                      375

                                  SEPARATE OPINION OF JUDGE SEBUTINDE

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

                                         I. Scope of the Dispute, Jurisdiction
                                                   and Admissibility

                         1. I have voted against paragraph 126 (1) of the Judgment because I
                      disagree with the finding of the majority that the building at 42 avenue
                      Foch in Paris (hereinafter the “disputed building”) has never acquired the
                      status of “premises of the mission” of Equatorial Guinea within the
                      meaning of Article 1 (i) of the Vienna Convention on Diplomatic Rela-
                      tions, 1961 (hereinafter the “VCDR” or the “Convention”). As I explain
                      in this opinion, the disputed building did acquire that status on 27 July
                      2012. Furthermore, although I have voted in favour of paragraph 126 (2)
                      along with the majority, I do so for reasons other than those expressed by

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                      the majority in the Judgment. I express those reasons later on in this sep-
                      arate opinion. Lastly, while France argued at length about Equatorial
                      Guinea’s alleged “abuse of rights” in the present case, the Judgment says
                      little on the issue, simply alluding in paragraph 66 to the fact that the
                      purpose of the diplomatic privileges and immunities under the VCDR are
                      not meant to benefit individuals, without explaining how this statement
                      relates to Equatorial Guinea’s claims or conduct. I offer a few thoughts
                      on this issue in this separate opinion. But first I wish to remind the reader
                      of what the Court found, in 2018, to be the dispute between the Parties in
                      the present case.

                        2. In paragraph 70 of its Judgment of 6 June 2018 1, the Court
                      described the dispute between the Parties as follows:
                      (a) First, as a disagreement regarding whether the building at 42 avenue
                          Foch in Paris constitutes part of the premises of the mission of Equa-
                          torial Guinea in France and is thus entitled to the treatment provided
                          for under Article 22 of the VCDR.
                      (b) Secondly, as a disagreement regarding whether France, by the actions
                          of its authorities in relation to the building, breached its obligation
                          under Article 22 of the VCDR 2.

                        3. The Court also stated that it has jurisdiction, on the basis of the
                      Optional Protocol to the VCDR concerning the Compulsory Settlement
                      of Disputes, to entertain Equatorial Guinea’s Application only in so
                      far as it concerns the status of the building located at 42 avenue Foch in
                      Paris as premises of the mission, and that this part of the Application is
                      admissible 3.
                        4. It is clear from the facts of this case that France’s refusal or reluc-
                      tance to recognize the disputed building as part of the diplomatic mission
                      of Equatorial Guinea is, in large part, due to the fact that in its view, the
                      building is privately owned by Mr. Teodoro Nguema Obiang Mangue
                      and is subject to ongoing criminal processes in France, including an order
                      of attachment and confiscation. On the other hand, France also agrees
                      that, for purposes of implementing the régime of inviolability under the
                      VCDR, ownership of a building per se is to be distinguished from assign-
                      ment and use of that building as premises of a diplomatic mission.

                         5. In my view, the Court should have distinguished the question of
                      ownership of the disputed building from its assignment and use as prem-
                      ises of the mission and should have entertained Equatorial Guinea’s
                      Application only in so far as it concerns the status of the disputed build-

                        1 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary

                      Objections, Judgment, I.C.J. Reports 2018 (I), p. 292.
                        2 Ibid., p. 315, para. 70, and p. 328, para. 120.
                        3 Ibid., pp. 337‑338, para. 154 (4).

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                      ing as “premises of the mission”. This is because under Article 1 (i) of the
                      VCDR, ownership is not a prerequisite for determining whether a build-
                      ing qualifies for protection under Article 22 of the VCDR as “premises of
                      the mission”. The only prerequisite thereunder is that the building, or
                      parts thereof and the land ancillary thereto, are “used for the purposes of
                      the mission including the residence of the head of mission”. In that regard,
                      I do not agree with the Court’s interpretation of Article 1 (i) of the
                      VCDR in paragraph 62. In my view, that provision is more than a mere
                      definition. In the ordinary meaning of that paragraph, the “premises of
                      the mission” comprise:

                      — buildings or parts of buildings and land ancillary thereto;
                      — that are used for the purposes of the mission including the residence
                        of the head of the mission; and
                      — it is irrelevant who actually owns the building or land upon which the
                        mission is situated.
                         6. However, the VCDR sheds no light as to whether before using a
                      building as “premises of its mission” the sending State needs to obtain the
                      prior consent (or non-  objection) of the receiving State to such use.
                      I examine this aspect later on in this opinion.

                              II. Status of the Building at 42 avenue Foch in Paris

                           A. Criteria for Qualifying a Building as “Premises of the Mission”

                           7. In determining whether the disputed building qualifies as “premises
                      of the mission” of Equatorial Guinea within the meaning of Article 1 (i)
                      of the VCDR, the Court has to determine, first, if and when Equatorial
                      Guinea started using the building for purposes of its mission and,
                      secondly, whether such use is subject to the consent of France as the
                       receiving State as a necessary prerequisite for extending the régime of
                       inviolability in respect of that building under Article 22 of the VCDR.
                           8. In determining if and when the disputed building qualifies as “prem-
                       ises of the mission”, I have examined three possible dates on which
                       Equatorial Guinea claims the building was assigned for use as the prem-
                        ises of its mission, namely 4 October 2011, 17 October 2011 and 27 July
                        2012.
                      (i) Assignment of the building as premises of the mission on 4 October 2011
                        9. Equatorial Guinea refers to 4 October 2011, the day following the
                      search of the disputed building and seizure by French authorities of sev-
                      eral luxury vehicles belonging to Mr. Teodoro Nguema Obiang Mangue

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                      from parking lots located near the disputed building on 3 October 2011,
                      as the date when it first assigned the disputed building for use as its dip-
                      lomatic mission. On that date, Equatorial Guinea officially notified the
                      French Ministry of Foreign Affairs, for the first time, that

                           “Equatorial Guinea . . . has for a number of years had at its disposal
                           a building located at 42 avenue Foch, Paris (16th arr.), which it uses
                           for the performance of its diplomatic functions, a fact which it has
                           hitherto not formally notified to your [Protocol] Department.

                              Since the building forms part of the premises of the mission, pur-
                           suant to Article 1 of the Vienna Convention on Diplomatic Relations
                           of 18 April 1961, the Republic of Equatorial Guinea wishes to give
                           you official notification so that the French State can ensure the pro-
                           tection of those premises, in accordance with Article 22 of the said
                           Convention.” 4
                        10. In my view, however, Equatorial Guinea has not adduced sufficient
                      proof that the disputed building was, prior to or with effect from 4 Octo-
                      ber 2011, actually used as premises of its mission within the meaning of
                      Article 1 (i) of the VCDR. It is not sufficient that Equatorial Guinea
                      merely “had the disputed building at its disposal”. In that regard, I have
                      taken the following factors into account:

                      (a) First, according to Equatorial Guinea itself, the disputed building
                          belonged to Mr. Teodoro Nguema Obiang Mangue in his private
                          capacity until 15 September 2011 (one month before the above offi-
                          cial notification) when he allegedly transferred his shares in the five
                          Swiss companies to the Government of Equatorial Guinea. In those
                          circumstances, it is unlikely that the State of Equatorial Guinea had
                          “had the building at its disposal for a number of years” or that it used
                          the p rivately owned building “for the performance of its diplomatic
                          functions” prior to 4 October 2011, as alleged in their official

                          notification.
                      (b) Secondly, Equatorial Guinea did not specify what diplomatic func-
                          tions were being carried out at the disputed building prior to or as at
                          4 October 2011. In paragraph 22 of its reply to a question put by a
                          Member of the Court, Equatorial Guinea asserted that “[p]rior to
                          4 October 2011, the building had been used to accommodate Equa-
                          torial Guinea’s diplomatic staff or other officials on special missions”,
                          but adduced no evidence to prove this claim, nor did the Applicant
                          consider it necessary to request from the receiving State diplomatic

                         4 Memorial of Equatorial Guinea (MEG), para. 2.30; see also written replies of

                       quatorial Guinea to questions put by two Members of the Court, 26 October 2016,
                      E
                      para. 21.

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                          status or tax exemptions in respect of the disputed building during
                          that period 5.
                      (c) Thirdly, during several searches of the disputed building conducted
                          by French investigators prior to 4 October 2011, the Applicant did
                          not even once complain or assert diplomatic immunity of the build-
                          ing. In the Note Verbale of 28 September 2011 delivered personally
                          to Mr. Alain Juppé, Minister of State for Foreign Affairs, Equatorial
                          Guinea bitterly complained about the investigations and criminal
                          charges levelled against Mr. Teodoro Obiang Mangue and against the
                          interference of France in the internal affairs of Equatorial Guinea.
                          However, the Note Verbale was silent about the status of the building
                          at 42 avenue Foch, Paris, the ownership of which had by then,
                          allegedly, been transferred to the Government of Equatorial Guinea.
                           The first time a complaint was ever raised in this regard was by
                           Ms Mariola Bindang Obiang (UNESCO Representative) in respect
                           of the searches and seizures of 14‑23 February 2012 6.
                      (d) Fourthly, on‑site inspections of the disputed building carried out by
                          French authorities on 5 October 2011 and in February 2012 found no
                          evidence that it was either occupied by the Embassy of Equatorial
                          Guinea, or used as a residence by Ms Bindang Obiang, UNESCO
                          Representative 7. All they found was a signpost at the entrance
                           reading: “Republic of Equatorial Guinea — Embassy Premises”.

                           Equatorial Guinea itself recognizes that the items seized by the
                           French Authorities on those occasions did not belong to its mission 8.
                        11. For all the above reasons, I am not convinced that the disputed
                      building acquired the status of “premises of the mission” within the mean-
                      ing of Article 1 (i) of the VCDR on or about 4 October 2011.

                      (ii)
                           Move of the UNESCO Delegate’s residence to the building on
                           17 October 2011
                        12. On 17 October 2011, Equatorial Guinea officially notified the
                      French Ministry of Foreign Affairs of the end of the mission of
                      H.E. Mr. Frederico Edjo Ovono, the Ambassador Extraordinary and
                      Plenipotentiary of the Republic of Equatorial Guinea, and that, pending
                      his replacement, Ms Mariola Bindang Obiang, Permanent Delegate to
                      UNESCO, would head the Embassy as Chargée d’affaires ad interim. The
                      Applicant’s Note Verbale further indicated that “the official residence of
                      Ms Bindang Obiang was located on the premises of the diplomatic mis-

                           5
                          Rejoinder of France (RF), para. 1.7.
                           6
                          MEG, Ann. 42.
                        7 Additional documents communicated by France, No. 33, Record of on‑site inspection

                      and attachment of vehicles of Mr. Teodoro OBIANG NGUEMA located at 42 avenue
                      Foch, 75016 Paris, 28 September 2011 [translation].
                        8 Reply of Equatorial Guinea (REG), para. 4.12.

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                      sion located at 42 avenue Foch, 75016 Paris, which is at the disposal of
                      the Republic of Equatorial Guinea” 9. France responded on 31 October
                      2011, rejecting the appointment of Ms Bindang Obiang as Chargée
                      d’affaires ad interim as being contrary to Article 19 of the VCDR 10; insist-
                      ing that France had never recognized the disputed building as part of the
                      premises of Equatorial Guinea’s mission; and indicating that any change
                      in address of Ms Obiang’s residence from 46 rue des Belles Feuilles, Paris
                      (16th arr.) to the disputed building should be officially notified by
                      UNESCO’s protocol department and not by the Applicant’s Embassy 11.

                          13. It was four months later, on 15 February 2012, that the Permanent
                      Delegation of Equatorial Guinea to UNESCO transmitted to the French
                      Ministry of Foreign Affairs a Note Verbale stating that “the official
                      residence of the Permanent Delegate of Equatorial Guinea to UNESCO
                       is located at 42 avenue Foch, 75016 Paris, property of the Republic
                       of Equatorial Guinea” 12. On 16 February 2012 the Applicant sought
                       the agrément of French authorities pursuant to Article 4 of the VCDR
                       regarding the appointment of Ms Bindang Obiang as Ambassador of
                       Equatorial Guinea to France, stating that she resided at the disputed
                       building 13.

                         14. In March 2012, Equatorial Guinea issued several Notes Verbales
                      to the French Ministry of Foreign Affairs in which it asserted the immu-
                      nity of the building, not as “premises of its mission” but as “Government
                      property” 14.
                         15. In my view, Equatorial Guinea has not adduced convincing and
                      consistent evidence that as from 17 October 2011, the disputed building
                      was actually used as “premises of the mission” within the meaning
                      of Article 1 (i) of the VCDR, including as the “residence of its head
                      of mission”. In that regard, I have taken the following factors into
                      account:
                      (a) First, in nominating Ms Mariola Bindang Obiang, the UNESCO
                          Permanent Delegate, as Chargée d’affaires ad interim and head of
                           9
                           MEG, Ann. 36.
                           10
                            According to France’s Note Verbale of 31 October 2011, only a member of the
                      mission’s diplomatic, administrative or technical staff may under Article 19 of the VCDR
                      be designated chargé d’affaires ad interim by the sending State.
                         11 MEG, Ann. 40.
                         12 Ibid., Ann. 41.
                         13 Article 4 of the VCDR provides:

                                   “1. The sending State must make certain that the agrément of the receiving State
                                has been given for the person it proposes to accredit as head of mission to that State.
                                   2. The receiving State is not obliged to give reasons to the sending State for a
                                refusal of agrément.”
                           14   MEG, Anns. 43, 44 and 45.

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                          mission of Equatorial Guinea on 17 October 2011, the Applicant did
                          not secure the agrément of the receiving State as required by Article 4
                          of the VCDR, since France subsequently rejected the appointment of
                          Ms Mariola Bindang Obiang as being contrary to Article 19 of the
                          VCDR.
                      (b) Secondly, even if the official residence of Equatorial Guinea’s Perma-
                           nent Representative to UNESCO had shifted from 46 rue des Belles
                           Feuilles, Paris (16th arr.) to the disputed building, Article 20 of the
                           Host Agreement between France and UNESCO requires that the
                           notification of such change of address should have been sent by the
                           protocol department of UNESCO to the French Ministry of Foreign
                           Affairs and not by the Embassy of Equatorial Guinea. In any event
                           that notification only took place four months later on 15 February
                           2012 15.
                      (c) Thirdly, approximately four months after Ms Mariola Bindang
                          Obiang had allegedly moved into the disputed building, French
                          authorities carried out several searches of the disputed building
                          between 14 and 23 February 2012 and seized various items compris-
                           ing the personal effects, furniture and documents of Mr. Teodoro
                           Obiang Mangue 16. Based on those searches and the testimony of
                          employees of Mr. Teodoro Obiang Mangue, there were neither
                          diplomatic documents nor property or items belonging to a female
                           resident found in the disputed building, despite a formal protest by
                           Equatorial Guinea and Ms Bindang Obiang against the searches 17.
                        16. For all the above reasons, Equatorial Guinea has not proved that
                      the disputed building acquired the status of “premises of the mission”
                      within the meaning of Article 1 (i) of the VCDR on or about 17 October
                      2011.
                      (iii) Move of Equatorial Guinea’s Embassy offices to the disputed building
                             on 27 July 2012
                         17. On 19 July 2012, the Paris Tribunal de grande instance issued an
                      order (saisie pénale immobilière) attaching the disputed building with a
                      view to its confiscation 18. On 27 July 2012, the Embassy of Equatorial
                      Guinea informed the French Ministry of Foreign Affairs that “as from
                      Friday 27 July 2012, the Embassy’s offices are located at 42 avenue Foch
                      Paris (16th arr.), a building which it is henceforth using for the perfor-
                      mance of the functions of its diplomatic mission in France” 19. On

                        15 Agreement between the Government of the French Republic and the United Nations

                      Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO
                      and the Privileges and Immunities of the Organization on French Territory.
                        16 Order of attachment of the Paris Tribunal de grande instance, MEG, Ann. 25.

                           17 Ibid., Anns. 37 and 38.
                           18 Ibid., Ann. 25.
                           19 Ibid., Ann. 47 (emphasis added).

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                      2 August 2012, Equatorial Guinea sent another notification to the French
                      Ministry of Foreign Affairs to the effect that “further to its preceding
                      Notes Verbales, it hereby confirms that its chancellery is indeed located at
                      the following address: 42 avenue Foch, Paris (16th arr.), a building that it
                      uses as the official offices of its diplomatic mission in France” 20.
                         18. In response, the French Ministry of Foreign Affairs wrote to the
                      Applicant on 6 August 2012 indicating its refusal to recognize the dis-
                      puted building as the new premises of Equatorial Guinea’s diplomatic
                      mission, pointing out that the building was the subject of an order of
                      attachment and stating that the seat of the Chancellery remains at 29 bou-
                      levard de Courcelles, Paris (8th arr.) 21. France reiterated its position in
                      subsequent communication 22.

                        19. On 12 May 2016, Equatorial Guinea responded reiterating the fact
                      that its Embassy offices were located at the disputed building since it was
                      so assigned on 11 October 2011 and pointing out the mixed messages that
                      the French Government and its Ministry of Foreign Affairs were sending.
                      In that regard Equatorial Guinea noted that

                      (a) 42 avenue Foch, Paris (16th arr.) is the address at which requests for
                          visas to enter Equatorial Guinea are submitted by members of the
                          French Government, such as the State Secretary for Development and
                          Francophone Affairs, who made an official visit to Equatorial Guinea
                          from 8 to 9 February 2015;

                      (b) a law enforcement unit went to the same address on 13 October 2015
                          to provide protection for the diplomatic mission during protests by
                          members of the Equatorial Guinean opposition in France.

                         20. The Applicant observed that this contradiction should not be to
                      the detriment of the Republic of Equatorial Guinea 23.
                         21. It is clear from the above narrative of events that Equatorial
                      Guinea effectively moved the offices of its diplomatic mission in France
                      into the building at 42 avenue Foch in Paris on or about 27 July 2012,
                      eight days after the order of attachment (saisie pénale immobilière) was
                      issued by the Paris Tribunal de grande instance. Thereafter Equatorial
                      Guinea used every opportunity to reiterate its position to the French
                      authorities despite the consistent refusal of the French Ministry of For-
                      eign Affairs to recognize the disputed building as the Applicant’s diplo-
                      matic mission or Chancellery. France’s refusal to recognize the building
                      as premises of Equatorial Guinea’s mission was clearly based on the fact

                           20 MEG, Ann. 48.
                           21 Ibid., Ann. 49.
                           22 See Note Verbale of 27 April 2016 (ibid., Ann. 50).
                           23 Ibid., Ann. 51.

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                      that the disputed building was privately owned and has been placed under
                      an order of attachment and confiscation. Each Party is thus entrenched in
                      its position, except in 2015 when on a few occasions French authorities
                      obtained their visas to Equatorial Guinea and gave protection to diplo-
                      matic staff at that building.

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

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

                         24. The Parties are agreed that France has no written laws or guidelines
                      requiring prior consent. However, its practice appears to indicate the exis-
                      tence of a practice of a “no‑objection” régime. In other words, for purposes
                      of establishing premises of a diplomatic mission, it is enough for the send-
                      ing State to notify France as the receiving State of the location of the mis-
                      sion premises and for the latter to raise no objection thereto. It is also
                      expected that the receiving State will not unreasonably object, on grounds
                      other than that the building is not being used for the purpose of the mis-
                      sion. This approach has been adopted by commentators of the Convention:
                             “In States where no specific domestic legal framework controls the
                           acquisition or disposal of mission premises, the definition of Arti-

                         24 Counter‑Memorial of France (CMF), paras. 2.1‑2.21; RF, paras. 0.11‑0.15 and

                      2.1‑2.4.

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                           cle 1 (i) falls to be applied by agreement between sending and receiv-
                           ing State. Generally speaking, a receiving State is likely to be notified
                           of mission premises for the purpose of ensuring that it carries out its
                           duties under Article 22 to protect those premises and ensure their
                           inviolability. Challenge to such notification will usually take place
                           only where there are grounds to suspect that the premises are not
                           being used for purposes of the mission. Article 3, which describes the
                           functions of the mission, may be relevant in this context.” 25

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

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

                                   III. Whether France Violated Its Obligations
                                                 under the VCDR

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

                         25 See E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic

                      Relations, Oxford University Press, 4th edition, 2016, p. 17.
                         26 RF, paras. 4.5‑4.6.

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                      the peace or impairment of dignity, and against measures of constraint
                      including search, requisition, attachment or execution.

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

                           29. However, the question is what consequences should arise from the
                      order of confiscation of the disputed building issued by the Paris Tribunal
                      de grande instance on 27 October 2017, a decision confirmed by the Paris
                      Cour d’appel on 10 February 2020. As both these decisions were issued in
                      relation to the building after it became the premises of Equatorial
                      Guinea’s diplomatic mission, could they be interpreted as tantamount to
                       a violation of Article 22 of the VCDR?
                           30. As Equatorial Guinea itself pointed out during the oral hearings
                       on the preliminary objections raised by France, “in French criminal law,
                       confiscation is a penalty which involves transfer of the ownership of the
                       asset in question, to the benefit of the French State” 27. As such, an order
                        of confiscation per se does not imply a violation of the mission premises,
                        in the sense that it essentially impedes the free disposal of the title to the
                        building but need not necessarily affect its use as premises of the mission.
                        Equatorial Guinea expressed concern that confiscation carries “an
                        ever‑present risk of expulsion” of its mission from the building 28. How-
                       ever, my view is that the Court would be engaging in speculation if it took
                       that approach, given that confiscation does not automatically lead to
                       eviction. Considering that the Court should steer clear of issues to do
                       with the ownership of the disputed building, it is not up to the Court to
                       speculate about what measures the French authorities may adopt follow-
                       ing the confiscation, particularly if the Court were to find that the build-
                       ing did enjoy diplomatic status from 27 July 2012 and is therefore immune
                       from execution. In other words, it is possible for the disputed building to
                       have changed ownership in any number of ways and for Equatorial
                       Guinea to choose to continue housing its mission there, subject to
                       negotiation with the new owners. As long as Equatorial Guinea’s mission
                        continued to be housed there, the receiving State would be obligated
                        to extend to that mission the régime of inviolability guaranteed under
                        Article 22 of the VCDR, regardless of the new owners.

                           27   CR 2018/3, p. 21, para. 43 (Tchikaya).
                           28   REG, para. 2.54.

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

                           IV. Whether Equatorial Guinea Committed Abuse of Rights

                         32. In its third preliminary objection to the jurisdiction of the Court in
                      the present case, France argued that Equatorial Guinea “suddenly and
                      unexpectedly” transformed a private residence into premises of its mis-
                      sion and appointed Mr. Teodoro Nguema Obiang Mangue to increas-
                      ingly eminent positions. It further alleges that Equatorial Guinea’s
                      objective in bringing the case before the Court was to shield both
                      Mr. Teodoro Nguema Obiang Mangue and the building at 42 avenue
                      Foch from pending criminal proceedings that were underway in France.
                      France concludes that Equatorial Guinea’s Application constitutes an
                      abuse of process because it was submitted in the manifest absence of any
                      legal remedy and with the aim of covering up abuses of rights committed
                      in other respects.
                         33. In its 2018 Judgment on preliminary objections, the Court charac-
                      terized France’s third preliminary objection as an objection to admissibil-
                      ity 29. The Court also overruled the objection in relation to the alleged
                      abuse of process 30. In relation to the alleged abuse of rights, the Court
                      stated:
                              “As to the abuse of rights invoked by France, it will be for each
                           Party to establish both the facts and the law on which it seeks to rely
                           at the merits phase of the case. The Court considers that abuse of
                           rights cannot be invoked as a ground of inadmissibility when the
                           establishment of the right in question is properly a matter for the
                           merits. Any argument in relation to abuse of rights will be considered
                           at the stage of the merits of this case.” 31
                         34. Abuse of rights is a controversial claim, which should only be made
                      in exceptional and compelling circumstances. Judge Hersch Lauterpacht
                      observed that abuse of rights is said to occur when “a State avails itself of

                        29 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary

                      Objections, Judgment, I.C.J. Reports 2018 (I), p. 335, para. 145.
                        30 Ibid., p. 336, para. 150.
                        31 Ibid., p. 337, para. 151.

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                      its right in an arbitrary manner in such a way as to inflict upon another
                      State an injury which cannot be justified by a legitimate consideration of
                      its own advantage” 32. The Court has in its jurisprudence 33 recognized
                      abuse of rights as a necessary corollary to the principle of good faith 34.
                      However, as France rightly observes, the threshold for a finding of abuse
                      of rights is high, as a court or tribunal will obviously not presume an
                      abuse and will affirm the evidence of an abuse only in very exceptional
                      circumstances 35. In this case the Court is called upon to determine
                      whether by claiming diplomatic protection under Article 22 of the VCDR
                      for the disputed building as “premises of its mission”, Equatorial Guinea
                      abused its rights under the VCDR to the detriment of the rights of France
                      as receiving State.
                         35. There is little doubt that in seeking to divest himself of the owner-
                      ship of the disputed building and transferring the shares in the five Swiss
                      companies to the State of Equatorial Guinea in mid‑September 2011,
                      Mr. Teodoro Nguema Obiang Mangue acted under pressure of the crim-
                      inal proceedings that were already underway against him in France. His
                      father, the President of Equatorial Guinea, disclosed as much to Presi-
                      dent Sarkozy of France in an official communication in February 2012 36.
                         36. I have expressed the view that in my opinion the Applicant effec-
                      tively moved the offices of its mission into the disputed building on
                      27 July 2012 and that, with effect from that date, the building was entitled
                      to the protection guaranteed by Article 22 of the VCDR. Can it be said
                      that when Equatorial Guinea availed itself of its right to bring this case
                      before the Court, it did so “in an arbitrary manner in such a way as to
                      inflict upon France an injury which cannot be justified by a legitimate
                      consideration of the Applicant’s own advantage”? The answer must be in
                      the negative. In moving the offices of the mission to the disputed building,
                      the Applicant genuinely believed (rightly or mistakenly) that they were

                         32 L. Oppenheim, International Law: A Treatise, Vol. 1: Peace, ed. by H. Lauterpacht,

                      London, New York, Toronto: Longmans, Green and Co., 8th edition, p. 354.
                         33 See Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473,

                      para. 49; Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
                      Judgment, I.C.J. Reports 1992, p. 255, paras. 37‑38; Application of the Convention on the
                      Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo
                      slavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 46.
                         34 Other authors have observed:

                               “Good faith in the exercise of rights . . . means that a State’s rights must be exer-
                            cised in a manner compatible with its various obligations arising either from treaties
                            or from the general law. It follows from this interdependence of rights and obliga-
                            tions that rights must reasonably be exercised. The reasonable and bonafide exercise
                            of a right implies an exercise which is genuinely in pursuit of those interests which the
                            right is destined to protect and which is not calculated to cause any unfair prejudice
                            to the legitimate interests of another State.” (See B. Cheng, General Principles of Law
                            as Applied by International Courts and Tribunals, Cambridge University Press, 1953,
                            reprinted in 1987, pp. 131‑132.)
                           35   CMF, para. 4.9.
                           36   MEG, Ann. 39.

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                      moving into a building then owned by the State of Equatorial Guinea.
                      The fact that the President of Equatorial Guinea did not hide the reason
                      behind the “transfer” of the building from the French authorities, cou-
                      pled with the Applicant’s various attempts to settle the dispute regarding
                      the status of the building diplomatically, are, in my view, indicative of the
                      Applicant’s desire to maintain a transparent and fraternal relationship
                      with the Respondent, rather than an indication of bad faith.

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

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

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

                                  ‘Without prejudice to their privileges and immunities, it is the
                               duty of all persons enjoying such privileges and immunities to
                               respect the laws and regulations of the receiving State. They

                               also have a duty not to interfere in the internal affairs of that
                               State.’”
                        39. In the long run, a finding by this Court of abuse of rights against
                      the Applicant may not be useful and may only serve to further undermine
                      the strained relations between the two States. In line with the object and
                         37 United States Diplomatic and Consular Staff in Tehran (United States of America v.

                      Iran), Judgment, I.C.J. Reports 1980, p. 39, para. 84.

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                      purpose of the VCDR, which is to “contribute to the development of
                      friendly relations amongst nations”, the Court should have made an
                      express finding that France has not proved the Applicant’s alleged abuse
                      of rights.

                      (Signed) Julia Sebutinde.

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