Separate opinion of President Yusuf

SEPARATE OPINION OF PRESIDENT YUSUF

Disagree with the contradictory conclusion of the Court on Article 1 (i) of the Vienna
Convention on Diplomatic Relations — Provision characterized as “unhelpful” in reasoning and
set aside — Later, used in dispositif to deny status of “premises of the mission” to building at
42 avenue Foch — Court should have ascertained as threshold matter whether building at
42 avenue Foch was “used” as “premises of the mission” within meaning of Article 1 (i) —
Criterion of effective use is the key — Jurisprudence of domestic courts and international tribunals
confirm that conclusion — Relevance of definitional provisions to applicability and operation of
other provisions should have been analysed — It is illogical to dismiss relevance of “use” criterion
in Article 1 (i) but deny status of “premises of the mission” to building on the basis of the same
article.

Requirement of “prior approval” or “power to object” has no basis in the Convention —
Object and purpose of the Convention insufficient to establish these requirements — Vienna
Convention is a self-contained and reciprocal régime that specifies the means at disposal of
receiving State to counter possible abuses — Requirement of “prior approval” or “power to
object” will generate unnecessary misunderstandings and tensions in diplomatic relations — Court
should have analysed Articles 41 and 21 of the Vienna Convention as relevant context to
Article 1 (i) — Practice of few States on a different plane from concordant practice embracing all
parties to treaty — Convention does not make compliance with domestic laws and regulations of
receiving State condition to the application of Article 1 (i) — France did not have general,
well-known and transparent practice at the relevant time — Requirement of “prior approval” or
“power to object” is unqualified and unclear — Criteria for exercise of this power have no basis in
the Convention.
Actions taken by the French authorities and diplomatic exchanges — Building at
42 avenue Foch became part of Applicant’s diplomatic premises as of 27 July 2012 — Entries and
searches by French officials prior to that date not a violation of Article 22, paragraph 1, of the
Convention — Attachment and confiscation of building did not affect actual use of premises and
effective performance of diplomatic functions therein — They do not amount to violations of
Article 22, paragraph 3, of the Convention — Ownership of building not relevant for
characterization as “premises of the mission” under Article 1 (i).
I. Introduction

1. I voted against subparagraph (1) of paragraph 126 of the Judgment because I do not agree
with the Court’s decision on the status of the building at 42 avenue Foch, in Paris; nor do I agree
with the analysis that led the majority to endorse that decision. My vote in favour of other
subparagraphs of the dispositif does not also mean that I agree with the reasoning of the Court in
reaching those conclusions. This reasoning is based on the erroneous proposition that the prior
approval, or at least the absence of objection by the receiving State, is required for a property to be
considered as “premises of the mission” under the Vienna Convention on Diplomatic Relations
(hereinafter the “VCDR” or the “Vienna Convention”).

2. Such a requirement is not to be found in any of the sources of international law. Nor does
the Judgment identify a rule of treaty law or of customary law, or a general principle of
international law, which prescribes such a requirement with regard to diplomatic premises. It is a
concept that appears to have been plucked out of thin air.
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3. Moreover, it is stated in subparagraph (1) of the dispositif that the building at
42 avenue Foch in Paris “has never acquired the status of ‘premises of the mission’ . . . within the
meaning of Article 1 (i) of the Vienna Convention”. This conclusion is striking for a number of
reasons. First, there is absolutely nothing in Article 1 (i) of the VCDR which indicates that a
building does not acquire the status of “premises of the mission” unless there is prior approval or
lack of objection by the receiving State, contrary to the reasoning of the Judgment. Secondly, the
Judgment itself states that the provisions of the Vienna Convention are “of little assistance” in
appraising the circumstances in which a property acquires the status of “premises of the mission”
and that Article 1 (i) is “unhelpful” in determining how a building may come to be used for the
purposes of a diplomatic mission. If Article 1 (i) is unhelpful in making such determination, how
can it serve as the basis of the conclusion that the building never acquired the status of “premises of
the mission”? Thirdly, the Judgment offers no meaningful interpretation of the terms “buildings . . .
used for the purposes of the mission” in Article 1 (i), nor does it make the slightest attempt to apply
such interpretation to the particular circumstances of this case.

4. By ignoring the criterion of “use”  a criterion that has been recognized in the case law
of both domestic and international courts over the past century as being at the heart of the
characterization of a building as “diplomatic premises” under customary law and the VCDR  and
by replacing it with a hitherto unknown requirement of prior approval or a power to object, the
Judgment is likely to put a spanner into the works of the old law of diplomatic relations, and create
difficulties where none existed before in the relations between sending and receiving States. This is
another reason that led me to vote against subparagraph (1) of paragraph 126 of the Judgment.
II. Article 1 (i) of the VCDR: determination of what constitutes
the “premises of the mission”

5. Article 1 (i) of the VCDR reads as follows:

“For the purposes of the present Convention, the following expressions shall
have the following meanings hereunder assigned to them:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.”

6. There is no doubt that Article 1 (i) can help us determine what constitutes the “premises of
the mission” under the VCDR. As a definitional provision, it provides the meaning of a term or
expression used in other provisions of the treaty, and thereby determines the extent and manner in
which such other provisions are to be applied (see also paragraphs 19-22 below). For example, in
the case of the VCDR, it would not be possible to apply Article 22, and therefore determine the
rights and obligations of the sending and receiving States with regard to the premises of the
mission, without Article 1 (i), which defines what constitutes such premises. Article 1 (i) cannot,
however, be interpreted, under any rules of interpretation, and has never been interpreted before by
a court of law, to establish a power to object or a requirement of prior approval by the receiving
State for a property to be considered as “premises of the mission” (see paragraph 76 of the
Judgment). Those words cannot be ascribed to it, nor to any other provision of the VCDR.
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7. The text of Article 1 (i), interpreted in its ordinary meaning, provides, among others,
two important indications with regard to the qualification of a property as “premises of the
mission”. First, the property must be “used for the purposes of the mission”. In other words, the
essential functions of the mission of the sending State must be carried out in such a building. The
word “used” is the key here. It means that the building has already been put to the purpose it was
intended for, which in this case is the performance of the functions of the mission. As stated in the
preamble of the VCDR “the purpose of [diplomatic] privileges and immunities is . . . to ensure the
efficient performance of the functions of diplomatic missions as representing States”. It is therefore
the place where such functions are performed that can be characterized as “premises of the
mission”, including the residence of the head of mission.
8.
Secondly, Article 1
(i) indicates that the ownership of the building is not relevant for the
premises to be considered as “premises of the mission”. Such premises may be rented or leased or
placed free of charge at the disposal of the mission by the receiving State or by a private party. The
buildings may also be owned by the mission; however, such ownership does not determine their
character as “premises of the mission”.

9. The pre-eminence of the criterion of “use[] for the purposes of the mission” in the
determination of what constitutes “premises of the mission” has been established in the case law of
domestic courts in many countries, and also by international tribunals in more recent years. It is
surprising that the Judgment of the Court does not refer to any of those authoritative judgments
which have applied the rules of both customary international law and of the VCDR in order to
determine whether a certain building constituted the premises of the mission and was, as a result,
entitled to diplomatic privileges and immunities.

10. Among the judgments based on customary international law, the following examples
may be mentioned. In 1929, the Tribunal civil de la Seine (France), in Suède v. Petrococchino,
rejected Sweden’s claim of diplomatic immunity over a building purchased by its Embassy in
Paris, noting that the mere acquisition of property does not, ipso facto, confer the privileges and
immunities applicable to Embassies; rather, such privileges are created “seulement — lorsqu’elle a
été réalisée — [par] l’affectation dudit immeuble aux services de l’ambassade de cet État”
1
.

11. Similarly, in 1947, in Echref v. Fanner (1947), an Egyptian court rejected the claim of
diplomatic immunity over the real estate property purchased by the Yugoslavian Embassy in Cairo,
on the basis that there had been no effective use of the said building by the Legation. It stated:

“Attendu que, pour que les dites prérogatives reçoivent dans l’espèce toute la
protection diplomatique ou judiciaire qu’elles comportent, il faut pour le moins qu’une
atteinte ait été faite à leur légitime exercice;

Mais attendu que les faits de la présente affaire ne justifient pas de tels griefs, la
Légation de Yougoslavie n’ayant pas été inquiétée dans la paisible possession des
locaux occupés effectivement par elle”
2
(emphasis added).

1
Tribunal civil de la Seine (Chambre du Conseil), Suède c. Petrococchino, 30 October 1929, reported in Journal
du droit international (JDI), 1932, Vol. 59 (4), p. 945.
2
Tribunal civil mixte du Caire (2e Chambre), S. E. Echref Badnjević ès qualité de Ministre de Yougoslavie en
Egypte v. W. R. Fanner, 29 April 1947, reported by Maxime Pupikofer, “Bulletin de Jurisprudence Égyptienne”, JDI,
1946-1949, Vols. 73-74, p. 117.
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The court then concluded that “il [était] juridiquement insuffisant pour l’Etat de Yougoslavie par sa
seule volonté d’affecter tel local à sa Légation”
3
.

12. Also, in 1959, the Supreme Restitution Court of Berlin (hereinafter the “SRCB”), in
4
Cassirer v. Japan
, referred to the International Law Commission’s (hereinafter the “ILC”) revised
Draft Articles on Diplomatic Intercourse and Immunities and its acceptance of the theory of
functional necessity
5
and explained 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 resurrection of the privilege
of immunity . . . Immunity is a shield, not a sword.”
6
(Emphasis added, references
omitted.)
The SRCB came also to the same conclusion in Tietz v. Bulgaria
7
, Weinmann v. Latvia
8
and
Bennett and Ball v. Hungary
9
.

13. After the conclusion of the VCDR in 1961, the case law of domestic tribunals interpreted
the provisions of the Convention, which mostly reflected customary law, while sometimes referring
to the work of the ILC. Thus, in 1962, in the Jurisdiction over Yugoslav Military Mission
(Germany) Case, the Federal Constitutional Court of Germany recalled the previous jurisprudence
relating to the criterion of “use” and noted:

“The courts, in determining the immunity of the foreign State from the
jurisdiction of the local courts, regarded as relevant the circumstance whether the
premises were in fact being used for diplomatic purposes. This permits the inference
that according to the view of these courts foreign States are not granted unlimited
immunity concerning their embassy premises but only to the extent required by the
object and purpose of diplomatic privileges and immunities . . . The inviolability of
the premises of the mission, as set out in the commentary of the Commission to the
relevant provision of the draft, is not the necessary consequence of the inviolability of
the chief of the mission but is a right attributable to the sending State, by reason of the
fact that the premises are used as the seat of the diplomatic mission (Yearbook, 1958,
vol. II, p. 95). It may be assumed, therefore, that Article 22 of the Vienna Convention
is also based on the view that the immunity of the mission premises is justified but

3
Tribunal civil mixte du Caire (2e Chambre), S. E. Echref Badnjević ès qualité de Ministre de Yougoslavie en
Egypte v. W. R. Fanner, 29 April 1947, reported by Maxime Pupikofer, “Bulletin de Jurisprudence Égyptienne”, JDI,
1946-1949, Vols. 73-74, p. 118.
4
Supreme Restitution Court of Berlin (SRCB), Cassirer v. Japan, 10 July 1959, reported in American Journal of
International Law (AJIL), 1960, Vol. 54 (1), pp. 178-188.
5
Ibid., pp. 185-186.
6
Ibid., p. 187.
7
SRCB, Tietz v. Bulgaria, 10 July 1959, reported in International Law Reports (ILR), 1963, Vol. 28, pp. 369,
381-382.
8
SRCB, Weinmann v. Latvia, 10 July 1959, reported in ILR, 1963, Vol. 28, pp. 385, 391.
9
SRCB, Bennett and Ball v. Hungary, 10 July 1959, reported in ILR, 1963, Vol. 28, pp. 392, 396.
- 5 -

(Emphases added.)
limited by the object of granting protection to the exercise of diplomatic functions.”
10

14. In 1989, in the case of R. v. Secretary of State for Foreign and Commonwealth Affairs
(ex parte Samuel), the English Court of Appeal upheld a judgment of the High Court which
accepted the opinion of the Secretary of State that the former Embassy of Cambodia in London did
not qualify as “diplomatic premises” for the purposes of Article 22 of the VCDR, noting that
“[t]he embassy premises are no longer ‘used for the purposes of the mission’ within
the meaning of Article 1 (i) of the Vienna Convention and thus do not enjoy the
special status, particularly inviolability, provided for by Article 22. That is correct,
Article 22 is dealing with ‘the premises of a mission’. That term is defined by
Article 1 as buildings and land ancillary thereto ‘used for the purposes of the mission’.
The embassy premises were not ‘used’ for the purposes of a mission at the date of the
Order or at any subsequent time. There has not been a mission since 1975 or
thereabouts.”
11

15. Also, in 1998, the Ontario Court of Justice, in Croatia v. Ru-Ko Inc., rejected the
argument of Croatia that a certain piece of property was immune from execution as “premises of
the mission” within the meaning of Article 1 (i) of the VCDR. It explained its reasoning as follows:

“[17] In analyzing Article 1 (i) it would appear that the operative words of that
subsection are ‘used for the purposes of the mission including the residence of the
head of mission’.

[18] It follows therefore that if the lands are ‘premises of the mission’ they must
be used for the purposes of the mission. The verb used being in the past tense and/or
present.

[19] There may be many buildings owned by foreign states in the City of
Ottawa and in Canada, but it is clear that the Vienna Convention would allow
immunity to be granted to only such lands and buildings that are used for the purposes
of the diplomatic mission of that foreign sovereign state.”
12
(Emphasis added.)

16. Turning now to the case law of international courts, the 2005 judgment of the
European Court of Human Rights (hereinafter the “ECtHR”) in the case of Manoilescu and
Dobrescu v. Romania and Russia is instructive. In this case, the ECtHR dealt with the claims of
two Romanian nationals under Article 6 of the European Convention on Human Rights that
Romania had failed to enforce a judgment awarding to them a real estate property that had been
unlawfully taken by them, and was currently used by the Russian Federation as its Embassy. The
ECtHR rejected the claims, and observed that the building was “used” for the purposes of the
mission:

10
Federal Constitutional Court of the Republic of Germany, Jurisdiction over Yugoslav Military Mission
(Germany) Case, 30 October 1962, reported in ILR, 1969, Vol. 38, pp. 162, and 165-167.
11
English Court of Appeal, R. v. Secretary of State for Foreign and Commonwealth Affairs (ex parte Samuel),
28 July 1989, reported in ILR, 1990, Vol. 83, pp. 231, 239.
12
Ontario Court of Justice (General Division), Croatia v. Ru-Ko Inc., 15 January 1998, reported in Ontario Trial
Cases (1998), Vol. 52, p. 191, paras. 17-19.
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“77. As regards the applicants’ argument that the property in issue was
transferred unlawfully to the Russian Federation, and hence to its embassy in
Romania, the Court observes that no distinction is made in the relevant provisions of
international law on immunity as regards the means, whether lawful or otherwise, by
which the property in the forum State intended for use as ‘premises of the mission’
passed into the ownership of the foreign State. It is sufficient for the property to be
‘used for the purposes of the mission’ of the foreign State for the above principles to
apply, a condition that appears to have been satisfied in the instant case, seeing that
the property in question is used by officials of the Russian Federation embassy in
Romania.”
13
(Emphasis added.)

17. The above case law clearly indicates that whenever the issue of what constitutes
“premises of the mission” and whether a building should be considered to have the status of
diplomatic premises has come before a domestic court or an international tribunal, it was always
resolved on the basis of the criteria established under Article 1 (i) of the VCDR, which also reflect
customary international law. Similarly, in the present case, the Court should have resorted to the
text of Article 1 (i) of the VCDR, in order to determine whether the building at 42 avenue Foch in
Paris could be considered to have the status of “premises of the mission”.

18. A first step in that direction seems to have been made in paragraph 41 of the Judgment,
but it has not been followed through. It is stated in that paragraph that “[t]he Court must first
determine in which circumstances a property acquires the status of ‘premises of the mission’ within
the meaning of Article 1 (i) of the Vienna Convention”. Unfortunately, this is not done anywhere in
the Judgment. Instead, we find a statement in paragraph 62, according to which
“[t]he Court considers that the provisions of the Vienna Convention, in their ordinary
meaning, are of little assistance in determining the circumstances in which a property
acquires the status of ‘premises of the mission’. While Article 1 (i) of the Vienna
Convention provides a definition of this expression, it does not indicate how a
building may be designated as premises of the mission. Article 1 (i) describes the
‘premises of the mission’ as buildings ‘used for the purposes of the mission’. This
provision, taken alone, is unhelpful in determining how a building may come to be
used for the purposes of a diplomatic mission, whether there are any prerequisites to
such use and how such use, if any, is to be ascertained.”
This conclusion is neither supported by an examination of the provisions of the VCDR, nor by an
analysis of the text of Article 1 (i). It is therefore difficult to understand how it was arrived at or the
reasoning on which it is actually based, even less how, in light of the above statement, it is possible
to declare afterwards in subparagraph (1) of the dispositif that the building at 42 avenue Foch in
Paris “has never acquired the status of ‘premises of the mission’ . . . within the meaning of
Article 1 (i) of the Vienna Convention”. (Emphasis added.)

19. Moreover, the role and significance of a definitional provision, such as Article 1 (i),
appears to have been downplayed in the Judgment. Definitional provisions are central to the
applicability and operation of the other provisions of the treaty. Their function is to assist in the
interpretation and application of such other provisions. The Court has often applied them to
interpret and apply “operative provisions” of treaties. It should have done the same here with
regard to Article 22 of the VCDR.

13
European Court of Human Rights (Third Section), Manoilescu and Dobrescu v. Romania and Russia,
3 March 2005, No. 60861/00, para. 77.
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20. For instance, in Ukraine v. Russia, the Court explained that the International Convention
on the Suppression of the Financing of Terrorism (ICSFT) “imposes obligations on States parties
with respect to offences committed by a person when ‘that person [finances]’ acts of terrorism as
described in Article 2, paragraph 1 (a) and (b)”. Thus, the Court made a direct connection between
the operative obligations set forth in the ICSFT and the definition of “financing acts of terrorism”
under Article 2, paragraph 1 (1) (a) and (b) of the ICSFT
14
. By contrast, in so far as the financing of
terrorism by States fell outside the scope of the definitional provisions, it was not “addressed” by
the ICSFT
15
. In the case concerning Certain Iranian Assets, the Court explained that Iran’s claims
with respect to Bank Markazi would fall under the 1955 Treaty of Amity only to the extent that
Bank Markazi could fall within the definition of a “company” under Article III (1) of the Treaty
16
.
Consequently, the extent of the United States’ obligations under Articles III, IV and V of the
1955 Treaty of Amity was intrinsically linked to the scope of “companies” under Article III.

21. Similarly, in several judgments relating to the law of the sea, the Court extensively
analysed and interpreted definitional provisions, such as those defining islands or the continental
shelf, in order to determine the scope and applicability of the other provisions of treaties, especially
the United Nations Convention on the Law of the Sea (UNCLOS). In the North Sea Continental
Shelf cases, for example, the Court took note of the various definitions suggested by the ILC on the
concept of the continental shelf as a relevant factor for the determination of the applicable
delimitation methodology
17
. The Court underlined the relevance of the definition of the continental
shelf for the purposes of maritime delimitation in Tunisia/Libya and Libya/Malta
18
. In the case
concerning Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court recalled its
previous conclusion in Qatar v. Bahrain that “the legal definition of an island embodied in
Article 121, paragraph 1, [of UNCLOS forms] part of customary international law”, as a relevant
principle for delimitation purposes
19
. In the case concerning Delimitation of the Continental Shelf
between Nicaragua and Colombia beyond 200 Nautical Miles, the Court observed that Article 76
of UNCLOS, which contains the definition of the continental shelf, also “makes provision” for the
establishment of the Commission on the Limits of the Continental Shelf (CLCS) for the delineation

14
Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 585, para. 59.
15
Ibid.
16
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 2019 (II), pp. 36-37, paras. 84-87.
17
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 95, referring to Yearbook of the International Law
Commission, 1956, Vol. I, p. 131, para. 46 (detailing the “Terminology and Definitions approved by the International
Committee on the Nomenclature of Ocean Bottom Features” adopted by the International Committee of Scientific
Experts at Monaco in 1952).
18
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 46, para. 42 (“The fact
that the legal concept, while it derived from the natural phenomenon, pursued its own development, is implicit in the
whole discussion by the Court in that case of the legal rules and principles applicable to it.”); ibid., pp. 48-49, para. 49,
(concluding that “[t]he definition in Article 76, paragraph 1, therefore affords no criterion for delimitation in the present
case.”); Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 30, para. 27 (“[t]hat the
questions of entitlement and of definition of continental shelf, on the one hand, and of delimitation of continental shelf on
the other, are not only distinct but are also complementary is self-evident”); ibid., p. 32, para. 31 (“the definition given in
paragraph 1 [of Article 76] cannot be ignored”).
19
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 674,
para. 139; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits,
Judgment, I.C.J. Reports 2001, p. 99, para. 195 (“On these bases, the Court concludes that the maritime feature of Qit’at
Jaradah satisfies the above-mentioned criteria and that it is an island which should as such be taken into consideration for
the drawing of the equidistance line.”)
- 8 -
of the continental shelf beyond 200 nautical miles
. It follows that the definitional provisions in
UNCLOS are of direct import to the interpretation and application of other provisions of that
Convention, such as those concerning maritime delimitation.
20

22. Definitional provisions, such as the one in Article 1 (i) of the VCDR, frequently lie at the
very heart of a treaty’s régime
21
, and apply conjunctively with other provisions. By defining the
scope of terms, they determine the precise extent of the rights, obligations and relations regulated
by the treaty. Thus, when Article 1 (i) of the VCDR defines the “diplomatic premises”, the
obligations set forth in Article 22 of the VCDR are circumscribed and clarified by reference to
those buildings that may qualify as “premises of the mission”. Consequently, the Court should have
ascertained, as a threshold matter, whether a building qualifies as “premises of the mission” within
the meaning of Article 1 (i) of the Convention before being able to assess whether a State, in this
case France, has breached its obligations under Article 22 of the VCDR. The Judgment should have
followed such a logical approach in order to address the subject-matter of the dispute between the
Parties in the present case. Instead, it pivots sometimes to a concept of prior approval and
sometimes to that of the power to object of the receiving State. Unfortunately, the legal basis of
neither of these requirements is indicated in the Judgment, which appears to borrow them from
other provisions of the VCDR that have nothing to do with the “premises of the mission”, or by
reference to the practice of a few States (not including France) that require prior approval in their
domestic legal systems.
III. Is the prior approval or the power to object of the receiving State required under
the VCDR for a property to qualify as “premises of the mission”?

23. At paragraph 76, the Judgment states that
“[h]aving determined that the objection of the receiving State prevents a building from
acquiring the status of the ‘premises of the mission’ within the meaning of Article 1 (i)
of the Convention, the Court will now consider whether France objected to the
designation of the building at 42 avenue Foch in Paris as premises of Equatorial
Guinea’s diplomatic mission”.

24. The Judgment reaches this conclusion without adhering to the customary rules of
treaty interpretation, which are identified in its paragraph 61. Neither the ordinary meaning to be
given to Article 1 (i), which is not properly analysed in the Judgment, nor the interpretation of its
terms in their context, or in the light of the object and purpose of the Convention can lead to such a
conclusion. It is also not clear how this conclusion was arrived at on the basis of the VCDR, when
in paragraph 62 of the Judgment it is stated that “the provisions of the Vienna Convention, in their
ordinary meaning, are of little assistance in determining the circumstances in which a property
acquires the status of ‘premises of the mission’”. Moreover, the Judgment does not indicate
whether the power to object is derived from a source outside the VCDR, such as customary
international law, or the practice of the few States referred to in paragraph 69.

20
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical
Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 137, para. 111.
21
Cf. Florian Jeßberger, “The Definition and the Elements of the Crime of Genocide” in Paola Gaeta (ed.), The
UN Genocide Convention: A Commentary, Oxford, Oxford University Press, 2009, p. 88, noting that the definition of the
crime of “genocide” forms the “heart” of the Convention’s régime.
- 9 -

25. What the Judgment attempts to do, despite the above statement on the provisions of the
VCDR, is to extrapolate a power for the receiving State to object to the designation of a property as
“premises of the mission” from the object and purpose of the Vienna Convention, considered
independently of Article 1 (i), and from the requirement of “mutual consent” under Article 2 of the
Convention. Neither the preamble nor Article 2 of the VCDR makes any reference to premises of
the mission, nor can their terms serve as the basis of a power to object. The VCDR clearly specifies
those instances in which any type of consent is required. They relate, in particular, to the
establishment of diplomatic relations, for which mutual consent is required (Article 2), the prior
consent for offices in localities other than those where the mission is established (Article 12), and
the agrément necessary for the head of mission (Article 4). Nowhere in the VCDR is to be found a
requirement of prior approval for a property to qualify as “premises of the mission” (as suggested
in paragraphs 71 and 72 of the Judgment) or a power of receiving States to object to the designation
of diplomatic premises by sending States (as indicated in paragraphs 68, 72, 73 and 76). Had the
drafters of the VCDR intended to subject the acquisition of the status of “premises of the mission”
to the prior or subsequent consent of the receiving State, they would have done that explicitly.

26. A rule which supposedly determines the circumstances in which a property can or cannot
qualify as “premises of the mission” cannot be based solely on the object and purpose of the
VCDR, or on the Convention’s aim to “contribute to the development of friendly relations among
nations”. It has to be founded on a provision of the Convention. The only provision in the VCDR
which provides a definition of what constitutes “premises of the mission” is Article 1 (i) and, when
it is interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose” (Article 31, paragraph 1, of the
Vienna Convention on the Law of Treaties), it does not yield any criterion or condition other than
that of being “used for the purposes of the mission”. Moreover, there is nothing unfriendly about a
sending State choosing the building where its embassy is to be housed in the receiving State as long
as such building, in order to be eligible for diplomatic immunities and privileges, is effectively
used to perform the functions of the mission.

27. In trying to find a basis in the preamble of the VCDR for the power to object or the
requirement of prior approval, the Judgment portrays the old law of diplomatic relations among
States, now codified in the VCDR, as being disadvantageous to the receiving State and imposing
restrictions on its sovereignty (see paragraphs 66 and 67 of the Judgment) so that the “power to
object” or the “prior approval” of the receiving State can be considered as a counterweight. No
evidence, however, is provided of the disadvantages or restrictions on the sovereignty of the
receiving State imposed by the VCDR. Nevertheless, two references are made in paragraphs 66, 67
and 68 to the significant “privileges and immunities” accorded to the representatives of sending
States and the indication in the preamble of the VCDR 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”. If what is being sought through such references is a
remedy to the possible abuse or misuse of privileges and immunities (and that is indeed the
impression given in paragraphs 66 and 67 of the Judgment), then the VCDR does not at all require
such a new remedy in the form of prior approval or the power to object by the receiving State. As
the Court observed in the case concerning United States Diplomatic and Consular Staff in Tehran,
which is quoted at the end of paragraph 67 of the Judgment,
“[t]he rules of diplomatic law, in short, constitute a self-contained régime which, on
the one hand, lays down the receiving State’s obligations regarding the facilities,
privileges and immunities to be accorded to diplomatic missions and, on the other,
- 10 -
foresees their possible abuse by members of the mission and specifies the means at the
disposal of the receiving State to counter any such abuse”
22
.

28. What is actually overlooked in the Judgment is that the self-contained and reciprocal
régime, reflected in the VCDR, has withstood the test of time, and has served through the centuries
the interests of both sending and receiving States without the power to object or the requirement of
prior approval by the receiving State, that are being proposed here. It is a régime that is balanced,
realistic and mutually beneficial. A régime that does not need a new requirement or a set of
requirements for a property to qualify as the “premises of the mission” because it already defines it
and because this definition, as interpreted by the courts of many countries, has over the years been
applied throughout the world to the satisfaction of both sending and receiving States. A newly
created requirement, which is not based on any of the sources of international law, can only
generate unnecessary misunderstandings and tensions where none had never existed before.

29. Furthermore, the VCDR provides for the respect of the laws and regulations of the
receiving State by all persons enjoying diplomatic privileges and immunities (Article 41,
paragraph 1) and obligates the receiving State either to facilitate, in accordance with its laws, the
acquisition by the sending State of premises for the latter’s mission, or to otherwise assist the
sending State’s mission in obtaining accommodation in some other way (Article 21, paragraph 1).
Thus, the Convention appears to give a measure of discretion to the receiving State to regulate the
matter under its national legislation, and some States have effectively done so. However, the
Judgment does not analyse Articles 41 and 21 of the VCDR as relevant context to the interpretation
of Article 1 (i), and selectively examines the legislation or diplomatic practices of a few States,
without addressing the qualitative differences and nuances between them (see paragraph 69 of the
Judgment). Apart from the fact that no customary rule of international law can be deduced from the
existence of such legislation or diplomatic practices, the scope of these regulations varies
considerably from one country to the other, and is mostly concerned with the acquisition of
property, urban planning, local building laws or the security of the mission itself. Much less does
the Judgment attempt to explain the significance of the practice of all other Contracting Parties to
the Vienna Convention, which have no regulation in place to require their prior approval for the
designation of premises by sending States, apart from the general application of their domestic
legislation to such premises.

30. The existence of domestic legislation or diplomatic practices in a few States does not,
therefore, warrant the conclusion that such a “power to object” (or requirement of prior approval) is
based in the VCDR or in international law in general. As the ILC observed in 1964,
“the practice of an individual party or of only some parties as an element of
interpretation is on a quite different plane from a concordant practice embracing all the
parties and showing their common understanding of the meaning of the treaty.
Subsequent practice of the latter kind evidences the agreement of the parties as to the
interpretation of the treaty and is analogous to an interpretative agreement.”
23

31. Moreover, while the VCDR provides for the respect of all the laws and regulations of the
receiving State, none of its provisions makes a renvoi to such laws and regulations with regard to
the characterization of a property as “premises of the mission” in such a manner as to make
compliance with internal law or the application of domestic procedures a condition for its

22
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 40, para. 86.
23
Yearbook of the International Law Commission, 1964, Vol. II, p. 204, para. 13.
- 11 -
application. Therefore, the fact that the domestic laws or diplomatic practice of a few countries
provide for prior approval in the designation of a building as the premises of the mission does not
justify the transposition of such requirement to international law or its representation as a condition
that has hitherto been well hidden, like a rare gem, in the nooks and crannies of the VCDR. After
all, the Judgment itself acknowledges that the practice of those few States cannot establish the
“agreement of the parties” within the meaning of Article 31, paragraph 3 (b) of the Vienna
Convention on the Law of Treaties (see paragraph 69 of the Judgment).

32. It should also be underlined that France is not one of the countries that have adopted such
legislation or diplomatic practice, although counsel for France argued that the Ministry for Europe
and Foreign Affairs had an old and constant practice of “no objection” or “implicit consent” with
regard to the granting of diplomatic status to buildings which a sending State wishes to assign to its
diplomatic mission (cf. CR 2020/2, p. 33, para. 23 (Bodeau-Livinec); Counter-Memorial of the
French Republic, para. 3.44). No clear evidence of the existence of a general, well-known and
transparent practice of such nature was, however, produced by France during the proceedings. All
the documents submitted by France in support of this affirmation (namely, the four Notes Verbales
of 6 May 2016, 24 June 2016, 12 January 2017 and 20 January 2017, the Note Verbale addressed
to Equatorial Guinea on 28 March 2012, and the Note Verbale addressed to the investigating judges
on 11 October 2011) post-date or are contemporaneous with the date when the dispute concerning
the building at 42 avenue Foch in Paris, arose. They do not show the existence of an old and
constant practice, nor of a general practice known to all diplomatic missions accredited to France.

33. Besides lacking a basis in the law, the “power to object” (or requirement of “prior
approval”) put forward in the Judgment is further complicated by (a) its all-encompassing and
unqualified character, and (b) the equally unfounded custom-made criteria proposed for its exercise
by the receiving State.

34. With regard to (a), the Judgment does not distinguish between the acquisition of
property, its lease or its temporary rental for the purposes of the receiving State’s “power to object”
or this newly minted requirement of “prior approval”. These transactions reflect different needs and
interests and are not treated equally in the domestic legislation or practices mentioned above. It
does not also make a distinction between premises used for the chancery and those used for the
residence of the head of mission. The application of such requirement by the receiving State might
delay or impede the heads of mission from taking up their duties after having obtained the
necessary agrément from the receiving State, since they would have to choose their residence (in
the case of a new mission or an existing mission without an official residence) and have it approved
by the receiving State. Similarly, an Embassy would be unable to sign a lease or a rental agreement,
even for a furnished apartment for the temporary residence of its the head of mission, without first
securing the approval of the receiving State. Otherwise, the sending State would run the risk that
such lease or rental agreement be frustrated by the subsequent objection of the receiving State. The
need to obtain such authorizations and their accompanying complications for foreign missions do
not exist today in international law nor in the domestic legislation of more than 180 Member States
of the United Nations.

35. It is however with regard to (b) above that the creative development in the Judgment of
these newly minted requirements runs into its most profound contradiction. In order to establish
certain criteria for the application of its creative interpretation, the Judgment first uses the
expression “power to object” (cf. paragraphs 72,73,74 and 76) as a synonym of the “prior approval
of the receiving State before a building can acquire the status of ‘premises of the mission’”
(cf. paragraphs 69 and 72), and then characterizes this power as a discretionary one, which has to
be exercised in a timely, reasonable, non-arbitrary and non-discriminatory manner (paragraph 73).
- 12 -
Almost half of the Judgment is then devoted to an examination of whether France’s discretionary
“power to object” was exercised in accordance with those criteria. The question arises here whether
this newly minted “power to object” developed in the Judgment for a property to qualify as
“premises of the mission” is permissive or binding? Is it a right of the receiving State (as suggested
in paragraph 73 of the Judgment) or a negative condition to the exercise of the sending State’s right
to designate its diplomatic premises (as suggested in paragraphs 67 and 68 of the Judgment)? Is it a
requirement which has to be applied in all circumstances, or a discretionary power which may be
exercised or not by the concerned authorities of the receiving State? Does the absence of a timely
objection by the receiving State entail its implicit consent or tacit approval (or perhaps its
acquiescence) to the designation of diplomatic premises by the sending State, or will the express
approval of the receiving State be required at all times?

36. Similar questions arise with regard to the criteria developed in paragraphs 73 to 74 of the
Judgment. Where in the VCDR or other sources of international law is such discretionary power of
the authorities of the receiving State to be found? What is the origin or legal basis of the criteria
proposed in the Judgment (except for the one on non-discrimination mentioned in Article 47 of the
VCDR) to assess the exercise of the discretionary power of the authorities of the receiving State?
At least an attempt ought to have been made to clarify or address these questions in the Judgment.
IV. The actions taken by French authorities: is there a breach
of the provisions of the VCDR?

37. The factual context and the unfolding of diplomatic exchanges between the two States
with regard to the building at 42 avenue Foch in Paris, in 2011 and 2012, are important for
understanding the claims of Equatorial Guinea and the actions taken by French authorities with
regard to the building. It is therefore worthwhile to go through those exchanges as well as the
measures taken by France in a detailed manner, without, however, trying to cover each and every
specific event that may be relevant to the case.

38. It is on 4 October 2011 that the Government of Equatorial Guinea claims for the
first time, in a Note Verbale to the French Foreign Ministry, that the Embassy of Equatorial Guinea
in Paris had at its disposal, for a number of years, a building located at 42 avenue Foch, Paris,
which “it uses for the performance of the functions of its diplomatic mission, a fact which it has
hitherto not formally notified to your [Protocol] department”. This was done at a time when a
judicial investigation, focused on the methods used to finance the acquisition of movable and
immovable assets in France by several individuals, including Mr. Teodoro Nguema
Obiang Mangue, the son of the President of Equatorial Guinea, who at the time was his country’s
Minister of State for Agriculture and Forestry, was underway in Paris. On 15 September 2011,
Mr. Teodoro Nguema Obiang Mangue, as sole shareholder, transferred to the State of
Equatorial Guinea all his shareholder rights in five Swiss companies that owned the building at
42 avenue Foch in Paris. According to Equatorial Guinea, this is how it acquired ownership of the
building at 42 avenue Foch, Paris.

39. Following this transfer of ownership, Equatorial Guinea first claimed that the building
formed part of the premises of its diplomatic mission (4 October 2011); it then asserted that the
official residence of Ms Bindang Obiang, the Permanent Delegate of Equatorial Guinea to
UNESCO, was on the premises of the diplomatic mission located at 42 avenue Foch, Paris, which
“is at the disposal of the Republic of Equatorial Guinea” (17 October 2011).
- 13 -

40. On 14 February 2012, the President of Equatorial Guinea wrote to his French counterpart
to inform him, inter alia, that his son
“purchased a residence in Paris, however, due to the pressures on him as a result of the
supposed unlawful purchase of property, he decided to resell the said building to the
Government of the Republic of Equatorial Guinea. At this time, the building in
question is a property that was lawfully acquired by the Government of
Equatorial Guinea and is currently used by the Representative to UNESCO”.

41. On the same date, the Permanent Delegation of Equatorial Guinea to UNESCO sent a
Note Verbale to the Protocol Unit of UNESCO stating that “the official residence of the Permanent
Delegate of Equatorial Guinea to UNESCO is located at 42 avenue Foch, 75016 Paris, property of
the Republic of Equatorial Guinea”.
42. On 9 March 2012, the Minister of Justice of Equatorial Guinea wrote to the
French Minister of Justice, stating that “[s]ince 15 September 2011 the Republic of
Equatorial Guinea has been the owner of a property located at 40/42 avenue Foch in Paris, assigned
to its diplomatic mission and declared as such . . . by Note Verbale No. 365/11 of 4 October 2011”.
This was followed by a Note Verbale on 12 March 2012 in which the Embassy of
Equatorial Guinea asserted that the premises of 42 avenue Foch in Paris were used for the purposes
of its diplomatic mission in France.

43. On 27 July 2012, the Embassy of Equatorial Guinea stated in a Note Verbale to the
Protocol Department of the French Ministry of Europe and Foreign Affairs that it had “the honour
to inform [the French Ministry] 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”.

44. This was the clearest statement made by Equatorial Guinea throughout this period with
regard to the use of the property at 42 avenue Foch, as premises of its Embassy in Paris. Contrary
to previous notifications and communications to the French Ministry for Europe and Foreign
Affairs, some of which contradicted each other, and most of which also placed the emphasis on the
ownership of the building by Equatorial Guinea, it is interesting to note that in the Note Verbale of
27 July 2012, Equatorial Guinea not only asserted that as from that date the offices of the Embassy
were located at 42 avenue Foch, but also clearly indicated that the building would henceforth be
used for the performance of the functions of the diplomatic mission in France.

45. Thus, the Note Verbale of 27 July 2012, together with that of 2 August 2012, which
confirmed that the chancery of the Embassy of Equatorial Guinea was indeed located at
42 avenue Foch, Paris, “a building that it uses as the official offices of its diplomatic mission in
France”, appear to have finally clarified the issue of whether the property at 42 avenue Foch was
actually being used as premises of the mission of Equatorial Guinea in France.

46. This issue, which was disputed at the time by the two States, and is indeed still at the
heart of the dispute brought before the Court, led the French Foreign Ministry to take publicly the
position (in a Note Verbale to the Embassy of Equatorial Guinea dated 11 October 2011) that
“the . . . building [at 42 avenue Foch in Paris] 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”. Similarly, in a reply to a request for information from the French Ministry of
- 14 -
Justice, the French Foreign Ministry stated on 11 October 2011 that “[t]he above-mentioned
building is not included among those covered by the Vienna Convention on Diplomatic Relations”.

47. Following these statements by the French Foreign Ministry, French investigators entered
the building at 42 avenue Foch on several occasions between 28 September 2011 and
23 February 2012 as part of a judicial investigation into the assets owned by Mr. Obiang Mangue in
France. They also seized luxury vehicles belonging to him which were parked in the premises.
Subsequently, on 19 July 2012, the building at 42 avenue Foch was attached (saisie pénale
immobilière) on the order of the French investigating judge. Finally, on 27 October 2017, the
Tribunal correctionnel of the city of Paris delivered its judgment in the case involving
Mr. Obiang Mangue and ordered the confiscation of the assets seized, including the building
located at 42 avenue Foch in Paris. This sentence was confirmed by the Cour d’appel on
10 February 2020.

48. The facts narrated above indicate, in my view, that the building at 42 avenue Foch in
Paris may be considered to have become part of the premises of the Embassy of Equatorial Guinea
in France as of 27 July 2012. The Note Verbale of the Embassy of Equatorial Guinea of
27 July 2012 is quite clear in this regard. Prior to that date, there might have been an intention on
the part of Equatorial Guinea to use the building as diplomatic premises, but there was no clear
indication that the building was actually being used for the performance of the functions of the
Embassy. Rather, the Notes Verbales sent to the French Foreign Ministry prior to that date were
characterized by equivocation and conflicting assertions. Moreover, the searches carried out by the
French investigators in September 2011 and February 2012 found various private objects of
considerable value, which allegedly belonged to Mr. Obiang Mangue, while noting that there were
no offices, as such, at that time in the building.

49. It indeed appears to me that, it is only as of 27 July 2012 onwards, that the building may
be considered to meet the requirements laid down in Article 1 (i) of the VCDR. In other words, this
is the critical date with regard to the status of the building as “premises of the mission”. The
Note Verbale of that date may also be considered as an appropriate notification that, thenceforth,
the building would be used for the performance of the functions of the mission. There is also some
evidence that French authorities, despite formal denials during the pleadings before the Court, have
to a certain extent acknowledged this reality.

50. In this connection, Equatorial Guinea has produced a number of documents which clearly
show not only the visits of French officials to the premises of the Embassy at 42 avenue Foch, but
also several Notes Verbales addressed to the Embassy of Equatorial Guinea at that address by the
French Ministry for Europe and Foreign Affairs, most of which were sent in 2019. While France
has argued before the Court that these Notes Verbales were sent by mistake to 42 avenue Foch, it is
difficult to overlook the visits by French officials to the Embassy at 42 avenue Foch, and the
protection afforded to the building by French authorities in 2015 (in response to a protest), and in
2016 on the occasion of the presidential elections in Equatorial Guinea. All these facts appear to
support that the building at 42 avenue Foch was used at the time, with effect at least from
27 July 2012, by Equatorial Guinea for the performance of certain diplomatic functions in France.
- 15 -

51. Moreover, it should be noted that the building was never entered or searched again by the
French authorities with effect from the end of July 2012. This cannot be solely attributed to the
Order on provisional measures issued by the Court on 7 December 2016, which indicated that
“France shall, pending a final decision in the case, take all measures at its disposal to
ensure that the premises presented as housing the diplomatic mission of Equatorial
Guinea at 42 Avenue Foch in Paris enjoy treatment equivalent to that required by
Article 22 of the Vienna Convention on Diplomatic Relations, in order to ensure their
inviolability”
24
.

52. It appears from the case file that the building was effectively treated by the French
authorities as “premises of the mission”, and apparently never entered or inconvenienced in any
way, for more than four years — from July 2012 to December 2016 — before the Order of the
Court was issued, despite the continued legal proceedings before French courts against
Mr. Obiang Mangue and on the ownership of the building.

53. In light of the above, the question arises whether the entries by French investigators in
the building and the searches conducted therein by French officials between 28 September 2011
and 23 February 2012, as well as the attachment and confiscation ordered by the French courts,
constitute a violation of Article 22 of the VCDR.

54. First, with regard to the entries and searches, as pointed out above, the building can be
considered, in my view, to have acquired the status of “premises of the mission” as of
27 July 2012. Therefore, the searches conducted by French officials in the premises before that date
concerned a building that was not yet eligible for or entitled to diplomatic immunity and protection
under Article 22 of the VCDR, although it was by then owned by the Government of
Equatorial Guinea. Consequently, no violation of the provisions of the VCDR appears to have
taken place as a result of those entries or searches.

55. Secondly, the next significant measure taken by the French authorities with regard to the
building, namely the attachment ordered by the senior judge in charge of the investigation in the
Tribunal de grande instance on 19 July 2012, also took place prior to 27 July 2012, the critical date
for the status of the building as premises of the mission under the VCDR, although it has not been
rescinded ever since. It is therefore a measure, which might still produce its effects with respect to
a building that must currently be considered as the diplomatic premises of the Embassy of
Equatorial Guinea. It should, however, be stated that this measure, as well as the measure of
confiscation ordered by the tribunal, affect, in particular, the ownership of the building. In this
context, it is important to recall the terms of Article 22, paragraph 3, of the VCDR, which provides
that “the premises of the mission, their furnishings, and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment, or execution”. What
is the scope of the immunity under this provision? Does it shield a building from jurisdiction with
regard to the determination of the ownership of the premises or a suit concerning title to the
property? Or does it cover only measures of execution or enforcement jurisdiction, which have an
adverse effect on the use of the premises?

24
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 December 2016, I.C.J. Reports 2016 (II), p. 1171, para. 99.
- 16 -

56. I am of the view that the latter interpretation is to be preferred. As pointed out earlier in
this opinion, the ownership of the property is not relevant for its characterization as “premises of
the mission” under the VCDR. A building used as “premises of the mission” may be rented or
leased from a private person or a company, and local courts may decide to attach the building to
ensure the payment of debts by the owner or as a result of transfer of ownership, without such
decision necessarily affecting the use of the building by the diplomatic mission. It is true that in the
instant case, the issue of the initial acquisition of the building by Mr. Obiang Mangue and its
current ownership are before the French courts, which have ordered, for that purpose, the
attachment of the building. However, the order of attachment has not so far affected the use of the
building by the Embassy of Equatorial Guinea and has had no adverse impact on the performance
of the functions of the Embassy in that building. Thus, as long as there is no measure of execution
that could impair the use of the building by the Embassy itself, in the sense of further searches or
entries, or an eviction order or other action affecting the performance of its diplomatic functions
within the premises, there is no violation of the immunity from attachment or confiscation
prescribed by Article 22, paragraph 3, of the VCDR.

57. Thirdly, and lastly, the measure of confiscation is still under appeal to the Cour de
cassation in France and has not therefore been executed so far. However, even if the ownership
title of the property was to be transferred to the French Government or to some other entity as a
result of the execution of the French court judgments, this would not necessarily have an impact on
the immunity provided by Article 22, paragraph 3, unless the French Government decided to take
measures that would directly affect the actual use of the building by the Embassy of
Equatorial Guinea for the performance of its diplomatic functions in France.

58. I am, therefore, of the view that the confiscation ordered by the French courts may not be
considered to be violative of Article 22, paragraph 3, of the VCDR as long as the French authorities
do not take measures that may have an adverse impact on the actual use of the building at
42 avenue Foch in Paris as premises of the mission by the Embassy of Equatorial Guinea. One can
only hope that such measures will not be taken by the French authorities despite the present
Judgment of the Court.
V. Conclusion

59. The building at 42 avenue Foch in Paris has been constantly used since at least
27 July 2012 as premises of the Embassy of Equatorial Guinea. It has not been disturbed, searched
or otherwise inconvenienced by French authorities since that date. To the contrary, it has been
protected, treated as Embassy premises by French authorities and visited by officials of the
Ministry of Foreign Affairs on various occasions even before the Order on provisional measures
issued by the Court in December 2016. Whatever may be the differences of view on the history of
the ownership of the building, on how it was acquired, and by whom it is currently owned, its use
by the Embassy of Equatorial Guinea for the past eight years cannot be put in doubt, and the issue
of ownership does not have much relevance for its characterization as “premises of the mission”. It
is the criterion of being “used for the purposes of the mission”, clearly established in Article 1 (i) of
the VCDR, that qualifies a building as diplomatic premises. And that is clearly fulfilled in this case.
A freshly minted requirement of “prior approval” or power to object of the receiving State, which
is not based on any of the provisions of the VCDR or on any other source of international law, will
not be of much help to resolve the differences between the two States with regard to the building.
Nor will the contradictory conclusion reflected in the dispositif, which denies the status of
“premises of the mission” to the building at 42 avenue Foch in Paris on the basis of Article 1 (i) of
the VCDR, while characterizing this provision as “unhelpful” in the determination of how a
building becomes the “premises of the mission” (paragraph 62 of the Judgment), be of assistance to
them or to other States in the future.
- 17 -

60. In its Order on provisional measures of 15 December 1979 in the case concerning
United States Diplomatic and Consular Staff in Tehran, the Court observed that
“the institution of diplomacy, with its concomitant privileges and immunities, has
withstood the test of centuries and proved to be an instrument essential for effective
co-operation in the international community, and for enabling States, irrespective of
their differing constitutional and social systems, to achieve mutual understanding and
to resolve their differences by peaceful means”
25
.

61. I have no doubt that the law on diplomatic relations can, likewise, withstand whatever
spanner is thrown in its way. However, to ascribe to international law a concept which may be
found in the domestic laws of a few countries and to treat it as a requirement applicable to the
diplomatic relations among all States does not contribute to the development of harmonious
diplomatic relations. Similarly, to try to found on the object and purpose of the Vienna Convention
a requirement or power that is not prescribed by any of its provisions neither reflects the
application of the customary rules of treaty interpretation nor does it promote friendly relations
among States as stated in the preamble of the VCDR. To the contrary, it might work to the
detriment of such relations and create undesirable complications, imbalances and tensions where
none existed before.

(Signed) Abdulqawi A. YUSUF.

___________

25
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. 19, para. 39.