HISTORy

Semester Iii
TOPIC:

Immunities and criminal proceedings

( equatorial guinea Vs france)

SUBMITTED TO :
DR. NAZIMA MUNSHI
Proffesor. NMIMS School of Law
SUBMITTED BY ;
DIVYANSHU SINGH
First year BA.LLB
DIV B
ROLL NO : B059
INDEX:

Kirit P.Mehta School of Law Page 1

Serial .no Topic Page .no

1. Abstract 3

2. Introduction 4

3. Facts 5-6

4. Issues 7-8

5. judgement 9-10

6. conclusion 11-12

7. Personal Opinion 13

8 Bibliography 14

Abstract
Kirit P.Mehta School of Law Page 2
On June 6, 2018, the International Court of Justice (Court) rendered a judgment on
preliminary objections in the case of Immunities and Criminal Proceedings
(Equatorial Guinea v. France). France had made three preliminary objections: two
related to the Court's jurisdiction on the basis of, respectively, United Nations
Convention Against Transnational Organized Crime (Palermo Convention) and the
Optional Protocol to the Vienna Convention on Diplomatic Protection (VCDR)
concerning the Compulsory Settlement of Disputes (Optional Protocol), and the
third challenged admissibility for abuse of process and abuse of rights. The Court
accepted the first objection regarding jurisdiction on the basis of the Palermo
Convention and rejected the other two. This judgment is an important contribution
to the development of international law, both regarding the particular instruments
at issue and broader questions of law of treaties and international dispute
settlement

Keywords: Protocol,Diplomatic,Convention,Immunities,Process,Disputes

Chapter 1 :

Kirit P.Mehta School of Law Page 3

INTRODUCTION:

On June 6, 2018, the International Court of Justice (Court) rendered a judgment on preliminary
objections in the case of Immunities and Criminal Proceedings (Equatorial Guinea v. France).
France had made three preliminary objections: two related to the Court’s jurisdiction on the basis
of, respectively, United Nations Convention Against Transnational Organized Crime (Palermo
Convention) and the Optional Protocol to the Vienna Convention on Diplomatic Protection
(VCDR) concerning the Compulsory Settlement of Disputes (Optional Protocol), and the third
challenged admissibility for abuse of process and abuse of rights. The Court accepted the first
objection regarding jurisdiction on the basis of the Palermo Convention and rejected the other
two. This judgment is an important contribution to the development of international law, both
regarding the particular instruments at issue and broader questions of law of treaties and
international dispute settlement.

1.1 Details of the case:

 Name of the case: Immunities and criminal proceedings ( equatorial guinea Vs france)

 Year of the case : 7 December 2016

 Citation : ICGJ 513 (ICJ 2016) (OUP reference) [2016] ICJ GL No 163

 Parties involved in the case: Equatorial guinea and France

 Name of the judges: Judges Owada, Judge Abraham, Judge Bennouna, Judges Cancando
Judges Trindade, Justice Donoguhe , Judge Gaja , Judge Sebutinde, Judge Bhandari, Judge
Robinson Judge Crawford, Judge Gevorgian,Judge Salam .

Chapter 2

Kirit P.Mehta School of Law Page 4

Facts :

The dispute arose from criminal proceedings instituted in France against Mr. Teodoro Nguema
Obiang Mangue that were ongoing in French courts on June 13, 2016, when Equatorial Guinea
filed its application. The proceedings originated in a complaint lodged by Transparency
International France with the Paris public prosecutor in 2008 in respect of allegations of
misappropriations of public funds in Equatorial Guinea, the proceeds of which had allegedly
been invested in France. The investigation focused on the methods used to finance the
acquisition of assets in France by several individuals, including Mr. Obiang Mangue, the son of
the president of Equatorial Guinea, and more specifically the way in which he had acquired
valuable objects and a building located at 42 Avenue Foch in Paris.

Two aspects of the investigation raised issues of international law for Equatorial Guinea. First, it
took the view that the search and eventual attachment of the building as well as the associated
seizure of certain items breached VCDR because the building was being used for its diplomatic
mission.Second, the French courts had denied the ratione personae immunity from jurisdiction
that Mr. Obiang Mangue was entitled to as (since 2012) second vice-president of Equatorial
Guinea in charge of defence and state security, implicating the Palermo Convention. In
December 2016, pursuant to Equatorial Guinea’s request for provisional measures, the Court
unanimously ordered France to ensure that 42 Avenue Foch enjoyed treatment equivalent to that
required by Article 22 VCDR (while finding no prima facie jurisdiction under the Palermo
Convention).

Through this application Equatorial Guinea hoped to achieve three goals: the termination of the
French criminal proceedings that investigated issues deemed to be under Equatoguinean
jurisdiction, and the recognition of the respective immunity and inviolability of Mr. Obiang
Mangue and 42 avenue Foch in these proceedings. France’s main counterargument was that
Equatorial Guinea had abused its rights not only by promoting Mr. Obiang Mangue to grant him
immunity ratione personae but also by moving their embassy to the property after the beginning
of the criminal investigation in order to protect it from seizure by means of inviolability.

Kirit P.Mehta School of Law Page 5

Late 2016, the Court ordered provisional measures to guarantee the inviolability of 42 avenue
Foch until the conclusion of the international judicial proceedings on the basis of the Vienna
Convention on Diplomatic Relations (VCDR), but not for Mr. Obiang Mangue’s immunity, for
lack of prima facie jurisdiction on the basis of the Convention against Transnational Organized
Crime (Palermo Convention). Vice-President Xue (Judge, at the time) and Judge ad
hoc Kateka disagreed with the latter conclusion. In June 2018, the Court found that it lacked
jurisdiction pursuant to the Palermo Convention but recognised that it did have jurisdiction under
the VCDR regarding 42 avenue Foch, and left the questions of abuse of process and of abuse of
rights to the merits stage. Vice-President Xue, Judges Sebutinde and Robinson and Judge ad
hoc Kateka appended a joint dissenting opinion, criticising the majority position regarding the
Palermo Convention. Mr. Obiang Mangue had already been found guilty by the French courts by
then, but the execution of the confiscation measure against 42 avenue Foch was on hold.

Kirit P.Mehta School of Law Page 6

Chapter 3

ISSUE IN THE CASE:

Subject- Matter of the Dispute

The dispute between Equatorial Guinea and France, arising from certain ongoing criminal
proceedings in France, concerns the immunity from criminal jurisdiction of the Second Vice-
President of the Republic of Equatorial Guinea in charge of Defence and State Security, and the
legal status of the building which houses the Embassy of Equatorial Guinea, both as premises of
the diplomatic mission and as State property.

The criminal proceedings against the Second Vice-President constitute a violation of the
immunity to which he is entitled under international law and interfere with the exercise of his
official functions as a holder of high-ranking office in the State of Equatorial Guinea. To date,
these proceedings have also resulted, inter alia, in the attachment of the building located at 42
Avenue Foch in Paris, which is the property of Equatorial Guinea and used for the purposes of its
diplomatic mission in France. These proceedings violate the Vienna Convention on Diplomatic
Relations of 18 April 1961, the United Nations Convention against Transnational Organized
Crime of 15 November 2000, and general international law.

3.1 Jurisdiction of the Court

The Court has jurisdiction in the present case, first, under the provisions of the Optional Protocol
concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic
Relations of 18 April 1961 (hereinafter “the Optional Protocol”) and, second, under Article 35 of
the United Nations Convention against Transnational Organized Crime of 15 November 2000
(hereinafter “the United Nations Convention”).

France and Equatorial Guinea are parties to the 1961 Vienna Convention on Diplomatic
Relations: France ratified the Convention on 31 December 1970, and Equatorial Guinea acceded
to it on 30 August 1976. Both States are also parties to the Optional Protocol: France ratified the
Protocol on 31 December 1970, and Equatorial Guinea acceded to it on 4 November 2014.

Kirit P.Mehta School of Law Page 7

Equatorial Guinea and France are also both parties to the United Nations Convention against
Transnational Organized Crime of 15 November 2000: France ratified it on 29 October 2002,
and Equatorial Guinea on 7 February 2003. The United Nations Convention entered into force on
29 September 2003.

Article I of the Optional Protocol provides that: “Disputes arising out of the interpretation or
application of the Convention shall lie within the compulsory jurisdiction of the International
Court of Justice and may accordingly be brought before the Court by an application made by any
party to the dispute being a Party to the present Protocol.” . Articles II and III of the Optional
Protocol do not restrict the right of Equatorial Guinea to bring these proceedings before the
Court. . Article 35, paragraph 2, of the United Nations Convention, for its part, provides that: “2.
Any dispute between two or more States Parties concerning the interpre tation or application of
this Convention that cannot be settled through negotiation within a reasonable time shall, at the
request of one of those States Parties, be submitted to arbitration. If, six months after the date of
the request for arbitration, those States Parties are unable to agree on the organization of the
arbitration, any one of those States Parties may refer the dispute to the International Court of
Justice by request in accordance with the Statute of the Court.” The jurisdiction of the Court
exists under this provision in so far as the dispute between the two Parties, arising out of the
application of Article 4 of the United Nations Convention, could not be settled through
negotiation or arbitration. Indeed, France has given Equatorial Guinea official notification of its
refusal to settle the dispute between the two States by means of negotiation and arbitration

Kirit P.Mehta School of Law Page 8

Chapter 4

Judgment:

Palermo Convention

France first objected that the Court did not have jurisdiction on the basis of the Palermo
Convention because the dispute did not concern its interpretation and application. Equatorial
Guinea relied on Article 4 of the Palermo Convention (“Protection of sovereignty”), and
particularly Article 4(1), according to which: States Parties shall carry out their obligations under
this Convention in a manner consistent with the principles of sovereign equality and integrity of
States and that of non-intervention in the domestic affairs of other States. Its argument was two-
pronged: first, the claim relating to immunities of states and state officials fell within the
provisions of Article 4; second, the domestic legislation of France had overextended jurisdiction
in a manner inconsistent with Article 4, when read in conjunction with certain other provisions.

The Court, by 11 votes to 4, upheld France’s first objection. Article 4(1), while imposing an
obligation, did “not refer to the customary international rules, including State immunity, that
derive from sovereign equality but to the principle of sovereign equality itself.” Having reviewed
a variety of interpretative materials, the Court concluded that Article 4 did not incorporate
custom relating to immunities of states and state officials. The second prong of Equatorial
Guinea’s argument was also dismissed. The particular provisions of the Palermo Convention
emphasized in submissions helped to coordinate but did not direct the actions of states parties,
the scope of action taken in its implementation was limited, and the alleged overextension of
jurisdiction was not capable of falling within its provisions. Four judges disagreed, arguing in a
substantial joint dissenting opinion that Article 4(1) was best read as “a compendious way of
saying that acts, such as a breach of foreign State immunity, are a breach of the principle of
sovereign equality,” and that the Court had failed to recognize its overreaching and pervasive
effect that permeated throughout the Convention.

Kirit P.Mehta School of Law Page 9

Optional Protocol

France also objected to the Court’s jurisdiction under the Optional Protocol, arguing that the
dispute was properly about the character of the building at 42 Avenue Foch in Paris as
diplomatic premises and not about the inviolability regime of diplomatic premises in Article 22
VCDR. The Court unanimously rejected this objection: where, as in this case, there was a
difference of opinion as to whether a building qualified as “premises of the mission” and whether
it should be accorded respective protection, a dispute fell within the scope of VCDR (including
regarding movable property within the building).

Abuse of Process and Abuse of Rights

The final preliminary objection related to abuse of process and abuse of rights, due to alleged
inconstancies in Equatorial Guinea’s conduct regarding the contested building and political
appointments, as well as the way in which the claim was brought. The Court drew a distinction
between abuse of process—an objection to admissibility that goes to the procedure before a court
or tribunal—and abuse of rights—not a matter of admissibility when the establishment of the
right in question was properly a matter for the merits.The objection of abuse of process could be
upheld only in exceptional circumstances, and the Court (Judge Donoghue dissenting) did not
find the present case to be one of those. Consequently, by 15 votes to 1, the Court declared that it
had jurisdiction on the basis of the Optional Protocol and that the claim was admissible

Kirit P.Mehta School of Law Page 10

Chapter 5

Conclusion:
The judgment is helpful in confirming certain smaller points. One example is the plausible
expectation that an objection to jurisdiction will likely succeed if a request for provisional
measures has not satisfied the threshold of prima facie jurisdiction (a consideration that may
affect pleading strategy). But there are five points on which the contribution to development of
international law is significant: concept of a treaty obligation, interpretation of treaties and
general international law, interpretation and other treaty instruments, implementation of treaties
and domestic law, and abuse of process in international dispute settlement. I will address them in
turn. First, the Court makes an important distinction between a treaty provision that imposes an
obligation, even if general and vague in content, and one that is merely aspirational in character.

Second, the discussion of the interaction between Article 4(1) of the Palermo Convention and
custom and general principles brings a very important interpretative argument to a new level of
quality.

Third, materials relating to another treaty are treated as relevant for interpretation of the Palermo
Convention because Article 4(1) had been “transposed” from there: an important proposition,
even if it is not made clear whether “transposition” falls under the general rule or supplementary
means of interpretation.

Fourth, the broad statement that a state can give effect to a treaty by using preexisting legislation
is important for primary rules in various fields of international law, particularly international
criminal law, and associated dispute settlement.

Fifth, the Court offers its view on the scope of the terms “abuse of process” and “abuse of rights”
(familiar in other fields of international adjudication), contributing to the discussion of the
important question of whether it is appropriate for a party to put itself purposefully within the
jurisdictional boundaries of an international adjudicator

Kirit P.Mehta School of Law Page 11

What makes this case unique, of course, is not the finer points of the law of diplomatic relations
but the circumstances that gave rise to it. Those were treated very differently by various judges.

Chapter 6

Personal opinion:

The Court’s judgment is partially surprising because it arrives at an expected conclusion in an

unexpected way. It starts with considering ‘in which circumstances a property acquires the status
of “premises of the mission” within the meaning of Article 1 (i)’ of the VCDR (para. 41) and
proceeds with the habitual interpretative process according to customary rules of treaty
interpretation, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of
Treaties (VCLT).

In determining that France’s behaviour was not arbitrary or discriminatory, the majority took into
account the French criminal proceedings. In contrast, the dissenting judges treated them as
irrelevant to the matter at hand. Some of the dissenters, including the ICJ’s President Abdulqawi
Yusuf, were of the view that the building at 42 Avenue Foch did benefit from diplomatic
inviolability but declined to find France in violation of the Vienna Convention on the somewhat
bizarre grounds that the confiscation has not happened just yet.

It is not unusual for the ICJ to retreat into legal formalism. Still, as the UN’s principal judicial
body, it would be unbecoming of it to overlook entirely the background to France’s actions. In
effect, what the ICJ achieved by asking whether France had acted in an unreasonable or
discriminatory fashion was to inject those broader considerations into an otherwise exceedingly
narrow dispute.

The ICJ’s judgment is, therefore, good news, but the most significant achievement in this case
has been scored by the French legal system, pending any possible revisions by the (Cour de
cassation.) Following an initial period of prevarication, the due process of law has taken its
course in France, regardless of the challenges thrown in its way, including the expense of
litigation in the ICJ. This shows that, if the facts are right, there is no absolute bar to the
prosecution of high-ranking foreign public officials for economic crime, which is a lesson that
other countries’ authorities would do well to learn and apply.

Kirit P.Mehta School of Law Page 12

In the meantime, it is essential to put these developments into perspective by recalling that the
case stems from the payment by an embassy of €34 million to its country’s vice president for a
property that, according to a French court, was purchased out of the proceeds of crime. If one
accepts the French judiciary’s conclusions, it appears that it is the people of Equatorial Guinea
who are continuing to pay the price for their ruling family’s conduct.

So, this story is far from promising a happy end, but at least the ICJ’s judgment declines to
respect some of the most brazen abuse of a sovereign state’s prerogatives in pursuit of the ruling
family’s interest…

Kirit P.Mehta School of Law Page 13

Chapter 7:

BIBLIOGRAPHY:

https://www.icj-cij.org/en/case/163

https://www.ejiltalk.org/an-analysis-of-the-icjs-judgment-on-the-merits-of-the-immunities-and-
criminal-proceedings-equatorial-guinea-v-france-case-all-for-nothing/

https://www.cambridge.org/core/journals/international-legal-materials/article/immunities-and-
criminal-jurisdiction-equatorial-guinea-v-france-preliminary-objections-icj/
6BC10A08CE3F0D0C7FDB2B6D40704F42

https://www.asil.org/ILIB/international-court-justice-rules-case-equatorial-guinea-v-france-may-
partially-move-forward

https://www.internationalaffairs.org.au/australianoutlook/the-icjs-judgment-in-equatorial-guinea-
v-france-what-are-the-implications-for-international-diplomacy/

https://opil.ouplaw.com/view/10.1093/law-icgj/513icj16.case.1/law-icgj-513icj16

Kirit P.Mehta School of Law Page 14