Dissenting opinion of Judge ad hoc Kateka

DISSENTING OPINION OF JUDGE AD HOC KATEKA
Disagreement with the operative part of the Judgment ⎯ Disagreement with the reasoning
on procedural and substantive grounds ⎯ Preliminary issues ⎯ The VCDR preamble alone
cannot be basis of consent condition ⎯ Circumstances for a property to acquire status of
“premises of the mission” ⎯ Judgment ignores “use” condition and prefers “consent”
condition ⎯ Interpretation of Article 1 (i) of the Vienna Convention on Diplomatic Relations ⎯
Status of the building at 42 avenue Foch in Paris ⎯ Test of timeliness, non-arbitrary and
non-discriminatory character ⎯ Fate of the diplomatic premises of Equatorial Guinea.
I. Introduction

1. Regrettably I disagree with the Court’s finding that the building at 42 avenue Foch has
never acquired the status of “premises of the mission” of the Republic of Equatorial Guinea in the
French Republic within the meaning of Article 1 (i) of the Vienna Convention on Diplomatic
Relations (hereinafter the “VCDR” or the “Vienna Convention”). I also disagree with the
Judgment’s declaration that France has not breached its obligations under the VCDR. I have thus
voted against the operative paragraph 126 of the Judgment, including the subparagraph where the
majority rejects all other submissions of the Republic of Equatorial Guinea. I am of the view that
the building at 42 avenue Foch acquired the status of diplomatic mission of Equatorial Guinea and
that France breached its obligations under the VCDR by its measures of constraint against the
building. I disagree with the Court’s reasoning on procedural and substantive grounds. Procedurally
I do not share the Court’s reading into the VCDR of the consent requirement on which the
Convention is silent and the putting aside of the “use” requirement which is mentioned in the
instrument. In this connection, I disagree with the Court’s over-reliance on the preamble under the
guise of interpreting the object and purpose of the VCDR. I shall deal with the substantive issues of
the conditions (referred to as “circumstances” in the Judgment) and the status of the building after
considering some relevant preliminary issues.
II. Preliminary issues

2. The majority concludes that ⎯ where the receiving State objects to the designation by the
sending State of certain property as forming part of the premises of its diplomatic mission, and this
objection is communicated in a timely manner and is neither arbitrary nor discriminatory in
character ⎯ that property does not acquire the status of “premises of the mission” within the
meaning of Article 1 (i) of the Vienna Convention, and therefore does not benefit from protection
under Article 22 of the Convention (paragraph 74 of the Judgment). The majority is of the view
that the dispute between the Parties can be resolved by reliance on the consent or non-objection
condition. This is because the Judgment merely adds (paragraph 75) that “[i]f necessary, the Court
will then examine the second condition which, according to France, must be met for a property to
acquire the status of ‘premises of the mission’, namely the requirement of actual assignment”. This
conclusion is rather surprising because of several reasons. First, before reaching this conclusion,
the Court analyses considerably the two conditions for designating diplomatic premises
(paragraphs 61 to 73 of the Judgment). Secondly, it is surprising because the condition of consent
or non-objection is not provided for in the VCDR. The Convention is silent on this condition.
Thirdly, the majority uses reasoning ⎯ of treaty interpretation under the Vienna Convention on the
Law of Treaties (hereinafter the “VCLT”) ⎯ which I do not share to reach its position of relying
on the consent or non-objection condition and conveniently ignoring the “use” condition. The
majority avoids the “use” condition which is provided for in the Vienna Convention. The “use”
condition is referred to in paragraphs 107, 108 and 109 of the Judgment as actual assignment.
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These are passing references in the context of justifying the majority’s consent or non-objection
argument and the criminal proceedings in France against Mr Teodoro Nguema Obiang Mangue. I
thus regret the selective invocation of a non-existing criterion of consent or non-objection including
its coupling to the test or standard of “timely, non-arbitrary and non-discriminatory character”. I
shall explain further when I consider the conditions for designation of a diplomatic mission.

3. The Judgment rightly invokes the rule of treaty interpretation in paragraph 61. However,
the Judgment does not do justice to the interpretation rule in Article 31 of the VCLT. First, the
majority considers the VCDR provisions in their ordinary meaning to be of little assistance in
determining the circumstances in which a property acquires the status of “premises of the mission”.
Without attempting to interpret Article 1 (i) of the VCDR, the majority merely concludes that the
provision is unhelpful in determining how a building may come to be used for the purposes of a
diplomatic mission (paragraph 62 of the Judgment). Secondly, the Judgment uses the Convention’s
object and purpose by invoking the preamble, in particular, the third preambular paragraph on
contributing to the development of friendly relations among nations. Unfortunately, this creates an
element of confusion as to which object and purpose to take. For the Judgment also invokes the
purpose of ensuring the efficient performance of the functions of diplomatic missions as
representing States (fourth preambular paragraph of the VCDR cited at paragraph 66 of the
Judgment). In the process, the majority agrees with the respondent State that diplomatic privileges
and immunities impose weighty obligations on the receiving State. I do not share this view. It may
be recalled that reciprocity permeates diplomatic practice. It is misleading for the majority to state
that the receiving States have weighty or onerous obligations. As rightly stated by Denza
1
, “[e]very
State is both a sending and a receiving State”.

4. The view of weighty obligations leads the majority to state that there is an imbalance in
the obligations of the receiving State (paragraph 65 of the Judgment) in relation to the sending
State concerning privileges and immunities of diplomats and diplomatic missions. This is a
misconceived view. The VCDR in Article 2 provides for the establishment of diplomatic relations
by mutual consent. The benefits for diplomatic missions are counterbalanced by the sanctions
provided for in the VCDR. The Judgment (paragraph 67) refers to the well-known passage in the
Hostages case
2
:
“The rules of diplomatic law . . . 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,
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.”
This Court’s view reaffirms the well-established rule of reciprocity in diplomatic law as a sanction
against non-compliance.

1
Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, Fourth Edition,
2016, Oxford, Oxford University Press, p. 2.
2
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 40, para. 86.
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5. I am of the view that the drawbacks referred to above would have been avoided if the
majority had not placed too much reliance on the preamble of the VCDR in the present case.
Although the Court has given legal significance to preambles in its jurisprudence
3
, the legal weight
given to the VCDR’s preamble is, in my opinion, rather excessive. It is true that preambles are part
of a treaty and that tribunals refer to them in the context of the interpretive provisions of the VCLT.
However, by using the preamble to interpret the VCDR, the Court makes far-reaching
pronouncements which are not in the Convention. I have already referred to the alleged imbalance
against the receiving States and their so-called weighty obligations. Of concern is the use of the
object and purpose mechanism by the majority to read into the Convention what is not provided
for, while ignoring the condition set out in the VCDR, as I explain below.

6. In view of the fact that the majority has given an eminent role to the preamble of the
VCDR in the context of treaty interpretation, it bears recalling some canons of treaty interpretation
laid down in Article 31 of the VCLT. They show that the drafters of the VCDR intended to
emphasize the process of interpretation as a unity
4
. This unity applies not only in the
textual-contextual object and purpose circumstances but also by not considering an isolated treaty
provision but reading the treaty as a whole.

7. While preambles have normative influence on the understanding of a treaty’s meaning
5
,
this influence is limited. Preambles on their own, not supported by specific operative
provisions of a treaty, do not create substantive obligations to the parties to a treaty. As stated by
Judge ad hoc Mensah
6
:

“Specifically, I do not subscribe to the view that the ‘object and purpose of
UNCLOS, as stipulated in its Preamble’, in and by themselves, impose on parties to
the Convention obligations vis-à-vis other States which have taken a conscious
decision not to agree to be bound by that Convention.”
This was stated by Judge Mensah in response to the Court’s statement that “[g]iven the object and
purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia is not a party thereto
does not relieve Nicaragua of its obligations under Article 76 of that Convention”
7
.

8. The conclusion I draw from the above analysis is that while preambles are of assistance in
treaty interpretation, they should not be elevated to play a role that would change the meaning of a
treaty to the detriment of what the drafters intended. For example, the Court has been against a
construction that would involve radical changes and additions to the provisions of the 1880 Madrid
Convention by invoking the purposes and objects of the Convention. Doing so would not be to
interpret but to revise the treaty
8
.

3
Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment,
I.C.J. Reports 1952, p. 196; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Reports 2012 (II), p. 624.
4
International Law Commission (ILC), Commentary to Article 27 (now Article 31), Yearbook, 1966, Vol. II, p. 220.
5
O. Dörr et al. (ed.), Vienna Convention on the Law of Treaties: A Commentary, p. 10.
6
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), declaration of
Judge ad hoc Mensah, p. 765.
7
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 669, para. 126.
8
Rights of Nationals of the United States of America in Morocco, (France v. United States of America), Judgment,
I.C.J. Reports 1952, p. 196.
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III. Circumstances in which a property acquires the status of
“premises of the mission” under the Convention
9. The two conditions that were argued by the Parties in their pleadings are consent or
non-objection and use of a property as requirements for the status of premises of the mission. The
respondent State argued for two cumulative conditions of consent and actual assignment,
i.e. effective use for the purposes of the mission. The applicant State contended that the VCDR did
not make the granting of diplomatic status subject to the consent of the receiving State. As for the
use condition, Equatorial Guinea was of the view that this criterion was met where a building was
designated by the sending State. I shall consider the two conditions in turn.

10. I start with the condition that the majority has preferred, namely, consent/non-objection.
The Judgment states that ⎯ if France’s objection is communicated in a timely manner and is
neither arbitrary nor discriminatory in character ⎯ the property does not acquire the status of
“premises of the mission” within the meaning of Article 1 (i) of the Vienna Convention and thus
does not benefit from protection under Article 22 of the Convention (paragraph 74 of the
Judgment). This conclusion is reached after considering the object and purpose of the Convention.
In addition to the use of the preamble, the majority has formulated the standard or test of
“timeliness, non-arbitrariness and non-discriminatory character”.

11. I disagree with the majority when it states that the consent or non-objection of the
receiving State is required for the designation of a building as diplomatic mission. First, as already
observed, the Convention is silent as to this requirement. It does not make the granting of
diplomatic status subject to the consent or non-objection of the receiving State. Secondly, where
the consent of the receiving State is required it is so stated in the Convention. There are numerous
provisions such as Articles 5 (1), 6, 7, 8 (2), 12, 19 (2), 27 (1) and 46 of the VCDR which spell out
the requirement of the consent or non-objection of the receiving State.

12. Here one may use a few of these provisions to illustrate when consent or non-objection is
needed. Article 4 requires that the agrément of the receiving State is obtained for the accreditation
of a head of mission; so does Article 10, which requires notification for the appointment of
members of the mission. The logic of these provisions is reinforced by Article 4 of the
1963 Vienna Convention on Consular Relations which requires consent for the establishment of a
consular post. Thus, when the drafters of the VCDR considered it necessary to have the consent of
the receiving State, they provided so explicitly in the Vienna Convention.

13. A further illustration is that the majority claims not to be persuaded by
Equatorial Guinea’s a contrario reading of Article 12 ⎯ the provision for consent to open a branch
office by the sending State. The majority does not consider such a contrario reading to be
consistent with the object and purpose of the Vienna Convention. The reason given for this
rejection is not convincing. It is said that the receiving State would have to make special
arrangements for the security of that branch office. In my view, the receiving State is obligated to
provide security for all diplomatic missions, whether in the capital or other cities. Furthermore, this
argument is based on the false premise of weighty obligations on the receiving State. I have already
dealt with this matter above (paragraphs 3 and 4 of this opinion). The same logic applies to the
majority’s argument in paragraph 67 of the Judgment about the sending State unilaterally imposing
its choice of mission premises upon the receiving State.
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14. The majority also states that it is difficult to reconcile an interpretation of the Convention
that would allow the sending State to use property for diplomatic missions despite express
objection of the receiving State. The majority invokes Article 2 of the VCDR on the establishment
of diplomatic relations taking place by mutual consent. In my view, this is mixing up two different
concepts. While the establishment of diplomatic relations is by mutual consent, it does not follow
automatically that two States with diplomatic relations will open diplomatic missions in their
respective capitals. Relations can be promoted from the respective capitals. However, once a
diplomatic mission is opened the reciprocal responsibilities between the sending and receiving
States apply under the VCDR.

15. The analogy (paragraph 65 of the Judgment) between the persona non grata provision in
Article 9 of the VCDR and lack of an equivalent mechanism for mission premises is misplaced. As
I stated in paragraph 4 above, the Convention is a self-contained régime that concerns persons,
premises and property. It must not be read in isolation. It must be read as an integrated régime.
Thus, the sanctions available to a receiving State in respect of persons can also be used for solving
disputes concerning premises or property. A receiving State can break off diplomatic relations with
a sending State that disregards the rules in the VCDR. It can also use the persona non grata
provision to expel diplomats of a State that offends against the VCDR régime.

16. With respect to consent or non-objection, the majority takes issue with Equatorial
Guinea’s contentions concerning advance notification and consultation (referred to as
“co-ordination” in paragraphs 71 and 72 of the Judgment). The advance notification is required in
the context of domestic law in the receiving State. In my view, it is not uncommon that where a
State does not have national legislation in respect of diplomatic law, it issues circulars through the
Foreign Office to diplomatic missions. Such circulars are guidelines to enable diplomatic missions
to be aware of the practice in a particular State.

17. The issue of consultation (co-ordination) is not far-fetched either. The Applicant argues
that in the absence of legislation or established practice, the receiving State may only object to the
designation by the sending State of its diplomatic premises in consultation with the sending State.
The majority (paragraph 71) is of the view that this condition among others does not exist under the
VCDR or in general international law. And yet the majority has acknowledged the fact that the
receiving State’s power to object to a sending State’s designation of its diplomatic mission is not
unlimited. Such a power must be exercised reasonably and in good faith. France itself refers to the
consensual letter and spirit of the Vienna Convention (paragraph 54 of the Judgment). It adds that
the significant restrictions on the receiving State’s territorial sovereignty through the inviolability
régime calls for the sending State to use the rights conferred on it in good faith. France also refers
to a “bond of trust” between the sending State and the receiving State. In my view, this is a clear
acknowledgment of the need for consultation. The mutuality régime in Article 2 of the VCDR
carries the same spirit of the need for consultation.

18. As for the State practice of France, the Respondent claims to have a practice of general
tacit consent. This is called non-objection coupled with effective assignment i.e. actual use. The
majority (paragraph 69), like France, cites the practice of a dozen States
9
which have legislated on
the requirement of obtaining prior consent. It is not clear how the practice of a handful of States
can be construed. Is it customary law? It cannot be. The majority does not consider that this
practice necessarily establishes the agreement of the parties within the meaning of
Article 31 (3) (b) of the VCLT. In my view, there is no constant and consistent practice of France.

9
Out of the 192 States parties to the VCDR.
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This is because the Respondent’s explanation varies. When it denied recognition to the request of
the Embassy of Equatorial Guinea, France invoked the use condition in its Note Verbale of
11 October 2011. France stated that the premises fell within the private domain and were subject to
ordinary law. Subsequently France used the attachment of the building on 19 July 2012 as the
reason.

19. It is this lack of consistent practice that leads Equatorial Guinea to accuse the
Respondent of arbitrariness and discrimination. I share this view, as explained below, concerning
the status of the building and the test of reasonableness and non-discrimination to deny recognition
to the building as the premises of Equatorial Guinea’s diplomatic mission.

20. I now turn to the second condition of “use” of the premises. As already indicated
(paragraph 2 above), the majority does not consider it necessary to rule on the alleged “actual
assignment” requirement for a building to benefit from the protections provided for in Article 22.
The “if necessary” phraseology in paragraph 75 of the Judgment is not utilized in any meaningful
way. In the majority’s view, the dispute between the Parties can be resolved through an analysis of
whether France’s objection to the designation of the building at 42 avenue Foch as premises of
Equatorial Guinea’s diplomatic mission was “communicated in a timely manner, and was neither
arbitrary nor discriminatory in character”. As already stated, I disagree with this approach which
ignores the condition of “use” which is mentioned in the VCDR and instead the majority adopts the
consent or non-objection condition on which the Convention is silent. I am also not persuaded by
the non-arbitrary and non-discriminatory test. It is adopted by the majority to rationalize the
invocation of the consent or non-objection condition which is not provided for in the VCDR.

21. The majority finds itself in the situation of having to put aside the “use” condition and
adopting a condition on which the Convention is silent. They also face the awkward situation of
using arguments based on the “use” condition in order to justify the consent or non-objection
condition (paragraphs 108 and 109 of the Judgment). In my view, the majority has erred in taking
this approach.

22. The Judgment states that Article 1 (i) of the VCDR has a definition of what constitutes
“premises of the mission” which does not expressly establish how and when a building may come
to be diplomatic premises (paragraph 62 of the Judgment). Nevertheless, the majority does not
interpret the provision in detail. Article 1 (i) defines “premises of the mission” as buildings and the
land used for the purposes of the mission. I am of the view that this circular definition is more than
descriptive. The term “used” indicates one of the conditions for establishing premises of the
mission. Disagreement may be on what is meant by the term “used”. France interprets the term to
mean effective or actual use (where a diplomatic mission has completely moved into the premises
in question), while Equatorial Guinea is of the view that the term encompasses premises assigned
for diplomatic purposes, i.e. intended use. I share the latter view.

23. The term “use” can be interpreted differently. For “use” includes planning for the
mission premises and their refurbishment. It is a gradual process. Once a sending State gives
notification of its opening a diplomatic mission and assigns a building for this purpose, it takes
time to complete the moving-in process. Diplomatic missions are not established overnight. For
example, the movement of diplomatic missions from Bonn to Berlin in the 1990s lasted for several
years for some diplomatic missions.
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24. In this regard, I share the Applicant’s view in rejecting the notion that “actual” or
“effective” assignment occurs only when a diplomatic mission has completely moved into the
premises in question. The intended use must be included by accepting the situation where the
sending State has assigned premises for diplomatic purposes. From the time of assignment and
notification to the receiving State to the final move in the premises have to be accorded immunity
and inviolability. Otherwise the expression “used for the purposes of the mission” in Article 1 (i) of
the VCDR would be deprived of effet utile in this context. The agents of the receiving State can
enter the premises ⎯ as they did in the present case ⎯ under the guise of there not being “actual or
effective assignment” of the property. In this connection, I share the view Judge Robinson
expressed in paragraph 43 of his dissenting opinion that a building is entitled to immunity on the
basis of the intended use as diplomatic premises when that “use” is followed by the actual use of
the building as diplomatic premises.

25. I conclude this section by stating that the Judgment should have considered both
conditions of “consent” and “use” thoroughly. The consent or non-objection condition is not found
in the VCDR and it does not apply in the present case. As described by President Yusuf in his
separate opinion, it is a “freshly minted” condition (paragraph 59). The condition of use which is
mentioned in Article 1 (i) of the Vienna Convention can be interpreted to include the intended use
of a diplomatic mission in which the actions of Equatorial Guinea fall for the period from
4 October 2011 to 27 July 2012.
IV. Status of the building at 42 avenue Foch in Paris

26. The Parties exchanged numerous diplomatic Notes between 4 October 2011 and 27 July
2012. These two dates are crucial in determining the status of the building at 42 avenue Foch. It
should be noted that, because the Court ruled against jurisdiction of the building at 42 avenue Foch
as property of a foreign State under the United Nations Convention against Transnational
Organized Crime (or Palermo Convention), the claims of Equatorial Guinea prior to 4 October
2011 fall outside the Court’s jurisdiction (paragraph 77 of the Judgment). Equatorial Guinea
accepts that events before 4 October 2011 are inapplicable to the present case. Hence it is
surprising that the majority invokes the “use” criterion to cite the events of the searches of
28 September and 3 October 2011 as proof that the building at 42 avenue Foch was not being used
or being prepared for use for diplomatic purposes. The events of the period prior to 4 October 2011
are irrelevant and should not have been invoked by the majority.

27. France claims to have objected consistently to each of the diplomatic Notes of
Equatorial Guinea. The majority agrees with the Respondent that French authorities conducting the
on-site inspection did not find that the premises were being used or being prepared for use as
Equatorial Guinea’s diplomatic mission. The majority dismisses the evidence of signs at the
premises (“Embassy of Equatorial Guinea”) and residence of the Permanent Delegate to UNESCO
as inconsequential. It also dismisses evidence of tacit consent and recognition by France
(paragraph 32 below). This is a regrettable position.

28. As noted in paragraph 20 above, the majority has established a standard or test of
whether the objection of France was timely, non-arbitrary and non-discriminatory. This is a
standard that is difficult to justify. Whether the actions of France were timely is debatable. It may
have responded to the Note Verbale of Equatorial Guinea of 4 October 2011 within a week.
However, considering the lengthy period of the conflict, one wonders whether events were dealt
with in a timely manner. The stalemate between the Parties lasted from October 2011 to 13 June
2016 when Equatorial Guinea instituted proceedings before the Court. The period of nine months,
from 4 October 2011 to 27 July 2012, was the apex of the stalemate between the Parties. And yet
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France as the receiving State, in spite of the sanctions available under the VCDR did not act
because it did not want to jeopardize its bilateral relations with Equatorial Guinea. While this is
understandable, it adds to the complication of this unique case.

29. In any case, to establish the reasonableness of France’s conduct will depend on the
particular circumstances. The majority concludes that Equatorial Guinea was aware on 4 October
2011 of the searches of 28 September and 3 October 2011 in the context of criminal proceedings.
Hence there were reasonable grounds for France’s objection to Equatorial Guinea’s designation of
the building as diplomatic premises. Unfortunately, this argument ⎯ as already indicated above ⎯
involves the irrelevant period prior to 4 October 2011. It is surprising that this temporal element is
ignored by the majority. Furthermore, the circumstances of the present case point to
Equatorial Guinea being a victim of unjust treatment. Accusations of abuse of rights were made
although they have not been commented upon by the majority. This is another regrettable matter.

30. Hence the respondent State cannot be absolved from accusations of arbitrariness and
discrimination. For example, French authorities accepted a capital gains tax for the property at
42 avenue Foch when they had no intention to pass on title of the building to Equatorial Guinea.
Moreover, France tries to refute accusations of arbitrariness and discrimination by citing a single
case of State X. It is not persuasive. Nor is the contention that no other sending State has ever
conducted itself in France as Equatorial Guinea did in the present case. One may observe here that
no other country has ever found itself in the situation Equatorial Guinea found itself in as a sending
State. The linkage of France’s actions to the criminal proceedings in French courts completes the
unusual nature of the present case. Unfortunately, the majority agrees with France that if the
respondent State had acceded to Equatorial Guinea’s assignment of the building, it might have
hindered the proper functioning of the French criminal justice system (paragraph 109 of the
Judgment). This is in my view, a rather speculative and unnecessary comment which is not
persuasive to justify further French searches of the building as reasonable.

31. As for the commencement date of the designation of the building at 42 avenue Foch as
diplomatic premises of Equatorial Guinea, I am of the view that the notification by the Applicant
on 4 October 2011 should be accepted. The period between this date and 27 July 2012 was used for
planning the transfer of the premises from 29 boulevard de Courcelles to 42 avenue Foch in Paris.

32. In this connection, I observe that the French authorities, by their actions, have repeatedly
recognized the building at 42 avenue Foch as the premises of the diplomatic mission of Equatorial
Guinea. French officials have visited the building to obtain visas; the building was granted
protection in 2015 and 2016; four letters were addressed to 42 avenue Foch by French officials
in 2019. The majority (paragraph 114 of the Judgment) attempts to counter these recognition
factors by advancing arguments that are not convincing. To argue that the acquisition of visas at
42 avenue Foch in Paris does not lead to the conclusion that the premises were recognized
(by France) as constituting the premises of the mission ⎯ without giving reasons ⎯ is not
convincing. France, rather unconvincingly, tries to explain that the four letters were sent by mistake
(at different times)!

33. If the date of 4 October 2011 proves problematic, surely 27 July 2012 cannot be in doubt
as the commencement date of the diplomatic status of Equatorial Guinea’s mission at 42 avenue
Foch. Several judges have recognized and voted in favour of the status of 42 avenue Foch as
premises of the diplomatic mission of Equatorial Guinea even though they found no breach of
obligations. France concedes that its non-recognition of the building and the seizures of assets were

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done before 27 July 2012. It further states that since that date, Equatorial Guinea has never reported
any incidents that could have affected the peace of the building. I am of the view that this is tacit
consent and recognition of the diplomatic status of the premises.

34. In light of the above, I am of the view that the building at 42 avenue Foch acquired the
status of premises of the mission of Equatorial Guinea in France as of 4 October 2011 and that
France is in breach of its obligations under the VCDR.
V. Fate of the premises of Equatorial Guinea in France

35. The Court (paragraph 116) notes that the conduct of France did not deprive
Equatorial Guinea of its premises in France and the Applicant already had diplomatic premises at
29 boulevard de Courcelles which France still recognizes. However, the premises at 42 avenue
Foch have been recognized by the Court under the Order for provisional measures of
December 2016. That recognition/protection will end with the present Judgment on the merits. The
fate of these premises will be more uncertain when the appeal against the judgment of the
Cour d’appel of 10 February 2020 comes to an end. Confiscation of the building will definitely
affect the functioning of the Embassy of Equatorial Guinea in France. It is regrettable that the
Court has left this matter unresolved. The issue is more than the question of ownership of the
premises. It is the issue of the dignity and inviolability of the premises of the mission of
Equatorial Guinea under Article 22 of the VCDR. The stability of the rules of diplomatic law will
not be helped by this omission on the part of the Court.

(Signed) James KATEKA.

___________