Separate opinion of Judge Sebutinde

SEPARATE OPINION OF JUDGE SEBUTINDE

The disputed building acquired the status of “premises of the mission” of Equatorial Guinea
within the meaning of Article 1 (i) of the VCDR on 27 July 2012 when Equatorial Guinea
effectively moved its mission into that building ⎯ With effect from that date, France had an
obligation to extend to the disputed building the protection guaranteed under Article 22 of the
VCDR ⎯ Under the VCDR, ownership of a building is immaterial in determining whether it is
capable of forming part of the premises of a mission ⎯ France’s refusal to recognize the disputed
building as premises of Equatorial Guinea’s mission after 27 July 2012 was based on factors to do
with the ownership of the building rather than its use by the Applicant for purposes other than its
mission ⎯ The evidence regarding the prerequisite for consent of a receiving State before a
building can be recognized as premises of a mission points to France’s practice of “no objection”
whereby the receiving State will not unreasonably object on grounds other than that the building is
not being used for the purposes of the mission stipulated in Article 3 of the VCDR ⎯ Since the
building only attained the status of “premises of the mission” on 27 July 2012, the actions of
French authorities in relation to that building before that date, including searches, seizures and
order of attachment (saisie pénale immobilière) cannot be considered as being in violation of
Article 22 of the VCDR ⎯ The order of confiscation of the disputed building of 27 October 2017,
confirmed on 10 February 2020, does not violate Article 22 of the VCDR since it concerns the
transfer of ownership of the building and does not necessarily implicate its use as premises of
Equatorial Guinea’s mission ⎯ There are no exceptional and compelling circumstances pointing
to abuse of rights by Equatorial Guinea and the Court should have expressly said so in the
Judgment.
I. Scope of the dispute, jurisdiction and admissibility

1. I have voted against paragraph 126 (1) of the Judgment because I disagree with the finding
of the majority that the building at 42 avenue Foch in Paris (hereinafter the “disputed building”)
has never acquired the status of “premises of the mission” of Equatorial Guinea within the meaning
of Article 1 (i) of the Vienna Convention on Diplomatic Relations, 1961 (hereinafter the “VCDR”
or the “Convention”). As I explain in this opinion, the disputed building did acquire that status on
27 July 2012. Furthermore, although I have voted in favour of paragraph 126 (2) along with the
majority, I do so for reasons other than those expressed by the majority in the Judgment. I express
those reasons later on in this separate opinion. Lastly, while France argued at length about
Equatorial Guinea’s alleged “abuse of rights” in the present case, the Judgment says little on the
issue, simply alluding in paragraph 66 to the fact that the purpose of the diplomatic privileges and
immunities under the VCDR are not meant to benefit individuals, without explaining how this
statement relates to Equatorial Guinea’s claims or conduct. I offer a few thoughts on this issue in
this separate opinion. But first I wish to remind the reader of what the Court found, in 2018, to be
the dispute between the Parties in the present case.

2. In paragraph 70 of its Judgment of 6 June 2018
1
, the Court described the dispute between
the Parties as follows:
(a) First, as a disagreement regarding 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 provided for under Article 22 of the VCDR.

1
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment,
I.C.J. Reports 2018 (I), p. 292.
- 2 -
(b) Secondly, as a disagreement regarding whether France, by the actions of its authorities in
relation to the building, breached its obligation under Article 22 of the VCDR
2
.

3. The Court also stated that it has jurisdiction, on the basis of the Optional Protocol to the
VCDR concerning the Compulsory Settlement of Disputes, to entertain Equatorial Guinea’s
Application only 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
3
.

4. It is clear from the facts of this case that France’s refusal or reluctance to recognize the
disputed building as part of the diplomatic mission of Equatorial Guinea is, in large part, due to the
fact that in its view, the building is privately owned by Mr. Teodoro Nguema Obiang Mangue and
is subject to ongoing criminal processes in France, including an order of attachment and
confiscation. On the other hand, France also agrees that, for purposes of implementing the régime
of inviolability under the VCDR, ownership of a building per se is to be distinguished from
assignment and use of that building as premises of a diplomatic mission.

5. In my view, the Court should have distinguished the question of ownership of the disputed
building from its assignment and use as premises of the mission and should have entertained
Equatorial Guinea’s Application only in so far as it concerns the status of the disputed building as
“premises of the mission”. This is because under Article 1 (i) of the VCDR, ownership is not a
prerequisite for determining whether a building qualifies for protection under Article 22 of the
VCDR as “premises of the mission”. The only prerequisite thereunder is that the building, or parts
thereof and the land ancillary thereto, are “used for the purposes of the mission including the
residence of the head of mission”. In that regard, I do not agree with the Court’s interpretation of
Article 1 (i) of the VCDR in paragraph 62. In my view, that provision is more than a mere
definition. In the ordinary meaning of that paragraph, the “premises of the mission” comprise:
⎯ buildings or parts of buildings and land ancillary thereto;
⎯ that are used for the purposes of the mission including the residence of the head of the mission;
and
⎯ it is irrelevant who actually owns the building or land upon which the mission is situated.

6. However, the VCDR sheds no light as to whether before using a building as “premises of
its mission” the sending State needs to obtain the prior consent (or non-objection) of the receiving
State to such use. I examine this aspect later on in this opinion.
II. Status of the building at 42 avenue Foch in Paris
A. Criteria for qualifying a building as “premises of the mission”

7. In determining whether the disputed building qualifies as “premises of the mission” of
Equatorial Guinea within the meaning of Article 1 (i) of the VCDR, the Court has to determine,
first, if and when Equatorial Guinea started using the building for purposes of its mission and,
secondly, whether such use is subject to the consent of France as the receiving State as a necessary

2
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment,
I.C.J. Reports 2018 (I), p. 315, para. 70, and p. 328, para. 120.
3
Ibid., pp. 337-338, para. 154 (4).
- 3 -
prerequisite for extending the régime of inviolability in respect of that building under Article 22 of
the VCDR.

8. In determining if and when the disputed building qualifies as “premises of the mission”,
I have examined three possible dates on which Equatorial Guinea claims the building was assigned
for use as the premises of its mission, namely 4 October 2011, 17 October 2011 and 27 July 2012.
(i) Assignment of the building as premises of the mission on 4 October 2011

9. Equatorial Guinea refers to 4 October 2011, the day following the search of the disputed
building and seizure by French authorities of several luxury vehicles belonging to Mr. Teodoro
Nguema Obiang Mangue from parking lots located near the disputed building on 3 October 2011,
as the date when it first assigned the disputed building for use as its diplomatic mission. On that
date, Equatorial Guinea officially notified the French Ministry of Foreign Affairs, for the first time,
that
“Equatorial Guinea . . . 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 its
diplomatic functions, a fact which it has hitherto not formally notified to your
[Protocol] Department. Since the building forms part of the premises of the 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.”
4

10. In my view however, Equatorial Guinea has not adduced sufficient proof that the
disputed building was, prior to or with effect from 4 October 2011, actually used as premises of its
mission within the meaning of Article 1 (i) of the VCDR. It is not sufficient that Equatorial Guinea
merely “had the disputed building at its disposal”. In that regard, I have taken the following factors
into account:
(a) First, according to Equatorial Guinea itself, the disputed building belonged to Mr. Teodoro
Nguema Obiang Mangue in his private capacity until 15 September 2011 (one month before the
above official notification) when he allegedly transferred his shares in the five Swiss
companies to the Government of Equatorial Guinea. In those circumstances, it is unlikely that
the State of Equatorial Guinea had “had the building at its disposal for a number of years” or
that it used the privately owned building “for the performance of its diplomatic functions” prior
to 4 October 2011, as alleged in their official notification.
(b) Secondly, Equatorial Guinea did not specify what diplomatic functions were being carried out
at the disputed building prior to or as at 4 October 2011. In paragraph 22 of its reply to a
question put by a Member of the Court, Equatorial Guinea asserted that “[p]rior to 4 October
2011, the building had been used to accommodate Equatorial Guinea’s diplomatic staff or other
officials on special missions”, but adduced no evidence to prove this claim, nor did the
Applicant consider it necessary to request from the receiving State diplomatic status or tax
exemptions in respect of the disputed building during that period
5
.

4
Memorial of Equatorial Guinea (MEG), para. 2.30; see also written replies of Equatorial Guinea to questions put
by two Members of the Court, 26 Oct. 2016, para. 21.
5
Rejoinder of France (RF), para. 1.7.
- 4 -
(c) Thirdly, during several searches of the disputed building conducted by French investigators
prior to 4 October 2011, the Applicant did not even once complain or assert diplomatic
immunity of the building. In the Note Verbale of 28 September 2011 delivered personally to
Mr. Alain Juppé, Minister of State for Foreign Affairs, Equatorial Guinea bitterly complained
about the investigations and criminal charges levelled against Mr. Teodoro Obiang Mangue and
against the interference of France in the internal affairs of Equatorial Guinea. However, the
Note Verbale was silent about the status of the building at 42 avenue Foch, Paris, the ownership
of which had by then, allegedly, been transferred to the Government of Equatorial Guinea. The
first time a complaint was ever raised in this regard was by Ms Mariola Bindang Obiang
(UNESCO Representative) in respect of the searches and seizures of 14-23 February 2012
6
.
(d) Fourthly, on-site inspections of the disputed building carried out by French authorities on
5 October 2011 and in February 2012 found no evidence that it was either occupied by the
Embassy of Equatorial Guinea, or used as a residence by Ms Bindang Obiang, UNESCO
Representative
. All they found was a signpost at the entrance reading: “Republic of Equatorial
Guinea ⎯ Embassy Premises”. Equatorial Guinea itself recognizes that the items seized by the
French Authorities on those occasions did not belong to its mission
7
8
.

11. For all the above reasons, I am not convinced that the disputed building acquired the
status of “premises of the mission” within the meaning of Article 1 (i) of the VCDR on or about
4 October 2011.
(ii) Move of the UNESCO Delegate’s residence to the building on 17 October 2011

12. On 17 October 2011, Equatorial Guinea officially notified the French Ministry of
Foreign Affairs of the end of the mission of H.E. Mr. Frederico Edjo Ovono, the Ambassador
Extraordinary and Plenipotentiary of the Republic of Equatorial Guinea, and that, pending his
replacement, Ms Mariola Bindang Obiang, Permanent Delegate to UNESCO, would head the
Embassy as Chargée d’affaires ad interim. The Applicant’s Note Verbale further indicated that “the
official residence of Ms Bindang Obiang was located on the premises of the diplomatic mission
located at 42 Avenue Foch, 75016 Paris, which is at the disposal of the Republic of Equatorial
Guinea”
9
. France responded on 31 October 2011, rejecting the appointment of Ms Bindang Obiang
as Chargée d’affaires ad interim as being contrary to Article 19 of the VCDR
10
; insisting that
France had never recognized the disputed building as part of the premises of Equatorial Guinea’s
mission; and indicating that any change in address of Ms Obiang’s residence from 46 rue des
Belles Feuilles, Paris (16th arr.) to the disputed building should be officially notified by
UNESCO’s protocol department and not by the Applicant’s Embassy
11
.

6
MEG, Ann. 42.
7
Additional documents communicated by France, No. 33, Record of on-site inspection and attachment of
vehicles of Mr. Teodoro OBIANG NGUEMA located at 42 Avenue Foch, 75016 Paris, 28 Sept. 2011 [translation].
8
Reply of Equatorial Guinea (REG), para. 4.12.
9
MEG, Ann. 36.
10
According to France’s Note Verbale of 31 October 2011, only a member of the mission’s diplomatic,
administrative or technical staff may under Art. 19 of the VCDR be designated chargé d’affaires ad interim by the
sending State.
11
MEG, Ann. 40.
- 5 -

13. It was four months later, on 15 February 2012, that the Permanent Delegation of
Equatorial Guinea to UNESCO transmitted to the French Ministry of Foreign Affairs a Note
Verbale 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”
12
. On 16 February 2012 the Applicant sought the agrément of French authorities pursuant
to Article 4 of the VCDR regarding the appointment of Ms Bindang Obiang as Ambassador of
Equatorial Guinea to France, stating that she resided at the disputed building
13
.

14. In March 2012, Equatorial Guinea issued several Notes Verbales to the French Ministry
of Foreign Affairs in which it asserted the immunity of the building, not as “premises of its
mission” but as “Government property”
14
.

15. In my view, Equatorial Guinea has not adduced convincing and consistent evidence that
as from 17 October 2011, the disputed building was actually used as “premises of the mission”
within the meaning of Article 1 (i) of the VCDR, including as the “residence of its head of
mission”. In that regard, I have taken the following factors into account:
(a) First, in nominating Ms Mariola Bindang Obiang, the UNESCO Permanent Delegate, as
Chargée d’affaires ad interim and head of mission of Equatorial Guinea on 17 October 2011,
the Applicant did not secure the agrément of the receiving State as required by Article 4 of the
VCDR, since France subsequently rejected the appointment of Ms Mariola Bindang Obiang as
being contrary to Article 19 of the VCDR.
(b) Secondly, even if the official residence of Equatorial Guinea’s Permanent Representative to
UNESCO had shifted from 46 rue des Belles Feuilles, Paris (16th arr.) to the disputed building,
Article 20 of the Host Agreement between France and UNESCO requires that the notification
of such change of address should have been sent by the protocol department of UNESCO to the
French Ministry of Foreign Affairs and not by the Embassy of Equatorial Guinea. In any event
that notification only took place four months later on 15 February 2012
15
.
(c) Thirdly, approximately four months after Ms Mariola Bindang Obiang had allegedly moved
into the disputed building, French authorities carried out several searches of the disputed
building between 14 and 23 February 2012 and seized various items comprising the personal
effects, furniture and documents of Mr. Teodoro Obiang Mangue
16
. Based on those searches
and the testimony of employees of Mr. Teodoro Obiang Mangue, there were neither diplomatic
documents nor property or items belonging to a female resident found in the disputed building,
despite a formal protest by Equatorial Guinea and Ms Bindang Obiang against the searches
17
.

12
MEG, Ann. 41.
13
Article 4 of the VCDR provides:
“1. The sending State must make certain that the agrément of the receiving State has been given for the
person it proposes to accredit as head of mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.”
14
MEG, Anns. 43, 44 and 45.
15
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.
16
Order of attachment of the Paris Tribunal de grande instance, MEG, Ann. 25.
17
MEG, Anns. 37 and 38.
- 6 -
16. For all the above reasons, Equatorial Guinea has not proved that the disputed building
acquired the status of “premises of the mission” within the meaning of Article 1 (i) of the VCDR
on or about 17 October 2011.
(iii) Move of Equatorial Guinea’s Embassy offices to the disputed building on 27 July
2012

17. On 19 July 2012, the Paris Tribunal de grande instance issued an order (saisie pénale
immobilière) attaching the disputed building with a view to its confiscation
18
. On 27 July 2012, the
Embassy of Equatorial Guinea informed the French Ministry of Foreign Affairs 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”
19
. On 2 August 2012, Equatorial Guinea sent another notification to the French Ministry
of Foreign Affairs to the effect that “further to its preceding Notes Verbales, it hereby confirms that
its chancellery is indeed located at the following address: 42 avenue Foch, Paris (16th arr.), a
building that it uses as the official offices of its diplomatic mission in France”
20
.

18. In response, the French Ministry of Foreign Affairs wrote to the Applicant on 6 August
2012 indicating its refusal to recognize the disputed building as the new premises of
Equatorial Guinea’s diplomatic mission, pointing out that the building was the subject of an order
of attachment and stating that the seat of the Chancellery remains at 29 boulevard de Courcelles,
Paris (8th arr.)
21
. France reiterated its position in subsequent communication
22
.

19. On 12 May 2016, Equatorial Guinea responded reiterating the fact that its Embassy
offices were located at the disputed building since it was so assigned on 11 October 2011 and
pointing out the mixed messages that the French Government and its Ministry of Foreign Affairs
were sending. In that regard Equatorial Guinea noted that
(a) 42 avenue Foch, Paris (16th arr.) is the address at which requests for visas to enter
Equatorial Guinea are submitted by members of the French Government, such as the
State Secretary for Development and Francophone Affairs, who made an official visit to
Equatorial Guinea from 8 to 9 February 2015;
(b) a law enforcement unit went to the same address on 13 October 2015 to provide protection for
the diplomatic mission during protests by members of the Equatorial Guinean opposition in
France.

20. The Applicant observed that this contradiction should not be to the detriment of the
Republic of Equatorial Guinea
23
.

18
MEG, Ann. 25.
19
MEG, Ann. 47.
20
MEG, Ann. 48.
21
MEG, Ann. 49.
22
See Note Verbale of 27 April 2016 (MEG, Ann. 50).
23
MEG, Ann. 51.
- 7 -

21. It is clear from the above narrative of events that Equatorial Guinea effectively moved
the offices of its diplomatic mission in France into the building at 42 avenue Foch in Paris on or
about 27 July 2012, eight days after the order of attachment (saisie pénale immobilière) was issued
by the Paris Tribunal de grande instance. Thereafter Equatorial Guinea used every opportunity to
reiterate its position to the French authorities despite the consistent refusal of the French Ministry
of Foreign Affairs to recognize the disputed building as the Applicant’s diplomatic mission or
Chancellery. France’s refusal to recognize the building as premises of Equatorial Guinea’s mission
was clearly based on the fact that the disputed building was privately owned and has been placed
under an order of attachment and confiscation. Each Party is thus entrenched in its position, except
in 2015 when on a few occasions French authorities obtained their visas to Equatorial Guinea and
gave protection to diplomatic staff at that building.

22. In my view, there is sufficient evidence to show that the disputed building has since
27 July 2012 been effectively used as premises of Equatorial Guinea’s mission. In my view,
although the orders of attachment and confiscation could ultimately affect ownership of the
disputed building, they should not, at this stage, prevent Equatorial Guinea from effectively using
the building as premises of its mission. As earlier pointed out, France itself admits that the
ownership of the disputed building is immaterial in determining whether the property is capable of
forming part of the premises of Equatorial Guinea’s mission
24
.
B. Is prior consent of the receiving State a necessary prerequisite?

23. The VCDR is silent on whether the consent of the receiving State is required before a
building can qualify as “premises of a mission”. By contrast for example, Article 11 speaks of
agreement between the sending and receiving States as to the size of the mission; while Article 12
forbids a sending State from establishing additional offices of its mission “in localities other than
those in which the mission itself is established”. The travaux préparatoires of the VCDR does not
shed light on this issue. The answer may lie in the practice of France, as receiving State, towards all
sending States that establish diplomatic relations with it.

24. The Parties are agreed that France has no written laws or guidelines requiring prior
consent. However, its practice appears to indicate the existence of a practice of a “no-objection”
régime. In other words, for purposes of establishing premises of a diplomatic mission, it is enough
for the sending State to notify France as the receiving State of the location of the mission premises
and for the latter to raise no objection thereto. It is also expected that the receiving State will not
unreasonably object, on grounds other than that the building is not being used for the purpose of the
mission. This approach has been adopted by commentators of the Convention:

“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.”
25

24
Counter-Memorial of France (CMF), paras. 2.1-2.21; RF, paras. 0.11-0.15 and 2.1-2.4.
25
See Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, Fourth
Edition, 2016, Oxford, Oxford University Press, p. 17.
- 8 -

25. In the present case, France’s persistent refusal to recognize the disputed building as
premises of Equatorial Guinea’s mission was not based on the fact that it is being used for purposes
or functions other than those stipulated in Article 3 of the VCDR. Rather, France’s objection to the
disputed building being used by Equatorial Guinea as diplomatic premises is persistently based on
the fact that the building is “privately owned” and is “subject to orders of attachment and
confiscation”. Ironically, France has consistently also maintained that the question of ownership of
the building does not affect its potential use as diplomatic premises. In particular, France has
argued that the order of attachment affects only “the free disposal of the title to the building” not its
use
26
. In this regard I agree with France’s interpretation of Article 1 (i) of the VCDR.

26. Consequently, I am of the considered view that once it was established that
Equatorial Guinea had effectively moved its mission offices into the disputed building on 27 July
2012, that was sufficient for the building to acquire the status of “premises of Equatorial Guinea’s
mission” and for France as the receiving State to accord the building the protection provided under
Article 22 of the VCDR, regardless of who owns the building or the fact that it is under orders of
attachment and confiscation. This brings me to the question whether France in fact breached its
obligations under the VCDR.
III. Whether France violated its obligations under the VCDR

27. The obligation imposed upon the receiving State and its agents by Article 22 of the
VCDR is twofold. First, the receiving State has a duty to ensure that its authorities do not enter the
premises of the mission of a sending State without the consent of the head of mission. Secondly, it
has a duty to protect such mission against intrusion, damage, disturbance of the peace or
impairment of dignity, and against measures of constraint including search, requisition, attachment
or execution.

28. Given my conclusions reached above that the disputed building only attained the status
of “premises of Equatorial Guinea’s mission” on 27 July 2012, the building could not enjoy
diplomatic protection under Article 22 of the VCDR before that date. It follows that the searches
and seizures carried out by the French authorities in relation to the building before that date cannot
be considered as violations of the VCDR. The same is true regarding the order of attachment of the
building (saisie pénale immobilière) issued on 19 July 2012.

29. However, the question is what consequences should arise from the order of confiscation
of the disputed building issued by the Paris Tribunal de grande instance on 27 October 2017, a
decision confirmed by the Paris Cour d’appel on 10 February 2020. As both these decisions were
issued in relation to the building after it became the premises of Equatorial Guinea’s diplomatic
mission, could they be interpreted as tantamount to a violation of Article 22 of the VCDR?

30. As Equatorial Guinea itself pointed out during the oral hearings on the preliminary
objections raised by France, “in 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”
27
. As such, an
order of confiscation per se does not imply a violation of the mission premises, in the sense that it
essentially impedes the free disposal of the title to the building but need not necessarily affect its
use as premises of the mission. Equatorial Guinea expressed concern that confiscation carries

26
RF, paras. 4.5-4.6.
27
CR 2018/3, p. 21, para. 43 (Tchikaya).
- 9 -
“an ever-present risk of expulsion” of its mission from the building”
. However, my view is that
the Court would be engaging in speculation if it took that approach, given that confiscation does
not automatically lead to eviction. Considering that the Court should steer clear of issues to do with
the ownership of the disputed building, it is not up to the Court to speculate about what measures
the French authorities may adopt following the confiscation, particularly if the Court were to find
that the building did enjoy diplomatic status from 27 July 2012 and is therefore immune from
execution. In other words, it is possible for the disputed building to have changed ownership in any
number of ways and for Equatorial Guinea to choose to continue housing its mission there, subject
to negotiation with the new owners. As long as Equatorial Guinea’s mission continued to be housed
there, the receiving State would be obligated to extend to that mission the régime of inviolability
guaranteed under Article 22 of the VCDR, regardless of the new owners.
28

31. For all the above reasons, I am of the view that France is not in violation of Article 22 of
the VCDR, as the building did not enjoy the inviolability régime when searches and seizures were
carried out or when the order of attachment was issued. Furthermore, there was no violation under
Article 22 of the VCDR since the order of confiscation does not automatically lead to eviction.
This brings me to the last issue in the case, namely whether by bringing its claim to the Court, the
Applicant abused its rights, as claimed by the Respondent.
IV. Whether Equatorial Guinea committed abuse of rights

32. In its third preliminary objection to the jurisdiction of the Court in the present case,
France argued that Equatorial Guinea “suddenly and unexpectedly” transformed a private residence
into premises of its mission and appointed Mr. Teodoro Nguema Obiang Mangue to increasingly
eminent positions. It further alleges that Equatorial Guinea’s objective in bringing the case before
the Court was to shield both Mr. Teodoro Nguema Obiang Mangue and the building at 42 avenue
Foch from pending criminal proceedings that were underway in France. France concludes that
Equatorial Guinea’s Application constitutes an abuse of process because it was submitted in the
manifest absence of any legal remedy and with the aim of covering up abuses of rights committed
in other respects.

33. In its 2018 Judgment on preliminary objections, the Court characterized France’s third
preliminary objection as an objection to admissibility
29
. The Court also overruled the objection in
relation to the alleged abuse of process
30
. In relation to the alleged abuse of rights, the Court stated:

“As 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.”
31

28
REG, para. 2.54.
29
Immunities and Criminal Proceedings (Equatorial Guinea v. France) Preliminary Objections, Judgment,
I.C.J. Reports 2018 (I), p. 335, para. 145.
30
Ibid., p. 336, para. 150.
31
Ibid., p. 337, para. 151.
- 10 -

34. Abuse of rights is a controversial claim, which should only be made in exceptional and
compelling circumstances. Judge Hersch Lauterpacht observed that abuse of rights is said to occur
when “a State avails itself of its right in an arbitrary manner in such a way as to inflict upon another
State an injury which cannot be justified by a legitimate consideration of its own advantage”
32
. The
Court has in its jurisprudence
33
recognized abuse of rights as a necessary corollary to the principle
of good faith
34
. However, as France rightly observes, the threshold for a finding of abuse of rights
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
35
. In this case the Court is called upon to
determine whether by claiming diplomatic protection under Article 22 of the VCDR for the
disputed building as “premises of its mission”, Equatorial Guinea abused its rights under the
VCDR to the detriment of the rights of France as receiving State.

35. There is little doubt that in seeking to divest himself of the ownership of the disputed
building and transferring the shares in the five Swiss companies to the State of Equatorial Guinea
in mid-September 2011, Mr. Teodoro Nguema Obiang Mangue acted under pressure of the
criminal proceedings that were already underway against him in France. His father, the President of
Equatorial Guinea, disclosed as much to President Sarkozy of France in an official communication
in February 2012
36
.

36. I have expressed the view that in my opinion the Applicant effectively moved the offices
of its mission into the disputed building on 27 July 2012 and that, with effect from that date, the
building was entitled to the protection guaranteed by Article 22 of the VCDR. Can it be said that
when Equatorial Guinea availed itself of its right to bring this case before the Court, it did so “in an
arbitrary manner in such a way as to inflict upon France an injury which cannot be justified by a
legitimate consideration of the Applicant’s own advantage”? The answer must be in the negative.
In moving the offices of the mission to the disputed building, the Applicant genuinely believed
(rightly or mistakenly) that they were moving into a building then owned by the State of Equatorial
Guinea. The fact that the President of Equatorial Guinea did not hide the reason behind the
“transfer” of the building from the French authorities, coupled with the Applicant’s various
attempts to settle the dispute regarding the status of the building diplomatically, are, in my view,
indicative of the Applicant’s desire to maintain a transparent and fraternal relationship with the
Respondent, rather than an indication of bad faith.

32
L. Oppenheim, International Law: A Treatise, Vol. 1: Peace, Eighth Edition, ed. by H. Lauterpacht, London,
New York, Toronto, Longmans, Green and Co., p. 354.
33
See 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 (II), p. 622, para. 46.
34
Other authors have observed:
“Good faith in the exercise of rights . . . means that a State’s rights must be exercised in a manner
compatible with its various obligations arising either from treaties or from the general law. It follows
from this interdependence of rights and obligations that rights must reasonably be exercised. The
reasonable and bonafide exercise of a right implies an exercise which is genuinely in pursuit of those
interests which the right is destined to protect and which is not calculated to cause any unfair prejudice to
the legitimate interests of another State”. (See B. Cheng, General Principles of Law as Applied by
International Courts and Tribunals, Cambridge, 1953, reprinted in 1987, pp. 131-132.)
35
CMF, para. 4.9.
36
MEG, Ann. 39.
- 11 -

37. At France’s own admission, its refusal to recognize the disputed building as premises of
the Applicant’s mission is not based on the Applicant’s misuse of the building for purposes other
than the mission, but rather because the building was “privately owned” and “under orders of
attachment and confiscation”. In my view, France’s right to proceed with the criminal processes
against Mr. Teodoro Obiang Mangue or the disputed building is not prejudiced by
Equatorial Guinea’s Application before the Court as the orders of attachment and confiscation
concern ownership of the building and not its use as premises of the Applicant’s mission.

38. Furthermore, when ruling on allegations of violations of provisions of the VCDR in the
United States Diplomatic and Consular Staff in Tehran case
37
, the Court held that the VCDR, as a
self-contained régime, provides to States parties the means to address what they could consider as
abuses of the rights and privileges conferred by the Convention. The Court in its obiter dictum
stated as follows:

“84. The Vienna Conventions of 1961 and 1963 contain express provisions to
meet the case when members of an embassy staff, under the cover of diplomatic
privileges and immunities, engage in such abuses of their functions as espionage or
interference in the interna1 affairs of the receiving State. It is precisely with the
possibility of such abuses in contemplation that Article 41, paragraph 1, of the
Vienna Convention on Diplomatic Relations, and Article 55, paragraph 1, of the
Vienna Convention on Consular Relations, provide

‘Without prejudice to their privileges and immunities, it is the duty
of all persons enjoying such privileges and immunities to respect the laws
and regulations of the receiving State. They also have a duty not to
interfere in the internal affairs of that State.’”

39. In the long run, a finding by this Court of abuse of rights against the Applicant may not
be useful and may only serve to further undermine the strained relations between the two States. In
line with the object and purpose of the VCDR, which is to “contribute to the development of
friendly relations amongst nations”, the Court should have made an express finding that France has
not proved the Applicant’s alleged abuse of rights.

(Signed) Julia SEBUTINDE.

___________

37
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 39, para. 84.