                            COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                     IMMUNITÉS ET PROCÉDURES PÉNALES
                          (GUINÉE ÉQUATORIALE c. FRANCE)

                            EXCEPTIONS PRÉLIMINAIRES

                                ARRÊT DU 6 JUIN 2018

                                   2018
                            INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                   IMMUNITIES AND CRIMINAL PROCEEDINGS
                          (EQUATORIAL GUINEA v. FRANCE)

                             PRELIMINARY OBJECTIONS

                             JUDGMENT OF 6 JUNE 2018

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                                           Mode officiel de citation :
                         Immunités et procédures pénales (Guinée équatoriale c. France),
                                         exceptions préliminaires, arrêt,
                                           C.I.J. Recueil 2018, p. 292

                                                Official citation :
                       Immunities and Criminal Proceedings (Equatorial Guinea v. France),
                                       Preliminary Objections, Judgment,
                                          I.C.J. Reports 2018, p. 292

                                                                                1142
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157341-1

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                                                       6 JUIN 2018

                                                        ARRÊT

                     IMMUNITÉS ET PROCÉDURES PÉNALES
                      (GUINÉE ÉQUATORIALE c. FRANCE)
                        EXCEPTIONS PRÉLIMINAIRES

                   IMMUNITIES AND CRIMINAL PROCEEDINGS
                      (EQUATORIAL GUINEA v. FRANCE)
                         PRELIMINARY OBJECTIONS

                                                   6 JUNE 2018

                                                   JUDGMENT

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                                                                                292

                                          TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure                                             1-22
                     I. Factual Background                                                23-41
                    II. Bases of Jurisdiction Invoked                                     42-47
                   III. Subject-Matter of the Dispute                                    48-73
                   IV. The First Preliminary Objection: Jurisdiction under the
                       Palermo Convention                                                74-119
                       A. The alleged breach by France of the rules on immunities of
                          States and State officials                                     86-103
                       B. The alleged overextension of jurisdiction by France           104-119
                    V. The Second Preliminary Objection: Jurisdiction under the
                       Optional Protocol to the Vienna Convention                       120-138

                   VI. The Third Preliminary Objection: Abuse of Process and
                       Abuse of Rights                                                  139-152
                   VII. General Conclusions                                                 153
                   Operative Clause                                                         154

                                                                                4

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                                                                                293

                                  INTERNATIONAL COURT OF JUSTICE

                                                     YEAR 2018
                                                                                2018
                                                                                6 June
                                                     6 June 2018                                        General List
                                                                                No. 163

                   IMMUNITIES AND CRIMINAL PROCEEDINGS
                                    (EQUATORIAL GUINEA v. FRANCE)

                                         PRELIMINARY OBJECTIONS

                     Factual background.

                                                           *
                      Bases of jurisdiction invoked — Article 35 of the Palermo Convention — Arti-
                   cle I of the Optional Protocol to the Vienna Convention.

                                                           *
                      Subject-matter of the dispute.
                      Aspect of dispute for which Equatorial Guinea invokes Palermo Convention —
                   Disagreement on whether Mr. Obiang Mangue is immune from jurisdiction as con-
                   sequence of principles referred to in Article 4 of Convention — Differing views on
                   whether building at 42 Avenue Foch in Paris is immune from measures of con-
                   straint as consequence of principles referred to in Article 4 of Convention — Dis-
                   agreement on whether France breached Article 4 read in conjunction with Arti-
                   cles 6 and 15 by establishing jurisdiction over predicate offences.

                      Aspect of dispute for which Equatorial Guinea invokes Optional Protocol —
                   Disagreement on whether building at 42 Avenue Foch in Paris constitutes part of
                   premises of mission of Equatorial Guinea in France and is thus entitled to protec-
                   tion under Article 22 of the Vienna Convention — Disagreement on whether
                   France’s actions in relation to building breached Article 22.

                      Assertions by Equatorial Guinea under Palermo Convention concerning obliga-
                   tions to consult and co-operate — Not included in submissions in Memorial —
                   Considered by Court as additional arguments, not distinct claims under Palermo
                   Convention.

                                                           *

                                                                                5

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                               immunities and criminal proceedings (judgment)                      294

                     The first preliminary objection: Jurisdiction under the Palermo Convention.

                      Procedural requirements set out in Article 35 of the Convention — Require-
                   ments satisfied.
                      The alleged breach by France of the rules on immunities of States and State
                   officials — Interpretation of Article 4 of Palermo Convention — Purpose of Arti-
                   cle 4 — Ordinary meaning of Article 4 (1) — Context of Article 4 (1) — Arti-
                   cle 4 (1) read in light of object and purpose of the Convention — Court concludes
                   that Article 4 does not incorporate customary international rules on immunities of
                   States and State officials — Interpretation confirmed by travaux préparatoires —
                   Aspect of dispute concerning asserted immunity of Vice-President and immunity
                   claimed for building from measures of constraint as State property does not con-
                   cern interpretation or application of Palermo Convention — Court lacks jurisdic-
                   tion in relation to this aspect of dispute.

                      The alleged overextension of jurisdiction by France — Question whether crimi-
                   nalization of money laundering by France and its establishment of jurisdiction over
                   that offence concern the interpretation or application of the Palermo Conven-
                   tion — Definition of “predicate offence” in Article 2 (h) of the Convention —
                   Obligation in Article 6 (2) that States seek to establish criminal offences in rela-
                   tion to the widest range of predicate offences, including offences committed outside
                   jurisdiction of the State party — Obligation in Article 15 to adopt such measures
                   as may be necessary to establish jurisdiction over Convention offences — Viola-
                   tions complained of by Equatorial Guinea not capable of falling within Articles 6
                   and 15 of Palermo Convention — Court lacks jurisdiction in relation to this aspect
                   of dispute.

                      Court lacks jurisdiction pursuant to Palermo Convention to entertain Equato-
                   rial Guinea’s Application — First preliminary objection upheld.

                                                            *
                      The second preliminary objection: Jurisdiction under the Optional Protocol to
                   the Vienna Convention.
                      Proposal by Equatorial Guinea to have recourse to conciliation or arbitration
                   not pursued by France — Articles II and III of Optional Protocol do not affect any
                   jurisdiction under Article I.

                      Question whether this aspect of the dispute arises out of interpretation or appli-
                   cation of Vienna Convention, as required by Article I of Optional Protocol — Def-
                   inition of “premises of the mission” in Article 1 (i) of the Vienna Convention —
                   Régime of inviolability, protection and immunity for such premises in Article 22 of
                   the Vienna Convention — Difference of opinion exists as to whether building at
                   42 Avenue Foch in Paris qualifies as “premises of the mission” and whether it
                   should be accorded protection under Article 22 — Such aspect of the dispute arises
                   out of the interpretation or application of the Vienna Convention within meaning
                   of Article I of the Optional Protocol and falls within scope of Vienna Conven-
                   tion — Movable property present in the building — Court has jurisdiction to enter-
                   tain the dispute relating to the status of the building at 42 Avenue Foch in Paris as

                                                                                6

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                                immunities and criminal proceedings (judgment)                  295

                    diplomatic premises, including any claims relating to the furnishings and other
                    property present on the premises — Second preliminary objection dismissed.

                                                           *
                       The third preliminary objection: Abuse of process and abuse of rights.
                       Objection properly characterized as relating to admissibility.
                       Abuse of process — Procedural question that can be considered at preliminary
                    phase — Clear evidence required — Such evidence has not been presented —
                    Abuse of process only bars proceedings in exceptional circumstances — No excep-
                    tional circumstances in the present case.

                       Abuse of rights — Cannot be invoked as a ground of inadmissibility when the
                    establishment of the right in question is a matter for the merits — Any argument
                    in relation to abuse of rights to be considered at the merits phase.
                       Third preliminary objection dismissed.

                                                           *
                      General conclusions.

                                                    JUDGMENT

                    Present:
                             President Yusuf; Vice-President Xue; Judges Owada, Abraham,
                             Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde,
                             Bhandari, Robinson, Crawford, Gevorgian, Salam; Judge ad hoc
                             Kateka; Registrar Couvreur.

                      In the case concerning immunities and criminal proceedings,
                      between
                    the Republic of Equatorial Guinea,
                    represented by
                      H.E. Mr. Carmelo Nvono Nca, Ambassador of the Republic of Equato-
                         rial Guinea to the Kingdom of Belgium and the Kingdom of the Nether-
                         lands,
                      as Agent;
                      Mr. Juan Olo Mba, Minister Delegate for Justice of the Republic of Equato-
                         rial Guinea,
                      Ms Rimme Bosio Riokale, State Secretary of the Republic of Equato-
                         rial Guinea,
                      H.E. Mr. Miguel Oyono Ndong, Ambassador of the Republic of Equato-
                         rial Guinea to France,

                                                                                7

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                               immunities and criminal proceedings (judgment)                   296

                      H.E. Mr. Lázaro Ekua, Ambassador of the Republic of Equatorial Guinea to
                         Switzerland and Permanent Representative to the United Nations Office
                         and other international organizations in Geneva,
                      Mr. Sergio Abeso Tomo, former President of the Supreme Court of Justice of
                         the Republic of Equatorial Guinea,
                      as Members of the Delegation;
                      Mr. Maurice Kamto, Professor at the University of Yaoundé II (Cameroon),
                         member of the Paris Bar, member and former chairman of the Interna-
                         tional Law Commission,
                      Mr. Jean‑Charles Tchikaya, member of the Bordeaux Bar,
                      Sir Michael Wood, K.C.M.G., member of the International Law Commis-
                         sion, member of the English Bar,
                      as Counsel and Advocates;
                      Mr. Alfredo Crosato Neumann, Graduate Institute of International and
                         Development Studies of Geneva,
                      Mr. Francisco Evuy Nguema Mikue, avocat of the Republic of Equato-
                         rial Guinea,
                      Mr. Francisco Moro Nve Obono, avocat of the Republic of Equato-
                         rial Guinea,
                      Mr. Didier Rebut, Professor at the University of Paris 2 Panthéon‑Assas,
                      Mr. Omri Sender, George Washington University Law School, member of
                         the Israel Bar,
                      Mr. Alain‑Guy Tachou‑Sipowo, lecturer at McGill University and Université
                         Laval,
                      as Counsel;
                      Ms Emilia Ndoho, Secretary at the Embassy of Equatorial Guinea to the
                         Kingdom of Belgium and the Kingdom of the Netherlands,
                      as Assistant,
                      and
                    the French Republic,
                    represented by
                      Mr. François Alabrune, Director of Legal Affairs, Ministry for Europe and
                         Foreign Affairs,
                      as Agent;
                      Mr. Pierre Boussaroque, Deputy-    Director of Legal Affairs, Ministry for
                         Europe and Foreign Affairs,
                      as Deputy-Agent;
                      Mr. Alain Pellet, Emeritus Professor at the University of Paris Nanterre, for-
                         mer member and former Chairman of the International Law Commission,
                         member of the Institut de droit international,
                      Mr. Hervé Ascensio, Professor at the University of Paris 1 Panthéon‑Sorbonne,
                      Mr. Pierre Bodeau‑Livinec, Professor at the University of Paris Nanterre,
                      Mr. Mathias Forteau, Professor at the University of Paris Nanterre,
                      Ms Maryline Grange, Lecturer in Public Law at the Jean Monnet University
                         in Saint-Etienne, University of Lyon,
                      as Counsel;

                                                                                8

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                               immunities and criminal proceedings (judgment)                    297

                      Mr. Ludovic Legrand, Legal Consultant, Directorate of Legal Affairs, Minis-
                         try for Europe and Foreign Affairs,
                      Mr. Julien Boissise, Legal Consultant, Directorate of Legal Affairs, Ministry
                         for Europe and Foreign Affairs,
                      as Assistant Counsel;
                      Ms Flavie Le Sueur, Head of the Office of Economic, Financial and Social
                         Law, the Environment and Public Health, Directorate of Criminal Affairs
                         and Pardons, Ministry of Justice,
                      Ms Diarra Dime Labille, Legal Counsellor, Embassy of France in the Neth-
                         erlands,
                      as Advisers,

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment:
                       1. On 13 June 2016, the Government of the Republic of Equatorial Guinea
                    (hereinafter “Equatorial Guinea”) filed in the Registry of the Court an Applica-
                    tion instituting proceedings against the French Republic (hereinafter “France”)
                    with regard to a dispute concerning
                         “the immunity from criminal jurisdiction of the Second Vice-President of
                         the Republic of Equatorial Guinea in charge of Defence and State Security
                         [Mr. Teodoro Nguema Obiang Mangue], and the legal status of the building
                         which houses the Embassy of Equatorial Guinea, both as premises of the
                         diplomatic mission and as State property”.
                       2. In its Application, Equatorial Guinea seeks to found the Court’s jurisdic-
                    tion, first, on Article 35 of the United Nations Convention against Transna-
                    tional Organized Crime of 15 November 2000 (hereinafter the “Palermo Con-
                    vention”), and, second, on Article I of the Optional Protocol to the Vienna
                    Convention on Diplomatic Relations concerning the Compulsory Settlement of
                    Disputes, of 18 April 1961 (hereinafter the “Optional Protocol to the Vienna
                    Convention”).
                       3. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Appli-
                    cation was immediately communicated to the French Government; and, in
                    accordance with paragraph 3 of that Article, all States entitled to appear before
                    the Court were notified of the filing of the Application.
                       4. Since the Court included upon the Bench no judge of the nationality of
                    Equatorial Guinea, the latter proceeded to exercise the right conferred upon it
                    by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the
                    case; it chose Mr. James Kateka.
                       5. By an Order dated 1 July 2016, the Court fixed 3 January 2017 and 3 July
                    2017 as the respective time-  limits for the filing of a Memorial by Equato-
                    rial Guinea and a Counter-Memorial by France. The Memorial of Equato-
                    rial Guinea was filed within the time-limit thus prescribed.

                       6. On 29 September 2016, referring to Article 41 of the Statute and to Arti-
                    cles 73, 74 and 75 of the Rules of Court, Equatorial Guinea submitted a request

                                                                                9

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                                immunities and criminal proceedings (judgment)                      298

                    for the indication of provisional measures, asking that France suspend all the
                    criminal proceedings brought against the Vice-President of Equatorial Guinea;
                    that France ensure that the building located at 42 Avenue Foch in Paris is
                    treated as premises of Equatorial Guinea’s diplomatic mission in France and, in
                    particular, assure its inviolability; and that France refrain from taking any other
                    measure that might aggravate or extend the dispute submitted to the Court.
                         7. Equatorial Guinea also requested that “the President of the Court, as pro-
                    vided for in Article 74, paragraph 4, of the Rules of Court . . . call upon France
                    to act in such a way as will enable any order the Court may make on the request
                    for provisional measures to have its appropriate effect”.
                         8. The Registrar immediately transmitted a copy of the request for the
                    indication of provisional measures to the French Government, in accordance
                     with Article 73, paragraph 2, of the Rules of Court. He also notified the
                     Secretary‑General of the United Nations of this filing.
                         9. By a letter dated 3 October 2016, the Vice-President of the Court, acting as
                      President in the case, and referring to Article 74, paragraph 4, of the Rules of
                      Court, drew the attention of France “to the need to act in such a way as will
                      enable any order the Court may make on the request for provisional measures
                      to have its appropriate effects”.
                         10. By an Order of 7 December 2016, the Court, having heard the Parties,
                      indicated the following provisional measures:
                            “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.”

                       11. In accordance with Article 43, paragraph 1, of the Rules of Court, the
                    Registrar addressed to States parties to the Palermo Convention the notification
                    provided for in Article 63, paragraph 1, of the Statute; he also addressed to the
                    European Union, as party to that Convention, the notification provided for in
                    Article 43, paragraph 2, of the Rules. In addition, in accordance with Article 69,
                    paragraph 3, of the Rules of Court, the Registrar addressed to the United Nations,
                    through its Secretary‑General, the notification provided for in Article 34, para-
                    graph 3, of the Statute.
                       By a letter dated 28 April 2017, the Director-General of the European Com-
                    mission’s Legal Service informed the Court that the European Union did not
                    intend to submit observations under Article 43, paragraph 2, of the Rules of
                    Court concerning the construction of the Palermo Convention.
                       12. Pursuant to Article 43, paragraph 1, of the Rules of Court, the Registrar
                    also addressed to States parties to the Vienna Convention on Diplomatic Rela-
                    tions (hereinafter the “Vienna Convention”), and to States parties to the
                    Optional Protocol to the Vienna Convention, the notification provided for in
                    Article 63, paragraph 1, of the Statute.
                       13. On 31 March 2017, within the time-limit prescribed by Article 79, para-
                    graph 1, of the Rules of Court, France raised preliminary objections to the juris-
                    diction of the Court. Consequently, by an Order of 5 April 2017, the Court,
                    noting that, by virtue of Article 79, paragraph 5, of the Rules, the proceedings
                    on the merits were suspended, fixed 31 July 2017 as the time-limit within which
                    Equatorial Guinea could present a written statement of its observations and

                                                                                10

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                               immunities and criminal proceedings (judgment)                      299

                    submissions on the preliminary objections raised by France. Equatorial Guinea
                    filed such a statement within the time-limit so prescribed, and the case thus
                    became ready for hearing in respect of the preliminary objections.

                       14. By a letter dated 9 February 2018, the Agent of France, relying on Arti-
                    cle 56 of the Rules of Court, transmitted to the Court a certified copy of a judg-
                    ment rendered by the Tribunal correctionnel de Paris, dated 27 October 2017. As
                    provided for in paragraph 1 of that Article, the document was communicated to
                    Equatorial Guinea. By a Note Verbale dated 14 February 2018, the Embassy of
                    Equatorial Guinea to the Kingdom of the Netherlands informed the Court that
                    Equatorial Guinea had no objection to the document being produced in the
                    case. The Court took note of the agreement of the Parties and the Registrar, by
                    letters dated 19 February 2018, informed the Parties that the said document
                    could be produced.
                       15. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
                    after ascertaining the views of the Parties, decided that copies of the written
                    pleadings, including the Memorial of Equatorial Guinea, and the documents
                    annexed would be made accessible to the public on the opening of the oral pro-
                    ceedings.
                       16. Public hearings on the preliminary objections raised by France were held
                    from Monday 19 February to Friday 23 February 2018, at which the Court
                    heard the oral arguments and replies of:
                    For France:              Mr. François Alabrune,
                                             Mr. Hervé Ascensio,
                                             Mr. Pierre Bodeau‑Livinec,
                                             Mr. Alain Pellet.
                    For Equatorial Guinea: H.E. Mr. Carmelo Nvono Nca,
                                            Sir Michael Wood,
                                            Mr. Jean‑Charles Tchikaya,
                                            Mr. Maurice Kamto.

                      17. At the hearings, a Member of the Court put a question to France, to
                    which a reply and comments on that reply were given orally.

                                                             *
                      18. In the Application, the following claims were made by the Republic of
                    Equatorial Guinea:
                           “In light of the foregoing, Equatorial Guinea respectfully requests the
                         Court:
                         (a) With regard to the French Republic’s failure to respect the sovereignty
                             of the Republic of Equatorial Guinea,
                              (i) to adjudge and declare that the French Republic has breached its
                                  obligation to respect the principles of the sovereign equality of
                                  States and non‑interference in the internal affairs of another State,
                                  owed to the Republic of Equatorial Guinea in accordance with
                                  international law, by permitting its courts to initiate criminal legal

                                                                                11

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                          immunities and criminal proceedings (judgment)                      300

                             proceedings against the Second Vice-      President of Equato-
                             rial Guinea for alleged offences which, even if they were estab-
                             lished, quod non, would fall solely within the jurisdiction of the
                             courts of Equatorial Guinea, and by allowing its courts to order
                             the attachment of a building belonging to the Republic of Equato-
                             rial Guinea and used for the purposes of that country’s diplomatic
                             mission in France;
                    (b) With regard to the Second Vice-President of the Republic of Equato-
                        rial Guinea in charge of Defence and State Security,
                          (i) to adjudge and declare that, by initiating criminal proceedings
                              against the Second Vice-  President of the Republic of Equato-
                              rial Guinea in charge of Defence and State Security, His Excellency
                              Mr. Teodoro Nguema Obiang Mangue, the French Republic has
                              acted and is continuing to act in violation of its obligations under
                              international law, notably the United Nations Convention against
                              Transnational Organized Crime and general international law;
                         (ii) to order the French Republic to take all necessary measures to put
                              an end to any ongoing proceedings against the Second Vice-
                              President of the Republic of Equatorial Guinea in charge of
                              Defence and State Security;
                        (iii) to order the French Republic to take all necessary measures to
                              prevent further violations of the immunity of the Second Vice-
                              President of Equatorial Guinea in charge of Defence and State
                              Security and to ensure, in particular, that its courts do not initiate
                              any criminal proceedings against the Second Vice-President of the
                              Republic of Equatorial Guinea in the future;
                    (c) With regard to the building located at 42 Avenue Foch in Paris,
                         (i) to adjudge and declare that, by attaching the building located at
                             42 Avenue Foch in Paris, the property of the Republic of Equato-
                             rial Guinea and used for the purposes of that country’s diplomatic
                             mission in France, the French Republic is in breach of its obliga-
                             tions under international law, notably the Vienna Convention on
                             Diplomatic Relations and the United Nations Convention, as well
                             as general international law;
                        (ii) to order the French Republic to recognize the status of the building
                             located at 42 Avenue Foch in Paris as the property of the Repub-
                             lic of Equatorial Guinea, and as the premises of its diplomatic
                             mission in Paris, and, accordingly, to ensure its protection as
                             required by international law;
                    (d) In view of all the violations by the French Republic of international
                        obligations owed to the Republic of Equatorial Guinea,

                          (i) to adjudge and declare that the responsibility of the French Repub-
                              lic is engaged on account of the harm that the violations of its
                              international obligations have caused and are continuing to cause
                              to the Republic of Equatorial Guinea;
                         (ii) to order the French Republic to make full reparation to the Repub-
                              lic of Equatorial Guinea for the harm suffered, the amount of
                              which shall be determined at a later stage.”

                                                                                12

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                               immunities and criminal proceedings (judgment)                         301

                      19. In the written proceedings on the merits, the following submissions were
                    presented on behalf of the Government of Equatorial Guinea in its M
                                                                                emorial:
                           “For the reasons set out in this Memorial, the Republic of Equa
                        torial Guinea respectfully requests the International Court of Justice:

                        (a) With regard to [the] French Republic’s failure to respect the sovereignty
                            of the Republic of Equatorial Guinea,
                              (i) to adjudge and declare that the French Republic has breached its
                                  obligation to respect the principles of the sovereign equality of States
                                  and non‑interference in the internal affairs of another State, owed to
                                  the Republic of Equatorial Guinea, in accordance with the
                                  United Nations Convention against Transnational Organized Crime
                                  and general international law, by permitting its courts to initiate crim-
                                  inal legal proceedings against the Vice-President of Equatorial Guinea
                                  for alleged offences which, even if they were established, quod non,
                                  would fall solely within the jurisdiction of the courts of Equato-
                                  rial Guinea, and by allowing its courts to order the attachment of a
                                  building belonging to the Republic of Equatorial Guinea and used
                                  for the purposes of that country’s diplomatic mission in France;
                        (b) With regard to the Vice-President of the Republic of Equatorial Guinea
                            in charge of National Defence and State Security,
                              (i) to adjudge and declare that, by initiating criminal proceedings
                                  against the Vice-President of the Republic of Equatorial Guinea in
                                  charge of National Defence and State Security, His Excellency
                                  Mr. Teodoro Nguema Obiang Mangue, the French Republic has
                                  acted and is continuing to act in violation of its obligations under
                                  international law, notably the United Nations Convention against
                                  Transnational Organized Crime and general international law;
                             (ii) to order the French Republic to take all necessary measures to put
                                  an end to any ongoing proceedings against the Vice-President of
                                  the Republic of Equatorial Guinea in charge of National Defence
                                  and State Security;
                            (iii) to order the French Republic to take all necessary measures to
                                  prevent further violations of the immunity of the Vice-President of
                                  the Republic of Equatorial Guinea in charge of National Defence
                                  and State Security and, in particular, to ensure that its courts do
                                  not initiate any criminal proceedings against him in the future;
                        (c) With regard to the building located at 42 Avenue Foch in Paris,
                              (i) to adjudge and declare that, by attaching the building located at
                                  42 Avenue Foch in Paris, the property of the Republic of Equato-
                                  rial Guinea and used for the purposes of that country’s diplomatic
                                  mission in France, the French Republic is in breach of its obliga-
                                  tions under international law, notably the Vienna Convention on
                                  Diplomatic Relations and the United Nations Convention against
                                  Transnational Organized Crime, as well as general international
                                  law;
                             (ii) to order the French Republic to recognize the status of the building
                                  located at 42 Avenue Foch in Paris as the property of the Repub-
                                  lic of Equatorial Guinea, and as the premises of its diplomatic

                                                                                13

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                                immunities and criminal proceedings (judgment)                      302

                                 mission in Paris, and, accordingly, to ensure its protection as
                                 required by international law;
                         (d) In view of all the violations by the French Republic of international
                             obligations owed to the Republic of Equatorial Guinea,

                               (i) to adjudge and declare that the responsibility of the French Repub-
                                   lic is engaged on account of the harm that the violations of its
                                   international obligations have caused and are continuing to cause
                                   to the Republic of Equatorial Guinea;
                              (ii) to order the French Republic to make full reparation to the Repub-
                                   lic of Equatorial Guinea for the harm suffered, the amount of
                                   which shall be determined at a later stage.”
                      20. In the preliminary objections, the following submissions were presented
                    on behalf of the Government of the French Republic:
                             “For the reasons set out in these preliminary objections, and for any such
                         others as might be put forward in the subsequent proceedings or raised
                         proprio motu, the French Republic respectfully requests the International
                         Court of Justice to decide that it lacks jurisdiction to rule on the Application
                         filed by the Republic of Equatorial Guinea on 13 June 2016.”

                       21. In the written statement of the observations and submissions on the pre-
                    liminary objections, the following submissions were presented on behalf of the
                    Government of the Republic of Equatorial Guinea:
                            “For the reasons set out above, the Republic of Equatorial Guinea
                         respectfully requests the Court:
                         (1) to reject the preliminary objections of France; and
                         (2) to declare that it has jurisdiction to rule on the Application of Equato-
                             rial Guinea.”
                      22. At the oral proceedings on the preliminary objections, the following sub-
                    missions were presented by the Parties:
                    On behalf of the Government of the French Republic,
                    at the hearing of 21 February 2018:
                             “For the reasons developed in its preliminary objections and set out
                         by its representatives at the hearings on the preliminary objections in
                         the case concerning Immunities and Criminal Proceedings (Equatorial
                         Guinea v. France), the French Republic respectfully requests the Court to
                         decide:
                           (i) that it lacks jurisdiction to rule on the Application filed by the Repub-
                               lic of Equatorial Guinea on 13 June 2016; and
                          (ii) that the Application is inadmissible.”
                    On behalf of the Government of the Republic of Equatorial Guinea,
                    at the hearing of 23 February 2018:
                           “On the basis of the facts and law set out in our observations on the
                         preliminary objections raised by the French Republic, and in the course of
                         the present hearing, Equatorial Guinea respectfully requests the Court:

                                                                                14

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                                immunities and criminal proceedings (judgment)                        303

                           (i) to reject the preliminary objections of France; and
                          (ii) to declare that it has jurisdiction to rule on the Application of Equato-
                               rial Guinea.”

                                                                *
                                                            *       *

                                               I. Factual Background

                       23. Beginning in 2007, a number of associations and private individu-
                    als lodged complaints with the Paris Public Prosecutor against certain
                    African Heads of State and members of their families in respect of allega-
                    tions of misappropriation of public funds in their country of origin, the
                    proceeds of which had allegedly been invested in France.
                       24. One of these complaints, filed on 2 December 2008 by the association
                    Transparency International France, was declared admissible by the French
                    courts, and a judicial investigation was opened in respect of “handling mis-
                    appropriated public funds”, “complicity in handling misappropriated public
                    funds, complicity in the misappropriation of public funds, money launder-
                    ing, complicity in money laundering, misuse of corporate assets, complicity
                    in misuse of corporate assets, breach of trust, complicity in breach of trust
                    and concealment of each of these offences”. Two investigating judges of the
                    Tribunal de grande instance de Paris were assigned on 1 December 2010 to
                    conduct the investigation. The investigation focused, in particular, on the
                    methods used to finance the acquisition of movable and immovable assets in
                    France by several individuals, including Mr. Teodoro Nguema Obi-
                    ang Mangue, the son of the President of Equatorial Guinea, who was at the
                    time Ministre d’Etat for Agriculture and Forestry of Equatorial Guinea.
                       25. The investigation more specifically concerned the way in which
                    Mr. Teodoro Nguema Obiang Mangue acquired various objects of con-
                    siderable value and a building located at 42 Avenue Foch in Paris. On
                    28 September 2011, investigators conducted an initial on‑site inspection
                    at 42 Avenue Foch in Paris and seized luxury vehicles, which belonged to
                    Mr. Teodoro Nguema Obiang Mangue and were parked on the premises.
                    While they were there, the Ambassador of Equatorial Guinea and a
                    French lawyer representing that State arrived to protest the operations
                    under way, invoking the sovereignty of Equatorial Guinea. On 3 October
                    2011, the investigators seized additional luxury vehicles belonging to
                    Mr. Teodoro Nguema Obiang Mangue in neighbouring parking lots. On
                    4 October 2011, the Embassy of Equatorial Guinea in France sent a Note
                    Verbale to the French Ministry of Foreign and European Affairs (herein-
                    after “Ministry of Foreign Affairs” 1) stating that Equatorial Guinea had

                       1 The relevant ministry was successively named “Ministry of Foreign and European

                    Affairs” (2007‑2012), “Ministry of Foreign Affairs and International Development”
                    (2012‑2017) and “Ministry of Europe and Foreign Affairs” (since 2017). For the purposes
                    of the present Judgment, “Ministry of Foreign Affairs” will be used.

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                    previously acquired the building located at 42 Avenue Foch in Paris,
                    which was being used for its diplomatic mission. On 5 October 2011, the
                    investigators returned to 42 Avenue Foch in Paris, where they noted the
                    presence of two signs marked “Republic of Equatorial Guinea — Embassy
                    premises”, which, according to the investigators, had been posted on the
                    front door of the building the day before. By Notes Verbales dated
                    11 October 2011, the French Ministry of Foreign Affairs indicated to the
                    Embassy of Equatorial Guinea and to the investigating judges that it con-
                    sidered that the building at 42 Avenue Foch in Paris did not form part of
                    the premises of Equatorial Guinea’s diplomatic mission, a position France
                    maintained thereafter despite the repeated protestations of Equatorial
                    Guinea.

                       26. By a Note Verbale dated 17 October 2011, the Embassy of Equato-
                    rial Guinea informed the French Ministry of Foreign Affairs that the
                    “official residence of [Equatorial Guinea’s] Permanent Delegate to
                    UNESCO [wa]s on the premises of the diplomatic mission located at
                    40‑42 Avenue Foch, 75016, Paris”. By a Note Verbale to the Embassy of
                    Equatorial Guinea dated 31 October 2011, the French Ministry of For-
                    eign Affairs reiterated that the building at 42 Avenue Foch in Paris was
                    “not a part of the mission’s premises, ha[d] never been recognized as such,
                    and accordingly [wa]s subject to ordinary law”.

                       27. From 14 to 23 February 2012, further searches of the building at
                    42 Avenue Foch in Paris were conducted, during which additional items
                    were seized and removed. These actions were again contested by Equato-
                    rial Guinea, in particular in a Note Verbale dated 14 February 2012
                    invoking protection under the Vienna Convention for the official resi-
                    dence of the Permanent Delegate to UNESCO. By a Note Verbale dated
                    12 March 2012, Equatorial Guinea asserted that the premises at 42 Ave
                    nue Foch in Paris were used for the performance of the functions of its
                    diplomatic mission in France. The French Ministry of Foreign
                    Affairs responded on 28 March 2012, referring to its “constant practice”
                    with respect to the recognition of the status of “premises of the mission”
                    and reiterating that the building located at 42 Avenue Foch in Paris could
                    not be considered part of the diplomatic mission of Equatorial
                    Guinea.
                       28. An investigating judge assigned to the case found, inter alia, that
                    the building at 42 Avenue Foch in Paris had been wholly or partly paid
                    for out of the proceeds of the offences under investigation and that its
                    real owner was Mr. Teodoro Nguema Obiang Mangue. He consequently
                    ordered the attachment of the building (saisie pénale immobilière) on
                    19 July 2012. This decision was subsequently upheld by the Chambre de
                    l’instruction de la Cour d’appel de Paris, before which Mr. Teo-
                    doro Nguema Obiang Mangue had lodged an appeal. By a Note Verbale
                    dated 27 July 2012, the Embassy of Equatorial Guinea in France informed
                    the Protocol Department of the French Ministry of Foreign Affairs that

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                              immunities and criminal proceedings (judgment)               305

                    “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”.

                        29. As part of the investigation, the police questioned a number of
                    individuals. In particular, they sought to question Mr. Teodoro Nguema
                    Obiang Mangue on two occasions in 2012. Mr. Teodoro Nguema Obiang
                    Mangue, who became Second Vice-President of Equatorial Guinea in
                    charge of Defence and State Security on 21 May 2012, maintained that he
                    was entitled to immunity from jurisdiction and declined to appear before
                    the French courts.
                        30. An arrest warrant was issued against Mr. Teodoro Nguema Obi-
                    ang Mangue on 13 July 2012. He challenged this measure before the
                    Chambre de l’instruction de la Cour d’appel de Paris, but that court took
                    the view that he was not entitled to any form of immunity from criminal
                    jurisdiction in respect of acts allegedly committed by him in France in his
                    private capacity. It further noted that he had refused to appear or to
                    respond to the summonses sent to him.
                        31. Since they were unable to question him, the French judicial
                    authorities, by a request dated 14 November 2013, sought mutual legal
                     assistance in criminal matters, under the Palermo Convention, from the
                      Equatorial Guinean judicial authorities, asking them to transmit to
                      Mr. Teodoro Nguema Obiang Mangue a summons of first appearance.

                       32. The judicial authorities of Equatorial Guinea accepted the request
                    for mutual legal assistance on 4 March 2014. They then executed that
                    request. On 18 March 2014, a hearing was held in Malabo, Equato-
                    rial Guinea, in which the French investigating judges participated by
                    video link. Subsequently, Mr. Teodoro Nguema Obiang Mangue was
                    indicted by the French judiciary
                        “for having in Paris and on national territory during 1997 and until
                        October 2011 . . . assisted in making hidden investments or in con-
                        verting the direct or indirect proceeds of a felony or misdemean-
                        our . . . by acquiring a number of movable and immovable assets and
                        paying for a number of services”.

                    On 19 March 2014, a notice cancelling the search (avis de cessation de
                    recherches) for Mr. Teodoro Nguema Obiang Mangue was issued by one
                    of the French investigating judges.
                       33. On 31 July 2014, Mr. Teodoro Nguema Obiang Mangue applied to
                    the Chambre de l’instruction de la Cour d’appel de Paris to annul the
                    indictment, on the ground that he was entitled to immunity from jurisdic-
                    tion in his capacity as Second Vice-President of Equatorial Guinea in
                    charge of Defence and State Security. However, the Cour d’appel rejected
                    his application by a judgment of 11 August 2015. Mr. Teodoro Nguema
                    Obiang Mangue having seised the Cour de cassation, that court, by a

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                               immunities and criminal proceedings (judgment)                306

                    judgment of 15 December 2015, rejected the argument that he was enti-
                    tled to immunity and upheld the indictment.
                       34. The investigation was declared to be completed and, on 23 May
                    2016, the Financial Prosecutor filed final submissions seeking in particu-
                    lar that Mr. Teodoro Nguema Obiang Mangue be tried for money laun-
                    dering offences. On 13 June 2016, Equatorial Guinea filed its Application
                    before this Court (see paragraph 1 above). On 5 September 2016, the
                    investigating judges of the Tribunal de grande instance de Paris ordered
                    the referral of Mr. Teodoro Nguema Obiang Mangue — who, by a presi-
                    dential decree of 21 June 2016, had been appointed as the Vice-President
                    of Equatorial Guinea in charge of National Defence and State Secu-
                    rity — for trial before the Tribunal correctionnel de Paris for alleged
                    offences committed in France between 1997 and October 2011. On
                    21 September 2016, the Financial Prosecutor issued a summons ordering
                    Mr. Teodoro Nguema Obiang Mangue to appear before the Tribunal cor-
                    rectionnel de Paris on 24 October 2016 for a “hearing on the merits”.

                       35. The Assistant Financial Prosecutor subsequently informed Mr. Teo-
                    doro Nguema Obiang Mangue’s counsel, in an e‑mail dated 26 September
                    2016, that the hearing was merely intended to “raise a procedural issue”.
                    He explained that, having noted an irregularity (namely, that the operative
                    part of the referral order did not mention the relevant provisions setting
                    out the criminalization and punishment of offences), the Public Prosecu-
                    tor’s Office was of the view that the Tribunal correctionnel de Paris should
                    settle that issue before addressing the merits of the case.
                       36. As stated above (see paragraph 6), Equatorial Guinea submitted to
                    the Court a request for the indication of provisional measures on 29 Sep-
                    tember 2016.
                       37. On 24 October 2016, the Tribunal correctionnel de Paris sent the
                    proceedings back to the Public Prosecutor’s Office so that it could return
                    the case to the investigating judges for the purpose of regularizing the
                    referral order; it also stated that the trial hearings would be held from
                    2 to 12 January 2017.
                       38. By an Order of 7 December 2016, the Court indicated provisional
                    measures (see paragraph 10 above).
                       39. On 2 January 2017, a hearing on the merits took place before the
                    Tribunal correctionnel de Paris, in the absence of Mr. Teodoro Nguema
                     Obiang Mangue, who was represented by his counsel. The President of
                     the tribunal noted, inter alia, that, pursuant to the Court’s Order of
                     7 December 2016, any confiscation measure that might be directed against
                     the building located at 42 Avenue Foch in Paris could not be executed
                     until the conclusion of the international judicial proceedings. At the
                     request of the defence lawyers, the tribunal also decided to defer the start
                     of the trial to 19 June 2017.
                       40. The hearings on the merits of the case before the Tribunal correc-
                    tionnel de Paris were held from 19 June to 6 July 2017. The tribunal
                    delivered its judgment on 27 October 2017, in which it found Mr. Teo-

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                               immunities and criminal proceedings (judgment)                307

                    doro Nguema Obiang Mangue guilty of money laundering offences com-
                    mitted in France between 1997 and October 2011. He was sentenced to a
                    three‑year suspended prison term and a suspended fine of €30 million.
                    The tribunal also ordered the confiscation of all the assets seized during
                    the judicial investigation and of the attached building at 42 Avenue Foch
                    in Paris. Regarding the confiscation of this building, the tribunal, refer-
                    ring to the Court’s Order of 7 December 2016 indicating provisional mea-
                    sures, stated that “the . . . proceedings [pending before the International
                    Court of Justice] make the execution of any measure of confiscation by
                    the French State impossible, but not the imposition of that penalty”.

                      41. Following delivery of the judgment, Mr. Teodoro Nguema Obiang
                    Mangue lodged an appeal against his conviction with the Cour d’appel de
                    Paris. This appeal having a suspensive effect, no steps have been taken to
                    enforce the sentences handed down to Mr. Teodoro Nguema Obiang
                    Mangue.

                                       II. Bases of Jurisdiction Invoked

                       42. The Court recalls that its jurisdiction is based on the consent of the
                    parties and is confined to the extent accepted by them (Armed Activities
                    on the Territory of the Congo (New Application: 2002) (Democratic
                    Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judg-
                    ment, I.C.J. Reports 2006, p. 32, para. 65 and p. 39, para. 88).
                       43. Equatorial Guinea invokes two bases for the Court’s jurisdiction.
                    The first of these is the Palermo Convention, which entered into force on
                    29 September 2003 and was ratified by France on 29 October 2002 and by
                    Equatorial Guinea on 7 February 2003. The second of these is the
                    Optional Protocol to the Vienna Convention, which entered into force on
                    24 April 1964 and was ratified by France on 31 December 1970 and
                    acceded to by Equatorial Guinea on 4 November 2014. Both States are
                    also party to the Vienna Convention, which entered into force on 24 April
                    1964, and which France ratified on 31 December 1970 and Equato-
                    rial Guinea acceded to on 30 August 1976.
                       44. Article 35 of the Palermo Convention provides in its relevant
                    part:
                           “1. States Parties shall endeavour to settle disputes concerning
                        the interpretation or application of this Convention through negoti-
                        ation.
                           2. Any dispute between two or more States Parties concerning the
                        interpretation 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

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                               immunities and criminal proceedings (judgment)                308

                        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.”

                      45. Article I of the Optional Protocol to the Vienna Convention pro-
                    vides:
                          “Disputes arising out of the interpretation or application of the
                        Convention shall lie within the compulsory jurisdiction of the Inter-
                        national 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.”
                       46. The Court recalls that, in order for it to determine whether a dispute
                    is one concerning the interpretation or application of a given treaty, it
                        “cannot limit itself to noting that one of the Parties maintains that
                        such a dispute exists, and the other denies it. It must ascertain
                        whether the violations [alleged] . . . do or do not fall within the pro-
                        visions of the Treaty and whether, as a consequence, the dispute is
                        one which the Court has jurisdiction ratione materiae to entertain.”
                        (Oil Platforms (Islamic Republic of Iran v. United States of America),
                        Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810,
                        para. 16.)
                      47. Before addressing the preliminary objections of France, it is neces-
                    sary for the Court to determine the subject‑matter of the dispute.

                                      III. Subject-Matter of the Dispute

                       48. Article 40, paragraph 1, of the Statute and Article 38, paragraph 1,
                    of the Rules of Court require an applicant to indicate the “subject of
                    the dispute” in the application. Furthermore, the Rules of Court require
                    that the application “specify the precise nature of the claim, together with
                    a succinct statement of the facts and grounds on which the claim is based”
                    (Article 38, paragraph 2, of the Rules) and that the memorial include a
                    statement of the “relevant facts” (Article 49, paragraph 1, of the Rules).
                    However, it is for the Court itself to determine on an objective basis the
                    subject‑matter of the dispute between the parties, by isolating the
                    real issue in the case and identifying the object of the claim. In doing so,
                    the Court examines the application as well as the written and oral plead-
                    ings of the parties, while giving particular attention to the formulation of
                    the dispute chosen by the applicant (Obligation to Negotiate Access to the
                    Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
                    I.C.J. Reports 2015 (II), p. 602, para. 26; Territorial and Maritime Dispute
                    (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
                    2007 (II), p. 848, para. 38). It takes account of the facts that the appli-

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                               immunities and criminal proceedings (judgment)                309

                    cant presents as the basis for its claim. The matter is one of substance, not
                    of form.

                                                        * *
                      49. The Court recalls that, in its Application filed on 13 June 2016,
                    Equatorial Guinea states that the dispute between the Parties arises from
                    certain ongoing criminal proceedings in France and concerns
                        “the immunity from criminal jurisdiction of the Second Vice-President
                        of the Republic of Equatorial Guinea in charge of Defence and State
                        Security, and the legal status of the building which houses the Embassy
                        of Equatorial Guinea [in France], both as premises of the diplomatic
                        mission and as State property.
                           The criminal proceedings against the Second Vice-President consti-
                        tute a violation of the immunity to which he is entitled under inter-
                        national 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 prop-
                        erty 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 Con-
                        vention against Transnational Organized Crime of 15 November
                        2000, and general international law.”
                      50. The Application also states that
                        “the French Republic has breached its obligation to respect the prin-
                        ciples of the sovereign equality of States and non‑interference in the
                        internal affairs of another State, owed to the Republic of Equato-
                        rial Guinea in accordance with international law, by permitting its
                        courts to initiate criminal legal proceedings against the Second Vice-
                        President of Equatorial Guinea for alleged offences which, even if
                        they were established, quod non, would fall solely within the jurisdic-
                        tion of the courts of Equatorial Guinea”.
                      51. Furthermore, Equatorial Guinea states in its Memorial that

                        “[t]he dispute between Equatorial Guinea and France arose from cer-
                        tain criminal proceedings initiated in France against Mr. Teo-
                        doro Nguema Obiang Mangue, Vice-President of Equatorial Guinea
                        in charge of National Defence and State Security. In these proceed-
                        ings, the French courts have seen fit to ignore a number of acts and
                        decisions falling within the sole sovereignty and exclusive purview of
                        Equatorial Guinea, extend their criminal jurisdiction to its territory,
                        deny immunity from foreign criminal jurisdiction to the Vice-President
                        in charge of National Defence and State Security, and disregard the

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                               immunities and criminal proceedings (judgment)                 310

                        legal status of the building located at 42 Avenue Foch in Paris, both
                        as the property of the State of Equatorial Guinea and as premises of
                        its diplomatic mission in France.”

                                                          *
                       52. Equatorial Guinea’s claims based on the Palermo Convention con-
                    cern, first, France’s alleged violation of the immunity from foreign crimi-
                    nal jurisdiction of Mr. Teodoro Nguema Obiang Mangue, who is
                    currently Vice-President of the Republic of Equatorial Guinea in charge
                    of National Defence and State Security. Secondly, the claims relate to
                    France’s alleged overextension of its criminal jurisdiction over predicate
                    offences associated with the crime of money laundering. Thirdly, the
                    claims pertain to France’s alleged failure to respect the immunity of the
                    building at 42 Avenue Foch in Paris as State property of Equatorial
                    Guinea.

                       53. Equatorial Guinea’s claim based on the Vienna Convention con-
                    cerns France’s alleged failure to respect the inviolability of the building at
                    42 Avenue Foch in Paris as premises of Equatorial Guinea’s diplomatic
                    mission. Equatorial Guinea makes the following arguments in support of
                    its claims.

                                                          *
                       54. Regarding Mr. Teodoro Nguema Obiang Mangue, Equatorial
                    Guinea states that, although he was that country’s Ministre d’Etat for
                    Agriculture and Forestry when criminal proceedings were first initiated
                    before the French courts, he has assumed new responsibilities since his
                    appointment to the high‑ranking office of Second Vice-President of Equa-
                    torial Guinea in charge of Defence and State Security on 21 May 2012,
                    and of Vice-President of Equatorial Guinea in charge of National
                    Defence and State Security on 21 June 2016. According to Equatorial
                    Guinea, the nature of his new functions requires France to respect his
                    personal immunity in conformity with customary international law, in
                    particular as he is called upon to travel abroad on behalf of his
                    Government in order to perform those functions effectively. Equato-

                    rial Guinea argues that the conduct of criminal proceedings against
                    Mr. Teodoro Nguema Obiang Mangue in France “constitute[s] a viola-
                    tion of the immunity [ratione personae] to which he is entitled under
                    international law and interfere[s] with the exercise of his official functions
                    as a holder of high‑ranking office in the State of Equatorial Guinea”. It
                    further contends that France’s conduct in this regard amounts to a
                    violation of “the principles of sovereign equality and territorial integrity
                     of States and that of non‑intervention in the domestic affairs of other
                     States” to which Article 4 of the Palermo Convention refers.

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                               immunities and criminal proceedings (judgment)               311

                      55. Regarding its claim that the Respondent has overextended its crim-
                    inal jurisdiction, Equatorial Guinea argues that France has

                        “unilaterally gone beyond the bounds of its criminal jurisdiction to
                        entertain and characterize alleged criminal offences (the predicate
                        offences associated with money laundering) which are said to have
                        been committed in the territory of Equatorial Guinea, by nationals
                        of Equatorial Guinea, and whose victims are Equatorial Guineans or
                        the State of Equatorial Guinea”.
                    The Applicant considers that the predicate offences in question are, by
                    their nature, offences whose sole victim would be the State of Equato-
                    rial Guinea, and that consequently, “only the State of Equatorial Guinea
                    is competent to take cognizance of them and in a position to determine
                    whether they have been committed”. Equatorial Guinea states further
                    that its Public Prosecutor investigated the alleged predicate offences and
                    found that there were no such offences committed in the territory of
                    Equatorial Guinea. According to Equatorial Guinea, Article 4 of the Pal-
                    ermo Convention requires that any characterization of predicate offences
                    must be carried out in a manner consistent with the principles of sover-
                    eign equality and non‑intervention in the internal affairs of another State.
                    Consequently, it contends, France’s unilateral determination that the
                    alleged predicate offences of misuse of corporate assets, misappropriation
                    of public funds, breach of trust and corruption were in fact committed in
                    Equatorial Guinea amounts to a violation of the principles of sovereign
                    equality and non‑intervention in the internal affairs of another State
                    reflected in Article 4 of the Palermo Convention.
                       56. Regarding its claim concerning the status of the building at 42 Ave-
                    nue Foch in Paris as State property, Equatorial Guinea asserts that
                    Mr. Teodoro Nguema Obiang Mangue previously owned that building in
                    his private capacity, having been since 18 December 2004 the sole share-
                    holder of the five Swiss companies that owned the building. However,
                    according to Equatorial Guinea, the building became State property on
                    15 September 2011, when Mr. Teodoro Nguema Obiang Mangue trans-
                    ferred all his shareholder rights therein to the State of Equatorial Guinea.
                    The Applicant further states that the transfer of the building to the State
                    of Equatorial Guinea was duly recorded and registered by the relevant
                    French authorities on 17 October 2011. Equatorial Guinea argues that
                    France, by failing to recognize the building at 42 Avenue Foch in Paris as
                    property belonging to the State of Equatorial Guinea with effect from
                    15 September 2011 and by failing to ensure that no measures of con-
                    straint, such as attachment, or execution are taken by the forum State
                    against that building, is in violation of the customary international rules
                    governing immunities of States, State officials and State property, flowing
                    from the principles referred to in Article 4 of the Palermo Convention.

                                                         *
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                               immunities and criminal proceedings (judgment)                 312

                       57. Regarding its claim concerning the status of the building at 42 Ave-
                    nue Foch in Paris as premises of its diplomatic mission in France, which is
                    based on the Vienna Convention, the Applicant contends that France, by
                    failing to guarantee the inviolability, protection and immunity of that build-
                    ing, is in violation of its obligation under Article 22 of that Convention.

                      58. Equatorial Guinea states that the building at 42 Avenue Foch in
                    Paris “acquired diplomatic status” as of 4 October 2011 and that its dip-
                    lomatic mission in France transferred all its offices to that building in
                    July 2012. Equatorial Guinea further states that, in its Note Verbale of
                    4 October 2011 (see paragraph 25 above), it informed the Protocol
                    Department of the French Ministry of Foreign Affairs that:
                        “[s]ince the building forms part of the premises of the diplomatic
                        mission, pursuant to Article 1 of the Vienna Convention . . . 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”.
                    Equatorial Guinea contends that it has since then consistently affirmed
                    the diplomatic status of the building through several diplomatic exchanges.
                    The Applicant adds that France’s own position in relation to the building
                    has not been consistent in that, since the dispute arose, it has allowed the
                    French authorities to go to the building at 42 Avenue Foch in Paris to
                    obtain a visa to enter Equatorial Guinea; French tax authorities have col-
                    lected the taxes payable in relation to the transfer of the building from
                    Mr. Teodoro Nguema Obiang Mangue to the State of Equatorial Guinea;
                    and France dispatched a security team to the building on the occasion of
                    the presidential elections held in April 2016 in Equatorial Guinea. Equa-
                    torial Guinea thus claims that the building that serves as the premises of
                    its diplomatic mission in France enjoys inviolability, protection and
                    immunity under Article 22 of the Vienna Convention.

                      59. Equatorial Guinea further states that French authorities
                    entered and searched the said building on numerous occasions between
                    28 September 2011 and 23 February 2012, and ordered its attachment
                    (saisie pénale immobilière) on 19 July 2012 and confiscation on 27 Octo-
                    ber 2017.

                                                         * *
                       60. For its part, France objects to the jurisdiction of the Court to
                    entertain Equatorial Guinea’s claims, first, under the Palermo Conven-
                    tion and, second, under the Optional Protocol to the Vienna Convention,
                    on the grounds that those claims concern “the alleged violation of very
                    broad principles of international law, which Equatorial Guinea attempts
                    to link artificially” to the two Conventions that it invokes as bases of
                    jurisdiction. France further objects to the jurisdiction of the Court on the

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                               immunities and criminal proceedings (judgment)                313

                    grounds that Equatorial Guinea’s “submissions in both its Application
                    and its Memorial go far beyond the subject-matter of the dispute” as
                    defined by Equatorial Guinea itself.

                      61. Recalling the decision of the Court in its Order on provisional
                    measures of 7 December 2016, France submits that the alleged dispute, as
                    earlier identified by the Court, does not relate to the manner in which
                    France performed its obligations under the Palermo Convention but
                    appears rather “to concern a distinct issue, namely whether the Vice-
                    President of Equatorial Guinea enjoys immunity ratione personae under
                    customary international law and, if so, whether France has violated that
                    immunity by instituting proceedings against him”. According to France,
                    the Court’s jurisdiction must be assessed within the strict limits of the
                    subject‑matter of the dispute as thus described in Equatorial Guinea’s
                    Application and Memorial and as delineated by the Conventions on
                    which it seeks to establish that jurisdiction. France further objects to the
                    jurisdiction of the Court and the admissibility of the Application on the
                    grounds that Equatorial Guinea’s claims amount to an abuse of process
                    and abuse of rights.

                                                         *
                       62. France raises several arguments in relation to Equatorial Guinea’s
                    claims brought pursuant to the Palermo Convention. First, France states
                    that the purpose of that Convention is to “promote co‑operation to pre-
                    vent and combat transnational organized crime more effectively”. It con-
                    tends that the Convention “is in no way intended to organize in a general
                    way, the legal relations between States in light of the principles mentioned
                    [in Article 4 thereof], and, in particular, does not seek to create a system
                    of immunities, or establish the status of property belonging to the States
                    parties”. France argues further that, by contending that Article 4 of the
                    Palermo Convention “contains an ‘independent obligation’ to comply
                    with customary international law in general”, Equatorial Guinea unduly
                    confuses the obligations under the Convention with the manner in which
                    they must be performed, thereby attempting to ascribe to the Convention
                    an object it does not have and artificially broadening the scope of the
                    consent given by virtue of Article 35, paragraph 2, thereof. France adds
                    that since the Applicant does not accuse it of failing to criminalize the
                    offences mentioned in the Palermo Convention in its domestic legislation,
                    or of failing to establish domestic jurisdiction over those offences, or of
                    failing to co‑operate judicially, no question of the interpretation or appli-
                    cation of a conventional obligation is at issue.

                      63. Second, France states that while the conventional obligations
                    require domestic laws to conform with the Palermo Convention, the

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                               immunities and criminal proceedings (judgment)               314

                    implementation of domestic legislation still falls under the sovereignty
                    over penal matters of the States parties to that Convention. France argues
                    that the fact that the criminal proceedings against Mr. Teodoro Nguema
                    Obiang Mangue for the offence of money laundering were commenced on
                    the basis of French domestic law does not “place those proceedings within
                    the scope of the conventional obligations”. The Respondent contends in
                    particular that Equatorial Guinea has failed to demonstrate how France
                    has breached its conventional obligations under the various articles of the
                    Palermo Convention cited by Equatorial Guinea (such as Articles 3, 4, 6,
                    11, 12, 14, 15 and 18). France accordingly argues that Equatorial Guin-
                    ea’s claims in no way concern the application or interpretation of any of
                    the provisions of that Convention.
                       64. Third, in response to Equatorial Guinea’s claim that France has
                    “unilaterally gone beyond the bounds of its criminal jurisdiction” by
                    entertaining and characterizing the predicate offences associated with
                    money laundering, France states that it has complied with its obligation
                    under Article 6 to criminalize the laundering of the proceeds of crime and
                    to provide for punishment for the offence of money laundering domesti-
                    cally. France also states that Article 15 of the Palermo Convention obli-
                    gates a State party to “adopt such measures as may be necessary to
                    establish its jurisdiction over the offences established in accordance [with
                    the Convention]”, and argues that it has in fact complied with this con-
                    ventional obligation in its domestic legislation. France further argues that
                    Article 15 relates to adjudicative jurisdiction, rather than to immunities,
                    and that immunity is not a question of jurisdiction, but of the exercise of
                    that jurisdiction. Accordingly, the two questions must be carefully distin-
                    guished.

                                                         *
                       65. France also objects to the Court’s jurisdiction under the Optional
                    Protocol to the Vienna Convention to entertain Equatorial Guinea’s
                    claim concerning the legal status of the building at 42 Avenue Foch in
                    Paris as premises of its diplomatic mission in France, on the ground that
                    French authorities have never recognized the building at 42 Avenue Foch
                    in Paris as Equatorial Guinea’s diplomatic mission. Whilst France agrees
                    that premises used for the purposes of a diplomatic mission should enjoy
                    immunity and inviolability under the Vienna Convention, it argues that
                    the inviolability régime in Article 22 “can only be applied and imple-
                    mented if it has previously been established that the premises in question
                    do indeed enjoy diplomatic status”. According to France therefore, the
                    real dispute between the Parties, which falls outside the scope of the
                    Vienna Convention and of the Court’s jurisdiction, is whether, at the time
                    of the events of which Equatorial Guinea complains in its Application,
                    that building should — or should not — have been regarded as being
                    used for the purposes of Equatorial Guinea’s mission in France.

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                               immunities and criminal proceedings (judgment)               315

                       66. Moreover, France contends that “the Vienna Convention contains
                    no rules specifying the modalities or procedure for identifying the prem-
                    ises of a diplomatic mission and, therefore, for determining whether the
                    Article 22 régime applies to a given building”. The Respondent maintains
                    that this question too falls outside the scope of that Convention and thus,
                    outside the jurisdiction of the Court.

                                                        * *
                       67. The Court notes that the dispute between the Parties arose from
                    criminal proceedings instituted in France against Mr. Teodoro Nguema
                    Obiang Mangue and that those criminal proceedings were ongoing in
                    French courts on 13 June 2016, when Equatorial Guinea filed its Applica-
                    tion with the Court. The facts of the case and submissions of the Parties
                    narrated above indicate that there are several distinct claims over which
                    the Parties hold opposing views and which form the subject‑matter of the
                    dispute. For convenience, these will be described under the bases of juris-
                    diction that Equatorial Guinea invokes for each claim.
                       68. The aspect of the dispute for which Equatorial Guinea invokes the
                    Palermo Convention as the title of jurisdiction involves various claims on
                    which the Parties have expressed differing views in their written and oral
                    pleadings. First, they disagree on whether, as a consequence of the prin-
                    ciples of sovereign equality and non‑intervention in the internal affairs of
                    another State, to which Article 4 of the Palermo Convention refers,
                    Mr. Teodoro Nguema Obiang Mangue, as Vice-           President of Equato-
                    rial Guinea in charge of National Defence and State Security, is immune
                    from foreign criminal jurisdiction. Second, they hold differing views on
                    whether, as a consequence of the principles referred to in Article 4 of the
                    Palermo Convention, the building at 42 Avenue Foch in Paris is immune
                    from measures of constraint. Third, they differ on whether, by establish-
                    ing its jurisdiction over the predicate offences associated with the offence
                    of money laundering, France exceeded its criminal jurisdiction and
                    breached its conventional obligation under Article 4 read in conjunction
                    with Articles 6 and 15 of the Palermo Convention.

                      69. The Court will ascertain whether this aspect of the dispute between
                    the Parties described above is capable of falling within the provisions of
                    the Palermo Convention and whether, as a consequence, it is one which
                    the Court has jurisdiction to entertain under the Palermo Convention.
                    This will be dealt with in Part IV of the Judgment.
                      70. The aspect of the dispute for which Equatorial Guinea invokes the
                    Optional Protocol to the Vienna Convention as the title of jurisdiction
                    involves two claims on which the Parties have expressed differing views.
                    First, they disagree on whether the building at 42 Avenue Foch in Paris
                    constitutes part of the premises of the mission of Equatorial Guinea in
                    France and is thus entitled to the treatment afforded for such premises

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                               immunities and criminal proceedings (judgment)                316

                     under Article 22 of the Vienna Convention. They also disagree on
                     whether France, by the action of its authorities in relation to the build-
                    ing, is in breach of its obligations under Article 22. The Court will ascer-
                    tain whether this aspect of the dispute between the Parties is capable of
                    falling within the Vienna Convention, and consequently whether it is one
                    which the Court has jurisdiction to entertain under the Optional Protocol
                    to the Vienna Convention. This will be dealt with in Part V of the
                    Judgment.

                                                         *
                       71. Aside from the claims outlined above, the Court notes that Equa-
                    torial Guinea has made certain assertions under the Palermo Convention
                    as the title of jurisdiction. Equatorial Guinea argues that France has
                    failed to perform its obligations of consultation and of co‑operation
                    under Article 15, paragraph 5, and Article 18, respectively, of the Pal-
                    ermo Convention in a manner consistent with the principles of sovereign
                    equality, territorial integrity and non‑intervention in the internal affairs
                    of other States, to which Article 4 refers. It contends that its Public Pros-
                    ecutor investigated the predicate offences associated with the offence of
                    money laundering and alleged to have been committed in Equato-
                    rial Guinea, but found that no such offences were ever committed. The
                    Applicant claims that, although this information was communicated to
                    the relevant French authorities, they ignored that information and pro-
                    ceeded to indict Mr. Teodoro Nguema Obiang Mangue with money laun-
                    dering in France. Equatorial Guinea submits that it has what it describes
                    as exclusive jurisdiction under the Palermo Convention to determine
                    whether the alleged predicate offences were committed. Consequently, it
                    maintains that France was under an obligation to take the report of
                    Equatorial Guinea’s Public Prosecutor into account in accordance with
                    the obligations to consult and co‑operate under the Palermo Convention,
                    and also to defer to the outcome of that report in accordance with the
                    principles of sovereign equality and non‑intervention by “put[ting] an end
                    to the criminal proceedings”.

                       72. France responds that these assertions were not raised in Equato-
                    rial Guinea’s Application and moreover, that they are an attempt by the
                    Applicant to broaden the subject‑matter of the dispute between the Par-
                    ties. France further submits that the obligation to co‑operate under Arti-
                    cle 15, paragraph 5, of the Palermo Convention does not require a State
                    party to put an end to proceedings at the request of another State, and
                    that neither the obligation to consult under Article 15, paragraph 5, nor
                    the obligation to co‑operate under Article 18, can be construed as having
                    an impact on the jurisdiction of the French courts to prosecute acts of
                    money laundering committed within French territory.

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                               immunities and criminal proceedings (judgment)                317

                       73. The Court observes that Equatorial Guinea mentions the conven-
                    tional obligations to consult and co‑operate for the first time in its Memo-
                    rial. However, in its submissions in the Memorial, Equatorial Guinea
                    makes no reference to claims related to an alleged failure to comply with
                    the obligations to consult and co‑operate. Accordingly, the Court is of
                    the view that such assertions can only be considered as additional argu-
                    ments which do not constitute distinct claims made under the Palermo
                    Convention.

                              IV. The First Preliminary Objection: Jurisdiction
                                       under the Palermo Convention

                       74. France’s first preliminary objection is that the Court lacks jurisdic-
                    tion under the Palermo Convention because the dispute between itself
                    and Equatorial Guinea, as submitted to the Court, does not concern the
                    interpretation or application of that Convention.

                                                         *
                       75. As a preliminary matter, the Court notes that Article 35 of the Pal-
                    ermo Convention lays down certain procedural requirements before a
                    State party may refer a dispute to the Court. States parties are required to
                    attempt to negotiate settlement of the dispute for a reasonable time, then
                    to proceed to arbitration should one of the States parties involved so
                    request, and to attempt, for a period of six months from the request to
                    arbitrate, to organize that arbitration.
                       76. The Court further notes that Equatorial Guinea and France have
                    exchanged Notes Verbales in relation to the prosecution of Mr. Teo-
                    doro Nguema Obiang Mangue and the building at 42 Avenue Foch in
                    Paris and that they held a meeting in January 2016 to discuss the dispute.
                    Equatorial Guinea proposed arbitration between the two Parties on
                    26 October 2015. That offer, which was made more than six months
                    before the filing of Equatorial Guinea’s Application on 13 June 2016, was
                    reiterated in Notes Verbales dated 6 January 2016 and 2 February 2016.
                    By Note Verbale of 17 March 2016, France responded by indicating that
                    “the facts mentioned in [Equatorial Guinea’s] Note Verbale have been the
                    subject of court decisions in France and remain the subject of ongoing
                    legal proceedings”. It concluded that France is “unable to accept the offer
                    of settlement by the means proposed by the Republic of Equato-
                    rial Guinea”. The Court is therefore satisfied that the procedural require-
                    ments of Article 35 had been complied with prior to the filing of
                    Equatorial Guinea’s Application.

                                                        * *

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                               immunities and criminal proceedings (judgment)                318

                      77. The Court now turns to the question whether the aspect of the
                    dispute described in paragraph 68 falls within the provisions of the Pal-
                    ermo Convention. Equatorial Guinea argues that this aspect of the dis-
                    pute raises issues related to the interpretation and application of Article 4
                    read in conjunction with other articles of the Convention.
                      78. Article 4 of the Palermo Convention provides as follows:
                                                “Protection of sovereignty
                        1. States Parties shall carry out their obligations under this Conven-
                           tion in a manner consistent with the principles of sovereign equal-
                           ity and territorial integrity of States and that of non‑intervention
                           in the domestic affairs of other States.
                        2. Nothing in this Convention entitles a State Party to undertake in
                           the territory of another State the exercise of jurisdiction and per-
                           formance of functions that are reserved exclusively for the author-
                           ities of that other State by its domestic law.”

                                                        * *
                       79. France maintains that Article 4 does not incorporate the rules of
                    customary international law, in particular those concerning immunities of
                    States and State officials. France further contends that there is no dispute
                    between the Parties calling into question any of the obligations under the
                    Convention.
                       80. In response to the allegation that it had overextended its jurisdic-
                    tion to cover offences which fall within the exclusive jurisdiction of Equa-
                    torial Guinea, France argues that the Convention recognizes no exclusive
                    jurisdiction of Equatorial Guinea.

                                                         *
                       81. Equatorial Guinea relies on Article 4 in two ways. First, it argues
                    that the rules relating to the immunity ratione personae of certain holders
                    of high‑ranking office and the immunity from execution of State property
                    flow directly from the principles of sovereign equality and non‑interven-
                    tion referred to in Article 4. It maintains that Article 4 imposes a treaty
                    obligation to respect the customary international rules relating to immu-
                    nities of States and State officials when applying the Palermo Convention.
                    Relying on this interpretation of Article 4, Equatorial Guinea asserts that
                    France has failed to carry out various obligations pursuant to the Pal-
                    ermo Convention in a manner that is consistent with Article 4, by failing
                    to respect the immunity to which the Vice-President is entitled and the
                    immunity of the building at 42 Avenue Foch in Paris from measures of
                    constraint as State property.

                       82. Second, Equatorial Guinea relies on the principles expressly
                    referred to in Article 4, asserting that France has failed to carry out vari-

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                               immunities and criminal proceedings (judgment)                 319

                    ous obligations under the Palermo Convention in a manner consistent
                    with those principles. In particular, Equatorial Guinea argues that France
                    has violated Article 4 by asserting jurisdiction pursuant to Articles 6
                    and 15 of the Palermo Convention over alleged offences which fall exclu-
                    sively within the jurisdiction of Equatorial Guinea’s courts.
                       83. Equatorial Guinea concedes that Article 4 does not require respect
                    for the principles of sovereign equality and non‑intervention (including the
                    rules on immunities of States and State officials which it claims flow from
                    those principles) in a general sense. It does not seek to dissociate Article 4
                    from the Convention’s other provisions. Rather, it argues that respect for
                    those principles becomes a treaty obligation for a State party when it is
                    applying the other provisions of the Convention. Equatorial Guinea
                    alleges that France has violated Article 4 in the implementation of Arti-
                    cle 6 (Criminalization of the laundering of proceeds of crime), Article 11
                    (Prosecution, adjudication and sanctions), Article 12 (Confiscation and
                    seizure), Article 14 (Disposal of confiscated proceeds of crime or prop-
                    erty), Article 15 (Jurisdiction) and Article 18 (Mutual legal assistance).

                                                         * *
                       84. The Court will first proceed to examine Article 4 to determine
                    whether the claim by Equatorial Guinea relating to the immunities of
                    States and State officials falls within the provisions of Article 4. Unless
                    the Court finds that this is the case, the aspect of the dispute between the
                    Parties in relation to the asserted immunities of the Vice-President of
                    Equatorial Guinea and the building at 42 Avenue Foch in Paris as State
                    property cannot be said to concern the interpretation or application of
                    the Palermo Convention.
                       85. Second, the Court will consider Equatorial Guinea’s argument that
                    France has violated Article 4 of the Convention by failing to carry out its
                    obligations relating to the criminalization of money laundering and the
                    establishment of its jurisdiction over that offence (pursuant to Articles 6
                    and 15) in a manner consistent with the principles of sovereign equality
                    and non-intervention referred to in Article 4. The Court will determine
                    whether the actions by France of which Equatorial Guinea complains are
                    capable of falling within the provisions of the Palermo Convention.
                    Unless the Court finds that this is the case, the aspect of the dispute
                    between the Parties in relation to France’s alleged overextension of juris-
                    diction cannot be said to concern the interpretation or application of the
                    Palermo Convention.

                         A. The Alleged Breach by France of the Rules on Immunities of
                                           States and State Officials
                      86. The factual background to the prosecution in France of
                    Mr. Teodoro Nguema Obiang Mangue is recalled above at paragraphs 23
                    to 41.

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                               immunities and criminal proceedings (judgment)                320

                       87. France views Article 4 as a general clause recalling fundamental
                    principles of international law, one which establishes an aim or objective
                    rather than an independent obligation. In this regard, France refers to
                    Article I of the Treaty of Amity, Economic Relations and Consular
                    Rights between the United States and Iran (hereinafter the “Treaty of
                    Amity”), which France identifies as the same kind of “conventional for-
                    mulation” as Article 4. It recalls that in Oil Platforms, the Court found
                    that Article I of the Treaty of Amity had to be regarded as fixing “an
                    objective, in the light of which the other Treaty provisions are to be inter-
                    preted and applied” (Oil Platforms (Islamic Republic of Iran v. United
                    States of America), Preliminary Objection, Judgment, I.C.J. Reports
                    1996 (II), p. 814, para. 28).
                       88. France argues that the Palermo Convention is not intended to
                    organize in a general way the legal relations between States in light of the
                    principles of sovereign equality, territorial integrity and non‑intervention,
                    nor to create a system of immunities or establish the status of property
                    belonging to States parties. It further argues that Article 4 (2) is a refor-
                    mulation in a negative form of the principle of territorial integrity men-
                    tioned in Article 4 (1), in the context of judicial co‑operation.

                                                         *
                       89. As the Court has recalled, Equatorial Guinea argues that Mr. Teo-
                    doro Nguema Obiang Mangue is entitled to immunity ratione personae
                    from criminal prosecution in French courts and that the building at
                    42 Avenue Foch in Paris is State property which is immune from mea-
                    sures of execution by France (see paragraphs 54 and 56).
                       90. Equatorial Guinea claims that the customary international rules on
                    immunities of States and State officials, and on the immunity of State
                    property from execution, are incorporated into Article 4 through the
                    reference in that Article to the principles of sovereign equality and

                    non‑intervention. In its written pleadings Equatorial Guinea states that
                    “the rules concerning the immunities to which States are entitled before
                    foreign courts” are “embodied in the principle of sovereign equality”
                    (emphasis added). At the oral hearings, Equatorial Guinea asserted that
                    the “rules of international law on the immunity of States, their officials
                    and their property . . . are contained within the principles referred to in
                    Article 4” (emphasis added). Equatorial Guinea further maintains that
                    Article 4 (2) must be regarded as providing additional protection for State
                    sovereignty and that it does not limit the scope of Article 4 (1).

                                                        * *
                      91. Pursuant to customary international law, as reflected in Articles 31
                    and 32 of the Vienna Convention on the Law of Treaties, the provisions
                    of the Palermo Convention must be interpreted in good faith in accor-

                                                                                32

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                               immunities and criminal proceedings (judgment)                  321

                    dance with the ordinary meaning to be given to their terms in their con-
                    text and in light of the object and purpose of the Convention. To confirm
                    the meaning resulting from that process, or to remove ambiguity or
                    obscurity, or to avoid a manifestly absurd or unreasonable result, recourse
                    may be had to the supplementary means of interpretation which include
                    the preparatory work of the Convention and the circumstances of its con-
                    clusion (Application of the Convention on the Prevention and Punishment
                    of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Monte
                    negro), Judgment, I.C.J. Reports 2007 (I), pp. 109‑110, para. 160).
                       92. Article 4 (1) stipulates that “States Parties shall carry out their
                    obligations under [the Palermo] Convention in a manner consistent with
                    the principles” to which it refers. The Court considers that the word
                    “shall” imposes an obligation on States parties. Article 4 (1) is not pream-
                    bular in character, nor does it merely formulate a general aim, as the
                    Court held that Article I of the Treaty of Amity did in Oil Platforms.
                    However, Article 4 is not independent of the other provisions of the Con-
                    vention. Its purpose is to ensure that the States parties to the Convention
                    perform their obligations in accordance with the principles of sovereign
                    equality, territorial integrity and non‑intervention in the domestic affairs
                    of other States.

                       93. As the Court has previously observed, the rules of State immunity
                    derive from the principle of sovereign equality of States (Jurisdictional
                    Immunities of the State (Germany v. Italy: Greece Intervening), Judgment,
                    I.C.J. Reports 2012 (I), pp. 123‑124, para. 57). However, Article 4 does
                    not refer to the customary international rules, including State immunity,
                    that derive from sovereign equality but to the principle of sovereign
                    equality itself. Article 4 refers only to general principles of international
                    law. In its ordinary meaning, Article 4 (1) does not impose, through its
                    reference to sovereign equality, an obligation on States parties to act in a
                    manner consistent with the many rules of international law which protect
                    sovereignty in general, as well as all the qualifications to those rules.

                       94. Article 4 (1) is to be read in its context. Article 4 (2) of the Palermo
                    Convention states that “[n]othing in [the] Convention entitles a State
                    Party to undertake in the territory of another State the exercise of juris-
                    diction and performance of functions that are reserved exclusively for the
                    authorities of that other State by its domestic law”. Article 4 (2) does not
                    refer to the customary international rules on immunities of States and
                    State officials. Moreover, none of the provisions of the Palermo Conven-
                    tion relates expressly to the immunities of States and State officials.

                      95. Article 4 (1) is also to be read in light of the object and purpose of
                    the Convention. That object and purpose, stated in Article 1, is the pro-
                    motion of co‑operation to prevent and combat transnational organized

                                                                                33

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                               immunities and criminal proceedings (judgment)               322

                    crime more effectively. The interpretation of Article 4 advanced by Equa-
                    torial Guinea, whereby the customary rules relating to immunities of
                    States and State officials are incorporated into the Convention as conven-
                    tional obligations, is unrelated to the stated object and purpose of the
                    Palermo Convention.

                       96. The Court concludes that, in its ordinary meaning, Article 4, read
                    in its context and in light of the object and purpose of the Convention,
                    does not incorporate the customary international rules on immunities of
                    States and State officials. This interpretation is confirmed by the travaux
                    préparatoires of the Palermo Convention. The Ad Hoc Committee on the
                    Elaboration of a Convention against Transnational Organized Crime met
                    over the course of thirteen sessions between January 1999 and Febru-
                    ary 2004 in its elaboration of the Convention and its Protocols. So far as
                    the record shows, during this process, no reference was made to immuni-
                    ties of States and State officials in relation to the drafting of Article 4.
                       97. The records of the preparatory meetings of the Ad Hoc Committee
                    indicate that the issue of State immunity was raised twice with regard to
                    other provisions. First, a proposal to include an Article covering mea-
                    sures against corruption by, inter alia, foreign public officials led some
                    delegations to raise concerns about the immunities accorded by interna-
                    tional instruments to some of those officials. The proposal was not
                    retained in the final text of the Convention.

                       98. Second, the issue of immunity of State property was raised in the
                    context of a proposal by Singapore to include a provision dealing with
                    State immunity from execution in the Article relating to confiscation and
                    seizure (now Article 12 of the Palermo Convention). This proposal was
                    likewise not retained in the final text of the Convention. Instead it was
                    agreed that the travaux préparatoires should indicate the following in the
                    interpretative notes to Article 12:

                        “interpretation of Article 12 should take into account the principle in
                        international law that property belonging to a foreign State and used
                        for non‑commercial purposes may not be confiscated except with the
                        consent of the foreign State. It is not the intention of the Convention
                        to restrict the rules that apply to diplomatic or State immunity,
                        including that of international organizations.” (Travaux prépara-
                        toires, p. 115.)
                    The interpretative note specifies that the Palermo Convention does not
                    restrict the rules that apply to State immunity. The note does not relate to
                    Article 4 of the Palermo Convention and does not suggest that these rules
                    are incorporated by reference into the Palermo Convention.
                       99. Article 4 (1) of the Palermo Convention was transposed from Arti-
                    cle 2 (2) of the Convention against Illicit Traffic in Narcotic Drugs and
                    Psychotropic Substances of 1988 (hereinafter the “Convention against

                                                                                34

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                               immunities and criminal proceedings (judgment)                  323

                    Illicit Traffic in Narcotic Drugs”). Article 4 (1) of the Palermo Conven-
                    tion is identical to Article 2 (2) of the Convention against Illicit Traffic in
                    Narcotic Drugs, while Article 4 (2) of the Palermo Convention is very
                    similar to Article 2 (3) of the Convention against Illicit Traffic in Narcotic
                    Drugs. The Commentary to the Convention against Illicit Traffic in Nar-
                    cotic Drugs, in relation to Article 2 (2), is therefore relevant to the Court’s
                    examination of Article 4 of the Palermo Convention.

                       100. The Commentary notes that Article 2 (2) of the Convention
                    against Illicit Traffic in Narcotic Drugs “reiterates universally accepted
                    and well‑established principles of international law concerning the sover-
                    eign equality and territorial integrity of States and non‑intervention in the
                    domestic affairs of States” (Commentary, para. 2.12). According to the
                    Commentary, the rationale for restating these principles in Article 2 is
                    that the Convention against Illicit Traffic in Narcotic Drugs “goes much
                    further than previous drug control treaties in matters of law enforcement
                    and mutual legal assistance” (Commentary, para. 2.13). Again the focus
                    is on law enforcement and mutual legal assistance, not immunity.

                       101. The purpose of the Convention against Illicit Traffic in Narcotic
                    Drugs, set out in Article 2 of that Convention, is the promotion of
                    co‑operation among States parties to effectively address illicit trafficking
                    in narcotic drugs and psychotropic substances having an international
                    dimension. The Convention against Illicit Traffic in Narcotic Drugs does
                    not include a provision protecting the State immunity of individuals sus-
                    pected of drug trafficking. The protection of the sovereignty, territorial
                    integrity and domestic jurisdiction of a State is the purpose of Article 2 (2)
                    of the Convention against Illicit Traffic in Narcotic Drugs. Article 4 (1) of
                    the Palermo Convention shares that purpose. Neither of these provisions
                    is concerned with the related, but separate, question of the immunities of
                    individuals, or of State property, in foreign territory.
                       102. In light of the above, the Court concludes that Article 4 does not
                    incorporate the customary international rules relating to immunities of
                    States and State officials. Therefore, the aspect of the dispute between the
                    Parties relating to the asserted immunity of the Vice-President of Equator
                    ial Guinea and the immunity claimed for the building at 42 Avenue Foch
                    in Paris from measures of constraint as State property does not concern
                    the interpretation or application of the Palermo Convention. Conse-
                    quently, the Court lacks jurisdiction in relation to this aspect of the dis-
                    pute. The Court notes that its determination that Article 4 does not
                    incorporate the customary international rules relating to immunities of
                    States and State officials is without prejudice to the continued application
                    of those rules.
                       103. Equatorial Guinea raises a further claim based on the Palermo
                    Convention which does not depend on the view of Article 4 as incorpo-
                    rating the rules relating to immunities of States and State officials. The
                    Court will now address this claim.

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                               immunities and criminal proceedings (judgment)                  324

                             B. The Alleged Overextension of Jurisdiction by France
                       104. Equatorial Guinea asserts that the French legislation that crimi-
                    nalizes money laundering and establishes France’s jurisdiction over that
                    offence (pursuant to Articles 6 and 15 of the Palermo Convention), as
                    interpreted and applied by French courts, does not respect the principles
                    of sovereign equality and non-intervention. Therefore, Equatorial Guinea
                    contends that the French legislation is not in harmony with Article 4 of
                    the Convention. Equatorial Guinea maintains that the Court has jurisdic-
                    tion in relation to this aspect of its dispute with France because these
                    actions by France fall within the scope of the Palermo Convention.
                       105. As recalled above, France contends that there is no dispute
                    between the Parties calling into question any of the obligations under the
                    Convention.
                       106. The Court must determine whether the aspect of the dispute
                    between the Parties relating to France’s criminalization of money laun-
                    dering and its establishment of jurisdiction over that offence, as described
                    above, “concerns the interpretation or application” of the Palermo Con-
                    vention. To do so, the Court must ascertain whether the alleged viola-
                    tions by France complained of by Equatorial Guinea are capable of
                    falling within the provisions of the Palermo Convention and whether, as
                    a consequence, this aspect of the dispute is one which the Court has juris-
                    diction to entertain pursuant to Article 35, paragraph 2, of the Conven-
                    tion (see paragraph 46 above).
                       107. Article 6 of the Palermo Convention states in its relevant part:

                                  “Criminalization of the laundering of proceeds of crime
                        1. Each State Party shall adopt, in accordance with fundamental
                            principles of its domestic law, such legislative and other measures
                            as may be necessary to establish as criminal offences, when com-
                            mitted intentionally:
                        (a) (i)	The conversion or transfer of property, knowing that such
                                 property is the proceeds of crime, for the purpose of conceal-
                                 ing or disguising the illicit origin of the property or of helping
                                 any person who is involved in the commission of the predicate
                                 offence to evade the legal consequences of his or her action;
                            (ii) The concealment or disguise of the true nature, source, loca-
                                 tion, disposition, movement or ownership of or rights with
                                 respect to property, knowing that such property is the pro-
                                 ceeds of crime;
                        (b) Subject to the basic concepts of its legal system:

                              (i) The acquisition, possession or use of property, knowing, at
                                  the time of receipt, that such property is the proceeds of
                                  crime;

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                                  immunities and criminal proceedings (judgment)                                                   325

                             (ii) Participation in, association with or conspiracy to commit,
                                  attempts to commit and aiding, abetting, facilitating and
                                  counselling the commission of any of the offences established
                                  in accordance with this article.
                        2. For purposes of implementing or applying paragraph 1 of this
                            article:
                        (a) Each State Party shall seek to apply paragraph 1 of this Article to
                            the widest range of predicate offences;
                        (b) Each State Party shall include as predicate offences all serious
                            crime as defined in Article 2 of this Convention and the offences
                            established in accordance with Articles 5, 8 and 23 of this Con-
                            vention. In the case of States Parties whose legislation sets out a
                            list of specific predicate offences, they shall, at a minimum, include
                            in such list a comprehensive range of offences associated with
                            organized criminal groups;
                        (c) For the purposes of subparagraph (b), predicate offences shall
                            include offences committed both within and outside the jurisdic-
                            tion of the State Party in question. However, offences committed
                            outside the jurisdiction of a State Party shall constitute predicate
                            offences only when the relevant conduct is a criminal offence
                            under the domestic law of the State where it is committed and
                            would be a criminal offence under the domestic law of the State
                            Party implementing or applying this Article had it been commit-
                            ted there.”
                      108. The relevant part of Article 15 of the Palermo Convention is
                    worded as follows:
                                                                        “Jurisdiction
                        1. Each State Party shall adopt such measures as may be necessary
                              to establish its jurisdiction over the offences established in accord-
                              ance with Articles 5, 6, 8 and 23 of this Convention when:
                        (a) The offence is committed in the territory of that State Party
                        �����������������������������������������������������������������������������������������������������������������
                        6. Without prejudice to norms of general international law, this
                              Convention does not exclude the exercise of any criminal jurisdic-
                              tion established by a State Party in accordance with its domestic
                              law.”

                                                                          * *

                       109. France concedes that Article 6 imposes an obligation on States
                    parties to the Convention to criminalize money laundering in their domes-
                    tic legislation. It submits that it has complied with that obligation since
                    the offence of money laundering is provided for, and is punishable, under
                    the French Penal Code. It points out that Equatorial Guinea is not chal-

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                               immunities and criminal proceedings (judgment)                326

                     lenging the conformity of French legislation with the Convention obliga-
                    tion to criminalize behaviour. France maintains that its legislation in the
                    matter of money laundering and the establishment of jurisdiction over
                    that offence was adequate at the time it ratified the Palermo Convention.
                    It points out that it did not need to enact specific legislation to implement
                    the Convention.
                        110. In relation to Equatorial Guinea’s argument as to the extent of
                    France’s jurisdiction, France asserts that the proceedings against Mr. Teo-
                    doro Nguema Obiang Mangue do not involve the extraterritorial exten-
                    sion of the jurisdiction of the French courts, as the criminal proceedings
                    only concern acts committed on French territory. France asserts further-
                    more that the dispute between the Parties, as defined in Equatorial
                    Guinea’s Application, does not relate to the establishment by France of
                     its jurisdiction over Convention offences.

                                                         *
                       111. Equatorial Guinea does not claim that French law has failed to
                    criminalize money laundering pursuant to Article 6, nor that France has
                    failed to establish its criminal jurisdiction to enable the prosecution of
                    money laundering pursuant to Article 15. Rather, according to Equator
                    ial Guinea, France’s legislation implementing Articles 6 and 15 is incom-
                    patible with the principles of sovereign equality and non-   intervention
                    referred to in Article 4.

                       112. Equatorial Guinea argues that France has failed to respect the
                    principles of sovereign equality and non-intervention, as prescribed by
                    Article 4, by permitting its courts to initiate criminal proceedings in rela-
                    tion to alleged offences which, even if they were established, would fall
                    solely within the jurisdiction of the courts of Equatorial Guinea. In
                    particular, Equatorial Guinea asserts that France has overextended its
                     jurisdiction, pursuant to Article 15 of the Palermo Convention, to cover
                     predicate offences allegedly committed in Equatorial Guinea by and
                     against nationals of Equatorial Guinea or against the Equatorial
                     Guinean State.

                                                        * *
                       113. In the Court’s view, a State can give effect to a treaty by using
                    pre‑existing legislation and there can be a dispute as to the implementa-
                    tion of that treaty through such legislation. Consequently, even if France
                    did not enact specific legislation to comply with the requirements of the
                    Palermo Convention, this would not be decisive for the purposes of
                    the application of the Convention and therefore for the jurisdiction of
                    the Court with regard to such a dispute.

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                               immunities and criminal proceedings (judgment)                327

                       114. On the other hand, in assessing whether France was implementing
                    the Convention in taking action against Mr. Teodoro Nguema Obiang
                    Mangue, it is relevant to note that the Palermo Convention recognizes
                    that the definition of offences and related legal rules and procedures is a
                    matter for the domestic law of the prosecuting State. Specifically, Arti-
                    cle 11 (6) provides that:
                          “Nothing contained in this Convention shall affect the principle
                        that the description of the offences established in accordance with this
                        Convention and of the applicable legal defences or other legal princi-
                        ples controlling the lawfulness of conduct is reserved to the domestic
                        law of a State Party and that such offences shall be prosecuted and
                        punished in accordance with that law.”

                    In accordance with that general principle, the Convention helps to
                    co‑ordinate but does not direct the actions of States parties in the exercise
                    of their domestic jurisdiction. Articles 12 (9), 13 (4), 14 (1), 14 (2) and
                    15 (6) are also relevant in this regard: they similarly provide that States
                    parties are free to implement the convention obligations contained in
                    these provisions in accordance with their domestic law. The scope of
                    action taken in the implementation of the Convention is therefore limited.

                                                        * *
                       115. The Court now turns to the issue of France’s alleged overexten-
                    sion of jurisdiction in relation to the predicate offences of money launder-
                    ing. The Court notes that Article 2 (h) of the Palermo Convention defines
                    “predicate offence” as “any offence as a result of which proceeds have
                    been generated that may become the subject of an offence as defined in
                    Article 6 of this Convention”. Article 6 (2) imposes an obligation on
                    States parties to “seek to” establish criminal offences as set out in Arti-
                    cle 6 (1) in relation to the “widest range of predicate offences”, including
                    offences committed outside the jurisdiction of the State party. The obliga-
                    tion is limited by Article 6 (2) (c). Pursuant to that provision, predicate
                    offences committed outside the jurisdiction of a State party may only
                    relate to conduct that is a criminal offence under the domestic law of the
                    State where the conduct occurs. That conduct must also constitute a
                    criminal offence under the domestic law of the State party adopting the
                    measures pursuant to Article 6, had the conduct occurred there.

                      116. The Court observes that Article 6 (2) (c) is not concerned with
                    the question whether any particular individual has committed a predicate
                    offence abroad, but with the distinct prior question whether the alleged
                    conduct abroad constitutes a criminal offence under the domestic law of

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                               immunities and criminal proceedings (judgment)               328

                    the State where it occurred. The Court further observes that Arti-
                    cle 6 (2) (c) of the Palermo Convention does not provide for the exclusive
                    jurisdiction of the State on whose territory such an offence was commit-
                    ted. It is for each State party to adopt measures to criminalize the Con-
                    vention offences as required by Article 6, including “the widest range” of
                    predicate offences inside and outside the jurisdiction of that State party.
                    It is also for each State party to adopt such measures as may be necessary
                    to establish their jurisdiction over Convention offences pursuant to Arti-
                    cle 15. This is in accordance with the principle stated in Article 15 (6) of
                    the Palermo Convention, which provides that “[w]ithout prejudice to
                    norms of general international law”, the Convention does not exclude the
                    exercise of any criminal jurisdiction established by a State party in accor-
                    dance with its domestic law.

                       117. For these reasons, the Court finds that the alleged violations com-
                    plained of by Equatorial Guinea are not capable of falling within the pro-
                    visions of the Palermo Convention, notably Articles 6 and 15. The Court
                    therefore lacks jurisdiction to entertain the aspect of the dispute relating
                    to France’s alleged overextension of jurisdiction.

                                                        * *
                       118. Having analysed the aspect of the dispute in respect of which
                     Equatorial Guinea invoked the Palermo Convention as a basis of juris-
                    diction (see paragraph 68 above), the Court concludes that this aspect of
                    the dispute is not capable of falling within the provisions of the Palermo
                    Convention. The Court therefore lacks jurisdiction pursuant to the
                    Palermo Convention to entertain Equatorial Guinea’s Application and
                     must uphold France’s first preliminary objection.
                       119. The Court’s conclusion in relation to France’s first preliminary
                     objection makes it unnecessary to make any further determinations
                     regarding the scope or content of the obligations on States parties pursu-
                     ant to Article 4 of the Palermo Convention (see paragraph 102).

                         V. The Second Preliminary Objection: Jurisdiction under
                             the Optional Protocol to the Vienna Convention

                       120. The Court recalls that the aspect of the dispute between the Par-
                    ties, in respect of which Equatorial Guinea invokes the Optional Protocol
                    to the Vienna Convention as the title of jurisdiction, concerns whether the
                    building at 42 Avenue Foch, Paris, constitutes part of the premises of the
                    mission of Equatorial Guinea in France and is thus entitled to the treat-
                    ment provided for under Article 22 of the Vienna Convention. It also
                    concerns whether France, by the actions of its authorities in relation to
                    the building, is in breach of its obligation under Article 22 (see para-

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                               immunities and criminal proceedings (judgment)                   329

                    graph 70 above). Equatorial Guinea seeks to found the Court’s jurisdic-
                    tion under Article I of the Optional Protocol to the Vienna Convention,
                    the text of which is quoted in paragraph 45 above.

                       121. The Court further recalls that Articles II and III of the Optional
                    Protocol to the Vienna Convention provide that parties to a dispute arising
                    out of the interpretation or application of the Vienna Convention may
                    agree, within a period of two months after one party has notified its opinion
                    to the other that a dispute exists, to resort not to the International Court of
                    Justice but rather to arbitration or conciliation. After the expiry of that
                    period, either party may bring the dispute before the Court by an applica-
                    tion. As the Court has previously noted, the terms of Articles II and III
                         “when read in conjunction with those of Article I and with the Pre-
                         amble to the Protocols, make it crystal clear that they are not to be
                         understood as laying down a precondition of the applicability of the
                         precise and categorical provision contained in Article I establishing
                         the compulsory jurisdiction of the Court in respect of disputes arising
                         out of the interpretation or application of the Vienna Convention”
                         (United States Diplomatic and Consular Staff in Tehran (United
                         States of America v. Iran), Judgment, I.C.J. Reports 1980, pp. 25‑26,
                         para. 48).
                    The Court explained further that
                         “Articles II and III provide only that, as a substitute for recourse to
                         the Court, the parties may agree upon resort either to arbitration or
                         to conciliation. It follows, first, that Articles II and III have no appli-
                         cation unless recourse to arbitration or conciliation has been pro-
                         posed by one of the parties to the dispute and the other has expressed
                         its readiness to consider the proposal. Secondly, it follows that only
                         then may the provisions in those articles regarding a two months’
                         period come into play, and function as a time-limit upon the conclu-
                         sion of the agreement as to the organization of the alternative pro
                         cedure.” (Ibid., p. 26, para. 48; emphasis in the original.)

                       122. As the Court noted in paragraph 76 above, Equatorial Guinea
                    proposed to France to have recourse to conciliation or arbitration. How-
                    ever, France did not express its readiness to consider that proposal and,
                    instead, expressly stated that it could not pursue it. Thus, Articles II
                    and III of the Optional Protocol to the Vienna Convention in no way
                    affect any jurisdiction the Court might have under Article I thereof
                    (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Pro-
                    visional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II),
                    p. 1164, para. 64). In light of the foregoing, the Court will examine, on
                    the basis of Article I of the Optional Protocol to the Vienna Convention,
                    whether the aspect of the dispute relating to the status of the building at

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                              immunities and criminal proceedings (judgment)                 330

                    42 Avenue Foch in Paris as diplomatic premises of Equatorial Guinea
                    (see paragraphs 70 and 120 above) is one arising out of the interpretation
                    or application of the Vienna Convention and, consequently, whether it is
                    one that falls within the scope of Article I.

                                                        * *
                       123. The Court recalls that France objects to the Court’s jurisdiction
                    under Article I of the Optional Protocol to the Vienna Convention on the
                    grounds that the dispute relating to the status of the building at 42 Ave-
                    nue Foch in Paris as diplomatic premises of Equatorial Guinea is not one
                    arising out of the interpretation or application of the Vienna Convention
                    (see paragraph 65 above). The Court also recalls France’s argument that
                    the inviolability régime in Article 22 “can only be applied and imple-
                    mented if it has previously been established that the premises in question
                    do indeed enjoy diplomatic status”. Furthermore, France argues that the
                    French authorities have never recognized the building at 42 Avenue Foch
                    in Paris as Equatorial Guinea’s diplomatic mission. Thus, the real dispute
                    between the Parties, according to France, is whether at the time of its
                    search and seizure, that building should or should not have been regarded
                    as being used for the purposes of Equatorial Guinea’s mission in France
                    (see paragraph 65 above). The Respondent maintains that this dispute
                    falls outside the scope of the Vienna Convention and is consequently out-
                    side the Court’s jurisdiction.

                      124. France states that, in a Note Verbale of 28 March 2012, it
                    reminded Equatorial Guinea of the constant practice in France regarding
                    the recognition of premises of a diplomatic mission. In this Note Verbale,
                    the Protocol Department of the Ministry of Foreign Affairs stated:
                           “In accordance with constant practice in France, an Embassy
                        which envisages acquiring premises for its mission so notifies the Pro-
                        tocol Department beforehand and undertakes to assign the said prem-
                        ises for the performance of its missions or as the residence of its head
                        of mission.
                           Official recognition of the status of ‘premises of the mission’ within
                        the meaning of Article 1, paragraph (i), of the Vienna Convention
                        on Diplomatic Relations . . . is determined on the date of completion
                        of the assignment of the said premises to the services of the diplomatic
                        mission, i.e., at the time that they are effectively moved into. The
                        criterion of actual assignment must accordingly be satisfied.
                           It is only as from that date, notified by Note Verbale, that the
                        premises enjoy the benefit of appropriate protection as provided for
                        by Article 22 of the [Vienna Convention].”
                       125. France maintains that, since it has never recognized the building
                    as forming part of the premises of Equatorial Guinea’s diplomatic mis-
                    sion in accordance with its “constant practice”, the building does not

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                               immunities and criminal proceedings (judgment)               331

                    enjoy the régime of protection guaranteed under Article 22 of the Vienna
                    Convention.
                       126. France further argues that the term “premises of the mission”
                    referred to in Article 1 (i) of the Vienna Convention is “essentially
                    descriptive” and not prescriptive because “it does not stipulate the modal-
                    ities or procedures for establishing that a building does indeed fall into
                    the category of diplomatic premises”. France adds that Article 22, while
                    setting out the legal régime for diplomatic premises, contains no reference
                    to any criteria or procedures for acquiring diplomatic status. Accord-
                    ingly, France contends that, since the Vienna Convention contains no
                    provision stipulating the conditions under which a building may be char-
                    acterized as diplomatic premises, the matter falls outside the scope of that
                    Convention and, in accordance with the Preamble, “the rules of custom-
                    ary international law should continue to govern questions not expressly
                    regulated by the provisions of the present Convention”.

                                                         *
                       127. Equatorial Guinea maintains that the dispute relating to the legal
                    status of the building at 42 Avenue Foch in Paris, as diplomatic premises
                    of Equatorial Guinea, is one arising out of “the interpretation and appli-
                    cation of several provisions of the [Vienna Convention], including but not
                    limited to Article 1 (i) and Article 22”, and that, accordingly, the Court
                    has jurisdiction, under the Optional Protocol to the Vienna Convention,
                    to entertain it. The Applicant contends in particular, that the building
                    forms part of the premises of Equatorial Guinea’s diplomatic mission
                    within the meaning of Article 1 (i) of the Vienna Convention, and that as
                    such, it should benefit from the régime of inviolability and immunity
                    from search and seizure provided for under that Convention. In this
                    regard the Court recalls Equatorial Guinea’s arguments in support of its
                    position that the building forms part of its diplomatic mission (see para-
                    graphs 57‑58 above).
                       128. Equatorial Guinea argues that Article 1 (i) of the Vienna Con-
                    vention is not merely “descriptive” as maintained by France, but is also
                    “declaratory” in that “[a]s soon as a building is designated for the pur-
                    poses of a diplomatic mission by the sending State — at least in the
                    absence of clear and undisputed conditions imposed by the receiving
                    State on all sending States, without discrimination — the receiving State
                    must recognize its inviolability”. Furthermore, whilst the Applicant rec-
                    ognizes that some countries adopt domestic procedures “subject[ing] the
                    assignment of the premises of a diplomatic mission to the approval of the
                    receiving State”, it submits that France does not have any special legisla-
                    tion on State immunity or diplomatic missions.

                                                        * *
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                                 immunities and criminal proceedings (judgment)                                                    332

                      129. The Court recalls that both France and Equatorial Guinea are
                    parties to the Vienna Convention and are also parties to the Optional
                    Protocol (see paragraph 43 above). The Court further recalls that the
                    Vienna Convention is a treaty on the “diplomatic intercourse, privileges
                    and immunities” of States parties and 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” (see Preamble to the Vienna Convention). Article 1 (i) of the
                    Vienna Convention provides:
                            “For the purpose of the present Convention, the following expres-
                        sions 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.”
                      130. Article 22 of the Vienna Convention provides:
                           “1. The premises of the mission shall be inviolable. The agents of
                        the receiving State may not enter them, except with the consent of the
                        head of the mission.
                           2. The receiving State is under a special duty to take all appropri-
                        ate steps to protect the premises of the mission against any intrusion
                        or damage and to prevent any disturbance of the peace of the mission
                        or impairment of its dignity.
                           3. The premises of the mission, their furnishings and other prop-
                        erty thereon and the means of transport of the mission shall be
                        immune from search, requisition, attachment or execution.”

                       131. In order to establish jurisdiction over the aspect of the dispute
                    identified by the Court in paragraph 70 above, the Court is required to
                    determine whether that aspect of the dispute is one that arises out of the
                    interpretation or application of the Vienna Convention, as required by
                    the provisions of Article I of the Optional Protocol to the Vienna Con-
                    vention (see paragraph 45 above). Making that determination requires an
                    analysis of the relevant terms of the Vienna Convention in accordance
                    with the rules of customary international law on the interpretation of
                    treaties, as described above in paragraph 91.
                       132. Article 1 (i) of the Vienna Convention is prefaced by the following
                    sentence: “For the purpose of the present Convention, the following expres-
                    sions shall have the meanings hereunder assigned to them”. Article 1 (i) of
                    the Vienna Convention thus does no more than to define what constitutes
                    “premises of the mission”, a phrase used later in Article 22. For the pur-
                    poses of the Vienna Convention, a building or part of a building “used for
                    the purposes of [a diplomatic] mission”, including the residence of the head
                    of mission, is considered “premises of the mission”, regardless of ownership.

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                               immunities and criminal proceedings (judgment)                 333

                       133. Article 22 of the Vienna Convention provides a régime of inviola-
                    bility, protection and immunity for “premises of [a diplomatic] mission”
                    by obligating the receiving State, inter alia, to refrain from entering such
                    premises without the consent of the head of mission, and to protect those
                    premises against intrusion, damage or disturbance of the peace of the
                    mission by agents of the receiving State. The Article also guarantees
                    immunity from search, requisition, attachment or execution for the prem-
                    ises of the mission, their furnishings and other property thereon, as well
                    as means of transportation of the mission.
                       134. Where, as in this case, there is a difference of opinion as to whether
                    or not the building at 42 Avenue Foch in Paris, which Equatorial Guinea
                    claims is “used for the purposes of its diplomatic mission”, qualifies as
                    “premises of the mission” and, consequently, whether it should be
                    accorded or denied protection under Article 22, this aspect of the dispute
                    can be said to “aris[e] out of the interpretation or application of the
                    Vienna Convention” within the meaning of Article I of the Optional
                    Protocol to the said Convention. The Court therefore finds that this

                    aspect of the dispute falls within the scope of the Vienna Convention.

                       135. In light of the above, the Court concludes that it has jurisdiction
                    under Article I of the Optional Protocol to the Vienna Convention to
                    entertain the aspect of the dispute.
                       136. It now remains for the Court to determine the extent of its juris-
                    diction. France argues in the alternative that, should the Court find that
                    it does have jurisdiction to entertain Equatorial Guinea’s claim relating to
                    the status of the building at 42 Avenue Foch in Paris as diplomatic prem-
                    ises, that jurisdiction “would be strictly limited to an examination of the
                    lawfulness of the attachment of the building . . . to the exclusion of any
                    question relating to the movable property present in the building before
                    its attachment on 19 July 2012”.
                       137. Although the Court has held that an applicant may not introduce
                    during the course of the proceedings a new claim which would have the
                    effect of transforming the subject‑matter of the dispute originally brought
                    before it (Territorial and Maritime Dispute between Nicaragua and
                    Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,

                    I.C.J. Reports 2007 (II), p. 695, para. 108), it is not persuaded that Equa-
                    torial Guinea, in advancing its argument regarding movable property
                    seized from the premises at 42 Avenue Foch in Paris, has introduced a
                    new claim into the proceedings. The aspect of the dispute as identified by
                    the Court in paragraph 70 above relates to the inviolability and immunity
                    of the premises in question as a legal consequence of diplomatic status.
                    The Parties agree that Article 22 of the Vienna Convention provides for
                    the régime of inviolability of buildings which have the status of diplo-
                    matic premises. Under Article 22, paragraph 3, it is not only the premises
                    of the mission but also “their furnishings and other property thereon and
                    the means of transport of the mission” that are immune from search, req-
                    uisition, attachment or execution. The Court considers that any claims

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                               immunities and criminal proceedings (judgment)                334

                    relating to movable property present on the premises at 42 Avenue Foch
                    in Paris, and resulting from the alleged violation of the immunity to
                    which the building is said to be entitled, fall within the subject‑matter of
                    the dispute and that as such the Court is competent to entertain them.
                       138. The Court thus concludes that it has jurisdiction to entertain the
                    aspect of the dispute relating to the status of the building, including any
                    claims relating to the furnishings and other property present on the prem-
                    ises at 42 Avenue Foch in Paris. France’s second preliminary objection is
                    consequently dismissed.

                                    VI. The Third Preliminary Objection:
                                    Abuse of Process and Abuse of Rights

                       139. In its preliminary objections, France denies that the Court has
                    jurisdiction, inter alia, on the ground that “Equatorial Guinea’s claim
                    seeks to consolidate an abuse of rights”. It refers to “a necessary corollary
                    of the principle of good faith, in the form of both an abuse of process and
                    an abuse of rights”. France argues that Equatorial Guinea’s conduct was
                    an abuse of rights and that its seisin of the Court was an abuse of process.
                    In the oral proceedings, France contended that, regardless of whether the
                    Court viewed its argument relating to abuse of rights and abuse of pro-
                    cess as a matter of jurisdiction or admissibility, the Court should decline
                    to hear the dispute between the Parties on the merits.
                       140. As to abuse of rights, France refers to inconsistencies in corres
                    pondence sent and statements made by Equatorial Guinea regarding the
                    date of acquisition by Equatorial Guinea of the building at 42 Avenue
                    Foch in Paris and the use to which it was put. France argues that Equato-
                    rial Guinea had “suddenly and unexpectedly” transformed a private resi-
                    dence into premises of its mission and had appointed “its owner”,
                    Mr. Teodoro Nguema Obiang Mangue, “to increasingly eminent polit
                    ical positions” as the French investigation proceeded. France alleges
                    that Equatorial Guinea’s objective was to shield Mr. Teodoro Nguema
                    Obiang Mangue and the premises from the pending criminal proceedings.
                    France further contends in its written pleadings that the President of
                    Equatorial Guinea “explicitly acknowledged that the reason for invoking
                    the diplomatic nature of the building located at 42 Avenue Foch [in Paris]
                    was to protect the building from criminal proceedings”. In a letter
                    dated 14 February 2012, addressed to the French President, the Pres
                    ident of Equatorial Guinea had indicated that “due to the pressures on
                    [Mr. Teodoro Nguema Obiang Mangue] as a result of the supposed
                    unlawful acquisition of assets, he decided to resell the said building [at
                    42 Avenue Foch in Paris] to the Government of . . . Equatorial Guinea”.

                     141. As to abuse of process, France argues that Equatorial Guinea’s
                    Application by which it seised the Court constitutes an abuse of process

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                               immunities and criminal proceedings (judgment)                 335

                    because it was submitted “in the manifest absence of any legal remedy
                    and with the aim of covering abuses of rights committed in other respects”.

                                                          *
                      142. In its written statement, Equatorial Guinea submits that the alle-
                    gation of abuse of rights “raises issues pertaining to the merits that can-
                    not be addressed in these incidental proceedings” and formally denies
                    that there had been any abuse of rights on its part.

                       143. In regard to France’s allegation of abuse of process, Equator
                    ial Guinea contends that it seised the Court in good faith and in accord
                    ance with the conditions and requirements of the Conventions on which
                    it bases the Court’s jurisdiction. Equatorial Guinea further argues that
                    France is seeking to dissuade Equatorial Guinea from settling a dispute
                    by judicial means and that it is established jurisprudence that seising the
                    Court, even immediately after accepting the Court’s jurisdiction, does not
                    constitute an abuse of process. Finally, Equatorial Guinea maintains that
                    it is “perfectly legitimate” for it to seise the Court with the aim of putting
                    an end to the criminal proceedings brought before the French courts
                    against its Vice-President because Equatorial Guinea considers that the
                    French courts are exercising jurisdiction contrary to international law.

                                                         * *
                       144. The Court will consider France’s objection only in relation to the
                    Vienna Convention, since it has found that it lacks jurisdiction under the
                    Palermo Convention (see paragraph 118 above).
                       145. In the Court’s view, France’s third preliminary objection is prop-
                    erly characterized as a claim relating to admissibility. This is reflected in
                    the final submissions of France, which refer not only to lack of jurisdic-
                    tion but also to the inadmissibility of the Application.

                      146. In the case law of the Court and its predecessor, a distinction has
                    been drawn between abuse of rights and abuse of process. Although the
                    basic concept of an abuse may be the same, the consequences of an abuse
                    of rights or an abuse of process may be different.

                      147. On several occasions before the Permanent Court of International
                    Justice, abuse of rights was pleaded and rejected at the merits phase
                    for want of sufficient proof. For example, in Certain German Interests in
                    Polish Upper Silesia, the Court said:
                           “Germany undoubtedly retained until the actual transfer of sover-
                        eignty the right to dispose of her property, and only a misuse of this
                        right could endow an act of alienation with the character of a breach
                        of the Treaty; such misuse cannot be presumed, and it rests with the

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                        party who states that there has been such misuse to prove his
                        statement.” (Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
                         p. 30.)
                      148. In Arbitral Award of 31 July 1989 (Guinea‑Bissau v. Senegal), this
                    Court was faced with an argument relating to abuse of process. Senegal
                    argued that
                         “Guinea‑Bissau’s Application is inadmissible, insofar as it seeks to
                         use the declaration of President Barberis for the purpose of casting
                         doubt on the validity of the Award . . . Senegal argues that that
                         declaration is not part of the Award, and therefore that any attempt
                          by Guinea‑Bissau to make use of it for that purpose ‘must be regarded
                          as an abuse of process aimed at depriving Senegal of the rights belong-
                        ing to it under the Award’. Senegal also contends that the remedies
                        sought are disproportionate to the grounds invoked and that the
                        proceedings have been brought for the purpose of delaying the final
                         solution of the dispute.” (Judgment, I.C.J. Reports 1991, p. 63,
                         para. 26.)
                    The Court rejected the argument on the basis that “Guinea‑Bissau’s
                    Application has been properly presented in the framework of its right to
                    have recourse to the Court in the circumstances of the case” (ibid.,
                    para. 27).
                        149. In Certain Phosphate Lands in Nauru (Nauru v. Australia),
                    Australia argued that Nauru had failed to act consistently and in good
                     faith in relation to rehabilitation of the phosphate lands and that the
                     Court “in exercise of its discretion, and in order to uphold judicial propri-
                     ety should . . . decline to hear the Nauruan claims” (Preliminary Objec-
                     tions, Judgment, I.C.J. Reports 1992, p. 255, para. 37). The Court held
                     that
                        “the Application by Nauru has been properly submitted in the frame-
                        work of the remedies open to it. At the present stage, the Court is not
                        called upon to weigh the possible consequences of the conduct of
                        Nauru with respect to the merits of the case. It need merely note
                        that such conduct does not amount to an abuse of process.” (Ibid.,
                        para. 38.)
                       150. An abuse of process goes to the procedure before a court or tribu-
                    nal and can be considered at the preliminary phase of these proceedings.
                    In this case, the Court does not consider that Equatorial Guinea, having
                    established a valid title of jurisdiction, should be barred at the threshold
                    without clear evidence that its conduct could amount to an abuse of pro-
                    cess. Such evidence has not been presented to the Court. It is only in
                    exceptional circumstances that the Court should reject a claim based on a
                    valid title of jurisdiction on the ground of abuse of process. The Court
                    does not consider the present case to be one of those circumstances.

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                       151. 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 can-
                    not 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.
                       152. For these reasons, the Court does not consider Equatorial Guinea’s
                    present claim inadmissible on grounds of abuse of process or abuse of
                    rights. France’s third preliminary objection is therefore d ismissed.

                                           VII. General Conclusions

                       153. The Court concludes that it lacks jurisdiction pursuant to the
                     alermo Convention to entertain Equatorial Guinea’s Application. The
                    P
                    Court further concludes that it has jurisdiction pursuant to the Optional
                    Protocol to the Vienna Convention to entertain the submissions of Equa-
                    torial Guinea relating to the status of the building at 42 Avenue Foch in
                    Paris as diplomatic premises, including any claims relating to the seizure
                    of certain furnishings and other property present on the above-mentioned
                    premises. Finally, the Court finds that Equatorial Guinea’s Application is
                    not inadmissible on grounds of abuse of process or abuse of rights.

                                                          *
                                                      *       *

                      154. For these reasons,
                      The Court,
                      (1) By eleven votes to four,
                      Upholds the first preliminary objection raised by the French Republic
                    that the Court lacks jurisdiction on the basis of Article 35 of the
                    United Nations Convention against Transnational Organized Crime;

                      in favour: President Yusuf; Judges Owada, Abraham, Bennouna,
                        Cançado Trindade, Donoghue, Gaja, Bhandari, Crawford, Gevorgian,

                        Salam;
                      against: Vice-President Xue; Judge Sebutinde, Robinson; Judge ad hoc
                        Kateka;
                      (2) Unanimously,
                      Rejects the second preliminary objection raised by the French Republic
                    that the Court lacks jurisdiction on the basis of the Optional Protocol to

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                    the Vienna Convention on Diplomatic Relations concerning the Compul-
                    sory Settlement of Disputes;
                      (3) By fourteen votes to one,
                       Rejects the third preliminary objection raised by the French Republic
                    that the Application is inadmissible for abuse of process or abuse of
                    rights;
                      in favour: President Yusuf; Vice-President Xue; Judges Owada, Abraham,
                        Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson,
                        Crawford, Gevorgian, Salam; Judge ad hoc Kateka;
                      against: Judge Donoghue;
                      (4) By fourteen votes to one,
                      Declares that it has jurisdiction, on the basis of the Optional Protocol
                    to the Vienna Convention on Diplomatic Relations concerning the Com-
                    pulsory Settlement of Disputes, to entertain the Application filed by the
                    Republic of Equatorial Guinea on 13 June 2016, in so far as it concerns
                    the status of the building located at 42 Avenue Foch in Paris as premises
                    of the mission, and that this part of the Application is admissible.

                      in favour: President Yusuf; Vice-President Xue; Judges Owada, Abraham,
                        Bennouna, Cançado Trindade, Gaja, Sebutinde, Bhandari, Robinson,
                        Crawford, Gevorgian, Salam; Judge ad hoc Kateka;
                      against: Judge Donoghue.

                        Done in French and in English, the French text being authoritative, at the
                    Peace Palace, The Hague, this sixth day of June, two thousand and
                    eighteen, in three copies, one of which will be placed in the archives of
                     the Court and the others transmitted to the Government of the Republic
                     of Equatorial Guinea and the Government of the French Republic,
                     respectively.

                                                         (Signed) Abdulqawi Ahmed Yusuf,
                                                                         President.
                                                            (Signed) Philippe Couvreur,
                                                                          Registrar.

                      Vice-President Xue, Judges Sebutinde, Robinson and Judge ad hoc
                    Kateka append a joint dissenting opinion to the Judgment of the Court;
                    Judge Owada appends a declaration to the Judgment of the Court;
                    Judge Abraham appends a separate opinion to the Judgment of the
                    Court; Judge Donoghue appends a dissenting opinion to the Judgment

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                    of the Court; Judges Gaja and Crawford append declarations to the
                    Judgment of the Court; Judge Gevorgian appends a separate opinion to
                    the Judgment of the Court.

                                                                    (Initialled) A.A.Y.
                                                                     (Initialled) Ph.C.

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