters of its mission. The beginning of inviolability could,
therefore, date from the time such notification reached the receiving State”120;
Sir Gerald Fitzmaurice and Jean Spiropoulos, for their part, stated in similar terms, that “[t]he
inviolability of the premises . . . began from the time they were put at the disposal of the
mission”121; Alfred Verdross, in turn, pointed out that “[t]he inviolability and immunities of the
115 Ibid., para. 8.35. In its Note Verbale of 4 Oct. 2011, the Embassy of Equatorial Guinea explains to the
Ministry of Foreign Affairs, in contradiction to the stance it takes, that “[s]ince the building forms part of the premises of
the diplomatic mission, pursuant to Article 1 of the Vienna Convention on Diplomatic Relations of 18 April 1961, the
Republic of Equatorial Guinea wishes to give you official notification so that the French State can ensure the protection
of those premises, in accordance with Article 22 of the said Convention.” (Note Verbale No. 365/11 (Doc. No. 1 of the
additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the
indication of provisional measures); emphasis added.)
116 See POF, paras. 161-162.
117 The text of these draft articles is reproduced in YILC, 1958, Vol. II, A/CN.4/SER.A/1958/Add.1, pp. 89
et seq., para. 53.
118 Ibid., p. 95 (para. 2 of commentary to Art. 20; emphasis added).
119 YILC, 1957, Vol. I, Summary records of the ninth session, 394th Meeting, 9 May 1957, p. 52, para. 17
(Mr. Bartos).
120 Ibid., p. 53, para. 25 (Mr. Ago).
121 Ibid., p. 53, para. 19 (Sir Gerald Fitzmaurice) and para. 24 (Mr. Spiropoulos).
48
49
- 34 -
premises of the mission began only from the time that they were really in the service of the
mission”122.
3.27. In the end, the ILC refrained from dealing explicitly with this point123, which was
incorporated, during the Vienna Conference, in a “somewhat shortened version of th[e] descriptive
Commentary [to draft Article 20]”124, and added to the definitions in Article 1 of the Convention.
3.28. Significantly, the ILC preferred not to take the same approach in its draft articles as
that which prevailed during the preparation of the 1932 Draft Convention of the Harvard Law
School on Diplomatic Privileges and Immunities125, which retained the obligation of the sending
State to notify the receiving State of the occupation or use of the premises concerned126. The text of
Article 1 (i), for its part, adopts as a distinguishing criterion for mission premises the fact that they
are “used for the purposes of the mission”. Saying that it concerns buildings that are “used”
amounts to acknowledging that the sending State must “put [them] to use, make [them] serve a
precise purpose”127. In other words, it is not sufficient for the buildings to have been chosen and
designated by the sending State — and accepted by the receiving State; it is necessary for them to
be actually assigned for the purposes and functions of the mission.
3.29. This plain reading of the terms of the treaty is, moreover, supported by scholarly
analysis of the text and of the underlying issue. For example, Philippe Cahier states:
“We think that notification is not sufficient, as, moreover, the purchase of a
building with the intention to make it the headquarters of a diplomatic mission is not
sufficient. What is necessary is for the building to be actually assigned for that
purpose. From this point of view, works being carried out on the building may already
be sufficient to establish the inviolability of the headquarters; however, if, once the
work has been finished, there is no evidence of officials moving in after a certain
amount of time, no evidence of diplomatic activity, it could then be considered that
inviolability would end. Thus, the unilateral act of the receiving [sic] State manifested
122 Ibid., p. 52, para. 5 (Mr. Verdross).
123 “The question of the exact moment from which inviolability of the premises started was a very thorny one, and
in the absence of any established rule, it would be more prudent for the Commission to refrain from mentioning the
matter.” (Ibid., pp. 52-53, para. 17 (Mr. Bartos).)
124 E. Denza, op. cit., p. 16. The commentary to draft Article 20 on the “[i]nviolability of diplomatic premises”
states that “[t]he expression ‘premises of the mission’ includes the buildings or parts of buildings used for the purposes of
the mission, whether they are owned by the sending State or by a third party acting for its account, or are leased or rented.
The premises comprise, if they consist of a building, the surrounding land and other appurtenances, including the garden
and car park.” (YILC, 1958, Vol. II, A/CN.4/SER.A/1958/Add.1, p. 95 (para. 2 of the commentary to Art. 20).)
125 Text in American Journal of International Law (AJIL), Vol. 26, Supplement, 1932, p. 15.
126 According to Art. 3, para. 1, of that draft “[a] receiving State shall prevent its agents or the agents of any of its
political subdivisions from entering the premises occupied or used by a mission, or occupied or used by a member of a
mission, without the consent of the chief of the mission, provided that notification of such occupation or use has been
previously given to the receiving State” (ibid., p. 52). See P. Cahier, Le droit diplomatique contemporain, Librairie Droz,
Geneva, 2nd ed., 1964, p. 198 (“[t]he Commission did not think it had to follow up on this proposal” [translation by the
Registry]); E. Denza, op. cit., p. 145.
127 Le Nouveau Petit Robert. Dictionnaire de la langue française, Dictionnaires Le Robert, Paris, 1994, p. 2348
[translation by the Registry].
50
- 35 -
in the form of notification is sufficient only if it is followed up by facts. It is really
from that time that inviolability will apply to those buildings.”128
3.30. For buildings to be validly considered “premises of the mission”, they must therefore
be actually intended for and assigned to the functions of such a mission, as described in Article 3,
paragraph 1, of the VCDR:
“(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving
State, and reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural and scientific relations.”
3.31. Clearly, such functions could not be fulfilled in practice if the sending State did not
have buildings specifically and effectively reserved for that purpose in the receiving State. This
criterion of actual assignment reflects the object and purpose — as well as the spirit — of the
VCDR. It is also borne out by State practice.
2. State practice establishes the criterion of effective use
3.32. An examination of State practice confirms that applicability of the inviolability régime
set out in Article 22 of the VCDR is closely dependent on the property concerned being actually
assigned so that it may be considered premises of the diplomatic mission.
3.33. This is, in particular, the practice of France. Equatorial Guinea was reminded of this
practice when its authorities sought to argue that “the mere designation of premises by any
diplomatic mission is sufficient for those premises to be afforded the benefit of such protection as
is provided for by Article 22 of the Vienna Convention of 18 April 1961”. The Protocol
Department of the Ministry of Foreign and European Affairs informed Equatorial Guinea that
“in accordance with constant practice in France, an Embassy which envisages
acquiring premises for its mission so notifies the Protocol Department beforehand and
undertakes to assign the said premises for the performance of its missions or as the
residence of its head of mission. Official recognition of the status of ‘the premises of
128 P. Cahier, op. cit., p. 198 (emphasis added; the reference to the “receiving” State should be read as a reference
to the sending State) [translation by the Registry]. In the same vein, see also, for example, A. Aust, Handbook of
International Law, New York, Cambridge University Press, 2nd ed., 2010, pp. 118-119 (“[t]heir mere acquisition will, in
itself, not make them ‘premises of the mission’. But once the premises are ready to be occupied, they probably then
become premises of the mission and will continue so even if later they have to be vacated for refurbishment. They will
cease to have their special status once they cease to be used for the purposes of the mission, which is essentially a
question of fact, and which in practice is often a matter of negotiation with the receiving State. The receiving State can
always agree to treat the site on which new buildings for the mission are being constructed as premises of the mission
[Russia-UK Agreements of 1996, United Nations, Treaty Series (UNTS), 1997, Vol. 1967, No. 33636, p. 142;
United Kingdom Treaty Series (UKTS) (1997) 1 and 2].”)
51
- 36 -
the mission’ within the meaning of Article 1, paragraph (i), of the Vienna Convention
on Diplomatic Relations of 18 April 1961 is determined on the date of completion of
the assignment of the said premises to the services of the diplomatic mission, i.e., at
the time that they are effectively moved into. The criterion of actual assignment must
accordingly be satisfied. It is only as from that date, notified by Note Verbale, that the
premises enjoy the benefit of appropriate protection as provided for by Article 22 of
the Vienna Convention on Diplomatic Relations of 18 April 1961.”129
3.34. This practice of France applies in particular with regard to tax exemptions granted to
buildings with diplomatic status. Equatorial Guinea must have known this, since, when it sought
in 2005 to be exonerated of registration fees and land registration taxes relating to the acquisition of
a building on avenue de Verzy in Paris, intended as the residence of its Ambassador, the Protocol
Department of the French Ministry of Foreign and European Affairs informed it that “this benefit
may be withdrawn should the property be reassigned”130.
3.35. This French practice is confirmed by jurisprudence. In a decision rendered in 1929, the
Tribunal civil de la Seine had already upheld that “it is not the acquisition of property by a foreign
State that establishes, ipso facto, the benefit of extraterritoriality for that property, but only
the assignment — once it has taken place — of the said property to the offices of the Embassy of
that State”131.
3.36. In a 2005 decision concerning property of the Democratic Republic of the Congo, the
Chambre civile of the French Cour de cassation similarly ruled that “having found that the
property in question was not assigned to the offices of the Embassy or its annexes and was not the
residence of the Ambassador, . . . the appeal court decided, quite rightly, that the Democratic
Republic of the Congo could not claim immunity from execution”132.
3.37. The practice of other States is consistent with that of France. The following are some
examples:
129 Ministry of Foreign and European Affairs, Note Verbale No. 1341 PRO/PID, 28 Mar. 2012 (Doc. No. 18 of
the additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the
indication of provisional measures). In its reply to the questions of the investigating judges assigned to the “ill-gotten
gains” case, the Protocol Department stated that
“[f]or reference, a building with diplomatic status must be declared as such to the Protocol Department,
with a specific date of entry into the premises. Once it has been verified that the building is actually
assigned to a diplomatic mission, the Protocol Department informs the French Government that it has
been officially recognized in accordance with the relevant provisions of the Vienna Convention on
Diplomatic Relations of 18 April 1961 . . . The building at 42 avenue Foch has never been recognized by
the Protocol Department as forming part of the diplomatic mission of the Republic of Equatorial Guinea.”
(Note Verbale No. 5009/PRO/PID, 11 Oct. 2011, Ann. 35, MEG.)
130 Note Verbale No. 3190 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 6 July 2005 (Ann. 9).
131 Tribunal civil de la Seine, 30 Oct. 1929, Suède v. Petrocochino, Journal du droit international (JDI), Vol. 59,
1932, p. 946 (emphasis added). The judgment states immediately afterwards that “while it is not contested that the house
at issue is part of a property of which certain buildings are occupied by the Swedish legation, it emerges from the debates
that Petrocochino occupies the entire house and that at no time during its lease has the said house, or even part of it, been
assigned to the offices of that legation” (ibid.; emphasis added). [Translations by the Registry.]
132 Cour de cassation, 1st Chambre civile, 25 Jan. 2005, République démocratique du Congo v. Syndicat des
propriétaires de l’immeuble résidence Antony Châtenay, No. 03-18176, D., 2005, p. 616; Revue critique de droit
international privé (RCDIP), 2006, p. 123, Note Horatio Muir Watt [translation by the Registry].
52
- 37 -
 The Supreme Restitution Court of Berlin (SRCB), established by the Allied Powers at the
end of the Second World War to rule on requests for the restitution of property confiscated
illegally between 1933 and 1945, handed down a number of decisions relating to the status or
régime of buildings used by foreign States during the war and having not been used for
diplomatic purposes since. The court dismissed each and every request for recognition of the
inviolability of the buildings concerned, noting in particular “that no diplomatic activity
whatever, in the sense of the conduct of diplomatic relations between a sending sovereign and a
receiving sovereign, exists in West Berlin. When, therefore, the use and the function of the
premises has ceased — and ceased for a reason not truly and merely temporary — then their
immunity must be considered as likewise having come to an end”133. Adopting the same
reasoning, the court stated in another decision that “[t]he rationale of functional necessity
makes it clear that the immunity of diplomatic premises exists because of their possession,
coupled with their actual use, for diplomatic purposes. Absent the elements of possession and
of actual use, a mere intention to use such premises for diplomatic purposes in the future, prior
to their actual use, is of no legal significance upon the question of the resurrection of the
privilege of immunity”134.
 In Germany, the Federal Supreme Court made the following ruling in 1969 with regard to a
building which had housed the premises of the Hungarian diplomatic mission before the
Second World War and was destroyed in 1945:
“The immunity of embassy property from execution extended only so far as
performance of the duties of the diplomatic mission required. The test was whether
satisfaction of a claim by execution would interfere with the functioning of the
mission. Where immoveable property used for the purposes of the mission ceased to
be used, its immunity from execution automatically ended.”135
More recently, relying on evidence provided by the sending State regarding the assignment of
premises and corroborated by the German Ministry of Foreign Affairs, the same court took the
133 SRCB, 10 July 1959, Tietz v. Bulgaria, (ORG/A/1266), AJIL, Vol. 54, 1960, pp. 165-178, p. 177. In the same
case, the Court set out in detail the ratio legis of the privileges and immunities enjoyed by diplomatic premises: “[i]t is
only because of these important public (yet personal) human necessities which affect the conduct of diplomacy and of
international relations that the buildings and the precincts of an embassy enjoy their traditional nexus of special privileges
and immunities. These privileges and immunities of the buildings and the real property on which the buildings stand are
in reality no more than an inanimate reflection of the necessary public privileges and immunities of the persons who
embody the mission, and who constitute the embassy staff, and these privileges and immunities were created and exist
and are designed to be applicable in order to ensure to the mission the peace of mind and tranquillity, together with the
sense of security and confidence, which are so indispensable in permitting the persons who are members of an embassy
or legation staff to perform their great public duties to the best of their personal capacities, without being interfered with
or impeded in any way whatever, no matter how slight, by local disturbances or difficulties or by the possibility of the
existence of local disturbances or difficulties.” (Ibid., p. 173.)
134 SRCB, 10 July 1959, Cassirer v. Japan, (ORG/A/1896), AJIL, Vol. 54, 1960, pp. 178-188, p. 187. Regarding
these decisions, see in particular P. Cahier, op. cit., p. 199.
135 Federal Supreme Court, 1969, Hungarian Embassy Case, Case No. V ZR 122/65, ILR, Vol. 65, p. 111. The
court goes on to state that “the purchase of the property . . . has occurred at the level of private law so that no immunity
existed in respect of this act. Nor was this affected by the fact that the property was intended to serve and did serve to
accommodate the Hungarian Embassy. As long as an embassy of a foreign State was erected on the land purchased, the
land did indeed remain extraterritorial. This principle, however, did not apply on an unrestricted basis . . . The immunity
of embassy land extended only so far as the performance of the duties of the diplomatic mission required . . .
Furthermore, the defendant could not rely upon extraterritoriality in respect of the land because, since its destruction, it
had no longer been using the land for embassy purposes.” (Ibid., p. 112.)
53
54
- 38 -
view that a building presented by Kenya as being part of its diplomatic premises enjoyed
inviolability and could not be subjected to a forced sale136.
 In Canada, the Ontario Court of Justice rejected a request from Croatia for a property (known
as Fairview Avenue) — against which there was an outstanding debt — to be considered as
forming part of the premises of its diplomatic mission and to benefit from the Article 22
régime; the court first took the view that “the ‘premises of the mission’ as defined in
Article 1 (i) of the Vienna Convention on Diplomatic Relations (Vienna Convention) does not
include lands and buildings never used in the past or present or in all likelihood ever to be used
in the future as the premises of the mission, and therefore such lands and buildings are not
subject to the special protection and immunity of Article 22 of that convention”137; having
examined the evidence put forward by the debtor, the court dismissed the argument that
“Fairview Avenue is the premises of the Croatian mission because the Croatian
ambassador intends to reside there. Croatia presented no evidence of that intent other
than an aside in a letter dated August 6, 1997, that Fairview Avenue was to be used as
the premises of the Croatian mission. The court buttressed its rejection of Croatia’s
argument by stating that the inviolability and immunity of Article 22 of the Vienna
Convention attaches to the premises where the ambassador currently resides, which is
not Fairview Avenue. Thus, the court concluded that Fairview Avenue is not the
premises of the Croatian mission.”138
 In the United States, in 1982, an appeal court refused to grant a request from a county to
collect property tax on a building acquired and used by the German Democratic Republic to
house staff of its diplomatic mission. The judge based his decision on the US Foreign Missions
Act139, the views of the State Department and the actual use of the building under
consideration140.
 The British courts have been faced with such questions on a number of occasions and have
clearly favoured the criterion of actual assignment and the views of the Foreign Office on the
diplomatic nature of a given building. France has previously cited a landmark decision of the
United Kingdom’s High Court of Justice, in which a London property owned by the Federal
Republic of Nigeria was denied the benefit of the Article 22 régime in the absence of a
136 See Federal Supreme Court, 28 May 2003, Kenyan Diplomatic Residence Case, Case No. IXa ZB 19/03, ILR,
Vol. 128, pp. 632-639 (“[t]he debtor [Kenya] has sufficiently established its submissions, in view of the fact that its
embassy declared, in a note verbale of 17 August 2001 to the Ministry of Foreign Affairs, that the premises were being
used for diplomatic purposes at the time of the order and continue to be used as the diplomatic residence of the embassy
and in order to accommodate staff of the diplomatic mission during their stay in Bonn. Moreover, as the Ministry has
informed the Court by letter of 7 November 2001, the debtor’s ambassador declared personally at a meeting in the
Ministry of Foreign Affairs that the premises continue to be used by him in person and his colleagues for diplomatic
purposes on official visits to Bonn and in the case of visits by delegations from Kenya. These statements prove that, even
when the creditor’s submissions are taken into account, there is an overwhelming probability that the facts asserted by the
debtor are true.” (Ibid., p. 637; emphasis added.))
137 Ontario Court of Justice (General Division), 15 Jan. 1998, Croatia (Republic) v. Ru-Ko Inc., [1998] 37 O.R.
(3d) 133, in American Bar Association, International Law News (ILN), Vol. 27, 1998, p. 16.
138 Ibid., pp. 16-17.
139 See above, para. 3.18.
140 “Neither the Act nor its legislative history specifies what property is or is not ‘used for purposes of
maintaining a diplomatic or consular mission.’ The views of the Department concerning the scope of this phrase, though
not conclusive, are entitled to great weight. The Department is charged with maintaining our missions abroad and with
dealing with foreign missions here. It has expertise for determining whether property is used for maintaining a mission.
Only if its views are manifestly unreasonable should they be rejected. In this instance we believe the Department’s views
are reasonable. The property is owned by a foreign state, and presently it is used exclusively by its diplomatic and
consular staff and their families. It is not operated for profit as a commercial venture. On the contrary, it serves a public
function.” (CA, 4th circuit, 1 Feb. 1982, US v. County of Arlington, 669 F. 2d 925, p. 937; emphasis added.)
55
- 39 -
certificate from the Secretary of State141. In a previous case, the same court refused to consider
that a building owned by Iran, which had been abandoned several years earlier after
intervention by British special forces and a fire, was still part of Iran’s diplomatic premises.
The judge reasoned that
“[t]he fact that premises have been used in the past cannot be relevant to the state
immunity afforded by the Vienna Convention 1961. The evidence is clear that since
May 1980 the premises have not been used. The premises are in such a state now that
they could not be used without extensive rebuilding . . . The Foreign and
Commonwealth Office, in a letter dated 2 November 1984, expressed to the city
council the view that the building no longer constituted the premises of the Iran
mission within the meaning of article 1 (i). I agree. It seems to me clear beyond
argument that the premises have ceased to be used for the purposes of the mission, and
in those circumstances the provisions of article 22 have no application to the
premises.”142
3.38. The examples cited above, while not exhaustive143, point to a constant and
long-established jurisprudential practice of recognition of diplomatic inviolability being conditional
on the actual assignment of the building concerned, with particular focus being placed on the views
of the receiving State. In 1960, one author was thus able to state with regard to this practice:
“The protection that the receiving State is required to ensure for the premises of
a diplomatic mission is fundamentally linked, under general international law, to the
fact that those premises serve as the headquarters of the sending State’s mission. This
fact consequently also determines the duration of the protection. The sending State is
entitled to that protection only from the time and until the time the premises it owns or
occupies are used for the purposes of the diplomatic mission, are assigned to
diplomatic service.”144
141 High Court of Justice (Mr. Justice Males), Avionics Technologies Ltd. v. Nigeria, [2016] EWHC 1761
(Comm), 8 July 2016 (available at http://www.bailii.org/ew/cases/EWHC/Comm/2016/1761.html); see POF, para. 151.
142 High Court of Justice, Chancery Division, 21 Jan. 1986, Westminster City Council v. Iran, [1986] 1 Weekly
Law Reports (WLR) 979, 1986, pp. 984-985.
143 For instance, Jean Salmon notes that, “regarding, for example, a building or land bought by a State to establish
an embassy (or a consulate), but not yet assigned as such, the State’s jurisdictional immunity in respect of that acquisition
is not recognized by the courts: Rome Civil Tribunal, Perucchetti v. Puig y Cassauro, 6 June 1928, Foro Italiano, p. 857;
ADILC (1927-28) case No. 247, p. 366. — Tribunal civil de la Seine, State of Sweden v. Petrococchino, 30 Oct. 1929 . . .,
Clunet, 1932, p. 945, ADILC, (1929-1930), case No. 198” (p. 191). “ — Mixed Civil Tribunal of Cairo, Minister of
Yugoslavia in Egypt v. W.R. Fanner, 29 April 1947, Clunet, 1949, p. 113; — Tokyo District Court, Limbin Hteik Tin
Lat v. Union of Burma, 9 June 1954, ILR, Vol. 32, p. 124. — West Berlin, Kammergericht, 25 February 1955,
Mrs J.W.V. Republic of Latvia, AJIL, 1955, p. 574. — Brussels Tribunal de première instance, 3 March 1989, Boubaker
v. Kingdom of Saudi Arabia, (unpublished)” (Manuel de droit diplomatique, op. cit., p. 192). See also the judgment of the
European Court of Human Rights in Manoilescu and Dobrescu v. Romania and Russia (ECHR, 3 Mar. 2005,
No. 60861/00, para. 77).
144 M. Giuliano, “Les relations et immunités diplomatiques”, Collected Courses of the Hague Academy of
International Law (RCADI), Vol. 100, 1960, pp. 189-190 [translation by the Registry]. See also H. P. Romberg, “The
Immunity of Embassy Premises”, British Year Book of International Law (BYIL), Vol. 35, 1959, p. 235 (“The general
immunity of embassy buildings has been the subject of many decisions of national and international courts. Some of
these decisions deal with the inception of the immunity and state that the purchase of real property does not ipso facto
invest the property with the privileges of extraterritoriality but that it is necessary for the property to be completely
appropriated to the services of the embassy.”).
56
- 40 -
3.39. In support of its arguments relating to Article 22, paragraphs 1 and 3, Equatorial
Guinea claims first that “[a] building which has very recently been acquired by the sending State —
when, as in the present case, that State intends it to be used as premises of its diplomatic mission —
enjoys inviolability on the same basis as a building effectively used for that purpose”145; referring
very briefly to the “practice of other States”, it goes on to assert, in more nuanced terms146:
“While, generally speaking, the practice is that the mere acquisition of a
building does not suffice for it to be recognized as inviolable under Article 22 of the
VCDR, it nonetheless does not require that the building be used effectively and fully
as premises of the diplomatic mission for the obligation under that article to be
operative. Jurisprudence has referred both to complete appropriation for use as
Embassy premises and to use, usually in situations where such use was effective
before the dispute over immunity was brought before the courts”147.
3.40. By way of “practice”, Equatorial Guinea cites just one decision rendered in 2001 by the
Brussels Cour d’appel and the circumstances surrounding the construction of the United States
Embassy in China. However, in the first instance, the excerpt reproduced in the Memorial shows
that the Cour d’appel in fact based its decision on the converging views of the sending and
receiving States148, and, in the second example, an agreement concluded between the United States
and China provides for the building concerned to be accorded inviolability from the date of
delivery of possession149.
3.41. Far from undermining France’s consistent position, these two examples reinforce it. It
is the actual assignment of a building that determines its diplomatic status and, consequently, the
associated inviolability régime; the sending State cannot impose its views in this matter on the
receiving State, and the possibility of granting inviolability before actual assignment (or once
assignment has ceased) remains subject to the express agreement of the receiving State.
3.42. State practice whereby premises can enjoy diplomatic status only if the receiving State
does not object, and only if said premises are effectively used for the purposes of a diplomatic
mission, has become more prevalent in recent years150. It does not entail any alteration of the
inviolability régime provided for in Article 22 of the VCDR, but, on the contrary, ensures that the
integrity of that régime is maintained, being reserved specifically for premises effectively used for
the purposes of a diplomatic mission. It is in light of this fact that it should be determined whether
the conduct of France was lawful in this instance.
145 MEG, para. 8.15.
146 Ibid., paras. 8.15-8.16.
147 Ibid., para. 8.16.
148 See Brussels Cour d’appel, Democratic Republic of the Congo v. Segrim NV, judgment of the 8th Chamber,
11 Sept. 2001, para. 20, quoted in MEG, para. 8.15 (“it is clear from recent announcements made by the Ambassador of
the sending State and by the Belgian Ministry of Foreign Affairs that the designated use of the building has remained
unchanged”).
149 See E. Denza, op. cit., p. 146.
150 See, for example, J. d’Aspremont, “Premises of Diplomatic Missions”, in R. Wolfrum (ed.), The Max Planck
Encyclopedia of Public International Law, Vol. VIII, Oxford University Press, Oxford, 2009, p. 414 (“[i]t is clear that the
requirement of prior notification is being eroded to give way to satisfaction of functional, or close thereto, usage of
diplomatic premises in order to trigger inviolability”).
57
58
- 41 -
II. The building at 42 avenue Foch never acquired the status of diplomatic premises and
therefore does not enjoy inviolability under the Vienna Convention
on Diplomatic Relations
3.43. In this case, a simple examination of the facts at issue is sufficient to show that the
premises of 42 avenue Foch never acquired diplomatic status and that France cannot therefore have
violated its obligations under Article 22 of the VCDR. Indeed, France has consistently refused to
grant the building at 42 avenue Foch the status of diplomatic premises (A) and, in any event, the
building was not assigned for the purposes of Equatorial Guinea’s mission in Paris at the time it
was searched and attached (B).
A. France has expressly opposed the granting of diplomatic status to the building at
42 avenue Foch
3.44. French practice regarding the granting of diplomatic status to buildings which a
sending State wishes to assign to its diplomatic mission is fully in line with the national practices
described above. Indeed, as French practice suggests, and as brought to the attention of Equatorial
Guinea151, prior official notification by a sending State of its intention to assign premises to the
offices of its mission is generally sufficient for the Ministry to recognize that those premises
benefit from the régime of the VCDR. Under these quite common circumstances, the absence of
express opposition from the competent French authorities constitutes recognition of the diplomatic
status of the property concerned. As Professor Eileen Denza notes:
151 Note Verbale No. 1341 PRO/PID from the Ministry of Foreign and European Affairs of the French Republic
to the Embassy of the Republic of Equatorial Guinea, 28 Mar. 2012 (Doc. No. 18 of the additional documents
communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional
measures), whereby the Protocol Department of the Ministry of Foreign and European Affairs recalled that
“[i]n accordance with constant practice in France, an Embassy which envisages acquiring
premises for its mission so notifies the Protocol Department beforehand and undertakes to assign the said
premises for the performance of its missions or as the residence of its head of mission.
Official recognition of the status of ‘the premises of the mission’, within the meaning of Article 1,
paragraph (i), of the Vienna Convention on Diplomatic Relations of 18 April 1961, is determined on the
date of completion of the assignment of the said premises to the offices of the diplomatic mission, i.e., at
the time that they are effectively moved into. The criterion of actual assignment must accordingly be
satisfied.
It is only as from that date, notified by Note Verbale, that the premises enjoy the benefit of
appropriate protection as provided for by Article 22 of the Vienna Convention on Diplomatic Relations of
18 April 1961.”
In its response to the requests for information made by the investigating judges assigned to the “ill-gotten gains” case, the
Protocol Department explained that,
“[f]or reference, a building with diplomatic status must be declared as such to the Protocol Department,
with a specific date of entry into the premises. Once it has been verified that the building is actually
assigned to a diplomatic mission, the Protocol Department informs the French Government that it has
been officially recognized in accordance with the relevant provisions of the Vienna Convention on
Diplomatic Relations of 18 April 1961.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The building at 42 avenue Foch has never been recognized by the Protocol Department as
forming part of the diplomatic mission of the Republic of Equatorial Guinea.” (Note Verbale
No. 5009/PRO/PID, 11 Oct. 2011 (MEG, Ann. 35).)
59
60
- 42 -
“In States where no specific domestic legal framework controls the acquisition
or disposal of mission premises, the definition of Article 1 (i) falls to be applied by
agreement between sending and receiving State. Generally speaking, a receiving State
is likely to be notified of mission premises for the purpose of ensuring that it carries
out its duties under Article 22 to protect those premises and ensure their inviolability.
Challenge to such notification will usually take place only where there are grounds to
suspect that the premises are not being used for purposes of the mission. Article 3,
which describes the functions of the mission, may be relevant in this context”152.
3.45. Contrary to Equatorial Guinea’s claims, this prior official notification cannot be
considered a mere “courtesy”153. While it must allow the receiving State to approve, at least
implicitly, or expressly oppose the granting of diplomatic status, it also ensures that the authorities
of the State approving such status give full effect to its ensuing obligations under the VCDR. When
a State acquires premises to house its diplomatic mission, it is, for example, entitled to request an
exemption from the property registration fees and taxes associated with that acquisition. Equatorial
Guinea cannot be unaware of this, since, although France has never received an exemption request
for the building at 42 avenue Foch, such a request was made by Equatorial Guinea following its
acquisition of a building on avenue de Verzy in Paris for use as the residence of its Ambassador154.
3.46. As previously recalled155, France has expressly refused, on a number of occasions, to
grant diplomatic status to the premises at 42 avenue Foch156. It has refused to do so ever since
Equatorial Guinea first attempted to shield the building at 42 avenue Foch under the VCDR régime,
when, on 11 October 2011 — just seven days after Equatorial Guinea first sent notification of the
building’s alleged assignment for diplomatic purposes — it stated that “the above-mentioned
building does not form part of the premises of Equatorial Guinea’s diplomatic mission. It falls
within the private domain and is, as such, subject to ordinary law”157; it recalled its constant
practice in this area and set out the reasons why it was unable to recognize officially the building at
152 E. Denza, op. cit., p. 17 (emphasis added).
153 MEG, para. 8.35.
154 Note Verbale from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign Affairs of the
French Republic, 27 Dec. 2006 (Ann. 2).
155 See POF, para. 29; Comments of the French Republic on the replies of Equatorial Guinea to the questions put
by Judge Bennouna and Judge Donoghue, 31 Oct. 2016, para. 32.
156 See in particular Note Verbale No. 5007 from the Ministry of Foreign Affairs of the French Republic to the
Embassy of the Republic of Equatorial Guinea, 11 Oct. 2011 (Doc. No. 2 of the additional documents communicated by
France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures); Note
Verbale No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of
Equatorial Guinea, 31 Oct. 2011 (Doc. No. 4 of the additional documents communicated by France on 14 Oct. 2016 in
the context of Equatorial Guinea’s request for the indication of provisional measures); Note Verbale No. 80[3] from the
Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of Equatorial Guinea, 20 Feb. 2012
(Doc. No. 12 of the additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s
request for the indication of provisional measures); Note Verbale No. 1341 from the Ministry of Foreign Affairs of the
French Republic to the Embassy of the Republic of Equatorial Guinea, 28 Mar. 2012 (Doc. No. 18 of the additional
documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of
provisional measures); Note Verbale No. 2017-158865 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of the Republic of Equatorial Guinea, 2 Mar. 2017 (Ann. [7]).
157 Note Verbale No. 5007 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 11 Oct. 2011 (Doc. No. 2 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
61
- 43 -
42 avenue Foch as the seat of the chancellery of Equatorial Guinea following the reported move of
27 July 2012158.
3.47. French practice in relation to other States confirms that Equatorial Guinea has not been
subjected to discriminatory treatment. That practice is based on the right of the receiving State to
agree or refuse to grant diplomatic status to premises. For instance, in May 2016, a State asked the
Ministry of Foreign Affairs and International Development to “confirm the diplomatic status”159 of
a building it owned in the 16th arrondissement of Paris. In reply, the Protocol Department pointed
out that the premises in question, which had previously housed the Consulate General of the State
concerned, had been in disuse since 1 August 2014 and “subject to ordinary law since that date”160.
Similarly, in response to a request made by an Embassy that wished to know which of its properties
in Paris benefited from diplomatic immunity and since when161, the Protocol Department explained
that buildings such as those housing the Embassy, its offices and the residence of the Ambassador
enjoyed diplomatic privileges and immunity “as from the date of effective entry into the
premises”162. The Ministry noted, however, that other residences “do not form part of the premises
of the mission within the meaning of Article 1 (i) of the Vienna Convention on Diplomatic
Relations of 18 April 1961 [and, t]herefore, . . . do not enjoy privileges and immunities”163 under
that Convention.
3.48. In the present case, where the sending State’s conduct is exceptional, the Ministry of
Foreign Affairs had every reason to believe that far from wanting to “ensure the efficient
performance of the functions” of its diplomatic mission, as provided in the preamble to the VCDR,
Equatorial Guinea instead intended to “benefit individuals” by attempting to alter the actual —
private — assignment of the building at 42 avenue Foch, and to do so in the context of ongoing
criminal proceedings involving those premises. In this light, the claims that the building was used
for the purposes of the mission could not reflect the reality.
3.49. It is clear from the foregoing that, owing to the refusal of the receiving State, the
building at 42 avenue Foch could not have validly acquired the diplomatic status provided for in
the VCDR. Consequently, it did not enjoy inviolability under Article 22 of that Convention, which
France did not therefore breach.
158 Note Verbale No. 3503 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 6 Aug. 2012 (MEG, Ann. 49).
159 Note Verbale from the Embassy of [X] to the Ministry of Foreign Affairs and International Development of
the French Republic, 6 May 2016 (Ann. 10; emphasis added).
160 Note Verbale No. 2016-468932 from the Ministry of Foreign Affairs and International Development of the
French Republic to the Embassy of [X], 24 June 2016 (Ann. 11).
161 Note Verbale from the Embassy of [X] to the Ministry of Foreign Affairs and International Development of
the French Republic, 12 Jan. 2017 (Ann. 12).
162 Note Verbale No. 2017-050359 from the Ministry of Foreign Affairs and International Development of the
French Republic to the Embassy of [X], 20 Jan. 2017 (Ann. 13).
163 Ibid.
62
- 44 -
B. France has not breached its obligations under Article 22 of the Vienna Convention on
Diplomatic Relations since the building at 42 avenue Foch did not have diplomatic status
when the measures of search and seizure were carried out
3.50. First, it should be noted that in the context of the dispute between Equatorial Guinea
and France only paragraphs 1 and 3 of Article 22 are relevant, since the Applicant has never
claimed that France might have breached its obligations under paragraph 2164.
3.51. As noted by the Applicant during the hearings on the preliminary objections,
“the date on which the building located at 42 avenue Foch did or did not acquire the
status of premises of the diplomatic mission of the Republic of Equatorial Guinea and,
consequently, the inviolability guaranteed by Article 22 of the Vienna Convention, is
very much the subject-matter of the dispute over which Equatorial Guinea claims that
the Court has jurisdiction”165.
In its Application, Equatorial Guinea asserts that the dispute “aris[es] from certain ongoing
criminal proceedings in France”166; in its submissions with regard to the building, it states that it is
requesting the Court “to adjudge and declare that, by attaching the building located at 42 avenue
Foch in Paris, the property of the Republic of Equatorial Guinea and used for the purposes of that
country’s diplomatic mission in France, the French Republic is in breach of its obligations under
international law, notably the Vienna Convention on Diplomatic Relations”167.
3.52. As France has already had occasion to point out168, the dispute between the two States
is strictly linked to the institution of the criminal proceedings which led to the attachment of the
building concerned. If, during that period, the building at 42 avenue Foch was reserved for the
private use of the defendant — whom Equatorial Guinea has never claimed to have diplomatic
status or, a fortiori, the status of head of its mission in France — then the régime provided for by
the VCDR could not apply to it, and France cannot therefore have violated the Convention. The
only “action[s] of [the French] authorities in relation to the building [capable of] breach[ing] its
obligations under Article 22”169 are in fact the searches, all of which took place between
28 September 2011 and 23 February 2012. Indeed, it is important to recall that the attachment
carried out on 19 July 2012 affects only the right of ownership of the building and therefore cannot
entail a breach of the inviolability which the building at 42 avenue Foch is said by Equatorial
Guinea to enjoy. Moreover, even if that building were now home to the seat of Equatorial Guinea’s
mission in Paris — which France has always contested170 — the Applicant made no claim in its
164 According to Equatorial Guinea, “[i]n the present case, the French authorities have both breached the
prohibition on entering the premises of Equatorial Guinea’s diplomatic mission without the consent of the head of the
mission and carried out measures of constraint against the building which were prohibited by the provisions of Article 22,
paragraph 3, of the VCDR” (MEG, para. 8.11).
165 CR 2018/5, p. 26, para. 8 (Kamto). In its Memorial, Equatorial Guinea also explains that “[o]ne of the
fundamental aspects of the dispute is indeed to determine whether the building located at 42 avenue Foch in Paris forms
part of the premises of Equatorial Guinea’s diplomatic mission in France, and as from what date” (MEG, para. 5.46).
166 AEG, para. 2 (emphasis added).
167 Ibid., para. 41 [(c)] (i) (emphasis added).
168 See CR 2018/4, p. 13, para. 9 (Pellet).
169 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 70.
170 See above, Chap. 1, paras. 1.19-1.23.
63
64
- 45 -
Application instituting proceedings that any further measures were carried out in breach of the
provisions of the VCDR.
3.53. Equatorial Guinea, moreover, takes the view that “[t]he building located at 42 avenue
Foch should be considered as the premises of Equatorial Guinea’s diplomatic mission in France as
from 4 October 2011”171, the date on which the Embassy of Equatorial Guinea in France informed
the Ministry of Foreign Affairs of the French Republic that it had “for a number of years had at its
disposal a building located at 42 avenue Foch, Paris (16th arr.), which it uses for the performance
of the functions of its diplomatic mission”172.
3.54. Whether in its exchanges with France or in its presentations before the Court,
Equatorial Guinea’s claims regarding the date from which the building at 42 avenue Foch should
be considered as diplomatic premises have varied considerably, the Applicant citing in turn
15 September 2011, 4 October 2011 and even 27 July 2012173. These prevarications are themselves
evidence of the abuses of diplomatic rights that Equatorial Guinea has committed in its attempt to
frustrate the progress and outcome of the legal proceedings against Mr. Teodoro Nguema
Obiang Mangue174. However, as France recalled above175, the crucial point is that the building at
42 avenue Foch was not assigned to any actual diplomatic activity when it was searched between
28 September 2011 and 23 February 2012, nor when the attachment took place on 19 July 2012.
3.55. Indeed, a simple examination of the facts of this case shows that the premises at
42 avenue Foch were not part of Equatorial Guinea’s diplomatic mission when they were subjected
to the measures of search and seizure contested by the Applicant (1). They were therefore not
entitled to inviolability under the VCDR. Consequently, France has not violated its obligations
under Article 22 of that Convention (2).
1. The facts of the case show that the premises at 42 avenue Foch were not actually assigned
for the purposes of Equatorial Guinea’s diplomatic mission when they were searched and
attached
3.56. The at best chaotic and undoubtedly abusive circumstances in which Equatorial Guinea
claimed that the building at 42 avenue Foch formed part of the premises of its diplomatic mission
in Paris have already been amply recalled176. It does not therefore seem necessary to return to this
here, other than to underline that, at the time of the measures of search and seizure referred to in the
Application instituting proceedings, the building was not actually assigned for the performance of
the functions of Equatorial Guinea’s mission in France.
171 MEG, para. 8.46.
172 Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
173 See above, Chap. 1.
174 See below, Chap. 4.
175 See above, Chap. 1.
176 See CR 2016/15, pp. 9-12, paras. 11-28 (Alabrune); Comments of the French Republic on the replies of
Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, paras. 17-32; POF, para. 27;
CR 2018/4, pp. 13-15, paras. 11-13 (Pellet).
65
- 46 -
3.57. The most relevant facts in this regard have already been set out in Chapter 1 of the
present Counter-Memorial177. It is sufficient to recall here only the most significant of them:
 There can be no doubt — and Equatorial Guinea has never claimed otherwise, moreover —
that, on 1 December 2010, the date of the opening of the judicial investigation178, the building
at 42 avenue Foch did not house the premises of the Applicant’s diplomatic mission in Paris.
 The first searches of the building, on 28 September and 3 October 2011, lead to the same
conclusions: Equatorial Guinea has never claimed that the vehicles seized on those dates from
the building’s courtyard and the surrounding area belonged to the mission’s fleet179. The letter
of protest sent to the French Minister for Foreign Affairs by the Ambassador of Equatorial
Guinea on the day of the first search bears the Embassy’s usual address at 29 rue de Courcelles
in Paris (8th arr.) and makes no suggestion that the building searched might be protected by the
VCDR régime180.
 Equatorial Guinea maintains that
“the criterion of ‘effective assignment’, relied on by France to refuse the diplomatic
protection that had been requested, was fulfilled through its declaration of 4 October
2011. It could not be otherwise, since assignment consists in giving a purpose or a
function to a person or property”181.
Even if this definition of the concept of “assignment” were to be accepted, it would make no
difference to the assessment of the problem here: the Applicant itself explains that Equatorial
Guinea’s diplomatic mission moved to 42 avenue Foch “in July 2012, after allowing due time
to prepare for that move”182; this is equivalent to admitting that, on 4 October 2011, the
building was not actually or effectively assigned to the Embassy’s offices.
 This is further confirmed by the events that followed: when the building was next searched, in
February 2012, it was not actually assigned for the purposes of Equatorial Guinea’s mission. In
a Note Verbale of 15 February 2012, Equatorial Guinea requested police protection for its
Deputy Minister for Foreign Affairs and the Secretary-General of the Ministry of Foreign
Affairs, who “wish[ed] to visit the property of the Government of Equatorial Guinea at
42 avenue Foch in Paris”183. This was not therefore a visit to Equatorial Guinea’s diplomatic
mission, whose address was still shown in the Note Verbale as being 29 boulevard de
Courcelles. Equatorial Guinea eventually acknowledged this before the Court, stating that the
visit “was in fact in order to supervise preparations for the effective occupation of the building,
177 See above, Chap. 1, paras. 1.3-1.48.
178 See above, Chap. 1, para. 1.6.
179 See the Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017,
p. 18.
180 Letter from Mr. M. F. Edjo Ovono, Ambassador of the Republic of Equatorial Guinea in France, to
Mr. Alain Juppé, Minister for Foreign Affairs, 28 Sept. 2011 (MEG, Ann. 32).
181 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 24 (emphasis added).
182 MEG, para. 2.30 (emphasis added).
183 Note Verbale No. 185/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 15 Feb. 2012 (Doc. No. 9 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures; emphasis added).
66
67
- 47 -
which had been acquired for use as premises of the diplomatic mission of Equatorial
Guinea”184.
 According to Equatorial Guinea, the move took place on 27 July 2012. This, at least, is the gist
of the Note Verbale of the same date (still bearing the address 29 boulevard de Courcelles), in
which the Embassy of Equatorial Guinea informs the Protocol Department that “as from Friday
27 July 2012, the Embassy’s offices are located at 42 avenue Foch, Paris (16th arr.), a building
which it is henceforth using for the performance of the functions of its diplomatic mission in
France”185. In any event, the building at 42 avenue Foch thus did not form part of the premises
of that diplomatic mission at the time of its attachment on 19 July 2012.
3.58. All of the measures of search and seizure contested by Equatorial Guinea were carried
out before 27 July 2012, the date from which it claims the premises were effectively assigned to its
diplomatic mission. On none of those dates could the building thus objectively be considered as
part of the “premises of the mission” within the meaning of Article 1 (i) of the VCDR.
Consequently, it could not benefit from the régime of inviolability guaranteed by Article 22 of that
instrument. For the reasons set out earlier186, France has maintained its position of principle with
regard to that building ever since, even though it is of course complying with the provisional
measures decided by the Court in its Order of 7 December 2016.
3.59. In a “Memorandum” dated 16 October 2015 and transmitted to the French authorities,
Equatorial Guinea included as an annex a legal consultation carried out at its request by
Professor Yann Kerbrat on the subject of “privileges and immunities in the ill-gotten gains case”,
the conclusions of which bear repeating here. After citing Article 22 of the 1961 Convention,
Professor Kerbrat points out that:
“[t]he protection conferred by this provision . . . is, however, subject to the property’s
effective use for the needs of the mission; indeed, Article 1 (i) of the same Convention
states that ‘the “premises of the mission” are the buildings or parts of buildings and
the land ancillary thereto, irrespective of ownership, used for the purposes of the
mission’. In this case, however, it appears that, when investigative measures were
carried out at the end of September 2011, i.e. after the transfer of the building to the
State of Equatorial Guinea, no mention was made of the diplomatic use of the
premises or property concerned. The searches conducted inside the premises of
42 avenue Foch demonstrated, on the contrary, that, until its attachment, the building
was being used for purely personal purposes and for the exclusive requirements of
Mr. Nguema Obiang.
In the light of this, it cannot therefore be concluded that the building at
42 avenue Foch is protected by diplomatic immunity; the refusal of diplomatic
immunity by the Paris Cour d’appel in its judgment of 13 June 2013, confirmed by the
184 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 28 (emphasis added).
185 Note Verbale No. 501/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 27 July 2012 (MEG, Ann. 47; emphasis added).
186 See above, Chap. 1.
68
- 48 -
Chambre criminelle of the Cour de cassation in its judgment No. 990 of 5 March 2014
(No. 13-84.977), is not contestable in our view.”187
3.60. This is the same conclusion reached by the French authorities.
2. France has not breached its obligations under Article 22 of the Vienna Convention on
Diplomatic Relations
3.61. It is clear from the above that France was not in breach of its obligations under
Article 22 of the VCDR when the building at 42 avenue Foch was subjected to measures of search
and seizure between September 2011 and July 2012. Those measures, made necessary by the
advancement of the legal proceedings against Mr. Teodoro Nguema Obiang Mangue, were directed
solely at the personal and private property of the defendant; when they were carried out, the
building was at the “free disposal”188 of Mr. Obiang Mangue, was not actually assigned for the
purposes of Equatorial Guinea’s Embassy in France and could not be considered to form part of the
“premises of the mission” within the meaning of Article 1 (i) of the VCDR189. And as Article 22 of
the Convention plainly states, the régime of inviolability it provides for concerns the “premises of
the [diplomatic] mission” alone. All these elements of fact and law have already been amply
developed in France’s written pleadings; therefore, only the most salient aspects with regard the
allegations of Article 22 violations will be set out below.
3.62. First, it is important to recall that Equatorial Guinea has never specified the precise
nature of the violations France is said to have committed under Article 22, either in its Application
instituting proceedings or in its Memorial. With the exception of the attachment — which cannot
constitute a breach of Article 22, since it took place before Equatorial Guinea had notified the
French Ministry of Foreign Affairs of its intention “henceforth”190 to use the building for the
purposes of its mission — no details have been provided about the specific measures said to have
constituted a violation of Article 22 by France, or, in particular, about the furnishings, property and
means of transport seized.
3.63. In this regard, it should be noted that, according to statements made by the Applicant
itself, the judicial measures targeting Mr. Obiang Mangue’s assets cannot constitute violations of
Article 22. In its reply to Judge Donoghue’s question, Equatorial Guinea states that it:
“does not claim that the building, while being used prior to 4 October 2011, enjoyed
diplomatic mission status, in other words, that the building was protected by the
principle of inviolability of premises under the Vienna Convention”191.
187 Annex 2 to the Memorandum filed in the interest of the Republic of Equatorial Guinea, represented by
Mr. Jean-Pierre Mignard and Mr. Jean-Charles Tchikaya, for the attention of the competent services of the French
Republic in the so-called ‘ill-gotten gains’ case: the Equatorial Guinean chapter, 16 Oct. 2015 (Ann. 14) (emphasis in the
original).
188 See the judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017,
p. 31.
189 See above, paras. 3.55-3.58.
190 Note Verbale No. 501/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 27 July 2012 (MEG, Ann. 47).
191 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 22. See also MEG, para. 8.45.
69
- 49 -
3.64. Yet Equatorial Guinea attempts to argue elsewhere that France first “violated the
prohibition, established under Article 22”192, during the “searches on 28 September and 3 October
2011”193! Equatorial Guinea itself admits that, on those dates, the building at 42 avenue Foch could
not benefit from any immunity; thus, the searches carried out in the building and the seizure of the
fleet of vehicles belonging to Mr. Obiang Mangue — which in any event did not comprise “means
of transport of the mission” within the meaning of Article 22 — cannot be contrary to the principle
of inviolability set out in that provision.
3.65. The same is true of the second searches, which took place from 14 to 23 February
2012. The description of the conduct and outcome of those searches, as it appears in the judgment
of the Tribunal correctionnel of 27 October 2017, leaves no doubt as to the fact that the use of the
building at 42 avenue Foch in no way met the conventional criterion of effective assignment.
 Findings made at the site, corroborated by the testimony of employees at the property, show
that the building was reserved for the private use of Mr. Teodoro Nguema Obiang Mangue,
who enjoyed free disposal of the premises194;
 “no official documents were discovered concerning the State of Equatorial Guinea or
indicating that the building might serve as a venue for official representation”195;
 the property seized on that occasion belonged to Mr. Teodoro Nguema Obiang Mangue, which
was not disputed196;
 between the first and second searches, “several valuables and masterpieces had been taken
away to be stored at the residence of the Ambassador of Equatorial Guinea in Paris”197,
according to statements made to investigators by one of the building’s managers.
3.66. The same conclusions can be drawn from an examination of the order of attachment of
the building at 42 avenue Foch on 19 July 2012: “Mr. Teodoro NGUEMA OBIANG MANGUE’s
personal effects, furniture and documents” were still on the premises, the defendant having enjoyed
“free disposal of the real estate complex fictitiously ascribed to legal persons”198. Since that time,
no measure directed at the building, its furnishings or the property therein has been taken by the
French judicial authorities.
*
* *
192 MEG, para. 8.12.
193 Ibid., para. 8.1[4].
194 See the judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017,
pp. 31-32.
195 Ibid., p. 31.
196 Ibid., p. 98.
197 Ibid., p. 34.
198 Order of attachment of real property (saisie pénale immobilière), 19 July 2012 (MEG, Ann. 25, pp. 3-4).
70
71
- 50 -
3.67. All of these findings confirm that France has not committed any violation of Article 22,
paragraphs 1 and 3, in relation to Equatorial Guinea. The provision in question undoubtedly affords
a sending State comprehensive protection against possible measures of constraint by a receiving
State. However, notwithstanding the fact that this special protection applies only to the premises of
the mission, it has never been regarded as absolute. In his declaration appended to the Judgment of
6 June 2018, Judge Gaja thus recalls that Article 22, paragraph 3, of the Convention “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”199. Therefore, unless it were to run counter to the object and
purpose pursued by the VCDR, this cardinal provision cannot have the effect of shielding
individual and private criminal conduct. Its aim is to protect the free exercise of a sending State’s
diplomatic functions in the receiving State. France has in no way contravened it in this case.
199 See also on the same subject P. Cahier, op. cit., pp. 209-210, and W. Koffler, “A passing glimpse at diplomatic
immunity”, Kentucky Law Journal (KLJ), Vol. 54, 1965, p. 262.
- 51 -
CHAPTER 4
EQUATORIAL GUINEA’S RELIANCE ON THE PROVISIONS OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS WITH REGARD TO THE BUILDING LOCATED AT
42 AVENUE FOCH CONSTITUTES AN ABUSE OF RIGHTS
4.1. In the preliminary objections it raised in this case on 30 March 2017, France asked the
Court to decide that Equatorial Guinea’s Application was inadmissible, in particular in view of the
abusive nature of the applicant State’s assertion of the rights set out in the VCDR with regard to the
building located at 42 avenue Foch200. In its Judgment rendered on 6 June 2018, the Court found
that
“[a]s to the abuse of rights invoked by France, it will be for each Party to establish
both the facts and the law on which it seeks to rely at the merits phase of the case. The
Court considers 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. Any
argument in relation to abuse of rights will be considered at the stage of the merits of
this case.”201
4.2. The Court having found that it lacks jurisdiction under the United Nations Convention
against Transnational Organized Crime to entertain Equatorial Guinea’s Application202, the
question of abuse of rights must now be considered solely with regard to the invocation of the
Optional Protocol to the VCDR.
4.3. Accordingly, France will demonstrate in this section that the allegations of violations of
VCDR provisions with regard to the building at 42 avenue Foch in Paris are an attempt by
Equatorial Guinea to abuse the rights and privileges afforded by international law (II). A few
preliminary observations will be made on the notion of abuse of rights and its application in
diplomatic law (I).
I. The principle of the prohibition of abuse of rights and its application to the
Vienna Convention on Diplomatic Relations
4.4. According to the definition provided in Jean Salmon’s Dictionnaire de droit
international public, an abuse of rights occurs when “a State exercises a right, power or jurisdiction
in a manner or for a purpose for which that right, power or jurisdiction was not intended, for
example to evade an international obligation or obtain an undue advantage”203.
4.5. The applicability of this “general principle of law”204 in the international legal order is
widely accepted. The Court has recognized it in its jurisprudence as a necessary corollary of the
200 POF, paras. 76-88.
201 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 151.
202 Ibid., para. 118.
203 J. Salmon (ed.), Dictionnaire de droit international public, Bruylant, Brussels, 2011, pp. 3-4. [Translation by
the Registry.]
204 DSB, Shrimps, Report of the Appellate Body (WT/DS58/AB/R), 12 Oct. 1998, para. 158.
72
73
- 52 -
principle of good faith205. The Court’s invitation in paragraph 151 of its Judgment of 6 June 2018
to discuss the question at the merits stage of this case further attests to this.
4.6. Numerous international conventions expressly recall that States parties must fulfil their
obligations in good faith and not abuse the rights to which they are entitled206. This is, moreover,
the very essence of the law of treaties, which is governed by the principle of pacta sunt servanda,
whereby “[e]very treaty in force is binding upon the parties to it and must be performed by them in
good faith”207.
4.7. Privileges and immunities are granted for a legitimate purpose and help ensure the
independence of foreign States, in accordance with the principle of the sovereign equality of States
and the territorial sovereignty of the host State. Their very purpose, however, leaves them open to
abuse. In light of the growing mistrust of privileges and immunities — which are nevertheless vital
for States’ external action — the utmost vigilance is necessary to prevent attempts to abuse them,
which could ultimately jeopardize the continued existence of these fundamental rights. It was with
this risk in mind that the drafters of the VCDR made a point of recalling, in the preamble to that
text, that “the purpose of such privileges and immunities is not to benefit individuals but to ensure
the efficient performance of the functions of diplomatic missions as representing States”208. A large
number of international agreements on privileges and immunities contain similar provisions209.
Certain international texts even contain specific provisions to prevent the risk of abuse of privileges
and immunities accorded by treaty210.
205 See Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
p. 30. See also Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167;
Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 142; Ambatielos (Greece v. United Kingdom),
Merits, Judgment, I.C.J. Reports 1953, p. 23; Barcelona Traction, Light and Power Company, Limited
(New Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 39, para. 56; Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46; Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 473, para. 49; Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, I.C.J. Reports 1992, p. 255, paras. 37-38; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment,
I.C.J. Reports 1996, p. 622, para. 46.
206 See in particular the Convention on Rights and Duties of States of 26 Dec. 1933, Art. 3; the Convention for the
Protection of Human Rights and Fundamental Freedoms of 4 Nov. 1950, Art. [17] “Prohibition of abuse of rights”; the
Convention on the High Seas of 29 Apr. 1958, Art. 2; the United Nations Convention on the Law of the Sea of 10 Dec.
1982, Arts. 294 and 300 “Good faith and abuse of rights”; the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 Dec. 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, Art. 34.
207 Vienna Convention on the Law of Treaties, 23 May 1969, Art. 26. France is not a party to the Convention, but
considers that, on this point, it reflects the state of customary international law. See Rights of Nationals of the
United States of America in Morocco (France v. United States of America), Judgment, I.C.J. Reports 1952, p. 212.
208 VCDR, 18 Apr. 1961, fourth paragraph of the preamble.
209 See in particular the Convention on the Privileges and Immunities of the United Nations of 13 Feb. 1946,
Secs. 20 and 21; the Convention on the Privileges and Immunities of the Specialized Agencies of 21 Nov. 1947, Secs. 22
and 23; Supplementary Protocol No. 1 to the Convention for European Economic Co-operation on the Legal Capacity,
Privileges and Immunities of the Organisation of 16 Apr. 1948, Art. 10; the Agreement between the Government of the
French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of
UNESCO and the Privileges and Immunities of the Organization on French Territory of 2 July 1954, Art. 21; the
Convention on Special Missions of 8 Dec. 1969, seventh paragraph of the preamble; the Agreement on the Privileges and
Immunities of the International Criminal Court of 9 Sept. 2002, Art. 24, para. 1, and Art. 25; the Agreement on the
Privileges and Immunities of the International Tribunal for the Law of the Sea of 23 May 1997, Art. 19.
210 See in particular the Convention on the Privileges and Immunities of the United Nations of 13 Feb. 1946,
Secs. 20 and 21, or the Convention on the Privileges and Immunities of the Specialized Agencies of 21 Nov. 1947,
Secs. 22 and 23.
74
- 53 -
4.8. The purpose of privileges and immunities is not to benefit the individuals who enjoy
them, but to safeguard the independence of the State and its representatives abroad. The application
of rules on immunities must not shield their beneficiaries — be they individuals or property —
from ordinary legal proceedings brought for purposes other than those for which such protections
have been granted. Using the provisions of the VCDR in that way constitutes an abuse of rights,
which is the case in this instance211. Moreover, the Court has recognized in the past that the rules of
diplomatic law establish privileges and immunities which are susceptible to “abuse”212.
4.9. As an ICSID arbitral tribunal has noted with regard to abuse of rights, “[u]nder general
international law as well as under ICSID case law, abuse of right is to be determined in each case,
taking into account all the circumstances of the case”213. Extensive investment jurisprudence —
which we see no reason not to transpose into inter-State law here — further holds that:
“As for any abuse of right, the threshold for a finding of abuse . . . is high, as a
court or tribunal will obviously not presume an abuse, and will affirm the evidence of
an abuse only ‘in very exceptional circumstances’.”214
4.10. Yet while it is accepted that the standard of proof for abuse of rights is high, “[i]t is
equally accepted that the notion of abuse does not imply a showing of bad faith. Under the case
law, the abuse is subject to an objective test”215. The Court has, moreover, implicitly recognized
that abuse of rights can be established through a functional test consisting in ascertaining whether a
person who enjoys a legal prerogative has used it for the purpose for which it was conferred,
without considering whether the perpetrator of the disputed act was driven by malicious intent.
Thus, in the case concerning Certain German Interests in Polish Upper Silesia, the PCIJ found that
Germany had not misused its right, relying in particular on the fact that the alienation of certain
property “[did] not overstep the limits of the normal administration of public property and was not
designed to procure for one of the interested Parties an illicit advantage”. The annulment of the
contract in dispute thus appeared “to have fulfilled a legitimate object of the administration”216.
Similarly, in his declaration appended to the Judgment in the case concerning Certain Questions of
Mutual Assistance in Criminal Matters, Judge Keith referred to the notion of abuse of rights,
asserting that it requires the State “to exercise the power for the purposes for which it was
conferred and without regard to improper purposes or irrelevant factors”.
211 See below, para. 4.27.
212 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 40, para. 86.
213 Mobil Corporation et al. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on
Jurisdiction, 10 June 2010, para. 177. See also Renée Rose Levy and Gremcitel S.A. v. Republic of Peru, Award of 9 Jan.
2015, ICSID Case No. ARB/11/17, para. 186; Philip Morris Asia Limited v. the Commonwealth of Australia, Award on
Jurisdiction and Admissibility, 17 Dec. 2015, PCA Case No. 2012-12, p. 167, para. 539.
214 Renée Rose Levy and Gremcitel S.A. v. Republic of Peru, Award of 9 Jan. 2015, ICSID Case No. ARB/11/17,
p. 58, para. 186. See also Chevron Corporation and Texaco Petroleum Company v. Republic of Ecuador (I), Interim
Award of 1 Dec. [2008], PCA Case No. 34877, p. 80, para. 143; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v.
Pakistan, Award of 27 Aug. 2009, ICSID Case No. [ARB/03/29], pp. 39-40, paras. 142-143; Philip Morris Asia
Limited v. the Commonwealth of Australia, Award on Jurisdiction and Admissibility, 17 Dec. 2015, PCA Case
No. 2012-12, para. 539; Capital Financial Holdings Luxembourg S.A. v. Republic of Cameroon, Award of 22 June 2017,
ICSID Case No. ARB/15/18, para. 135.
215 Philip Morris Asia Limited v. the Commonwealth of Australia, Award on Jurisdiction and Admissibility,
17 Dec. 2015, PCA Case No. 2012-12, para. 539.
216 Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
pp. 37-38 (emphasis added).
75
76
- 54 -
4.11. Malicious intent and bad faith on the part of a perpetrator are criteria frequently used in
domestic law for establishing abuse of rights. However, they are ill suited to public international
law, given the nature of its subjects. In practice, a more objective criterion is used. There is an
abuse of rights when a right is used for a purpose other than that intended. Malicious intent, if
established, is merely an element attesting to the abuse.
4.12. In the present case, France’s claim concerning an abuse of rights committed by
Equatorial Guinea pertains to very exceptional circumstances and is based on “clear and
convincing evidence which compels such a conclusion”217. The evidence put forward establishes an
objective situation of abuse of rights.
II. The abuse of rights committed by Equatorial Guinea
4.13. The dispute between France and Equatorial Guinea arose out of the French authorities’
refusal to recognize Equatorial Guinea’s abusive invocation of the protection offered by diplomatic
status for the purpose of shielding the building at 42 avenue Foch from the criminal proceedings
instituted in France against Mr. Teodoro Nguema Obiang Mangue.
4.14. To demonstrate the abusive nature of Equatorial Guinea’s claims with regard to the
building at 42 avenue Foch, the following will be examined in turn: (A) the acts constituting an
abuse of rights; (B) the contradictory positions taken by Equatorial Guinea on the assignment of the
premises; (C) the circumstances in which Equatorial Guinea acquired ownership of the building (it
being noted, however, that this question does not fall within the VCDR); and (D) the seisin of the
Court used as a last resort to consolidate the abuse of rights.
A. The acts constituting an abuse of rights with regard to the building at 42 avenue Foch
4.15. It is above all in light of the circumstances of the case that the question of abuse of
rights must be assessed. In this regard, the timing of the events in this case is sufficient in itself:
Equatorial Guinea’s claim is an abuse of the rights and obligations which it asserts with regard to
the building at 42 avenue Foch.
4.16. The criminal proceedings instituted against Mr. Teodoro Nguema Obiang Mangue
before the French courts arose from a complaint filed on 2 December 2008. It was not until
1 February 2011, however, that the judicial investigation identified the building at 42 avenue Foch
as forming part of his assets, on the basis of evidence transmitted by the association Transparency
International France218.
4.17. On 28 September and 3 October 2011, the property was searched and a number of
expensive cars belonging to Mr. Teodoro Nguema Obiang Mangue, which were kept in the
courtyard of the building and in neighbouring car parks, were seized.
217 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011 (II), p. 685, para. 132.
218 Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017, p. 17.
77
78
- 55 -
4.18. Equatorial Guinea’s first Note Verbale to the French Ministry of Foreign Affairs
regarding the building at 42 avenue Foch was dated 4 October 2011, i.e. a few days after the
seizures. In that Note, the Embassy of the Republic of Equatorial Guinea stated that it “has for a
number of years had at its disposal [the] building [and] uses [it] for the performance of the
functions of its diplomatic mission”219. That position was untenable: the investigations conducted
by the French judicial and police authorities, described in the documents included in the case file,
showed that, prior to that date, the building had been used by Mr. Teodoro Nguema Obiang
Mangue for purely personal purposes220; the President of the Republic of Equatorial Guinea
himself acknowledged this in a letter to his French counterpart dated 14 February 2012221.
Equatorial Guinea later retracted that statement, maintaining that it had acquired ownership of the
building on 15 September 2011 — conveniently, just a few days before the first searches — and
had set up its Embassy offices there “as from . . . 27 July 2012”222.
4.19. It is significant to note that it was also in the wake of those seizures that Mr. Teodoro
Nguema Obiang Mangue was appointed Permanent Assistant Delegate of Equatorial Guinea to
UNESCO223 by presidential decree dated 13 October 2011 — i.e. two days after France had refused
to recognize the building as part of the premises of Equatorial Guinea’s diplomatic mission, in
response to the Note Verbale of 4 October 2011, in which Equatorial Guinea stated that it had had
the property at its disposal “for a number of years”224. In May 2012, Mr. Teodoro Nguema Obiang
Mangue was appointed Second Vice-President of the Republic, in charge of Defence and State
Security, two months after the second set of searches conducted at 42 avenue Foch225.
B. The contradictory positions taken by Equatorial Guinea on the assignment of the building
at 42 avenue Foch
4.20. Before bringing this case before the International Court of Justice, Equatorial Guinea
attempted, through a considerable amount of diplomatic correspondence, to block the attachment of
the building at 42 avenue Foch in the criminal proceedings against Mr. Teodoro Nguema Obiang
Mangue before the French courts. Its contentions varied, however, as the judicial proceedings
developed.
219 Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures; emphasis added).
220 See, in particular, judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel,
27 [Oct.] 2017, pp. 13-46; additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial
Guinea’s request for the indication of provisional measures.
221 Letter from the President of Equatorial Guinea to the French President, 14 Feb. 2012 (Doc. No. 5 of the
additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the
indication of provisional measures).
222 Note Verbale No. 501/12 from the Embassy of Equatorial Guinea, dated 27 July 2012, to the French Ministry
of Foreign and European Affairs (MEG, Ann. 47).
223 See the press release reproducing the text of the decree on the official website of the Government of
Equatorial Guinea (https://www.guineaecuatorialpress.com/noticia.php?id=1994).
224 See above, Chap. 1, para. 1.19.
225 See the records of the on-site inspections and searches of the townhouse located at 42 avenue Foch 75016
Paris, dated 14, 15 and 16 Feb. 2012 (Doc. Nos. 42, 43 and 44 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures), and Presidential
decree No. 64/2012 of 21 May 2012 appointing Mr. Teodoro Nguema Obiang Mangue as Second Vice-President of the
Republic in charge of Defence and State Security (MEG, Ann. 3).
79
- 56 -
4.21. The Notes Verbales from the Embassy of Equatorial Guinea to the Protocol
Department of the French Ministry of Foreign Affairs in themselves reveal contradictions in
Equatorial Guinea’s successive positions regarding the status of the building at 42 avenue Foch:
 On 4 October 2011, the Embassy claimed that it
“has for a number of years had at its disposal a building located at 42 avenue Foch,
Paris (16th arr.), which it uses for the performance of the functions of its diplomatic
mission, a fact which it has hitherto not formally notified”226.
During the searches conducted on 28 September and 3 October 2011, however, the French
investigators found no trace of Equatorial Guinea’s diplomatic offices. Instead, they were told
that the owner of the premises, Mr. Teodoro Nguema Obiang Mangue, “was absent — he was
abroad — and the keys to the luxury vehicles [parked in the building’s courtyard] were in the
possession of his right-hand man”227. The findings of the investigations by the French
authorities made Equatorial Guinea’s claim that the building had been used for its diplomatic
mission “for a number of years” untenable228. Faced with the facts, Equatorial Guinea changed
tack.
 On 17 October 2011, the building was then described by the Embassy of Equatorial Guinea as
housing the new official residence of the Permanent Delegate to UNESCO229. In its reply to the
question put by Judge Donoghue at the end of the oral proceedings on the request for the
indication of provisional measures, Equatorial Guinea admitted that it had not notified
UNESCO of its Permanent Delegate’s change of residence until 14 February 2012230, that is,
the first day of the further searches and seizures of movable assets carried out at 42 avenue
Foch in the proceedings against Mr. Teodoro Nguema Obiang Mangue231. By a Note Verbale
dated 31 October 2011, the French Ministry of Foreign Affairs had nonetheless taken care to
remind Equatorial Guinea that any such change of residence had to be notified not to France,
but rather to UNESCO’s protocol department232.
In this regard, Equatorial Guinea claims in its Memorial that, “on 17 October 2011, following
the end of Ambassador Edjo Ovono Frederico’s mission, the designated Chargée d’affaires a.i.,
Ms Bindang Obiang, who is also the Permanent Delegate of Equatorial Guinea to UNESCO,
was rehoused at 42 avenue Foch. The reason for this change in accommodation was that the
226 Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures; emphasis added). See also
Note Verbale No. 5007/PRO/PID from the French Ministry of Foreign and European Affairs, dated 11 Oct. 2011, to the
Embassy of Equatorial Guinea (MEG, Ann. 35). See above, Chap. 1, para. 1.19.
227 Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017, p. 13.
228 See in particular the judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel,
27 [Oct.] 2017, pp. 26-33.
229 Note Verbale No. 387/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 17 Oct. 2011 (Doc. No. 3 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
230 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 27.
231 Following the searches and seizures carried out on 28 Sept. and 3 Oct. 2011, further searches were conducted
at 42 avenue Foch from 14 to 23 Feb. 2012 (see the judgment of the 32nd Chambre correctionnelle of the Paris Tribunal
correctionnel, 27 [Oct.] 2017, p. 18).
232 Note Verbale No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 31 Oct. 2011 (Doc. No. 4 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
80
- 57 -
dwelling at 46 rue des Belles Feuilles notified to UNESCO was unfit for habitation, and the
dignity of Ms Bindang Obiang’s new functions required a better residence.”233 However, on
19 September 2012, in the Note Verbale from the Embassy of Equatorial Guinea requesting
that the Protocol Department of the Ministry of Foreign Affairs issue a special residence permit
to Ms Bindang Obiang in her capacity as Ambassador Extraordinary and Plenipotentiary, the
address listed in the notification form regarding her appointment and the assumption of her
duties is given as 8 bis avenue de Verzy in Paris (17th arr.), not 46 rue des Belles Feuilles or
42 avenue Foch234.
 On 16 February 2012, when Equatorial Guinea’s Ministry of Foreign Affairs was seeking the
approval of the French authorities for Ms Bindang Obiang’s appointment as Equatorial
Guinea’s Ambassador to France, it was then stated in the curriculum vitae attached to the Note
Verbale that she was residing at 46 rue des Belles Feuilles in Paris (16th arr.).
 Furthermore, in its reply to the question put by Judge Donoghue during the hearings on the
request for the indication of provisional measures of 29 September 2016235, Equatorial Guinea
admitted that the request made by its Embassy in Paris, by Note Verbale dated 15 February
2012236, for protection for two Equatorial Guinean ministers who had to go to the building at
42 avenue Foch, was “in fact in order to supervise preparations for the effective occupation of
the building, which had been acquired for use as premises of the diplomatic mission of
Equatorial Guinea”237.
However, during the searches conducted on the premises of the building at 42 avenue Foch
between 14 and 23 February 2012, the investigators found no “preparations for the effective
occupation of the building” by Equatorial Guinea’s diplomatic offices and seized additional
movable property belonging to Mr. Teodoro Nguema Obiang Mangue238.
With regard to the searches conducted in September and October 2011, as well as those carried
out in February 2012, as the Paris Tribunal correctionnel noted in its judgment of 27 [October]
2017, “[t]he findings made at the site [in the context of the criminal proceedings] confirmed
that Teodoro NGUEMA OBIANG MANGUE enjoyed free disposal of the property”; the
judgment further noted: “However, no official documents [belonging to] the State of Equatorial
Guinea or indicating that the building might serve as a venue for official representation [were
discovered]”239.
 On 27 July 2012 — that is, eight days after the investigating judges had decided to order the
attachment of the property — a further Note Verbale from the Embassy of Equatorial Guinea
(its footer still showing the Embassy’s address as 29 boulevard de Courcelles, Paris (8th arr.))
stated that:
233 MEG, para. 4.9.
234 Note Verbale No. 628/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 19 Sept. 2012 (POF, Ann. 3).
235 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue,
26 Oct. 2016, para. 28.
236 Note Verbale No. 185/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 15 Feb. 2012 (Doc. No. 9 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
237 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 28.
238 Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017, p. 18.
239 Ibid., p. 31.
81
82
- 58 -
“[a]s from . . . 27 July 2012, the Embassy’s offices are located at 42 avenue Foch,
Paris (16th arr.), a building which it is henceforth using for the performance of the
functions of its diplomatic mission in France”240.
4.22. Unsure as to which legal bases to rely on, Equatorial Guinea initially claimed, on
4 October 2011, that the building at 42 avenue Foch had “for a number of years . . . [been] use[d]
for the performance of the functions of its diplomatic mission”241; then, for a few months, it
allegedly became the new official residence of the Permanent Delegate to UNESCO242, before
finally, “as from . . . 27 July 2012, the Embassy’s offices [were] [re?]located [there]”243.
4.23. These contradictory and changing statements have resurfaced in Equatorial Guinea’s
written pleadings over the course of these very proceedings:
 In its Application instituting proceedings, dated 13 June 2016, Equatorial Guinea maintained
that the building at 42 avenue Foch had been used by its diplomatic mission in France since
15 September 2011244, though it did not claim to have given notification on that date. It is
legitimate to ask how a receiving State could comply, where appropriate, with its obligations
under the VCDR, if it has not been informed of the premises’ existence and assignment. Under
Equatorial Guinea’s theory of a declaratory régime for the establishment of diplomatic
premises, it is simply not possible.
 In its written reply to the questions put by Judge Bennouna and Judge Donoghue, dated
26 October 2016, Equatorial Guinea gave 4 October 2011 as the date marking the start of its
use of the premises for the performance of its diplomatic mission in France245, although that
date, which is purely artificial, does not correspond to an effective assignment of the building.
 Furthermore, in its Memorial filed on 3 January 2017, Equatorial Guinea states that it protested
against the first searches conducted in the building on 28 September and 3 October 2011, but
acknowledges in the next line that it was not until 4 October 2011 that it informed the French
Ministry of Foreign Affairs that the property was assigned to its diplomatic mission in
France246. Equatorial Guinea thus protested against the search measures before it had even sent
the first Note Verbale, dated 4 October 2011, informing the French authorities of the building’s
alleged diplomatic status.
240 Note Verbale No. 501/12 from the Embassy of Equatorial Guinea, dated 27 July 2012, to the French Ministry
of Foreign and European Affairs (MEG, Ann. 47; emphasis added).
241 Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
242 Note Verbale No. 387/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 17 Oct. 2011 (Doc. No. 3 of the additional documents communicated by France on
14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
243 Note Verbale No. 501/12 from the Embassy of Equatorial Guinea, dated 27 July 2012, to the French Ministry
of Foreign and European Affairs (MEG, Ann. 47).
244 AEG, para. 20: “The building located at 42 avenue Foch in Paris was, until 15 September 2011, co-owned by
five Swiss companies of which Mr. Teodoro Nguema Obiang Mangue had been the sole shareholder since 18 December
2004. On 15 September 2011, he transferred his shareholder’s rights in the companies to the State of Equatorial Guinea.
Since then, the building has been used by the diplomatic mission of Equatorial Guinea.”
245 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 32.
246 AEG, para. 8.49.
83
84
- 59 -
4.24. Simply recalling Equatorial Guinea’s positions on the assignment of the building at
42 avenue Foch is sufficient to demonstrate their inconsistencies. In each of these instances —
which can only be construed as Equatorial Guinea reacting to developments in the criminal
proceedings against Mr. Teodoro Nguema Obiang Mangue — France responded with a firm and
consistent position and recalled, through the Protocol Department of the Ministry of Foreign
Affairs, that the building at 42 avenue Foch in Paris had never been considered part of the premises
of Equatorial Guinea’s diplomatic mission247.
4.25. The fact that Equatorial Guinea’s erratic positions regarding the assignment of the
building at 42 avenue Foch cannot possibly be justified illustrates the abusive nature of its assertion
of the rights set out in the VCDR.
4.26. Moreover, at no point since the proceedings began has Equatorial Guinea ever claimed
that the investigations and searches conducted by the French judicial authorities in the context of
the proceedings against Mr. Teodoro Nguema Obiang Mangue interfered with the functions of its
diplomatic mission in France.
4.27. In its Request for the indication of provisional measures, dated 29 September 2016,
Equatorial Guinea based its claims on the fact that, “since [the premises at 42 avenue Foch] are not
recognized . . . by France [as forming part of its diplomatic mission], there is a constant risk of
intrusion, either by the police and the French judicial authorities or by private individuals”248. Yet
Equatorial Guinea does not claim that the searches conducted in the building in September 2011
and February 2012, and the seizures of movable property, actually interfered with the functions of
its diplomatic mission — which is only logical since its mission was not established there249 and
the investigations concerned property belonging to Mr. Teodoro Nguema Obiang Mangue. The
Republic of Equatorial Guinea bases its allegations of violations of the provisions of Article 22 of
the VCDR on the attachment of the building and the French authorities’ subsequent refusal to
recognize it as part of the premises of Equatorial Guinea’s diplomatic mission. However, that
attachment was a consequence of investigations of which Equatorial Guinea was fully aware, as
evidenced by the circumstances in which it took possession of the building at 42 avenue Foch. It
would thus appear that the building in no way meets the definition of “premises of the mission”
contained in Article 1 (i) of the VCDR, which refers to “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”; it would also appear that the defence dreamt up by
Equatorial Guinea seeks only to ensure the application, without any legal or factual justification, of
Article 22, paragraph 3, of the Convention, which provides that “[t]he premises of the mission,
247 See in particular Note Verbale No. 5007 from the Ministry of Foreign Affairs of the French Republic to the
Embassy of the Republic of Equatorial Guinea, 11 Oct. 2011 (Doc. No. 2 of the additional documents communicated by
France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of provisional measures); Note
Verbale No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of
Equatorial Guinea, 31 Oct. 2011 (Doc. No. 4 of the additional documents communicated by France on 14 Oct. 2016 in
the context of Equatorial Guinea’s request for the indication of provisional measures); Note Verbale No. 802 from the
Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of Equatorial Guinea, 20 Feb. 2012
(Doc. No. 12 of the additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s
request for the indication of provisional measures); Note Verbale No. 1341 from the Ministry of Foreign Affairs of the
French Republic to the Embassy of the Republic of Equatorial Guinea, 28 Mar. 2012 (Doc. No. 18 of the additional
documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the indication of
provisional measures); Note Verbale No. 158/865 from the Ministry of Foreign Affairs of the French Republic to the
Embassy of the Republic of Equatorial Guinea, 2 Mar. 2017 (Ann. 2).
248 Request for the indication of provisional measures of Equatorial Guinea (RPMEG), 29 Sept. 2016, para. 16.
249 See above, fn. 240. Note Verbale No. 501/12 from the Embassy of Equatorial Guinea, dated 27 July 2012, to
the French Ministry of Foreign and European Affairs (MEG, Ann. 47).
85
- 60 -
their furnishings and other property thereon and the means of transport of the mission shall be
immune from search, requisition, attachment or execution”.
C. The circumstances in which Equatorial Guinea acquired ownership of the building at
42 avenue Foch
4.28. International law places no requirement on the sending State to own the premises that it
assigns to its diplomatic missions abroad. In the present case, however, the question of ownership
of the building at 42 avenue Foch is an aspect of the factual background which is of particular
importance in that it confirms the abuse of rights committed by Equatorial Guinea.
4.29. In a legal opinion dated 25 July 2015, attached to the Memorandum transmitted by the
Republic of Equatorial Guinea to the French Republic, Professor Kamto rightly pointed out that:
“the question is complicated by the unfolding of events which make it difficult to
clearly distinguish the building’s status, particularly as regards its ownership.
The investigations conducted by the competent authorities and the searches
carried out at 42 avenue Foch showed that the building was owned by Mr. Nguema
Obiang Mangue. Equatorial Guinea itself does not contest this fact”250.
4.30. Indeed, at no time during these proceedings has Equatorial Guinea contested the fact
that Mr. Teodoro Nguema Obiang Mangue owned the building at 42 avenue Foch at the time the
criminal proceedings were instituted in France and for at least the first three years of the judicial
investigation.
4.31. In the first place, with regard to the date on which the building was acquired,
Equatorial Guinea’s statements have been extremely erratic:
 At the end of the hearings on the request for the indication of provisional measures,
Judge Bennouna put the following question to Equatorial Guinea:
“In a Note Verbale dated 15 February 2012 to the French Ministry of Foreign
Affairs, which is included in the case file, the Embassy of the Republic of Equatorial
Guinea states that ‘the Republic of Equatorial Guinea has acquired a townhouse at
42 avenue Foch’, adding that ‘[t]he title to the property is in the process of being
transferred’. My question is as follows:
‘On what date did Equatorial Guinea definitively acquire that property title, and
did it register it at the Land Registry in France?’”251.
In its reply to the question, Equatorial Guinea states that “[i]t was . . . on 15 September 2011,
the date of the agreement on the transfer of shares and claims, that Equatorial Guinea became
250 Annex 2 to the “Memorandum filed in the interest of the Republic of Equatorial Guinea, represented by
Mr. Jean-Pierre Mignard and Mr. Jean-Charles Tchikaya, for the attention of the competent authorities of the French
Republic in the so-called ‘ill-gotten gains’ case: the Equatorial Guinean chapter”, 16 Oct. 2015, p. 13 (Ann. 14).
251 CR 2016/17, 19 Oct. 2016 (provisional measures), p. 20.
86
87
- 61 -
the owner of the building located at 42 avenue Foch”252. However, it fails to explain why it
claimed elsewhere, in its Note Verbale of 15 February 2012, that “[t]he title to the property is
in the process of being transferred”. Moreover, in its Application transmitted to the Registry on
22 September 2012 on the basis of Article 38, paragraph 5, of the Rules of Court, with regard
to the same facts, Equatorial Guinea stated that “[t]he Republic of Equatorial Guinea acquired a
building located at 40/42 avenue Foch, 75116 Paris, from Mr. Teodoro Nguema Obiang
Mangue on 16 September 2011”253. It should again be noted that in its Note Verbale of
4 October 2011 — which Equatorial Guinea now references as a starting point for its claim
concerning the building’s diplomatic status — the Embassy of Equatorial Guinea stated that it
“has for a number of years had at its disposal a building located at 42 avenue Foch, Paris
(16th arr.), which it uses for the performance of the functions of its diplomatic mission, a fact
which it has hitherto not formally notified”254. This position directly conflicts with Equatorial
Guinea’s reply to the question put by Judge Bennouna255.
 While “France has never contested Equatorial Guinea’s right of ownership of the property at
42 avenue Foch”256, nor has it recognized Equatorial Guinea as the owner of that property.
In the eyes of the French authorities, the building at 42 avenue Foch has been owned
throughout the proceedings by the same person, or rather the same persons: five companies
registered in Switzerland, which purchased the various units of the building on 19 September
1991257. On 18 December 2004, Mr. Teodoro Nguema Obiang Mangue acquired the shares of
the companies that owned the property, through a complex financial arrangement258. Similarly,
on 15 September 2011, Equatorial Guinea acquired the shares of the five co-owning companies
by means of a transfer agreement concluded with Mr. Teodoro Nguema Obiang Mangue. And
it is as the sole shareholder of these companies that Equatorial Guinea now claims to be the
owner of the property at 42 avenue Foch.
4.32. Thus, as Equatorial Guinea stated in its written reply to the question put by
Judge Bennouna at the end of the hearings on the request for provisional measures,
“[c]urrently [and still today], the companies Ganesha Holding SA, GEP Gestion
Entreprise Participation SA, RE Entreprise SA, Nordi Shipping & Trading Co Ltd,
and Raya Holdings SA are listed as the owners of the property at the Land
Registration Department of the 8th arrondissement of Paris”259.
252 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 12.
253 Letter No. 140831 from the Registrar of the Court to the Minister for Foreign Affairs of the French Republic,
25 Sept. 2012, p. 16 (POF, Ann. 7).
254 Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (Doc. No. 1 of the additional documents communicated by France on 14 Oct.
2016 in the context of Equatorial Guinea’s request for the indication of provisional measures).
255 See above, fn. 251.
256 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 13.
257 Judgment of the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel, 27 [Oct.] 2017, p. 27
258 Ibid.
259 Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct.
2016, para. 14.
88
- 62 -
4.33. In this context, the question put by Judge Bennouna regarding the registration of the
property title at the Land Registry in France is of particular importance. As Equatorial Guinea was
forced to admit:
“Pursuant to paragraph N of the share transfer contract, Equatorial Guinea must
liquidate the five companies in order to register its property title at the Land
Registration Department directly.
However, because of the attachment order registered by the Paris Tribunal de
grande instance at the Land Registration Department of the 8th arrondissement of
Paris on 31 July 2012, it was legally impossible for Equatorial Guinea to register the
property title directly under its name as the owner of the building at 42 avenue
Foch”260.
4.34. After setting out the various steps it took with the French administrative authorities,
Equatorial Guinea is careful to state merely that, “[h]aving recorded and registered the transfer of
shareholder rights to Equatorial Guinea and having collected the related taxes, France has never
contested Equatorial Guinea’s right of ownership of the property”261. The shares of the Swiss
companies were indeed transferred and the relevant taxes collected262, but Equatorial Guinea’s
property title to the building at 42 avenue Foch was not registered.
4.35. The reason for this is that the measure of attachment ordered on 19 July 2012 was
precisely intended to prevent any attempt to shield the property from the proceedings263.
4.36. However, the attachment of property in criminal proceedings (saisie pénale
immobilière) does not deprive the owner of that property. In accordance with the relevant
provisions of the French Code of Criminal Procedure, “[u]ntil the attached property is released . . .
the owner or, in the absence thereof, the person in possession of the property is responsible for its
upkeep and maintenance”264. Equatorial Guinea was thus able to take advantage of the limits of the
French régime governing the attachment of property in criminal proceedings and the duration of the
judicial investigations to present the French authorities with a fait accompli: the occupation of
property believed to be the proceeds of money laundering, in respect of which a measure of
attachment had been carried out just days before Equatorial Guinea claimed to have declared to
France that its Embassy offices were henceforth located there265 and thus required the protection
afforded by the privileges and immunities provided for in the VCDR.
260 Ibid., paras. 15-16.
261 Ibid., para. 13.
262 Ibid., paras. 7-13.
263 Art. 706-145 of the French Code of Criminal Procedure provides that “no one may validly dispose of assets
attached in a criminal proceeding” (text available at the following address: https://www.legifrance.gouv.fr/
affichCode.do;jsessionid=0BB91706B2A96D1AA92BFE8889F06FAD.tplgfr21s_2?idSectionTA=LEGISCTA00002247
0122&cidTexte=LEGITEXT000006071154&dateTexte=20180925).
264 Art. 706-143 of the French Code of Criminal Procedure (text available at the following address:
https://www.legifrance.gouv.fr/affichCode.do;jsessionid=0BB91706B2A96D1…
ctionTA=LEGISCTA000022470122&cidTexte=LEGITEXT000006071154&dateTexte=20180925).
265 Note Verbale No. 501/12 from the Embassy of Equatorial Guinea, dated 27 July 2012, to the French Ministry
of Foreign and European Affairs (MEG, Ann. 47).
89
- 63 -
4.37. Furthermore, the French courts had no means of preventing the shares of the companies
registered in Switzerland from being transferred by private agreement between Equatorial Guinea
and Mr. Teodoro Nguema Obiang Mangue — whatever his official functions, moreover. The
measure of attachment does, however, bar Equatorial Guinea from being recognized directly as the
owner of the property by registering it at the Land Registry266.
4.38. If the purpose of the transaction had not been to shield the building from the criminal
proceedings brought against Mr. Teodoro Nguema Obiang Mangue, it would have been surprising,
to say the least, that Equatorial Guinea did not ask for the agreement on the transfer of shares and
claims to be cancelled when it discovered that the property — the main asset of the companies it
sought to acquire — was the subject of criminal proceedings in France for money laundering
offences. It is indeed strange for a property buyer, on discovering the property’s fraudulent origin,
to take action against the authorities that seized it rather than the seller who is being prosecuted.
4.39. In a letter addressed to the President of the French Republic, dated 14 February 2012,
the President of the Republic of Equatorial Guinea nonetheless explicitly acknowledged that the
reason for selling the building to the Government of Equatorial Guinea and invoking its diplomatic
nature was to protect the building from the criminal proceedings against his son:
“Your Excellency is not unaware of the fact that my son, Teodoro NGUEMA
OBIANG MANGUE, lived in France, where he pursued his studies, from childhood
until he reached adulthood. France was his preferred country and, as a young man, he
purchased a residence in Paris; however, due to the pressures on him as a result of the
supposed unlawful acquisition of assets, he decided to resell the said building to the
Government of the Republic of Equatorial Guinea.”267
4.40. As Judge Donoghue found in the opinion she appended to the Court’s Judgment dated
6 June 2018, in that letter
“[t]he President of Equatorial Guinea made clear that the purpose of these actions is a
personal one, to address difficulties faced by his son. Such a purpose is entirely at
odds with the régime of privileges and immunities contained in the Vienna
Convention, which states in its preamble that the purpose of privileges and immunities
‘is not to benefit individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States’”268.
4.41. In light of the foregoing, the abusive nature of Equatorial Guinea’s reliance on the
provisions of the VCDR is objectively established. The use of privileges and immunities for the
“purpose of . . . benefit[ing] individuals”269 is precisely what characterizes an abuse of rights in the
context of the VCDR270. Equatorial Guinea even expressly acknowledges this in its letter of
266 See the written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue,
26 Oct. 2016, para. 16.
267 Letter from the President of Equatorial Guinea to the French President, 14 Feb. 2012 (Doc. No. 5 of the
additional documents communicated by France on 14 Oct. 2016 in the context of Equatorial Guinea’s request for the
indication of provisional measures).
268 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, dissenting opinion of Judge Donoghue, para. 15.
269 VCDR, 18 Apr. 1961, fourth paragraph of the preamble.
270 See above, Chap. 4, Sec. I.
90
91
- 64 -
14 February 2018, which, significantly, emanated from its highest representative. This is not a
“disputable inference”, but “clear and convincing evidence which compels such a conclusion”271.
4.42. A more recent letter, from the President of the Republic of Equatorial Guinea to the
President of the French Republic, dated 19 January 2017, included an annex entitled “Note seeking
a diplomatic resolution of the dispute”. Surprisingly, that Note mentioned the bilateral agreement
between France and Equatorial Guinea concerning the mutual protection of investments as an
alternative means of resolving their dispute:
“The Agreement on the mutual protection of investments dated 3 March 1982,
by which both States are bound, provides for inter-State disputes concerning its
interpretation and application to be resolved by diplomatic means.
Since Equatorial Guinea has consistently maintained that the assets attached by
the French courts were all acquired lawfully and do not represent the proceeds of
misappropriated public funds or of an offence of any kind, consideration must be
given to the question of their protection by France under the aforementioned
Agreement.
That being the case, in the context of diplomatic discussions between the two
States provided for under Article 11 of the said Agreement, and before any decision
by the French courts on the substance of the dispute, the two States could agree to
consider that the assets lawfully acquired in France meet the definition of
‘investments’ within the meaning of Article 1 of the same Agreement and that,
consequently, France has a duty to protect them.”272
4.43. In keeping with its consistent position in this case, France indicated that the facts
mentioned were the subject of judicial decisions and ongoing legal proceedings, and that
consequently it was not possible to accept the offer to settle the dispute by the means proposed by
Equatorial Guinea273. However, this initiative demonstrates Equatorial Guinea’s willingness to
invoke — with a blatant disregard for legal credibility — any conventional provision that provides
for a dispute settlement mechanism and binds the Parties, in order to put an end to the ongoing
judicial proceedings. And it assumes that its referral of the case to the Court will achieve precisely
that:
“Thus, [the Note concludes,] a permanent solution to the dispute between the
two States having been found, it will only remain for the Republic of Equatorial
Guinea to end the proceedings pending before the International Court of Justice.”274
4.44. Above all, it should be noted that Equatorial Guinea protested against the attachment of
property carried out in the context of the criminal proceedings against Mr. Teodoro Nguema
Obiang Mangue not because it was the owner of the assets, or because they had diplomatic status,
but because they “were all acquired lawfully and do not represent the proceeds of misappropriated
public funds or of an offence of any kind”. It is for the French courts to rule on this point, and they
271 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011 (II), p. 685, para. 132.
272 Letter from the President of Equatorial Guinea to the French President, 19 Jan. 2017 (POF, Ann. 12).
273 Letter from the French President to the President of Equatorial Guinea, 16 Feb. 2017 (POF, Ann. 13).
274 Letter from the President of Equatorial Guinea to the French President, 19 Jan. 2017 (POF, Ann. 12).
92
- 65 -
will have a further opportunity to do so in the appeal proceedings275. Nonetheless, this is an
acknowledgment that the assets seized — the building, furnishings and other objects — were the
private property of Mr. Teodoro Nguema Obiang Mangue, the only person concerned by the
criminal proceedings instituted in France.
4.45. While the question of ownership is not in itself at issue in these proceedings, and the
Court is not called upon to rule on this matter276, the circumstances in which Equatorial Guinea
acquired ownership of the building at 42 avenue Foch form part of the vast body of corroborating
evidence which leads to the conclusion that the invocation of diplomatic status for the building in
question is an attempt to abuse the rights set out in the VCDR.
D. The seisin of the Court as a constituent element of the abuse of rights committed by
Equatorial Guinea
4.46. In its Judgment dated 6 June 2018 on the preliminary objections raised by France, the
Court found that
“[a]n abuse of process goes to the procedure before a court or tribunal and can be
considered at the preliminary phase of these proceedings. In this case, the Court does
not consider that Equatorial Guinea, having established a valid title of jurisdiction,
should be barred at the threshold without clear evidence that its conduct could amount
to an abuse of process. Such evidence has not been presented to the Court. It is only in
exceptional circumstances that the Court should reject a claim based on a valid title of
jurisdiction on the ground of abuse of process. The Court does not consider the present
case to be one of those circumstances.”277
4.47. While France obviously does not call this decision into question, it is of the view that
even though Equatorial Guinea’s seisin of the Court does not in itself constitute an abuse of process
providing grounds for its Application to be declared inadmissible, it is a further indication of the
attempted abuse of rights which characterizes Equatorial Guinea’s approach.
4.48. As discussed at length in these and previous written pleadings of France, and during
the oral arguments in the earlier stages of the case278, the dispute between Equatorial Guinea and
France concerns the French authorities’ refusal to accept Equatorial Guinea’s attempts to protect
Mr. Teodoro Nguema Obiang Mangue’s private property from the consequences of the criminal
proceedings brought against him.
4.49. Equatorial Guinea’s reliance on the provisions of the VCDR with regard to the building
at 42 avenue Foch and the movable property seized by the French courts constitutes an abuse of
275 See above, Chap. 1, paras. 1.52-1.58.
276 See above, Chap. 2, paras. 2.13-2.20.
277 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 150.
278 See CR 2016/17, 19 Oct. 2016 (provisional measures), pp. 8-9, para. 3 (Pellet); POF, paras. 64, 71-72, 127,
136-137.
93
- 66 -
rights, as France has shown above279. Seising the Court in order to delay (and attempt to block) the
implementation of judicial decisions is an abuse of rights.
4.50. Equatorial Guinea has contrived to find a treaty “hook” on which to hang its case in
order to come before the Court. It chose the Palermo Convention as a basis for its claims relating to
the immunity from foreign criminal jurisdiction to which, in its view, Mr. Teodoro Nguema Obiang
Mangue is entitled. The Court did not accept this280. Equatorial Guinea’s reliance on the VCDR is
just as artificial: none of its provisions can reasonably be relied on in this case281.
4.51. Equatorial Guinea’s manipulation of the proceedings before the International Court of
Justice is notably reflected in the press releases it publishes at each procedural step. For example,
regarding the Court’s Order of 7 December 2016, Equatorial Guinea stated in several press releases
that:
“the Government of Equatorial Guinea is satisfied because, in the ruling given by the
International Court of Justice in The Hague this 7th December 2016, there is clear
recognition of the diplomatic nature of the building located at 42, Avenida Foch, in
Paris, and as such, recognition that the property does not constitute ‘dishonestly
acquired goods’. The Equatoguinean State has reiterated its claim to ownership of this
property, which was the property of the Equatoguinean State, but the French party
refused to recognise this, refusing to yield on this point.
The recognition that the State of Equatorial Guinea is the legitimate owner of
the building, with all the objects it contains, is thus recognition that it is not
‘dishonestly acquired goods’, and it is also evidently proof of the judicial farce that
French justice is unilaterally trying to serve up.
On demonstrating that the building is not ‘dishonestly acquired goods’, the
French party should have finally withdrawn the accusation against the Vice-President
of the Republic of Equatorial Guinea, as it was unsupported by the basis of the main
accusation, and thus recognise unambiguously the immunity of H.E. Nguema Obiang
Mangue.”282
4.52. It goes without saying that France does not share this rather surprising reading of the
Court’s Order on Equatorial Guinea’s request for the indication of provisional measures. This
statement is nonetheless a perfect illustration of Equatorial Guinea’s strategy in this case, which is
to use the Court as a means of attempting to obstruct the proceedings brought against
Mr. Teodoro Nguema Obiang Mangue before the French courts. Above all, it attests to Equatorial
Guinea’s true motives: it is not seeking a settlement by the Court of a dispute relating to the
interpretation or application of the provisions of the VCDR, but a retrial of Mr. Teodoro Nguema
Obiang Mangue’s case on the merits and to shield his property from the consequences of the
279 See above, Chap. 4, paras. 4.13-4.45.
280 See Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment
of 6 June 2018, para. 118.
281 See above, Chap. 4, para. 4.27.
282 Press release of the spokesperson for the Government of the Republic of Equatorial Guinea, 7 Dec. 2016,
Malabo (English version available on the official website of the Government of the Republic of Equatorial Guinea:
http://www.guineaecuatorialpress.com/noticia.php?id=9000&lang=en (POF, Ann. 9)). See also, press release of the
Representation of Equatorial Guinea in The Hague, 8 Dec. 201[6] (POF, Ann. 10), and press release of the Equatorial
Guinea Press and Information Office, 9 Dec. 2016 (POF, Ann. 11).
94
95
- 67 -
criminal proceedings brought against him. That is not the Court’s mission, and to use the Court for
this purpose is indicative of the abuse of rights committed by Equatorial Guinea.
4.53. In its press release regarding the hearings on the preliminary objections raised by
France, Equatorial Guinea stated that
“France has not respected the Vienna Convention that grants diplomatic
immunity to Teodoro Nguema Obiang, and has not respected the diplomatic status of
the building which houses the Equatorial Guinea Embassy in Paris, which France had
tried to seize”283.
The press release quotes Equatorial Guinea’s Agent in the case, Mr. Carmelo Nvono Ncá, as
stating:
“The sentence passed on 29th October 2017 by the Paris Criminal Court against
our Vice-President, i[n] flagrant violation of international law, has caused real
indignation in my country, and this injustice will not be permitted”.
This is in stark contrast to the statement published on the website of the Government of the
Republic of Equatorial Guinea on 28 October 2017, which hailed the judgment of the Tribunal
correctionnel as a “clear victory”284; but it once again unequivocally demonstrates that what is
really at issue in the case which Equatorial Guinea has brought before the Court is the fate of
Mr. Teodoro Nguema Obiang Mangue and his property. The allegations of violations of the rights
set out in the VCDR serve only to give the dispute the appearance of a question of interpretation or
application of conventional provisions.
4.54. The conclusion to be drawn from the foregoing was aptly summed up by
Judge Donoghue in her opinion appended to the Court’s Judgment of 6 June 2018:
“The sequence of actions taken by the applicant State is established by the
documents submitted by the Applicant. The purpose of those actions, which was stated
by the President of the applicant State, is manifest. The evidence regarding the
character of the Applicant’s conduct is conclusive, easily meeting the heightened
standards of proof that the Court has suggested in certain circumstances . . . The
applicant State has told the Court nothing to suggest that its diplomatic functions were
disrupted when French authorities entered the Building and initiated searches in
September 2011, nor is there any indication that French authorities entered or attached
the Building with such a purpose”.
4.55. The circumstances of the present case are sufficiently exceptional for the principle
prohibiting abuse of rights — whose applicability in the international legal order is incontestable
and whose application is particularly necessary with regard to immunities and privileges — to be
applied.
283 Press release from the Embassy of the Republic of Equatorial Guinea in Brussels, 20 Feb. 2018 (text available
at the following address: https://www.guineaecuatorialpress.com/mobile/noticia.php?id=11062&lang=…).
284 Text available at the following address: https://www.guineaecuatorialpress.com/noticia.php?id=10566
&lang=en, cited in CR 2018/4, 21 Feb. 2018, p. 38, para. 10 (Alabrune).
96
- 68 -
4.56. The facts set out, on the basis of objective elements, form a body of corroborating
circumstantial evidence which leaves no doubt about the abusive nature of Equatorial Guinea’s
claims concerning the building at 42 avenue Foch. In asserting the rights set out in the VCDR,
Equatorial Guinea’s purpose is not “to ensure the efficient performance of the functions of [its]
diplomatic missio[n]” in France, but “to benefit individuals”285, or rather, one individual,
Mr. Teodoro Nguema Obiang Mangue, by claiming the application of the privileges and
immunities contained in the VCDR, in order to shield his personal property from the consequences
of the criminal proceedings brought against him before the French courts. Equatorial Guinea has at
no point explained to the Court in what way the functions of its diplomatic mission in France were
purportedly affected by the investigations and measures of attachment carried out in the context of
the ongoing judicial proceedings. Equatorial Guinea’s acts and conduct, and the contradictory
positions taken by its authorities, do not amount to “disputable inferences but . . . [to] clear and
convincing evidence which compels such a conclusion”286. These facts, taken together (and in
some instances, even taken individually), characterize an objective situation of abuse of rights.
4.57. For the reasons set out in this chapter, the French Republic requests the Court to reject,
on the grounds of abuse of rights, all the claims put forward by Equatorial Guinea on the basis of
the VCDR, regarding the building at 42 avenue Foch and the furnishings and other objects seized
in the context of the judicial proceedings instituted in France against Mr. Teodoro Nguema Obiang
Mangue.
285 VCDR, 18 Apr. 1961, fourth paragraph of the preamble.
286 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011 (II), p. 685, para. 132.
97
- 69 -
CHAPTER 5
FRANCE BEARS NO INTERNATIONAL RESPONSIBILITY
5.1. The Republic of Equatorial Guinea devotes a chapter of its Memorial to “France’s
international responsibility as a consequence of the breach of its obligations to Equatorial
Guinea”287, in which it recalls the fundamental principal that “[e]very internationally wrongful act
of a State entails the international responsibility of that State”288. However, as France has shown in
the preceding chapters of this Counter-Memorial, none of the conduct attributable to it
“[c]onstitutes a breach of an international obligation”289 arising from the VCDR. Therefore, the
conditions for engaging France’s responsibility are not met. It is thus only on a supplementary basis
that France will comment on the alleged harm (I) and the content of the responsibility (II).
I. The alleged harm
5.2. France first notes that most of the harm mentioned in the Memorial is not the result of a
breach of an obligation falling within the subject-matter jurisdiction of the Court. In the operative
part of its Judgment of 6 June 2018, the Court declared that it had jurisdiction on the basis of the
Optional Protocol to the VCDR to rule on the Application “in so far as it concerns the status of the
building located at 42 Avenue Foch in Paris as premises of the mission”290. The Court is thus
precluded from ruling on the harm alleged to have resulted from the criminal proceedings brought
against Mr. Teodoro Nguema Obiang Mangue notwithstanding his supposed personal immunity.
5.3. The alleged harm relating to the attachment of the building at 42 avenue Foch291 also
falls outside the scope of the dispute over which the Court has jurisdiction pursuant to the
Judgment of 6 June 2018. Attachment (saisie pénale) is a measure which affects the alienability of
the property, but not its use. As discussed earlier in this Counter-Memorial, the purpose of
the VCDR is not to protect ownership of immovable property, by a State or any other person, but to
protect the use of premises for diplomatic purposes292. The Republic of Equatorial Guinea itself
acknowledges the relevance of this distinction in the present case293. The alleged harm relating to
ownership of the building thus has no bearing on this dispute.
5.4. The only harm mentioned in the Memorial which could be related to the VCDR is that
which is said to have resulted from the searches carried out at the premises and from the
non-recognition of the premises’ diplomatic status.
287 MEG, pp. 163-179.
288 ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, YILC,
Vol. II, Part Two, p. 26, and the annex to resolution A/RES/56/83 of 12 Dec. 2001 (hereinafter “2001 Draft Articles”),
Art. 1.
289 Ibid., Art. 2.
290 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment of
6 June 2018, para. 153.
291 MEG, paras. 9.8, 9.12.
292 See above, Chap. 2, paras. 2.13-2.20.
293 MEG, paras. 8.26, 8.32, 8.45.
98
99
- 70 -
5.5. Equatorial Guinea first alleges that the searches carried out at 42 avenue Foch infringed
the inviolability of the premises of its diplomatic mission and draws a parallel with the case
concerning United States Diplomatic and Consular Staff in Tehran294. This parallel is implausible,
since those circumstances were very different from the ones in the present case: the building at
42 avenue Foch is not unlawfully occupied. Moreover, the occupation at issue in the Diplomatic
and Consular Staff case was a continuing act295, whereas here the alleged infringements of the
premises’ inviolability are the result of searches, i.e. instantaneous and completed acts296. This
means that it is not possible to seek, as a corollary of responsibility, cessation of those acts297.
5.6. Moreover, the first searches, which led to the seizure of luxury vehicles, took place on
28 September and 3 October 2011. It was not until 4 October 2011, however, that the Republic of
Equatorial Guinea first declared its intention to assign the building for diplomatic use298, which
suffices to rule out any relationship between the supposed harm and the breach of a VCDR
provision.
5.7. The only other acts claimed by Equatorial Guinea to have caused harm, and which could
give rise to reparation if a breach of the Convention were to be established, are the searches that
took place between 14 and 23 February 2012, the period with regard to which the Parties’
arguments conflict. The Republic of Equatorial Guinea does not claim ownership of the items
seized at that time or allege that harm was caused to any diplomatic property or archives which
may have been in the building when the searches and seizures took place. Nor does it allege any
subsequent infringement of the inviolability of the premises at 42 avenue Foch, including since the
Court’s Order of 7 December 2016. Thus, as far as the searches are concerned, it is not possible to
speak of “successive breaches”, or “particularly serious” moral harm caused by “repeated
violations of its immunity from execution and jurisdiction in respect of the building at 42 avenue
Foch, which houses those premises”299.
5.8. For non-recognition of diplomatic status, the Republic of Equatorial Guinea claims
material harm consisting in “the fact that it cannot safely use its building at 42 avenue Foch as
premises of its diplomatic mission”300. The way in which this harm is presented implies that it was
caused by a continuing act which persisted throughout the period in which the building is said by
Equatorial Guinea to have housed its diplomatic mission, a suggestion which is later repeated in
relation to the continuing nature of the obligation301. This is not the case.
294 Ibid., paras. 9.4-9.5.
295 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 42, para. 90 (“successive and continuing breaches”).
296 2001 Draft Articles, Art. 14.
297 See below, Chap. 5, para. 5.14.
298 See above, Chap. 1, paras. 1.19-1.23, and Chap. 3, paras. 3.53-3.54.
299 MEG, paras. 9.5 and 9.16.
300 Ibid., para. 9.10.
301 Ibid., para. 9.41 (“the wrongful act denounced by Equatorial Guinea persists, causing Equatorial Guinea
continuing harm . . . France is thus continuing to contest the building’s status as premises of the diplomatic mission”).
100
- 71 -
5.9. In the present proceedings, the dispute between the Parties concerns an act which took
place at a specific point in time: France’s refusal on 11 October 2011 to grant Equatorial Guinea’s
request of 4 October 2011 to consider the building at 42 avenue Foch as diplomatic premises302.
Equatorial Guinea’s subsequent requests to the same effect led France simply to recall its initial
refusal; those requests cannot transform an instantaneous act into a continuing one. France’s refusal
has undoubtedly produced effects over time, since it later gave rise to a dispute. However, the
effect of this instantaneous act must not be equated with a continuing unlawful act303. As the ILC’s
commentaries on Article 14 of the 2001 Draft Articles suggest, “[a]n act does not have a continuing
character merely because its effects or consequences extend in time”304.
5.10. Moreover, allowing the harm to be presented as having been caused by a continuing
unlawful act would be to accept and give legal effect to the de facto transfer of certain activities to
42 avenue Foch against the clearly expressed will of the receiving State and despite the
circumstances in which the transfer was made305.
5.11. France further observes that the Applicant offers no concrete evidence that any damage
was caused by a breach of the security of the premises in question.
5.12. Equatorial Guinea also claims moral harm resulting from “various difficulties that
Equatorial Guinea has had to endure in seeking to ensure that France respect the status of the
premises of its diplomatic mission”306. The vagueness of the phrase “various difficulties” reveals
how hard it is for the Applicant to identify any harm precisely. Indeed, it is more fitting to describe
as vague Equatorial Guinea’s changing and contradictory statements regarding the use of the
building, including after 11 October 2011307.
II. The content of the responsibility
5.13. Most of the arguments that Equatorial Guinea’s Memorial subsequently devotes to the
consequences of the alleged wrongful act are also predicated on purported violations of an
international obligation which do not fall within the scope of the subject-matter jurisdiction of the
Court. As in the case of harm, the discussion should be limited to what does fall within that scope
under the terms of the Judgment of 6 June 2018, i.e. the searches and the non-recognition of
diplomatic status.
5.14. The obligation of cessation is mentioned in Equatorial Guinea’s Memorial only in
relation to the proceedings against Mr. Teodoro Nguema Obiang Mangue and the attachment of the
building — thus, for acts falling outside the scope of the dispute over which the Court has
jurisdiction. This is logical given that such an obligation can relate only to breaches of a continuing
302 See above, Chap. 1, para. 1.23.
303 Seventh Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, The internationally
wrongful act of the State, source of international responsibility (continued), YILC, 1978, Vol. II, Part One, paras. 26-37.
304 2001 Draft Articles, commentaries, p. 60, para. 6.
305 See above, Chap. 1, para. 1.40, and Chap. 4, paras. 4.20-4.25.
306 MEG, para. 9.16.
307 See above, paras. 1.24-1.28, and Chap. 4, paras. 4.21-4.23.
101
102
- 72 -
nature308, as the Republic of Equatorial Guinea also points out309. Since the alleged wrongful acts
are instantaneous, there is no need for the Court to order their cessation.
5.15. Guarantees of non-repetition, for their part, would not be appropriate in view of the
circumstances, i.e. the small number of acts at issue, the fact that they are all connected to the same
judicial proceedings, the inconsistencies in Equatorial Guinea’s position regarding the assignment
of the premises, and the numerous indications of an abuse of rights. Exactly the same applies to the
guarantees of non-repetition subsequently claimed by the Applicant by way of satisfaction310. In
accordance with the Court’s jurisprudence, the ordering of such measures presupposes “special
circumstances”311. Yet, the arguments put forward in support of the claim do not all fall within the
scope of the present case; nor can they constitute special circumstances suggesting that the
wrongful act would be repeated. As the Court has frequently noted, “there is no reason to suppose
that a State whose act or conduct has been declared wrongful by the Court will repeat that act or
conduct in the future, since its good faith must be presumed”312.
5.16. Turning to reparation, the Republic of Equatorial Guinea claims measures of
satisfaction and compensation313. However, were the existence of any wrongful act attributable to
France to be accepted, Equatorial Guinea’s contribution to the harm would have to be considered
before the terms of reparation could be addressed. According to Article 39 of the 2001 Draft
Articles on Responsibility of States for Internationally Wrongful Acts, the “wilful or negligent
action or omission of the injured State” must be taken into account in determining reparation314.
This is consistent with the jurisprudence of the Court315. Moreover, pursuant to Article 31,
paragraph 1, of the 2001 Draft Articles, a causal link between the internationally wrongful act and
the injury must be established. Here, that link is quite clearly affected by the conduct of the State
claiming to have been injured.
5.17. In the present case, the contribution to the harm is at its highest level, since it was the
Applicant itself that created the situation which it now characterizes as harm, by claiming to have
transferred, as from 27 July 2012, certain activities to a building which it knew to be the subject of
judicial proceedings and a preventive measure (mesure de sûreté). Prior to this, it contributed to the
308 2001 Draft Articles, commentaries, pp. 88-89; Jurisdictional Immunities of the State (Germany v. Italy:
Greece intervening), Judgment, I.C.J. Reports 2012 (I), p. 153, para. 137; Rainbow Warrior (New Zealand v. France),
Award of 30 Apr. 1990, Reports of International Arbitral Awards, Vol. XX, p. 270, para. 113.
309 MEG, para. 9.21.
310 Ibid., para. 9.33. See 2001 Draft Articles, Art. 30 (a).
311 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J.
Reports 2009, p. 267, para. 150; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment,
I.C.J. Reports 2012 (I), p. 154, para. 138.
312 Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 63; Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60, and Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 477, para. 63; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437,
para. 101; Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009,
p. 267, para. 150; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment,
I.C.J. Reports 2012 (I), p. 154, para. 138.
313 MEG, paras. 9.27-9.37.
314 2001 Draft Articles, Art. 39.
315 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 508, para. 116.
103
- 73 -
harm through its varying and contradictory statements316. It even established a direct link between
its position on the building and the ongoing judicial proceedings against Mr. Teodoro Nguema
Obiang Mangue317. Each of these acts constitutes a significant contribution to the supposed harm.
Taken together, rather than the legitimate exercise of a right under the VCDR, they are far more
suggestive of an abuse of rights318.
5.18. Assuming, in the further alternative, that an obligation of reparation rests on France
regardless, the Applicant’s claims should be examined carefully, and only in so far as they fall
within the scope of the Court’s subject-matter jurisdiction.
5.19. The claims for reparation set out in the Memorial take the form of measures of
satisfaction, for moral harm, and compensation, for both material and non-material harm. The
Applicant thus correctly excludes restitution, including in relation to the searches. The only form of
reparation sought for the searches is satisfaction, because those acts “cannot be made good by
restitution or compensation”319.
5.20. Furthermore, the Republic of Equatorial Guinea has never claimed that the items seized
belonged to it or otherwise pertained to the functions of its diplomatic mission320. Judicial
proceedings have established that they belonged to a third party, Mr. Teodoro Nguema Obiang
Mangue321. Thus, reparation for any harm suffered solely by the Republic of Equatorial Guinea
cannot extend to those personal, private assets.
5.21. As regards the claims for compensation, the claim relating to non-material harm
pertains solely to violations which fall outside the scope of the Court’s subject-matter
jurisdiction322. This leaves just one claim for compensation in respect of material harm, for
non-recognition of the diplomatic status of the premises at 42 avenue Foch.
5.22. Not only does the Republic of Equatorial Guinea fail to provide any evidence of
damage in this regard, it also fails to make any specific claims. It simply “reserves the right to
request, at a later stage of the proceedings, that it be awarded an amount of compensation covering
all of the pecuniary consequences of France’s wrongful acts”323. France is thus unable to respond to
those allegations here. Moreover, France cannot discern any material harm, since it is clear that
Equatorial Guinea’s diplomatic mission, located de jure at 29 boulevard de Courcelles, was
perfectly able to fulfil its functions. The wish of the Republic of Equatorial Guinea to transfer
certain activities to 42 avenue Foch, notwithstanding France’s opposition and the earlier criminal
measures to which the building was subject, cannot give rise to harm attributable to the French
Republic.
316 See above, Chap. 4, paras. 4.20-4.25.
317 See above, Chap. 4, paras. 4.39-4.40.
318 See above, Chap. 4, para. 4.56.
319 MEG, para. 9.31.
320 See above, Chap. 3, para. 3.62, and Chap. 4, para. 4.44.
321 See above, Chap. 1, paras. 1.7-1.13 and 1.30-1.35.
322 MEG, para. 9.36.
323 Ibid., para. 9.37.
104
105
- 74 -
5.23. Lastly, the Applicant claims that the obligation to fulfil the breached obligations should
be maintained, referring to both the VCDR and general international law324. France recalls that the
present dispute concerns only the VCDR, which indisputably remains in force with regard to
relations between the Parties; the Applicant’s claim thus adds nothing.
*
* *
5.24. To conclude this chapter, France reaffirms that it has in no way breached its obligations
under the VCDR. If the Court were to decide otherwise, it would necessarily have to find, first, that
it is not necessary to order the cessation of an instantaneous act and that guarantees of
non-repetition are not required in the circumstances, and, second, that the contribution made by the
Republic of Equatorial Guinea to the harm is such that its claims for reparation should be dismissed
in their entirety. In the further and final alternative, if measures of reparation were to be ordered
notwithstanding Equatorial Guinea’s conduct, the only feasible option would be a measure of
satisfaction consisting in a finding that there has been a violation of the Convention.
324 Ibid., paras. 9.39-9.40.
- 75 -
SUBMISSIONS
For the reasons set out in this Counter-Memorial, and on any other grounds that may be
produced, inferred or substituted as appropriate, the French Republic respectfully requests the
International Court of Justice to reject all of the claims made by the Republic of Equatorial Guinea.
Paris, 6 December 2018
(Signed) Mr. François ALABRUNE,
Agent of the French Republic.
___________
106
- 76 -
LIST OF ANNEXES
Annex 1 Note Verbale No. 3227 from the Ministry of Foreign Affairs of the French Republic to
the Embassy of the Republic of Equatorial Guinea, 28 June 2002
Annex 2 Note Verbale from the Embassy of the Republic of Equatorial Guinea to the Ministry
of Foreign Affairs of the French Republic, 27 December 2006
Annex 3 Record of on-site inspection at 42 avenue Foch, 75016 Paris, 5 October 2011
Annex 4 Note Verbale No. 5638 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of the Republic of Equatorial
Guinea, 13 June 2014
Annex 5 Note Verbale No. 2016-313721 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of the Republic of Equatorial
Guinea, 27 April 2016
Annex 6 Note Verbale No. 069/2017 from the Embassy of the Republic of Equatorial Guinea to
the Ministry of Foreign Affairs and International Development of the French Republic,
15 February 2017
Annex 7 Note Verbale No. 2017-158865 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of the Republic of Equatorial
Guinea, 2 March 2017
Annex 8 Protocol Handbook of the Federal Foreign Office of the Federal Republic of Germany,
published on 1 January 2013
Annex 9 Note Verbale No. 3190 from the Ministry of Foreign Affairs of the French Republic to
the Embassy of the Republic of Equatorial Guinea, 6 July 2005
Annex 10 Note Verbale from the Embassy of [X] to the Ministry of Foreign Affairs and
International Development of the French Republic, 6 May 2016
Annex 11 Note Verbale No. 2016-468932 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of [X], 24 June 2016
Annex 12 Note Verbale from the Embassy of [X] to the Ministry of Foreign Affairs and
International Development of the French Republic, 12 January 2017
Annex 13 Note Verbale No. 2017-050359 from the Ministry of Foreign Affairs and International
Development of the French Republic to the Embassy of [X], 20 January 2017
Annex 14 Memorandum filed in the interest of the Republic of Equatorial Guinea, represented by
Mr. Jean Pierre Mignard and Mr. Jean Charles Tchikaya, for the attention of the
competent services of the French Republic in the so-called “ill-gotten gains” case: the
Equatorial Guinean chapter, 16 October 2015
___________