                     340

                                        JOINT DISSENTING OPINION
                                         OF VICE-PRESIDENT XUE,
                                     JUDGES SEBUTINDE AND ROBINSON
                                        AND JUDGE AD HOC KATEKA

                        Jurisdiction under the United Nations Convention against Transnational
                     Organized Crime (Palermo Convention) — Dispute concerning the interpretation
                     or application of the Palermo Convention — Overarching and pervasive effect of
                     Article 4 (1) of the Palermo Convention — Principle of sovereign equality of
                     States has a discrete value — Article 4 (1) is not set aside by other provisions
                     of the Convention which leave matters to domestic law — Sovereign equality
                     of States in other international instruments — Par in parem non habet
                     imperium — Intrinsic linkage with the customary international rules on foreign
                     State immunities — Principle sets limits for the performance of other obligations
                     under the Palermo Convention — Articles 6, 11, 12, 14, 15 and 18 — Performance
                     must be consistent with the principle of sovereign equality — The Court has
                     jurisdiction.

                        Palermo Convention — Jurisdiction ratione materiae — Subject‑matter of the
                     dispute — Matter for objective determination by the Court and integral part of the
                     Court’s judicial function — Court has not precisely identified the subject-matter of
                     the dispute.

                                                    table of contents

                                                                                Paragraphs

                       I. The Subject‑Matter of the Dispute                                         7-14
                      II. The Scope and Purpose of the Convention                                  15-17
                     III. The Interpretation of the Obligation under Article 4 (1)                 18-44

                     IV. Relevant International Instruments                                        45-49
                      V. The Overarching and Pervasive Effect of Article 4 (1) on
                         the other Provisions                                                      50-57
                     VI. Articles Relied on by Equatorial Guinea as Establishing a
                         Dispute between the Parties under the Palermo Convention                  58-70

                     Conclusion                                                                    71-74

                     52

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                     341 	 immunities and criminal proceedings (joint diss. op.)

                        1. With much regret, we have voted against the conclusion in point 1
                     of paragraph 154 of the Judgment. In this joint dissent, we explain the
                     legal reasoning behind our vote. In particular, we disagree with the major-
                     ity’s finding in paragraph 102 of the Judgment that

                          “the aspect of the dispute between the Parties relating to the asserted
                          immunity of the Vice‑President of Equatorial Guinea and the immu-
                          nity claimed for the building at 42 Avenue Foch from measures of
                          constraint as State property does not concern the interpretation or
                          application of the Palermo Convention”,

                     a finding that has led the Court to conclude that it lacks jurisdiction on
                     the basis of Article 35 of that Convention to entertain Equatorial Guin-
                     ea’s Application. Our views reflected in this opinion do not in any way
                     reflect our respective views on the merits of the case.
                        2. There are four areas of disagreement between the majority and our-
                     selves.
                        3. First, we are of the view that the majority have failed to recognize
                     the overarching and pervasive effect of Article 4 (1), in particular the
                     principle of sovereign equality in the Palermo Convention. The require-
                     ment under the Article that States parties shall carry out their obligations
                     under this Convention in a manner consistent with the said principle per-
                     meates throughout the Convention and affects every single obligation
                     that it imposes on States parties. The Article is not set aside by any other
                     provision of the Convention, not even those that leave certain matters to
                     domestic law.

                        4. Second, the majority wrongly treat the three principles referred to in
                     Article 4 (1) in some ways as a composite whole; yet, in our view, each of
                     those principles has a discrete effect in its own way for the interpretation
                     and application of the Convention. By doing so, the majority have failed
                     to appreciate that sovereign equality of States is a discrete principle that
                     impacts the interpretation and application of the Convention in ways that
                     are different from or additional to the other two principles, namely, ter-
                     ritorial integrity of States and non‑intervention in the domestic affairs of
                     other States.
                        5. Third, the majority’s finding that questions relating to the asserted
                     immunities of the Vice‑President of Equatorial Guinea and of the build-
                     ing at 42 Avenue Foch as State property are not capable of falling within
                     the provisions of the Palermo Convention deprives the principle of
                     sovereign equality of States of its appropriate effect in dealing with cases
                      involving questions of the immunities of high‑ranking State officials and
                      State property from foreign criminal jurisdiction under the C    onvention.
                      This finding is not in conformity with the rules of treaty interpretation.

                     53

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                     342 	 immunities and criminal proceedings (joint diss. op.)

                       6. Fourth, in identifying various issues on which the Parties have
                     expressed opposing views the majority have failed to precisely identify the
                     subject-matter of the dispute. The evidence and documents before the
                     Court demonstrate that the Parties are clearly divided by the following
                     question which, in our view, constitutes the subject‑matter of the dispute
                     under the Palermo Convention. That question is whether France, by
                     prosecuting the Vice‑President of Equatorial Guinea for the offence of
                     money laundering and by imposing measures of constraint on the build-
                     ing at 42 Avenue Foch, Paris, which Equatorial Guinea claims is State
                     property, acted in a manner consistent with the principles of sovereign
                     equality, territorial integrity and non‑intervention in the domestic affairs
                     of another State. In our view, this dispute inevitably concerns the inter-
                     pretation and application of the Palermo Convention within the meaning
                     of Article 35 thereof.

                                      I. The Subject‑Matter of the Dispute

                        7. In its Order of 7 December 2016 on provisional measures, the Court
                     identified on a prima facie basis that the alleged dispute between the Par-
                     ties concerned 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 proceed-
                     ings against him (see Immunities and Criminal Proceedings (Equatorial
                     Guinea v. France), Provisional Measures, Order of 7 December 2016,
                     I.C.J. Reports 2016 (II), p. 1160, para. 49).
                        8. At this preliminary objections stage, instead of ascertaining precisely
                     the subject‑matter of the dispute, the majority have referred to a series of
                     claims on which the Parties hold differing views, leaving it unclear whether
                     there is a single dispute with three strands or three separate disputes. The
                     Judgment merely states in paragraph 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 principles 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 Equatorial Guinea in charge of National
                          Defence and State Security, is immune from foreign criminal
                          jurisdiction. Second, they hold differing views on whether, as a con-
                           sequence 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 establishing
                            its jurisdiction over the predicate offences associated with the offence

                     54

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                     343 	 immunities and criminal proceedings (joint diss. op.)

                           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.”

                        9. Moreover, by dividing the dispute into various claims, the Court has
                     not discharged its obligation to objectively determine the dispute by isolat-
                     ing the real issue. This failure is all the more concerning as “[t]his determi-
                     nation is an integral part of the Court’s judicial function” (see Territorial
                     and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
                     Judgment, I.C.J. Reports 2007 (II), p. 874, para. 138). The majority’s
                     approach gives rise to an uncertainty, if not confusion, as to what consti-
                     tutes the dispute in this case. At this stage of the proceedings, as a conse-
                     quence of the failure to precisely identify the subject-matter of the dispute
                     by isolating the real issue in the case, the majority have failed to identify
                     or have avoided identifying the relevant criteria for determining whether
                     the dispute falls within the provisions of the Palermo Convention.
                        10. According to the jurisprudence of the Court, the subject-matter of
                     a dispute is a matter for “objective determination” by the Court on the
                     basis of the application, the parties’ arguments, final submissions, public
                     statements, and all other pertinent evidence. The Court has stressed that
                     this determination is done by “isolat[ing] the real issue in the case and . . .
                     identify[ing] the object of the claim” (Obligation to Negotiate Access to
                     the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment,
                     I.C.J. Reports 2015 (II), p. 602, para. 26). In the present case, the Parties
                     made express reference to the applicability of Article 4 of the Palermo
                     Convention.
                        11. Upon the examination of the Application, the Parties’ arguments,
                     final submissions and all the relevant evidence before the Court, we can
                     determine that the subject‑matter of the dispute is whether France, by
                     prosecuting the Vice‑President of Equatorial Guinea for the offence of
                     money laundering, and by imposing measures of constraint on the State
                     property of Equatorial Guinea, acted in a manner consistent with the
                     principles of sovereign equality, territorial integrity of States and non-
                     intervention in the domestic affairs of another State. It is on the basis of
                     that dispute that the Court would on the merits determine in particular,
                     whether the manner in which France has discharged its obligations under
                     the Palermo Convention is consistent with the principle of sovereign
                     equality of States set out in Article 4 (1) thereof. In our view, this dispute
                     falls within the provisions of the Palermo Convention and meets the juris-
                     dictional requirement of Article 35 (2) of that Convention.

                       12. The majority take the view that the claims on which the Parties
                     hold opposing views are not capable of falling within the provisions of
                     the Convention. Therefore, the Court lacks jurisdiction on the basis of

                     55

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                     344 	 immunities and criminal proceedings (joint diss. op.)

                     Article 35 of the Palermo Convention. The main reason for this view is
                     that no provision in the Palermo Convention expressly refers to the cus-
                     tomary rules of immunity. We disagree with that conclusion.

                        13. In international legal practice it is not uncommon that, in the inter-
                     pretation and application of an international convention, rules of custom-
                     ary international law or norms of general international law may become
                     applicable even though not expressly mentioned in the particular conven-
                     tion. A dispute arising therefrom is, and remains, a treaty issue. For
                     example, in a case concerning diplomatic protection, a dispute may arise
                     as to whether local remedies have been exhausted. Even if the relevant
                     convention makes no reference to the exhaustion of local remedies, that
                     customary rule would, nevertheless, necessarily be entailed in the context
                     of treaty interpretation and application. In Elettronica Sicula, the United
                     States of America had sought to espouse a claim for diplomatic protec-
                     tion on behalf of two American companies. However, Italy objected to
                     the case’s admissibility on the basis that the companies had failed to
                     exhaust local remedies in Italy, prior to the United States of America’s
                     institution of the case before the Court. The United States of America
                     argued that the rule on exhaustion of local remedies was not applicable to
                     the case as Article XXVI, the compromissory clause, of the 1948 Treaty
                     of Friendship, Commerce and Navigation (FCN Treaty) between Italy
                     and the United States of America, did not expressly refer to the exhaus-
                     tion of local remedies rule. It maintained that, had the parties to the FCN
                     Treaty intended the exhaustion of local remedies rule to apply, express
                     words to that effect would have been included in Article XXVI. In that
                     regard, it also referred to the Economic Co‑operation Agreement con-
                     cluded between the same parties and in the same year, where it was
                     expressly provided that neither of the two governments would espouse a
                     claim pursuant to the Agreement until its national had exhausted the
                     remedies available to him in the administrative and judicial tribunals of
                     the country in which the claim arose. The Chamber of the Court rejected
                     the United States of America’s argument. It stated:

                             “The Chamber has no doubt that the parties to a treaty can therein
                          either agree that the local remedies rule shall not apply to claims based
                          on alleged breaches of that treaty ; or confirm that it shall apply. Yet
                          the Chamber finds itself unable to accept that an important principle
                          of customary international law should be held to have been tacitly
                          dispensed with, in the absence of any words making clear an intention
                          to do so.” (Elettronica Sicula S.p.A. (ELSI) (United States of Amer-
                          ica v. Italy), Judgment, I.C.J. Reports 1989, p. 42, para. 50.)

                       14. Following Elettronica Sicula, in the context of this case the impor-
                     tant customary rules on foreign State immunity, which are necessarily

                     56

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                     345 	 immunities and criminal proceedings (joint diss. op.)

                     entailed in the principle of sovereign equality of States mentioned in Arti-
                     cle 4 (1) of the Palermo Convention, should not be dispensed with “in the
                     absence of any words making clear an intention to do so”. Article 4 of the
                     Palermo Convention is a substantive clause with specific treaty obliga-
                     tions contained therein. As will be illustrated later, alleged violations of
                     Article 4 fall squarely within the scope of Article 35 of the Convention
                     and consequently, within the Court’s jurisdiction ratione materiae.

                                 II. The Scope and Purpose of the Convention

                        15. In determining whether the dispute between the Parties falls within
                     the scope of the Palermo Convention, the majority give three reasons
                     relating to the scope and purpose of the Convention to reject Equato-
                     rial Guinea’s claim. Firstly, they are of the view that as Article 4 does not
                     expressly refer to the customary international rules, it does not impose 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. The majority also state that Article 4
                     only refers to general principles of international law. Secondly, none of
                     the provisions of the Convention relates expressly to the immunities of
                     States and State officials. Thirdly, the object and purpose of the Con
                     vention is the promotion of co‑operation to prevent and combat trans
                     national organized crime more effectively. The interpretation of Article 4
                     that customary rules on State immunity are incorporated into the Con-
                     vention as conventional obligations, as advanced by Equatorial Guinea,
                     is unrelated to the stated object and purpose of the Palermo Convention.
                     As will be shown below, these reasons are unconvincing.

                        16. Article 1 of the Palermo Convention states that “the purpose of
                     this Convention is to promote co-operation to prevent and combat trans-
                     national organized crime more effectively”. In order to achieve this pur-
                     pose, the Convention obliges States parties to criminalize and prosecute
                     certain acts, to establish jurisdiction over certain offences, to extradite
                     persons for certain crimes, to render mutual legal assistance and gener-
                     ally, to co‑operate with one another “to enhance the effectiveness of law
                     enforcement action to combat” transnational organized crime. It is
                     against the background of that co‑operative framework that Article 4 was
                     adopted as follows:

                                           “Article 4. Protection of Sovereignty
                            1. States Parties shall carry out their obligations under this Con-
                          vention in a manner consistent with the principles of sovereign equal-

                     57

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                     346 	 immunities and criminal proceedings (joint diss. op.)

                          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 authorities
                          of that other State by its domestic law.”
                        17. The relationship between the principle of sovereign equality of
                     States, from which the rules on State immunity are derived, and the pur-
                     pose of the Convention is obvious: the co‑operation that the Palermo
                     Convention seeks between States parties must be built on mutual respect
                     of each other’s sovereignty in accordance with international law. Such
                     co‑operation would be thwarted if, in the endeavour to prevent and com-
                     bat transnational organized crime, persons of high‑ranking office entitled
                     to jurisdictional immunities are prosecuted in a foreign State. Equally,
                     co‑operation would be thwarted if State property, immune from measures
                     of constraint, is confiscated by a foreign State as part of the punishment
                     for the crime of money laundering. Such legal actions would likely pro-
                     voke retaliatory responses from that foreign State and be perceived by
                     other States parties as compromising international co‑operation, contrary
                     to the object and purpose of the Convention. The reference in Article 4 (1)
                     to the principle of sovereign equality is therefore indispensable for the
                     efficient operation of the co‑operative system established by the Conven-
                     tion, and the majority’s interpretation of that provision could have a
                     chilling effect on inter‑State co‑operation.

                                   III. The Interpretation of the Obligation
                                               under Article 4 (1)

                        18. The majority have given a rather narrow interpretation of the
                     meaning of Article 4 (1). They misunderstand the reach of the principle of
                     sovereign equality of States in the context of this case. They adopt an
                     approach that suggests that in their view, Article 4 (1) is limited by the
                     provisions of Article 4 (2), which stress the principle of non-intervention.
                     Since neither that Article, nor the Convention as a whole, refers to the
                     customary rules on immunities, they conclude that the Convention does
                     not address the question of immunities. Accordingly, the majority’s posi-
                     tion is that customary rules on State immunity are unrelated to the Con-
                     vention’s object of the promotion of co‑operation to prevent and combat
                     transnational organized crime more effectively.

                        19. This interpretation is questionable. Within the terms of Arti-
                     cle 4 (1), among the three principles mentioned, the principle of sovereign
                     equality has a discrete effect and function in the particular context of the
                     Palermo Convention.

                     58

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                     347 	 immunities and criminal proceedings (joint diss. op.)

                        20. At the San Francisco Conference, the phrase “sovereign equality”
                     in Article 2 (1) of the United Nations Charter was adopted as a “new
                     term” denoting, according to an interpretative statement, (i) that States
                     are juridically equal; (ii) that they enjoy the rights inherent in their full
                     sovereignty; (iii) that the personality of the State is respected, as well as its
                     territorial integrity and political independence; (iv) that the State should,
                     under the international order, comply faithfully with its international
                     duties and obligations (see Bruno Simma et al. (eds.), The Charter of the
                     United Nations: A Commentary, Third Edition, Oxford University Press,
                     2012, p. 153, fn. 115).
                        21. Since that time, it has been clear that the term “sovereign equality
                     of States”, primarily meant to emphasize the right to equality in law for
                     all States, contains several specific elements.
                        22. The 1970 United Nations General Assembly resolution 2625,
                     the Declaration on Principles of International Law concerning Friendly
                     Relations and Co‑operation among States (hereinafter the “Friendly
                     Relations Declaration”), accepted as reflecting customary international
                     law, identifies six elements as included in the principle of sovereign equality
                     of States, as follows:
                     (a) States are juridically equal;
                     (b) each State enjoys the rights inherent in full sovereignty;
                     (c) each State has the duty to respect the personality of other States;
                     (d) the territorial integrity and political independence of the State are
                         inviolable;
                     (e) each State has the right freely to choose and develop its political,
                         social, economic and cultural systems;
                     (f) each State has the duty to comply fully and in good faith with its
                         international obligations and to live in peace with other States.
                       The two additional elements are (d) and (e) above. More interestingly,
                     the Declaration includes as a separate obligation provisions on the duty
                     not to intervene in matters within the domestic jurisdiction of any State in
                     accordance with the United Nations Charter.

                        23. The following points may be made about the treatment of the prin-
                     ciple of sovereign equality of States in the 1945 Interpretative Statement
                     and the Friendly Relations Declaration. Firstly, the enjoyment by each
                     State of the rights inherent in full sovereignty and the inviolability of the
                     territorial integrity and political independence of States are set out as
                     separate elements. Secondly, although the Friendly Relations Declaration
                     does not expressly include or mention State immunity, the elements that
                     States are juridically equal and enjoy the rights inherent in full sover-
                     eignty, common to both instruments, entail sovereign immunities from
                     the jurisdiction of foreign courts. Thirdly, the immunity of States is the
                     quintessence of a rule of customary international law that reflects the
                     principle of sovereign equality of States.

                     59

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                     348 	 immunities and criminal proceedings (joint diss. op.)

                        24. The prevailing notion in the principle of sovereign equality is the
                     equality of States as members of the international community. The intrin-
                     sic linkage between the rules of State immunity and the principle of sov-
                     ereign equality has been, time and again, confirmed in the progressive
                     development and codification process of the International Law Commis-
                     sion (see, for example, “Commentary on Article 5, Draft Articles on
                     Jurisdictional Immunities of States and Their Property”, Yearbook of the
                     International Law Commission (YILC), 1991, Vol. II (Part Two),
                     pp. 22‑23; “Commentary to Draft Article 6 Provisionally Adopted by the
                     International Law Commission at the Thirty‑Second Session”, YILC,
                     1980, Vol. II (Part Two), pp. 142‑157). In its “Commentary on Article 4,
                     Draft Articles on Immunity of State Officials from Foreign Criminal
                     Jurisdiction”, the International Law Commission stated, “the purpose of
                     immunity ratione personae relates to protection of the sovereign equality
                     of the State” (“Commentary on Draft Article 4 Provisionally Adopted by
                     the International Law Commission at the Sixty-Fifth Session”, Report of
                     the International Law Commission, Sixty‑Fifth Session, United Nations
                     doc. A/68/10, p. 69, para. 6).

                        25. This position is also reaffirmed by judicial decisions. In Jurisdic-
                     tional Immunities of the State (Germany v. Italy: Greece Intervening), the
                     Court held that the rule of State immunity “derives from the principle of
                     sovereign equality of States, which, as Article 2, paragraph 1, of the
                     Charter . . . makes clear, is one of the fundamental principles of the inter-
                     national legal order” (Jurisdictional Immunities of the State (Germany v.
                     Italy: Greece intervening), Judgment, I.C.J. Reports 2012 (I), p. 123,
                     para. 57). Further, the European Court of Human Rights (ECHR) in
                     Al‑Adsani noted that “sovereign immunity is a concept of international
                     law, developed out of the principle par in parem non habet imperium, by
                     virtue of which one State shall not be subject to the jurisdiction of another
                     State” (Al-Adsani v. The United Kingdom, application No. 35763/97,
                     [2001] ECHR 752, judgment of 21 November 2001, p. 17, para. 54).
                     Indeed, the Latin tag par in parem non habet imperium literally means that
                     equals do not have sovereignty over each other. There is therefore both a
                     substantive and nominal relationship between the rule of foreign State
                     immunity and the principle of sovereign equality of States.

                        26. Another problem with the majority’s interpretation of Article 4 (1)
                     relates to the meaning of the term “in a manner consistent with”. In the
                     majority’s view, Article 4 (1) could not be understood as imposing,
                     “through its reference to sovereign equality, an obligation on States par-
                     ties 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”. This interpretation has failed to recognize the link between
                     the substance of that principle and the manner in which State parties dis-
                     charge their treaty obligations.

                     60

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                     349 	 immunities and criminal proceedings (joint diss. op.)

                        27. This interpretation is erroneous in two aspects. In the first place,
                     the principle of sovereign equality, alongside the other two principles, is
                     not just a general principle in the Convention, but a substantive require-
                     ment that sets the limits for States parties in undertaking their conven-
                     tional obligations. What is contained in the principle, as discussed above,
                     is not determined by the treaty provisions per se, but by general interna-
                     tional law, including relevant rules of customary international law. The
                     term “in a manner consistent with” imposes a duty on States parties to
                     discharge the obligations under the Convention in a particular way.
                     Notably, this requirement relates not to some, but to all the obligations
                     under the Convention. That is to say, it is a conventional requirement. To
                     determine whether the manner in which a State party has discharged its
                     treaty obligations under the Palermo Convention is consistent with the
                     principle of sovereign equality, one can only do so at the merits stage, by
                     examining the specific acts complained of in light of that principle. This is
                     exactly what Equatorial Guinea has, in its Application, requested the
                     Court to do.

                        28. Secondly, State immunity, like the immunity accorded to ambas-
                     sadors and members of a diplomatic mission, is jurisdictional in nature.
                     Sovereign States are immune from the jurisdiction of other States. When
                     the high‑ranking officials of a State are prosecuted within the territory of
                     another State, or when State property belonging to one State and located
                     in the territory of another State becomes the subject of a dispute or is
                     liable to seizure or attachment or confiscation, questions of State immu-
                     nity arise. That is to say, when criminal proceedings are instituted against
                     a person who is entitled to immunity under international law, or mea-
                     sures of constraint may be directed at the property of a foreign State
                     without the consent of that State, the prosecuting State should abstain
                     from instituting such proceedings and from imposing such measures of
                     constraint. Failure to do so would be regarded as inconsistent with the
                     principle of sovereign equality of States. This intrinsic connection between
                     the principle of sovereign equality and rules of State immunity may not
                     be expressly reflected in Article 4 (1) of the Palermo Convention, just as
                     in Elettronica Sicula, the FCN Treaty did not expressly connect diplo-
                     matic protection with the customary rule of exhaustion of local remedies.
                     In this way, Article 4 (1) ensures that the manner in which the treaty obli-
                     gations are discharged can be meaningfully examined in the light of the
                     principles set out in Article 4 of the Convention.

                        29. Although the three principles mentioned in Article 4 (1) overlap,
                     clearly the drafters saw them as performing different functions; otherwise
                     they would have used one, e.g. sovereign equality, territorial integrity, or
                     non‑intervention. It is the principles of territorial integrity and non‑inter-
                     vention that provide the greatest safeguard against intervention in the
                     territory of another State. It follows, therefore, that the term sovereign

                     61

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                     350 	 immunities and criminal proceedings (joint diss. op.)

                     equality has a meaning that is either different from, or additional to the
                     other two principles. In carrying out international co‑operation against
                     transnational organized crime, to observe the principle of sovereign
                     equality, a State party must abstain from exercising jurisdiction, whether
                     judicial or administrative, whenever the rules of State immunity become
                     applicable. This requirement applies to both territorial jurisdiction as well
                     as personal jurisdiction.

                        30. It is as well to comment here on the majority’s observation that the
                     principles in Article 4 (1) could not be understood as imposing “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”. It goes without saying that it could not be contended that the
                     three principles have that effect. Rather, the effect of the three principles
                     is that only those rules of customary international law that are relevant to
                     the interpretation and application of the Convention become applicable
                     as conventional rules. In particular, by virtue of the principle of sovereign
                     equality of States, the customary rules relating to foreign State immunity
                     are incorporated into the Convention because the question at issue is the
                     immunity of a high-ranking State official.

                        31. In paragraph 93, the majority hold that Article 4 “refers only to
                     general principles of international law”. However, such principles include
                     the rules of customary international law. Indeed, it is those rules that give
                     substance to the general principles of international law. Consequently,
                     the principle of sovereign equality will as a general principle of interna-
                     tional law necessarily embody the customary rules on foreign State immu-
                     nity with which they have an organic relationship.

                        32. The ordinary meaning of Article 4 (1) could not be clearer. What
                     the principle of sovereign equality entails in the context of the Conven-
                     tion and in the light of its object and purpose is that, in undertaking their
                     treaty obligations to prevent and combat transnational organized crime,
                     States parties are limited in their jurisdiction by the rules of State immu-
                     nity.
                        33. In light of the object and purpose of the Convention, Article 4 (1)
                     should be interpreted as requiring States parties to carry out their obliga-
                     tions under the Convention in a manner consistent with the customary
                     rules governing State immunity, reflected in the principle of sovereign
                     equality of States, in order to achieve the co‑operation necessary to com-
                     bat transnational organized crime. Consequently, the application of the
                     customary rules of foreign State immunity as conventional obligations is
                     related to the stated object and purpose of the Palermo Convention. As
                     demonstrated below, the travaux préparatoires of Article 4 (1) confirm
                     our understanding and interpretation of that Article.

                     62

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                     351 	 immunities and criminal proceedings (joint diss. op.)

                        34. The majority note that, so far as the record shows, during the
                     drafting process, no reference was made to immunities of States and State
                     officials in relation to the drafting of Article 4. They cite two occasions
                     where State immunity was raised. On the first occasion, there was a pro-
                     posal to include an article covering measures against corruption by for-
                     eign public officials, international civil servants and judges or officials of
                     an international court as draft Article 4 (3), but it was not retained in the
                     final text of the Convention. On the second occasion, Singapore proposed
                     a provision dealing with State immunity from execution in the article
                     relating to confiscation and seizure. The proposal was not retained in the
                     final text of the Convention However, the following interpretative note
                     was included in the travaux:

                          “(a) The interpretation of Article 12 should take into account the prin-
                               ciple in international law that property belonging to a foreign
                               State and used for non‑commercial purposes may not be confis-
                               cated except with the consent of the foreign State. It is not the
                               intention of the convention to restrict the rules that apply to dip-
                               lomatic or State immunity, including that of international organ-
                               izations.” (Travaux préparatoires, p. 115 ; see also “Report of the
                               Ad Hoc Committee on the Work of Its First to Eleventh Ses-
                               sions”, United Nations doc. A/55/383/Add. 1, p. 5, para. 21.)
                        35. The majority finds in paragraph 98 that the interpretative note
                     attached to Article 12 on confiscation and seizure does not relate to Arti-
                     cle 4, nor does it suggest that these rules are incorporated by reference
                     into the Palermo Convention. We disagree with that conclusion.

                        36. In our view, the majority’s reading of the travaux does not fully
                     reflect the discussions in the drafting process. To better understand the
                     travaux, it is necessary to go back to some original documents. During
                     the Fourth Session of the Ad Hoc Committee on the Elaboration of a
                     Convention against Transnational Organized Crime, France submitted a
                     proposal to add a paragraph to Article 4 as a separate provision (Ad Hoc
                     Committee, Fourth Session, Proposals and Contributions Received from
                     Governments on the draft United Nations Convention against Transna-
                     tional Organized Crime, France: revised draft of Article 4ter, United
                     Nations doc. A/AC.254/L.28, 28 June 1999), which reads:

                              “Any State Party that has not yet done so shall, in conformity with
                           its international obligations . . . take measures to make punishable the
                           conduct referred to in paragraph 2 . . . [of this Article] . . . involving :
                           (a) A foreign public official ;
                           (b) An international civil servant ;
                           (c) A judge or official of an international court.”

                     63

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                     352 	 immunities and criminal proceedings (joint diss. op.)

                        37. Owing to opposition to this draft by some States, Belgium pro-
                     posed a compromise draft at the Sixth Session in the following terms:
                     “Each State Party shall consider adopting such legislative and other mea-
                     sures as may be necessary to establish as criminal offences conduct
                     referred to in paragraph 1 of this Article involving a foreign public official
                     or international civil servant.” (Ad Hoc Committee, Seventh Session,
                     “Revised Draft United Nations Convention against Transnational Orga-
                     nized Crime”, United Nations doc. A/AC.254/4/Rev.6, 24 December
                     1999, p. 13, draft Article 4ter (2), fn. 66.)

                       38. This draft was adopted in the final text of Article 8, paragraph 2,
                     of the Palermo Convention:
                                                        “Article 8. Criminalization of corruption
                          ���������������������������������������������������������������������������������������������������������������������
                                  2. Each State party shall consider adopting such legislative and
                              other measures as may be necessary to establish as criminal offences
                              conduct referred to in paragraph 1 of this article involving a foreign
                              public official or international civil servant. Likewise, each State Party
                              shall consider establishing as criminal offences other forms of corrup-
                              tion.”
                        39. This record is revealing for two reasons. First, the drafters were
                     fully aware that there could be cases where persons who may be entitled
                     to jurisdictional immunities are allegedly involved in the criminal offences
                     referred to in the Palermo Convention. To ensure that such State officials
                     or officials of international organizations are liable to prosecution, it is
                     necessary to remove their privilege to immunities, if any. France’s pro-
                     posal was intended to serve that purpose. As the travaux show, owing to
                     the concerns raised by some delegations about the immunities accorded
                     by international instruments to some of those officials, this proposal was
                     not accepted. This means that the issue of State immunities remains alive
                     and relevant to the interpretation and application of the Palermo Con-
                     vention. Secondly, the fact that France’s proposal was not retained and
                     Belgium’s proposal was only retained as a clause requiring States parties
                     to “consider adopting” measures to criminalize corruption involving for-
                     eign public officials and international civil servants, proves, contrary to
                     the majority’s reading, that the rules of foreign State immunity are not
                     left outside the Convention; they remain applicable. Therefore, cases of
                     corruption by high‑ranking officials of foreign States will be governed by
                     the customary rules of foreign State immunity derived from the principle
                     of sovereign equality of States under Article 4.

                       40. The requirement in Article 8 (2) that States parties consider adopt-
                     ing measures to criminalize corruption by a foreign public official or

                     64

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                     353 	 immunities and criminal proceedings (joint diss. op.)

                     international civil servant by itself suffices to show that the issue of for-
                     eign State immunity was in the forefront of the minds of the parties to the
                     Palermo Convention.
                        41. Our interpretation is further supported by the record of the meet-
                     ing on the second occasion where the issue of immunities was raised by
                     Singapore during the Ad Hoc Committee’s deliberations. Instead of
                     accepting Singapore’s proposal, the Committee agreed to include the
                     aforesaid interpretative note in the travaux (see paragraph 34 above).
                     Obviously, this Note reveals that the drafters did consider that in the
                     application of the Convention the issue of immunity could be relevant.
                     Although Singapore’s proposal related specifically to Article 12, the
                     understanding in the interpretative note is based on the fundamental
                     requirement laid down in Article 4 (1) that impacts the Convention as a
                     whole. As the Ad Hoc Committee pointed out, the Convention did not
                     intend to restrict the rules of State immunity. The non‑retention of
                     Singapore’s proposal in the final draft of the Convention can only

                     mean that States parties could not reach an agreement to insert a provi-
                     sion that precludes the applicability of immunity rules in the context of
                     co‑operating to combat transnational organized crime and that that ques-
                     tion continued to be governed by the rules of customary international
                     law.

                        42. These travaux unmistakably show that the question of immunities
                     of foreign State officials was an important consideration in the drafting of
                     the Palermo Convention. The travaux buttress the reading of Article 4 (1)
                     of the Palermo Convention as establishing a conventional link between
                     the principle of sovereign equality and the customary rules of State
                     immunity.
                        43. It will be recalled that the second sentence of the interpretative
                      note to Article 12 of the Palermo Convention reads as follows, “[i]t is not
                      the intention of the Convention to restrict the rules that apply to diplo-
                     matic or State immunity, including that of international organizations”.
                     The majority’s analysis of this sentence regrettably reveals a fundamental
                     misunderstanding of the purpose of a saving provision, which is what the
                     second sentence is. The purpose of a saving provision is to preserve rights
                     and claims that would otherwise be lost. Thus, when the travaux say that
                     it is not the intention of the Convention to restrict the rules that apply to
                     diplomatic or State immunity, they mean that those rules are preserved,
                     that is, they are saved for application whenever, as is the case here, it
                     becomes necessary to rely on them. The significance of this very impor-
                     tant second sentence is that it saves for application not only the rule pro-
                     viding for the non‑confiscation of foreign State property, specifically
                     addressed by Article 12, but all the other rules of customary international
                     law relating to foreign State immunity. Those rules undoubtedly include
                     the immunity from prosecution of a high‑ranking official of a foreign
                     State. Thus, the second sentence of the interpretative note has the effect

                     65

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                     354 	 immunities and criminal proceedings (joint diss. op.)

                     of saving or preserving the applicability of the rules of State immunity to
                     the entirety of the Convention.

                       44. The plain reading of Article 4 (1) is that a State party, in carrying
                     out its obligations under the Convention, is bound to respect the rules of
                     State immunity as an expression of the principle of sovereign equality.

                                   IV. Relevant International Instruments

                        45. Article 4 (1) of the Palermo Convention is worded in the same way
                     as Article 2 (2) of the 1988 United Nations Convention against Illicit
                     Traffic in Narcotic Drugs and Psychotropic Substances (hereinafter “1988
                     Drugs Convention”). Article 4 (2) of the Palermo Convention is worded
                     in the same way as Article 2 (3) of the 1988 Drugs Convention. The
                     United Nations Commentary on the principle of sovereign equality in
                     Article 2 of the 1988 Drugs Convention leaves no doubt as to the very
                     serious purpose served by that provision, relating to the wider purpose of
                     the Palermo Convention, i.e., to promote co‑operation to prevent and
                     combat transnational organized crime. This purpose could not be
                     achieved were it merely exhortatory, as France appears to suggest. It is
                     explained that the provision was inserted because the 1988 Drugs Con-
                     vention went further than its predecessor drug treaties in matters of law
                     enforcement and mutual legal assistance. After giving examples of acts
                     that would infringe the principle of sovereign equality of States, it con-
                     cludes that “it would be futile to attempt to draw up a comprehensive
                     catalogue of possible violations of those principles that might result from
                     an arbitrary, indiscriminate application of specific provisions of the Con-
                     vention” (“Commentary on the United Nations Convention against Illicit
                     Traffic in Narcotic Drugs and Psychotropic Substances 1988”, 20 Decem-
                     ber 1988, United Nations doc. E/CN.7/590, p. 46, para. 2.18).

                        46. The 1997 International Convention for the Suppression of Terror-
                     ist Bombings contains in Article 17 a provision similar to Article 4 (1),
                     and in Article 18 a provision similar to Article 4 (2) of the Palermo Con-
                     vention. In 1999, the International Convention for the Suppression of the
                     Financing of Terrorism was adopted. It contains in Article 20 a provision
                     similar to Article 4 (1) of the Palermo Convention and in Article 22 a
                     provision similar to Article 4 (2) of the Palermo Convention.

                       47. A provision similar to Article 4 (1) is also to be found in the
                     2003 United Nations Convention against Corruption (hereinafter “the

                     66

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                     355 	 immunities and criminal proceedings (joint diss. op.)

                     Corruption Convention”), Article 4 (1) of which is captioned and worded
                     in the same way as Article 4 (1) of the Palermo Convention. Article 16 of
                     the Corruption Convention is devoted to bribery of foreign public offi-
                     cials. The travaux préparatoires explain that Article 16 was not intended
                     to derogate from the immunities that those officials enjoy under interna-
                     tional law (Travaux préparatoires of the negotiations for the elaboration
                     of the United Nations Convention against Corruption, p. 174, fn. 15).
                     The travaux relating to that Article reads:

                          “this article is not intended to affect any immunities that foreign pub-
                          lic officials or officials of public international organizations may enjoy
                          in accordance with international law. The States parties noted the
                          relevance of immunities in this context and encouraged public inter-
                          national organizations to waive such immunities in appropriate
                          cases.”
                         48. From the time the principle of sovereign equality of States was
                      included in the 1988 Drugs Convention to the time of its inclusion in the
                      1997 International Convention for the Suppression of Terrorist Bomb-
                     ings, the 1999 International Convention for the Suppression of the
                     Financing of Terrorism, the 2000 Palermo Convention and the 2003 Cor-
                     ruption Convention, that principle has functioned as a conventional
                     troubleshooter to keep in check the conduct of States in the exercise of
                      their jurisdiction, whether territorial or extraterritorial. It serves as a stand
                      ard against which the conduct of States is to be measured in the discharge
                      of their treaty obligations.
                         49. Now we see clearly the function of the reference to the principle of
                      sovereign equality of States: it is a compendious way of saying that acts,
                      such as a breach of foreign State immunity, are a breach of the principle
                      of sovereign equality of States as laid down in Article 4 (1). It therefore
                      follows that a dispute relating to jurisdictional immunity in the applica-
                      tion of the Palermo Convention falls within the scope of Article 35 of that
                      Convention.

                          V. The Overarching and Pervasive Effect of Article 4 (1)
                                         on the other Provisions

                        50. Article 4 (1) imposes an obligation that is overarching and perva-
                     sive in that it requires States parties to carry out their obligations in
                     accordance with the principles of sovereign equality, territorial integrity
                     and non‑intervention in internal affairs. It is only one of two articles in
                     the Convention that explicitly imposes an obligation that relates to all the
                     obligations of States parties under the Convention. The other provision is
                     Article 34 (1), which requires States parties to adopt the measures neces-
                     sary to ensure the implementation of their obligations under the Conven-
                     tion. The impact of Article 4 (1) is all‑embracing. Any provision of the

                     67

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                     356 	 immunities and criminal proceedings (joint diss. op.)

                     Convention that requires States parties to act in a certain way is impacted
                     by Article 4 (1). An easy or simple way of identifying these articles is
                     their use of the word “shall”, which ordinarily has a mandatory
                     connotation.

                        51. One of the means employed by the Convention to achieve its pur-
                     pose of combating transnational organized crime is, as is made clear in
                     Article 3 (1), “the prevention, investigation and prosecution” (emphasis
                     added) of certain offences. The prosecution of persons for offences cov-
                     ered by the Convention is perhaps the most important tool in the fight
                     against transnational organized crime. However, the Convention is an
                     international agreement among sovereign States, all of whom have their
                     own laws and procedures relating to the prosecution of crimes. There is
                     clearly a limit beyond which the Convention cannot go in seeking to
                     impose requirements that might interfere with the independence of the
                     judiciary and the principle of prosecutorial discretion that exists in most
                     countries. But any international convention dealing with the criminaliza-
                     tion of certain conduct will seek to establish some fundamental principles
                     and standards that will bind States parties in the exercise of their criminal
                     jurisdiction. Naturally, these principles and standards would have been a
                     matter for intense debate in the negotiating process. One such principle is
                     the sovereign equality of States.

                       52. The overarching effect of the principle of sovereign equality in
                     Article 4 (1) impacts on all the obligations in the Convention, even those
                     contained in the provisions reserving certain matters to domestic law.
                     When Articles 5 and 6 require States parties to adopt measures to crimi-
                     nalize certain activities, the measures adopted and implemented must be
                     consistent with the principle of sovereign equality. Similarly, when under
                     Article 15 (6) States exercise jurisdiction established in accordance with
                     their domestic law, that exercise must be consistent with the principle of
                     sovereign equality of States not only on account of the reference to gen-
                     eral international law in the paragraph itself, but also by reason of the
                     overarching and pervasive effect of Article 4.

                       53. The majority place great reliance on Article 11 (6) to underscore
                     the role of domestic law in the case against Mr. Teodoro Nguema Obiang
                     Mangue in French courts. Article 11 (6) reads:

                            “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.”

                     68

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                     357 	 immunities and criminal proceedings (joint diss. op.)

                     Although the matters specified in this paragraph are reserved to domestic
                     law, there is nothing in the Convention that indicates that the principles
                     in Article 4 (1) would not apply to this paragraph. In fact, the effect of
                     Article 4 (1) is that in describing the offences established in accordance
                     with the Convention and setting out the applicable legal defences, a State
                     party must ensure that its acts are not inconsistent with these basic
                     principles and the relevant rules of foreign State immunities contained
                      therein.

                        54. The same situation exists in relation to Article 12 (9) which pro-
                     vides that “[n]othing contained in this article shall affect the principle that
                     the measures to which it refers shall be defined and implemented in accor-
                     dance with and subject to the provisions of the domestic law of a State
                     Party”. Here again, as in Article 11 (6), when the Convention is read as a
                     whole, it becomes clear that in implementing Article 12 (9), States parties
                     are not relieved of the obligation to ensure that the measures that they
                     adopt to enable confiscation are consistent with the rules of State immu-
                     nity as an expression of the principle of sovereign equality. Moreover,
                     that conclusion is strengthened by the travaux which clarify that the rules
                     relating to diplomatic or State immunity must be taken into account in
                     relation to the confiscation of State property.

                        55. The majority’s approach to the interpretation of Article 11 (6) is
                     open to question. The very fact that the paragraph goes out of its way to
                     identify specific aspects of criminal law as reserved for the domestic law
                     of a State party suggests that there may be aspects of domestic criminal
                     law that are strictly governed by the Convention, e.g. under Article 12 (6),
                     States parties are obliged to empower their courts to order the seizure of
                     bank, financial or commercial records. Similarly, they are also obliged
                     not to decline to do so on the ground of bank secrecy. These provisions
                     of Article 12 (6) are sufficient to contradict the majority’s conclusion in
                     paragraph 114 of the Judgment that “[i]n 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”.
                     States parties are directed by the Convention and are left with no discre-
                     tionary power in the exercise of their domestic jurisdiction in relation to
                     these matters. If, for example, a State party refused to provide another
                     State party with any bank, financial or commercial records on the grounds
                     that it had, by reason of bank secrecy, not taken the necessary action to
                     empower its courts to order those records to be made available, that State
                     would clearly be in breach of Article 12 (6).

                        56. In fact, a proper reading of the Convention shows that the applica-
                     tion of domestic law to the matters reserved by Article 11 (6) for that law
                     may be affected by other provisions in the Convention. Thus, even though

                     69

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                     358 	 immunities and criminal proceedings (joint diss. op.)

                     Article 11 (6) reserves to a State party the description of legal defences, a
                     State party in response to a request from another State party for the dis-
                     closure of financial records in a bank, could not by virtue of the very
                     specific obligation in Article 12 (6), plead that Article 11 (6) makes the
                     description of legal defences a matter for domestic law, and that that law
                     has a provision on bank secrecy preventing that disclosure. The requested
                     State party would be in breach of the Convention, because when the Con-
                     vention is read as a whole, it is clear that in relation to the disclosure of
                     financial records, the provisions of Article 11 (6) are to be read as subject
                     to Article 12 (6). This conclusion is strengthened by the provision in Arti-
                     cle 18 (8) prohibiting State parties from declining to render mutual legal
                     assistance on the ground of bank secrecy. It therefore becomes patent
                     that, with regard to bank, financial or commercial records, the Palermo
                     Convention is no mere harmonizer of legislation of States parties as
                     France argued, nor a mere co‑ordinator of the actions of States parties, as
                     the majority argues. No doubt the Convention adopts this approach
                     because bank secrecy would be one of the main, if not the main, obstacle
                     to the achievement of the international co‑operative framework it estab-
                     lishes in the fight against transnational organized crime. In short, the
                     majority have exaggerated the freedom that is left to States parties in
                     implementing the Convention in their domestic law. Nowhere is this more
                     evident than by the inclusion of Article 12 (9) as one of five provisions
                     reserving certain matters to domestic law. This is indeed ironical since, as
                     we have seen, in discharging its obligations under Article 12, a State
                     party’s freedom in relation to bank, financial or commercial records is
                      severely limited by Article 12 (6) of the Convention. It is of course correct
                      that Article 12 (9) has the effect which it states. However, in referring to
                      Article 12 (9), the majority appear to have been unaware of the constrain-
                      ing effect of Article 12 (6).

                       57. By the same token, the requirement in Article 4 (1) establishes an
                     overarching obligation that applies even to Article 11 (6).

                        Therefore, in describing the offences criminalized in accordance with
                     the Convention, and the applicable legal defences, States parties still
                     remain subject to the obligation under Article 4 (1) to do so in a manner
                     consistent with the rules governing foreign State immunity as an expres-
                     sion of the principle of sovereign equality of States. There is nothing in
                     the Convention that relieves a State party of that obligation.

                     70

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                     359 	 immunities and criminal proceedings (joint diss. op.)

                                     VI. Articles Relied on by Equatorial
                                    Guinea as Establishing a Dispute between
                                   the Parties under the Palermo Convention

                        58. We now proceed to examine Equatorial Guinea’s claims that the
                     present case concerns the interpretation and application of Article 4 of
                     the Palermo Convention read in conjunction with several provisions of
                     the Convention, namely Articles 6, 11, 12, 14, 15 and 18.
                        59. We note that the majority, in examining the various articles
                     invoked by Equatorial Guinea, have distinguished between Articles 6 and
                     15 on the one hand, and Articles 11, 12, 14 and 18 on the other. In respect
                     of all its claims, Equatorial Guinea has relied on the principle of sover-
                     eign equality of States set out in Article 4 (1) when read in conjunction
                     with these Articles.
                        60. Article 6 relates to criminalization of the laundering of proceeds of
                     crime. It reads: “Each State Party shall adopt, in accordance with funda-
                     mental principles of its domestic law, such legislative and other measures
                     as may be necessary to establish as criminal offences, when committed
                     intentionally.”
                        61. Article 6 obliges States parties to adopt legislation criminalizing
                     money laundering. Mr. Teodoro Nguema Obiang Mangue has been pros-
                     ecuted for money laundering. The prosecution of Mr. Teodoro Nguema
                     Obiang Mangue constitutes an exercise of criminal jurisdiction estab-
                     lished by France in accordance with its laws. That exercise, in the view of
                     Equatorial Guinea, breaches Article 15 (6) in that it contravenes the rules
                     under general and customary international law concerning foreign State
                     immunity, derived from the principle of the sovereign equality of States
                     enshrined in Article 4 (1). France disagrees with that claim. There is,
                     therefore, a disagreement between the Parties concerning the interpreta-
                     tion or application of the Palermo Convention.

                        62. With regard to Article 11 on prosecution, adjudication and sanc-
                     tions, the Parties hold opposing views on the application of Arti-
                     cle 11 (2) and (6) of the Palermo Convention. Article 11 (2) obliges States
                     parties to “endeavour to ensure that any discretionary legal powers under
                     [their] domestic law relating to . . . prosecution . . . are exercised to maxi-
                     mize the effectiveness of law enforcement measures in respect of those
                     offences and with due regard to the need to deter the commission of such
                     offences”. The obligation under this paragraph is mandatory, albeit it is
                     an obligation to endeavour to ensure that prosecutorial discretionary
                     powers are exercised in a particular way, and for a particular purpose.
                     The Parties differ as to whether this obligation is subject to the provisions
                     of Article 4 (1), particularly the principle of sovereign equality, on the
                     basis of which the rules of State immunity apply. In the view of Equato-
                     rial Guinea, the discharge of the obligations under Article 11 (2) is tied to
                     the overarching requirement in Article 4 (1), while France does not accept
                     that Article 11 (2) imposes any obligation to prosecute and disagrees with

                     71

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                     360 	 immunities and criminal proceedings (joint diss. op.)

                     Equatorial Guinea’s reading of the significance of Article 4 (1). Their dif-
                     fering opinions clearly concern the interpretation and application of the
                     Palermo Convention.

                        63. Article 12 concerns confiscation and seizure. In the view of Equa-
                     torial Guinea, under Article 4 (1), in discharging its obligations under this
                     Article, France is obliged to respect the customary rules of State immu-
                     nity by exempting Equatorial Guinea from measures of constraint against
                     its State property located in France. France does not accept Equato-
                     rial Guinea’s reading of Article 4 (1) and its relationship with Article 12.
                     France contends that once a State has adopted rules in its domestic law
                     that enable the proceeds of crime to be confiscated, it has complied with
                     its obligation under the Palermo Convention. By taking measures of
                     attachment, seizure and confiscation against the building at 42 Avenue
                     Foch, France claims that it was applying its domestic law, not the Con-
                     vention. In our view, there are opposing views between the Parties as to
                     the interpretation and application of Article 12 and its relationship with
                     Article 4 (1). In any event, even if Article 12 is stripped of any connection
                     with Article 4 and operates independently, there would still be an issue of
                     immunity under this Article because the travaux, as we have seen, pre-
                     serve the continued application of the rules of State immunity. The Par-
                     ties obviously maintain differing views about the question of the immunity
                     of the building at 42 Avenue Foch from measures of constraint.

                        64. With regard to Article 14 concerning the disposal of confiscated
                     proceeds of crime or property, the Parties hold opposing views on
                     France’s disposal of its confiscated objects found at the building at
                     42 Avenue Foch. Following the reasoning set out in the above paragraph,
                     the issue between the Parties concerns the interpretation and application
                     of Article 14 read in conjunction with Article 4 of the Palermo Conven-
                     tion.
                        65. Article 15 deals with the obligation on States parties to establish
                     their jurisdiction over certain offences. The most important provision in
                     this Article is paragraph 6, which reads, “[w]ithout prejudice to norms of
                     general international law, this Convention does not exclude the exercise
                     of any criminal jurisdiction established by a State Party in accordance
                     with its domestic law”. The majority have not addressed the significance
                     of Article 15 (6). It is clear that Article 15 (6) does not prevent France
                     from exercising any criminal jurisdiction that it has established in accor-
                     dance with its domestic law. However, three points must be noted with
                     regard to this provision. First, States parties are under the obligation to

                     72

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                     361 	 immunities and criminal proceedings (joint diss. op.)

                     ensure that the exercise of their criminal jurisdiction does not prejudice
                     “norms of general international law”, one of which is the rules on foreign
                     State immunity. Second — and this is relevant to France’s assertion that
                     it has always acted within its territory — it is equally clear that the provi-
                     sion applies to any criminal jurisdiction, whether territorial or extraterri-
                     torial. Finally, the issue of immunity can be examined under the norms of
                     general international law. The Parties hold opposing views as to whether
                     the exercise of criminal jurisdiction by the French courts by the initiation
                     and conduct of criminal proceedings against Mr. Teodoro Nguema Obi-
                     ang Mangue is in compliance with “norms of general international law”
                     under Article 15 (6) and whether such norms include the rules of State
                     immunity.

                        66. Article 15 (5) concerns the obligation to consult and Article 18
                     deals with mutual legal assistance. Equatorial Guinea’s claims that, since
                     2010, France has failed to take into account information provided by
                     Equatorial Guinea’s authorities regarding the investigation and prosecu-
                     tion of Mr. Teodoro Nguema Mangue, that “none of the predicate
                     offences alleged had been committed in Equatorial Guinea” and that the
                     assets attached by the French courts were lawfully acquired. On that
                     basis, Equatorial Guinea argues that France was obliged to accept Equa-
                     torial Guinea’s findings that no predicate offences were committed on
                     Equatorial Guinea’s territory and, consequently, to terminate the crimi-
                     nal proceedings against the Vice-President.

                        67. France alleges that Equatorial Guinea’s claim falls outside the
                     scope of the dispute. France argues that although its request for mutual
                     legal assistance expressly referred to the Palermo Convention, there was
                     no dispute regarding this Article given that Equatorial Guinea complied
                     with this request. France contends that it complied with its obligation to
                     consult and that the obligation does not require the State party to put an
                     end to criminal proceedings.
                        68. The Parties hold opposing views as to whether France, pursuant to
                     Articles 15 (5) and 18, is obliged to accept Equatorial Guinea’s findings
                     that no predicate offences were committed on Equatorial Guinea’s terri-
                     tory and consequently to terminate the criminal proceedings against the
                     Vice-President. In this regard, we disagree with the observation of the
                     Court at paragraph 73 of the Judgment that Equatorial Guinea’s asser-
                     tions can only be considered as additional arguments which do not con-
                     stitute distinct claims under the Palermo Convention.

                       69. France has argued that in the criminal proceedings against
                     Mr. Teodoro Nguema Obiang Mangue, it acted exclusively on the basis
                     of its own law and not on the basis of the Convention. This argument is
                     untenable. In the first place, it is accepted that France made a request for

                     73

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                     362 	 immunities and criminal proceedings (joint diss. op.)

                     mutual legal assistance from Equatorial Guinea. Since this request was
                     made by France expressly on the basis of the Palermo Convention, it is
                     beyond question that in relation to that request, at any rate, France acted
                     on the basis of the Palermo Convention. More importantly, a State party
                     that has ratified the Palermo Convention is bound by the provisions of
                     that Convention by virtue of that ratification, not because its domestic
                     legislation pre-dated or post-dated the Convention. For that matter every
                     State party to the Palermo Convention is expected to carry out its crimi-
                     nal prosecutions under its own domestic legislation. It would be absurd to
                     conclude that only those States parties whose domestic criminal legisla-
                     tion post-dates the Convention are bound by that Convention.
                        70. France has also argued that it had existing legislation in place and
                     therefore, did not need to enact legislation to implement the Convention.
                     As a matter of treaty law, once the Palermo Convention entered into
                     force for France, it became bound by its provisions.

                                                    Conclusion

                        71. We conclude that the subject‑matter of the dispute for which the
                     Applicant invoked the Palermo Convention as a basis of jurisdiction, is
                     whether France, by prosecuting the Vice‑President of Equatorial Guinea
                     for the offence of money laundering and by imposing measures of con-
                     straint on the building at 42 Avenue Foch, which Equatorial Guinea
                     claims is State property, acted in a manner consistent with the principles
                     of sovereign equality, territorial integrity and non-   intervention in the
                     internal affairs of another State. This dispute inevitably concerns the
                     interpretation and application of the Palermo Convention within the
                     meaning of Article 35 thereof and the Court should have found that it has
                     jurisdiction to entertain it.
                        72. We find inconceivable the notion that the prosecution of a
                     high‑ranking official, the Vice‑President of a State party to the Palermo
                     Convention, in a foreign State that is also party to the Palermo Conven-
                     tion, does not raise the question of foreign State immunity in the context
                     of a Convention that enshrines the principle of sovereign equality of
                     States in the discharge of the obligations it imposes on States parties. At
                     the very least, the Court should have availed itself of the opportunity to
                     hear the Parties on the merits, before summarily dismissing this impor-
                     tant issue.
                        73. We are concerned that the judgment might have the effect of mak-
                     ing high-ranking foreign officials who are entitled to immunity more sus-
                     ceptible to the exercise of criminal jurisdiction by foreign courts thereby
                     undermining the principle of sovereign equality of States.
                        74. This joint dissent is an expression of our views on the Court’s juris-
                     diction in this case brought by Equatorial Guinea against France. It is
                     not to be seen as in any way reflecting our views on the merits of the case

                     74

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                     363 	 immunities and criminal proceedings (joint diss. op.)

                     instituted against Mr. Teodoro Nguema Obiang Mangue by the French
                     authorities.

                         (Signed) Xue Hanqin.
                       (Signed) Julia Sebutinde.
                     (Signed) Patrick Robinson.
                        (Signed) James Kateka.

                     75

5 CIJ1142.indb 146                                                                       21/02/19 15:44


                             COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                             ACTIVITÉS ARMÉES
                        SUR LE TERRITOIRE DU CONGO
                   (RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. OUGANDA)

                             ORDONNANCE DU 11 AVRIL 2016

                                    2016
                             INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                            ARMED ACTIVITIES
                     ON THE TERRITORY OF THE CONGO
                    (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

                                ORDER OF 11 APRIL 2016

6 CIJ1095.indb 1                                                   14/02/17 09:58

                                           Mode officiel de citation :
                                  Activités armées sur le territoire du Congo
                               (République démocratique du Congo c. Ouganda),
                            ordonnance du 11 avril 2016, C.I.J. Recueil 2016, p. 222

                                               Official citation :
                                Armed Activities on the Territory of the Congo
                               (Democratic Republic of the Congo v. Uganda),
                              Order of 11 April 2016, I.C.J. Reports 2016, p. 222

                                                                               1095
                                                                No de vente:
                   ISSN 0074-4441                               Sales number
                   ISBN 978-92-1-157290-2

6 CIJ1095.indb 2                                                                       14/02/17 09:58

                                                         11 AVRIL 2016

                                                      ORDONNANCE

                                 ACTIVITÉS ARMÉES
                            SUR LE TERRITOIRE DU CONGO
                   (RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. OUGANDA)

                                  ARMED ACTIVITIES
                           ON THE TERRITORY OF THE CONGO
                    (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

                                                      11 APRIL 2016

                                                           ORDER

6 CIJ1095.indb 3                                                         14/02/17 09:58

                                                                                222

                                INTERNATIONAL COURT OF JUSTICE

                                                 YEAR 2016
                                                                                2016
                                                11 April 2016                                  11 April
                                                                                General List
                                                                                No. 116
                                ARMED ACTIVITIES
                         ON THE TERRITORY OF THE CONGO
                      (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

                                                  ORDER

                 Present: President Abraham; Vice‑President Yusuf; Judges Owada,
                          Tomka, Bennouna, Cançado Trindade, Greenwood, Xue,
                          Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
                          Gevorgian; Registrar Couvreur.

                     The International Court of Justice,
                    Composed as above,
                    After deliberation,
                    Having regard to Article 48 of the Statute of the Court and to Arti-
                 cle 44, paragraph 3, of the Rules of Court,
                    Having regard to the Order of 1 July 2015, whereby the Court fixed
                 6 January 2016 as the time‑limit for the filing, by the Democratic Repub-
                 lic of the Congo, of a Memorial on the reparations which it considers to
                 be owed to it by the Republic of Uganda, and for the filing, by the Repub-
                 lic of Uganda, of a Memorial on the reparations which it considers to be
                 owed to it by the Democratic Republic of the Congo,
                    Having regard to the Order of 10 December 2015, whereby the Presi-
                 dent of the Court extended to 28 April 2016 the time‑limit for the filing,
                 by the Democratic Republic of the Congo, of a Memorial on the repara-
                 tions which it considers to be owed to it by the Republic of Uganda, and
                 for the filing, by the Republic of Uganda, of a Memorial on the repara-

                                                                                4

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                                     armed activities (order 11 IV 16)                    223

                 tions which it considers to be owed to it by the Democratic Republic of
                 the Congo;
                    Whereas, by a letter dated 31 March 2016 and received in the Registry
                 on the same day, the Congolese Minister of Justice and Human Rights
                 and Keeper of the Seals asked the Court, for the reasons given in that
                 letter, for an additional time‑limit of ten months for the filing of his Gov-
                 ernment’s Memorial;
                    Whereas, by a letter dated 6 April 2016 and received in the Registry on
                 the same day, the Agent of the Republic of Uganda indicated, inter alia,
                 that his Government was prepared to agree to a three-month extension of
                 the time-limit for the filing of the Memorial of the Democratic Republic
                 of the Congo on reparations;
                    Taking into account the views of the Parties,
                   Extends to 28 September 2016 the time‑limit for the filing, by the Dem-
                 ocratic Republic of the Congo, of a Memorial on the reparations which it
                 considers to be owed to it by the Republic of Uganda, and for the filing,
                 by the Republic of Uganda, of a Memorial on the reparations which it
                 considers to be owed to it by the Democratic Republic of the Congo; and

                     Reserves the subsequent procedure for further decision.

                   Done in French and in English, the French text being authoritative, at
                 the Peace Palace, The Hague, this eleventh day of April, two thousand
                 and sixteen, in three copies, one of which will be placed in the archives of
                 the Court and the others transmitted to the Government of the Demo-
                 cratic Republic of the Congo and the Government of the Republic of
                 Uganda, respectively.

                                                             (Signed) Ronny Abraham,
                                                                        President.
                                                            (Signed) Philippe Couvreur,
                                                                          Registrar.

                   Judge Cançado Trindade appends a declaration to the Order of the
                 Court.

                                                                        (Initialled) R.A.
                                                                        (Initialled) Ph.C.

                                                                                5

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