                      415

                                 DISSENTING OPINION OF JUDGE ROBINSON

                         Interpretation of the term “premises of the mission” in Article 1 (i) of the
                      Vienna Convention on Diplomatic Relations — The majority’s conflation of the
                      receiving State’s power to object to the designation of mission premises with a
                      requirement for the receiving State’s consent for that designation — The finding
                      that the receiving State has a power to object has no foundation in the
                      Vienna Convention on Diplomatic Relations — The definition of the term
                      “premises of the mission” establishes an objective criterion — France’s breach of
                      its obligations under the Vienna Convention on Diplomatic Relations.

                         1. I am in disagreement with all the findings in paragraph 126 of the
                      Judgment. The evidence before the Court establishes that the building at
                      42 avenue Foch acquired the status of “premises of the mission” within
                      the meaning of Article 1 (i) of the Vienna Convention on Diplo-
                      matic Relations (hereinafter the “Vienna Convention” or the “Conven-
                      tion”). Therefore, the action taken by France of entering, searching,
                      attaching, and ordering the confiscation of, the building breached its
                      inviolability under Article 22 of the Convention as “premises of the mis-
                      sion”.
                         2. In Part I of this opinion, I address the majority’s interpretation of
                      the Convention as allowing a receiving State unilaterally to object to, and
                      negate, the designation by Equatorial Guinea of the building at 42 ave-
                      nue Foch as “premises of the mission”. In Part II, I describe how, in my
                      view, the Convention should be interpreted. In Part III, I examine the
                      alleged violations of the Convention as well as remedies for the viola-
                      tions. Part IV is devoted to general conclusions.

                                       Part I: The Majority’s Interpretation
                                                 of the Convention

                        3. The decisive issue in this case is whether the building at 42 avenue
                      Foch acquired the status of “premises of the mission” within the meaning
                      of Article 1 (i) of the Convention. If it acquired that status before the
                      action taken by France, there is a breach of the building’s inviolability
                      under Article 22 of the Convention.
                        4. The reasoning of the majority is that the Convention empowers the
                      receiving State to object to a designation by the sending State of a build-
                      ing as “premises of the mission”; since, in this case, there is evidence that

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                      France objected on several occasions to that designation by Equato-
                      rial Guinea, the majority contends that the building did not acquire that
                      status.
                         5. Article 22 of the Convention provides that “[t]he premises of the mis-
                      sion shall be inviolable”. Article 1 (i) defines the premises of the mission as
                      “the buildings or parts of buildings and the land ancillary thereto, irrespec-
                      tive of ownership, used for the purposes of the mission including the
                      residence of the head of the mission”. It would seem to follow from

                      the reasoning of the majority that, even if there is unambiguous evidence
                      of diplomatic activities at 42 avenue Foch, thereby indicating its use for
                      the purposes of the mission, it cannot acquire the status of premises of the
                      mission if France, as the receiving State, objects to Equatorial Guinea’s
                      designation of the building as its diplomatic mission. That proposition runs
                      counter to the ordinary meaning of the term “used for the purposes of the
                      mission”. A building that is “used for the purposes of the mission” within
                      the meaning of Article 1 (i) should not be denied the status of “premises of
                      the mission”, and thus inviolability, on account of the objection of the
                      receiving State. To interpret the Convention in that way is to misunder-
                      stand it. The definition of premises of the mission is not subject to a “no
                      objection” clause, that is, there is nothing in the definition that makes its
                      application dependent on the lack of an objection from the receiving State.
                         6. France is correct in what it describes as the “essentially consensual
                      letter and spirit” of the Vienna Convention; it cites in that regard Arti-
                      cle 2, which provides that “[t]he establishment of diplomatic relations
                      between States, and of permanent diplomatic missions, takes place by
                      mutual consent”. France is also right in its statement that the sending
                      State is obliged to exercise its rights under the Convention in good faith.
                      Especially commendable is France’s view that the application of the
                      Convention calls for what it describes as a “bond of trust” between the
                       sending and the receiving States. Mutuality and balance are at the core of
                       the Convention. Regrettably, the majority’s approach does not reflect a
                       sufficient awareness of this feature of the Convention.

                                    The Problem with the Finding in Paragraph 67
                         7. In paragraph 67, the majority holds that “[i]n light of the foregoing,
                      the Court considers that the Vienna Convention cannot be interpreted so
                      as to allow a sending State unilaterally to impose its choice of mission
                      premises upon the receiving State where the latter has objected to this
                      choice”.
                         8. The legal basis for this finding is not clear in light of the contradic-
                      tory positions advanced by France and by the majority itself. This finding
                      is only valid if the majority establishes that the receiving State has the
                      power to object to the sending State’s designation of a building as prem-
                      ises of the mission, a test that the majority has not met. This opinion
                      argues that if the sending State has a right to designate a building as

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                      premises of the mission, the majority has not established that the
                      Convention vests the receiving State with the power to object to that des-
                       ignation.

                         9. The majority, in paragraph 52 of its Judgment, cites France’s posi-
                      tion — to be found in paragraph 3.3 and 3.5 of its Counter‑Memorial —
                      that
                            “the applicability of the Vienna Convention’s régime of protection to
                            a particular building is subject to compliance with ‘two cumulative
                            conditions’: first, that the receiving State does not expressly object to
                            the granting of ‘diplomatic status’ to the building in question, and
                            secondly, that the building is ‘actually assigned’ for the purposes of
                            the diplomatic mission”.

                      However, on several occasions France not only argues that as the receiv-
                      ing State it has a right to object to the granting of diplomatic status to the
                      building, but also that the granting of that status is subject to its consent.
                      For example, in paragraph 3.3 of its Counter‑Memorial, the very same
                      paragraph from which the previous citation is taken, it is stated:

                              “France has never consented to granting the status of diplomatic
                            premises to the building at 42 avenue Foch, which could in no way
                            have been considered as being used for diplomatic purposes when it
                            was searched and attached by the French judicial authorities. Conse-
                            quently, the building at 42 avenue Foch never acquired the status of
                            diplomatic premises and France could not have been in breach of its
                            obligations under the VCDR.”

                      Moreover, in paragraph 3.9 of its Counter‑Memorial, France expressly
                      states that its consent is required for the designation of “premises of the
                      mission” as follows:
                              “Thus, in accordance with the essentially consensual letter and
                            spirit of the VCDR, the premises that the sending State wishes to use
                            for its diplomatic mission can be used as such only when the receiving
                            State gives its consent and, above all, does not expressly object to that
                            choice, after notification has been given by the sending State.”

                         10. There are two other factors that go to the legal basis, and there-
                      fore, the validity, of the majority’s finding in paragraph 67. First, it is
                      obvious that Equatorial Guinea’s case is presented as a response to a
                      claim by France, not that it has a right to object to the designation of the
                      building as mission premises, but rather, that such a designation is subject
                      to its consent. For example, in paragraph 47 of the Judgment, reference is
                      made to an acknowledgment by Equatorial Guinea that “several States

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                      make the designation of the premises of diplomatic missions on their ter-
                      ritory subject to some form of consent”; in paragraph 44, in relation to
                      the question whether the granting of the status of diplomatic premises is
                      subject to any explicit or implicit consent of the receiving State, there is a
                      reference to Equatorial Guinea’s argument that, whenever the “drafters
                      of the Vienna Convention considered it necessary for an act of the send-
                      ing State to be made subject to the consent of the receiving State, they
                      ensured that the Convention was explicit in this regard”; in the same
                      paragraph of the Judgment, the majority cites Equatorial Guinea’s argu-
                      ment that there are several provisions of the Convention that do not
                      require the consent of the receiving State.

                        11. Second, it is equally clear that the Judgment itself is substantially
                      built on the argument that the receiving State’s consent is required for the
                      designation of a building as premises of the mission. Thus, all the exam-
                      ples of the State practice set out in paragraph 69 are instances in which,
                      as the Judgment itself states, the “prior approval” of the receiving State is
                      required for the designation of a building as premises of the mission.
                      Patently, “approval” is another word for “consent”. According to the
                      majority, Germany requires prior agreement of the Federal Foreign
                      Office, and Brazil requires prior authorization by its Ministry of Foreign
                      Affairs; a requirement for prior agreement or prior authorization is a
                      requirement for the consent of the receiving State. Moreover, many of the
                      States referred to by France in its Counter‑Memorial explicitly require
                      their consent for the designation of a building as premises of the mission;
                      see for example, the reference to United Kingdom, Canada, Czech
                      Republic and Turkey in paragraph 3.18 of France’s Counter‑Memorial.
                      Paragraph 72 of the Judgment presents an emblematic illustration of the
                      majority’s confusion of the requirement for consent and the power of the
                      receiving State to object. The last two sentences read as follows:

                               “Some receiving States may, through legislation or official guide-
                            lines, set out in advance the modalities pursuant to which their
                            approval may be granted, while others may choose to respond on a
                            case-by-case basis. This choice itself has no bearing on the power of
                            the receiving State to object.”

                      “Approval” has the same meaning as “consent”. Here the majority has
                      wrongly conflated a requirement for the receiving State’s consent with the
                      power of the receiving State to object, two wholly distinct régimes; in
                      other words it has been indiscriminate in its use of the two different con-
                      cepts of consent and objection.

                        12. The various references by France, by Equatorial Guinea, and in
                      the Judgment itself to the requirement of the receiving State’s consent for

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                      the designation of a building as the premises of the mission and to the
                      right of the receiving State to object to the sending State’s designation of
                      a building as premises of the mission make it impossible to ascertain the
                      rationale for the majority’s focus in paragraph 67 on the receiving State’s
                      right to object to the sending State’s designation of a building as premises
                      of the mission. The majority does not explain why it has not chosen to
                      embrace the argument advanced by France on several occasions that the
                      applicable criterion is that the designation by a sending State of a build-
                      ing as premises of the mission is subject to its consent. In fact, in the oral
                      proceedings France stated that it “certainly has a practice of general tacit
                      consent”.
                         13. There is an important legal distinction between a régime in which
                      the designation of a building as premises of the mission is subject to the
                      consent of the receiving State and one in which the receiving State has a
                      power to object to that designation. Equating the receiving State’s power
                      to object with a requirement for its consent is wrong. If the receiving
                      State has the power to object to a sending State’s designation of a build-
                      ing as premises of the mission, the sending State may go ahead with the
                      designation provided that the receiving State has not exercised its power
                      to object; on the other hand, if the sending State’s designation of a build-
                      ing as premises of the mission is subject to the consent of the receiving
                      State, the sending State is totally disabled from so designating the build-
                      ing before the receiving State’s consent is given.
                         14. The Convention uses the two concepts separately, not interchange-
                      ably. For example, under Article 4 (1) of the Convention, “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 the mission to that
                      State”. Thus, the sending State is totally disabled from proceeding with
                      the identification of a person as head of its mission before the receiving
                      State has given its consent. On the other hand, under Article 6 of the
                      Convention, “two or more States may accredit the same person as head
                      of mission to another State, unless objection is offered by the receiving
                      State”. Thus, two or more States may go ahead and accredit the same
                      person as head of mission to another State, with the result that that action
                      will remain undisturbed unless and until the receiving State objects. These
                      two Articles illustrate the difference between the two régimes and the care
                      that the drafters of the Convention take to ensure that they are used in
                      the appropriate context. The régime whereby consent of the receiving
                      State is required is more rigorous in its protection of the interests of the
                      receiving State than the régime in which the receiving State is given the
                      power to object to action taken by the sending State. Obviously, the Con-
                      vention regards accreditation of the head of mission to the receiving State
                      as a matter that more seriously affects the interests of the receiving State
                      in its relationship with the sending State than two States accrediting
                      the same person as head of mission to another State. Therefore, while
                      the receiving State’s consent is required for the first matter, in respect of
                      the second it has the power to object.

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                         15. In the Convention there are seven provisions in which the consent
                      of the receiving State is required in relation to action by the sending State:
                      Articles 4 (1), second sentence of 7, 8 (2), 12, 19 (2), 27 (1) and 46 of the
                      Convention; there are two provisions in which the receiving State is
                      empowered to object to action taken by the sending State: Articles 5 (1)
                      and 6 of the Convention. Article 22 (1) of the Convention is a very good
                      example of the care that the Convention takes in distinguishing between
                      the two separate concepts of consent and objection. It provides that “the
                      premises of the mission shall be inviolable. The agents of the receiving
                      State may not enter them, except with the consent of the head of the mis-
                      sion”. Here, in light of the very serious matter of the inviolability of the
                      premises of the mission — the very subject of this case — the Convention
                      uses the more rigorous concept of consent of the sending State. The inter-
                      ests of the sending State would not have been met, had the provision
                      stated that the agents of the receiving State may not enter the premises if
                      the head of mission of the sending State objects.

                         16. In light of the foregoing analysis, the majority’s conflation of the
                      two concepts — the requirement of the consent of the receiving State for
                      the sending State’s designation of a building as premises of the mission
                      and the power of the receiving State to object to such a designation — is
                      a grave error of law. The failure of the majority to explain why in para-
                      graph 67 of the Judgment it has concentrated on a régime in which the
                      receiving State has the power to object to the designation by the sending
                      State of a building as premises of the mission is irrational; what renders
                      this approach even more confusing is that, in its reasoning, the majority
                      relies on State practice requiring the receiving State’s consent for the des-
                      ignation of a building as premises of the mission, and not on State prac-
                      tice in which the receiving State has the power to object to that designation
                      (see analysis below from paragraphs 30 to 37 of this opinion).

                             The Flaws in the Majority’s Interpretation of the Convention
                         17. The majority has presented three bases for its conclusion in para-
                      graph 67 of the Judgment that “the Vienna Convention cannot be inter-
                      preted so as to allow a sending State unilaterally to impose its choice of
                      mission premises upon the receiving State where the latter has objected to
                      this choice”.
                         18. The first basis is set out in paragraph 63 of the Judgment. Article 2
                      of the Convention provides that “[t]he establishment of diplomatic rela-
                      tions between States, and of permanent diplomatic missions, takes place
                      by mutual consent”. The majority concludes that Article 2 is inconsistent
                      with “an interpretation of the Convention that a building may acquire the
                      status of the premises of the mission on the basis of the unilateral desig-

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                      nation by the sending State despite the express objection of the receiving
                      State”. This conclusion calls for an explanation because, notwithstanding
                      the existence of Article 2, the Convention enables the sending State and
                      the receiving State to act unilaterally in relation to certain matters, even if
                      there is an objection by the receiving State. To give just two examples,
                      under Article 20 of the Convention, the sending State’s mission and its
                      head have the right to use that State’s flag and emblem on the premises of
                      the mission; under Article 9 the receiving State has the power to declare a
                      member of the mission persona non grata. In these two articles therefore
                      the requirement for the mutual consent of the sending and receiving
                      States in respect of the establishment of diplomatic relations and the right
                      of the sending or receiving State to act unilaterally in certain situations
                      are not mutually exclusive.
                         19. The second basis is set out in paragraphs 64 and 65 of the Judg-
                      ment. The majority argues that whereas the receiving State has the power
                      under Article 9 of the Convention to declare members of a diplomatic
                      mission personae non gratae, there is no similar mechanism for mission
                      premises; consequently, it is contended that, if the receiving State does
                      not have the power to object to the sending State’s designation of prem-
                      ises of the mission, it would have to make a radical choice of granting
                      protection to the premises or breaking off diplomatic relations with the
                      sending State. There is no corresponding provision to the receiving State’s
                      power to declare a member of a mission persona non grata in relation to
                      premises of the mission for the reason that the concept of persona non
                      grata relates to persons and not things. However, it would be perfectly
                      feasible for a receiving State, without breaking off diplomatic relations, to
                      declare some members of the sending State’s mission personae non gratae,
                      thereby effectively disabling the mission.

                        20. The third basis is set out in paragraph 66 of the Judgment, which
                      addresses the Convention’s preamble.
                        21. In this case the majority has embarked on an extraordinary inter-
                      pretation of the preamble of the Convention. The preamble is part of the
                      context for the purposes of the interpretation of a treaty, and is often a
                      valuable guide in its interpretation and application. In this case, however,
                      the majority has carried out a strained interpretation of the preamble in
                      order to shoehorn it into its desired conclusion.

                         22. The second preambular paragraph refers to three purposes and
                      principles of the Charter of the United Nations as motivational factors in
                      the conclusion of the Convention: sovereign equality of States, the main-
                      tenance of international peace and security and the promotion of friendly
                      relations among nations. All three reflect not only rules of customary
                      international law but norms of jus cogens. All three are fundamentally
                      significant in the interpretation and application of the Convention. Yet
                      throughout its analysis the majority only refers to the promotion of
                      friendly relations among nations. The Convention was adopted in 1961, a

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                      time when many colonies were becoming independent. For that reason, it
                      is surprising that the majority did not consider it appropriate to allude to
                      the principle of sovereign equality of States in their interpretation of the
                      Convention. That principle is as influential in the interpretation of the
                      Convention as the purpose of the promotion of friendly relations among
                      nations. It is a principle that can operate to censure conduct of the send-
                      ing or receiving State that may compromise the right of the other party to
                      equal treatment on the basis of its sovereignty. Also, not to be overlooked
                      is the reference to the purpose of the maintenance of international peace
                      and security, because a fractured diplomatic relationship between a send-
                      ing State and a receiving State may have an adverse impact on interna-
                      tional peace and security.
                         23. According to the majority, the preamble specifies that the Conven-
                      tion’s aim is to “contribute to the development of friendly relations
                      among nations”. However, the preamble must also be construed as mean-
                      ing that, in developing friendly relations among nations the Convention
                      must be interpreted and applied having regard to the principle of the sov-
                      ereign equality of States and the purpose of the maintenance of interna-
                      tional peace and security. The majority then construes the preamble as
                      meaning that the promotion of friendly relations “is to be achieved by
                      according sending States and their representatives significant privileges
                      and immunities”. But that is not a proper interpretation of the preamble,
                      which simply reflects the belief that the adoption of the Convention would
                      contribute to the development of friendly relations among nations. The
                      majority’s interpretation is overblown.
                         24. The majority employs the preamble improperly as a basis for the
                      distinction that it makes between the “significant privileges” of sending
                      States and the “weighty obligations” imposed by the Convention on
                      receiving States (paragraph 66 of the Judgment). Here the majority’s pur-
                      pose is transparent: it is intent on painting a picture of the Convention in
                      which the receiving State is portrayed as overburdened with obligations,
                      and for that reason it is understandable that the Convention would vest it
                      with the power to object to the sending State’s designation of mission
                      premises. This interpretation is artificial and a figment that has no basis
                      whatsoever in a reading of the 53 articles of the Vienna Convention.
                         25. The majority has overlooked a very important element in the bal-
                      ance that the Convention seeks to strike between the interests of the send-
                      ing State and those of the receiving State. Article 47 (1) of the Convention
                      provides that “the receiving State shall not discriminate as between
                      States”. However, Article 47 (2) (a) of the Convention exempts from
                      conduct that would otherwise be discriminatory an application by the
                      receiving State of “any of the provisions of the present Convention
                      restrictively because of a restrictive application of that provision to its
                      mission in the sending State”. This retaliatory capacity — one that the
                      Convention does not give to the sending State — significantly lightens
                      what the majority refers to as the “weighty obligations” imposed by the
                      Convention on receiving States.

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                         26. More astounding is the majority’s suggestion that the preamble’s
                      recognition of the principle that privileges and immunities must serve a
                      functional, and not a personal and private purpose, is rendered under-
                      standable by the “weighty obligations” imposed on receiving States by
                      the Convention’s inviolability régime. That principle is better explained
                      by the grounding of the Convention in the three fundamental purposes
                      and principles of the Charter set out in the second preambular paragraph.
                      A better reading of the preamble is that it envisages a Convention with a
                      coverage that extends beyond the bilateral relationship between the send-
                      ing and the receiving State to a wider, global and communitarian purpose
                      that is driven by the three aforementioned purposes and principles. In
                      stark terms, the majority’s argument comes down to this: on the basis of
                      the preamble, the cost of the “significant privileges” accorded to the send-
                      ing State is the “weighty obligations” imposed on the receiving State.
                      While it is undeniable that the Convention seeks to balance the rights and
                      interests of the sending and receiving States, the majority’s interpretation
                      of the preamble would seem to reduce the Convention to a wholly trans-
                      actional arrangement in which everything is determined by a tit for a tat
                      and a quid for a quo. By such an interpretation the Convention is stripped
                      of any ideal beyond the narrow interests of the sending and receiving
                      States.

                         27. The majority’s very consequential conclusion, which goes to the
                      very heart of the case, is substantially based on its analysis of the pream-
                      ble, since, as noted before, the majority derives no help from its analysis
                      of Articles 2, 4, 7, 9, and 39 of the Convention. However, if that conclu-
                      sion is correct, it is also arguable that, in light of the balance that the
                      Convention sets out to achieve between the interests of the sending State
                      and those of the receiving State, it cannot be interpreted as allowing the
                      receiving State unilaterally to decide that a building that has been used
                      for the purposes of the mission and has been so designated by the sending
                      State, does not have the status of premises of the mission. This conclusion
                      is strengthened by the preambular requirement to have regard to the
                      object and purpose of developing friendly relations on a basis that respects
                      the principle of the sovereign equality of States and the purpose of main-
                      taining international peace and security.
                         28. While the majority cites provisions of the Convention showing how
                      it seeks to strike a balance between the interests of the sending State and
                      those of the receiving State, it fails to recognize that interpreting the Con-
                      vention as empowering the receiving State to unilaterally negate the send-
                      ing States’ choice of a building as premises of the mission seriously
                      compromises that balance. That is so because that balance is meant to
                      reflect the due recognition that is to be given in the interpretation and
                      application of the Convention to the three purposes and principles set out
                      in the preamble.
                         29. In short, the majority’s reasoning does not substantiate its conclu-
                      sion in paragraph 67 of the Judgment.

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                                    The Majority’s Consideration of State Practice
                         30. Perhaps the most surprising aspect of the majority’s reasoning is to
                      be found in paragraph 69 of the Judgment. Reference is made to the prac-
                      tice whereby “a number of receiving States, all of which are party to the
                      Vienna Convention, expressly require sending States to obtain their prior
                      approval to acquire and use premises for diplomatic purposes”. This
                      practice is cited to support the conclusion that the receiving State has the
                      power to object to the designation of the mission premises by the sending
                      State. The following comments may be made about this practice:

                         31. First, there is an obvious conflict between the first sentence in para-
                      graph 69 of the Judgment — “State practice further supports this conclu-
                      sion” — and the last sentence in paragraph 68 of the Judgment: “However,
                      this does not indicate that the receiving State cannot object to the sending
                      State’s assignment of a building to its diplomatic mission, thus preventing
                      the building in question from acquiring the status of ‘premises of the mis-
                      sion’.” The conflict arises because the State practice that is relied on does
                      not address whether the receiving State can or cannot object to the sending
                      State’s assignment of a building as premises of the mission; on the contrary,
                      it supports the conclusion that the prior approval, or the prior agreement,
                      or the prior authorization, in other words, the consent of the receiving
                      State is required for the designation of mission premises. Here again the
                      majority has conflated the régime whereby the receiving State has the power
                      to object to the designation of mission premises with the régime whereby
                      the consent of the receiving State is required for the designation of mission
                      premises. The majority appears to proceed on the basis that if the designa-
                      tion of a building as mission premises is subject to the consent of the receiv-
                      ing State, logically it can object to that designation. However, this reasoning
                      would not be correct because the choice between the régime of consent and
                      the régime of objection does not depend on logic; rather, it depends on
                      what the Convention requires in light of the particular context and the dis-
                      tinction that the Convention itself makes between these two very discrete
                      régimes — for this distinction, see the analysis above in paragraphs 13
                      to 16. (In passing, it may be noted that the reference to the South African
                      Diplomatic Immunities and Privileges Act of 2001 is unhelpful since the
                      citation does not indicate that the Act requires the prior consent of South
                      Africa as the receiving State for a relocation.)
                         32. Second, the State practice cited does not amount to a rule of cus-
                      tomary international law; if it did, that certainly would have been stated.
                      Therefore, the majority does not argue that the practice is general and
                      sufficiently widespread, and that the States that engage in it, whether
                      sending or receiving, do so on the basis of a conviction that they are
                      required as a matter of law to follow it.
                         33. Third, at the highest, perhaps the practice could be taken as mean-
                      ing that sending States that comply with it have acquiesced in the receiv-
                      ing States’ requirement for consent; as such, it would only be legally

                      128

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                      relevant for those States that have so acquiesced; in other words, since the
                      practice does not reflect customary international law it would have no
                      relevance to States other than those that participate in it.

                         34. Fourth, in so far as some receiving States enact legislation requir-
                      ing consent, it is notable that France is not one of those States. In the
                      absence of legislation requiring consent, there must be merit in Equatorial
                      Guinea’s argument that France was under an obligation to notify it of
                      what France calls its “practice of general tacit consent”; otherwise, how
                      would Equatorial Guinea or any sending State become aware of this
                      régime of tacit consent? Since the State practice requiring consent by the
                      receiving State for the designation of mission premises does not reflect a
                      rule of customary international law and does not constitute subsequent
                      practice within the meaning of Article 31 (3) (b) of the Vienna Conven-
                      tion on the Law of Treaties (VCLT), it is difficult to understand how a
                      sending State that has neither been notified nor consulted can be bound
                      by that practice. The majority argues that since France has a right to
                      object, it has the right to determine the modalities for making that objec-
                      tion. However, the majority has not established that the Convention gives
                      the receiving State this power to object.

                         35. Fifth, it is not merely, as stated by the majority, that the practice
                      does not necessarily establish the agreement of the parties within the
                      meaning of Article 31 (3) (b) of the VCLT; rather, the true position is
                      that the practice does not come close to satisfying the requirements of
                      Article 31 (3) (b).
                         36. Sixth, the most remarkable feature of the majority’s reasoning in
                      relation to this State practice is its conclusion that the practice of requir-
                      ing the receiving State’s consent for a building to acquire the status of
                      premises of the mission and the lack of any objection thereto constitute
                      “factors which weigh against finding a right belonging to the sending
                      State under the Vienna Convention unilaterally to designate the premises
                      of its diplomatic mission”. A practice that has little or no legal value can-
                      not be relied on to negate a right that the sending State may have under
                      the Convention to designate a building as premises of the mission in cir-
                      cumstances where the building meets the requirement of the Convention
                      that it must be “used for the purposes of the mission”. In any event it is
                      not clear who the majority expects to object to this practice. As already
                      indicated, at its highest, the practice would perhaps signify acquiescence
                      on the part of those States who participate in it, that is, the receiving
                      State and a particular sending State. This limited and questionable effect
                      of the practice could not affect a State that is neither a receiving State nor
                      a sending State participating in the practice. Why would the majority
                      expect a State that is not a participant in the practice and, quite likely, is
                      not aware of it, to object?

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                         37. According to Equatorial Guinea, when the receiving State’s con-
                      sent is required, as it is in Article 12 of the Convention, the Convention
                      expressly says so; consequently it follows that when this is not done, as is
                      the case with the designation of mission premises, the receiving State’s
                      consent is not required. The majority rejects this a contrario interpreta-
                      tion. There is regrettably, a certain reluctance to rely on a contrario rea-
                      soning in the interpretation of treaties. This is unfortunate because
                      interpretative tools such as the principle of effet utile or ut res magis valeat
                      quam pereat and a contrario reasoning are accepted as useful aids in treaty
                      interpretation. In the circumstances of this case, Equatorial Guinea’s
                      a contrario reasoning is consistent with the object and purpose of the
                      Convention, which is to promote friendly relations between States on a
                      basis that respects the principle of the sovereign equality of States and the
                      purpose of maintaining international peace and security. Interpreting the
                      treaty as allowing the receiving State unilaterally to object to, and negate,
                      the sending State’s designation of a building as mission premises would
                      not be consistent with the achievement of that purpose, since it would be
                      inimical to the balance that the Convention seeks to establish in the rela-
                      tions between the sending and the receiving States.

                              Part II: How the Convention Should Be Interpreted

                         38. Although the majority has examined the meaning of the term
                      “premises of the mission” in Article 1 (i) of the Convention, the conclu-
                      sion that it has arrived at in paragraph 67 of the Judgment is principally
                      driven, not by the definition of premises of the mission in Article 1 (i) of
                      the Convention, but by its view that the Convention does not enable
                      Equatorial Guinea to designate the building as “premises of the mission”
                      if France as the receiving State objects to that designation. By this
                      approach the majority treats the definition of “premises of the mission”
                      as virtually otiose. What is required by the VCLT is an interpretation of
                      the term “used for purposes of the mission” in accordance with the ordi-
                      nary meaning to be given to this term in its context and in light of the
                      object and purpose of the Vienna Convention.

                         39. For the ordinary meaning of the term “used for the purposes of
                      the mission”, one can go to the Concise Oxford Dictionary (7th edition)
                      which gives the meaning of the word “use” as “cause to act or serve a
                      purpose”. It would seem therefore that for a building to qualify as “prem-
                      ises of the mission” one needs to have evidence that the building
                      has served the purpose of a mission. We are therefore looking for evi-
                      dence that the functions of a diplomatic mission were carried out at the
                      building; these functions are non-exhaustively described in Article 3 of
                      the Convention. Further, the ordinary meaning of the phrase “used
                      for the purposes of the mission” must be interpreted in the context in

                      130

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                      which it is used and in light of the object and purpose of the Vienna Con-
                      vention.

                        40. On 4 October 2011, Equatorial Guinea sent a Note Verbale to
                      France stating that it “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 the functions of its diplomatic mission, a fact which it
                      has hitherto not formally notified to your Department”.

                         41. France argues that the building would only qualify as premises of
                      the mission after an actual assignment, which takes place after the send-
                      ing State has completely moved into the premises. There is merit in the
                      response of Equatorial Guinea that on the basis of France’s approach,
                      France as the receiving State would be able to enter the building without
                      the permission of Equatorial Guinea as the sending State at any time up
                      to the point at which the move was completed.
                         42. Equatorial Guinea cites the following evidence supporting its claim
                      that the building at 42 avenue Foch was used for the purposes of the mis-
                      sion from 4 October 2011:
                        (i) Note Verbale of 4 October 2011 in which Equatorial Guinea asserts
                            that it “has for a number of years had at its disposal a building
                            located at 42 avenue Foch . . . which it uses for the performance of
                            the functions of its diplomatic mission”.
                       (ii) On 4 October 2011, having notified France of the building’s assign-
                            ment for the purposes of its diplomatic mission, Equatorial Guinea
                            had placed signs marked, “République de Guinée équatoriale —
                            locaux de l’ambassade” (Republic of Equatorial Guinea — Embassy
                            premises). France reports that its officials saw these signs on 5 Octo-
                            ber 2011.
                      (iii) On 17 October 2011, Equatorial Guinea housed its Permanent Dele-
                            gate to UNESCO and Chargée d’affaires in the building.
                      (iv) The relocation of the Embassy’s offices was gradual. Several sections,
                            such as the consulate and the accounting and administration offices,
                            began operating out of the building immediately upon being relo-
                            cated.
                       (v) Since 27 July 2012, all of the Embassy’s offices have been housed in
                            the building 1 (Note Verbale of that date from Equatorial Guinea to
                            France).
                      (vi) French officials, especially from the Ministry of Foreign and Euro-
                            pean Affairs, have addressed mail to 42 avenue Foch in Paris. The
                            most recent correspondence dates from 9 October 2019. In that
                            regard, Equatorial Guinea relies on a letter from the Ministry of For-
                            eign and European Affairs of 9 October 2019, requesting the support

                        1   Reply of Equatorial Guinea, p. 15, para. 1.42.

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                            of Equatorial Guinea for the election of a representative of France to
                            the International Maritime Organization at the 31st session of the
                            Assembly between 25 November and 5 December 2019. Equato-
                            rial Guinea also relies on applications submitted at 42 avenue Foch
                            by French officials for visas to visit Equatorial Guinea between 8 and
                            9 February 2015.
                         43. France has argued that the building was not actually used for the
                      purposes of the mission from 4 October 2011 to 27 July 2012. However,
                      even if that is factually correct, the practice of some States, including judi-
                      cial decisions, supports the view that an intended use of premises for the
                      purposes of the mission will suffice for those premises to be entitled to
                      diplomatic protection when it is followed by actual use.

                        44. Prior to the passage of legislation in 1987, practice in the
                      United Kingdom showed that buildings were treated as “premises of the
                      mission” “from the time they were at the disposal of the mission” 2 as
                      long as prior planning consent had been secured under local laws and “it
                      was the intention to use the building ‘for the purposes of the mission’ as
                      soon as building and decorating had been completed” 3. This practice
                      shows that the United Kingdom considered that a building attracted
                      immunity under Article 22 of the Convention even before it was actually
                      used for diplomatic purposes. Even when buildings were no longer used
                      for the purposes of the mission, the United Kingdom allowed the expiry
                      of a “reasonable time” before its law enforcement agencies entered them
                      to carry out investigations. For instance, in 1984 a shooting from the
                      premises of the Libyan People’s Bureau diplomatic mission in London
                      resulted in the United Kingdom’s decision to break off diplomatic ties
                      between Libya and itself. Despite the break of diplomatic ties by the
                      United Kingdom, the premises were treated as inviolable until the lapse
                      of seven days after the severance of diplomatic relations. In fact, the
                      premises had been vacated two days before the lapse of the seven days,
                      but the United Kingdom still waited until the end of the full seven days
                      before entering the premises to search for evidence in relation to the
                      shooting. Notwithstanding that there was no actual use of the building
                      during those two days, the United Kingdom still respected the immunity
                      of the mission. It is acknowledged that this practice in the United King-
                      dom has changed and that the legal status of mission premises is now
                      acquired upon receiving the consent of the Secretary of State 4. However
                      this practice by the United Kingdom prior to the 1987 legislation becomes

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

                      Relations, Oxford University Press, 4th edition, 2016, p. 147.
                         3 Ibid.
                         4 Under Section 1 (1) of the Diplomatic and Consular Premises Act 1987, in the United

                      Kingdom, the Secretary of State for Foreign and Commonwealth Affairs requires diplo-
                      matic missions to obtain express consent before office premises acquired by them could be
                      regarded as premises “used for the purposes of the mission” and therefore entitled to enjoy

                      132

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                      429 	immunities and criminal proceedings (diss. op. robinson)

                      relevant as evidence of State practice in relation to a State that neither
                      requires consent of the receiving State for the designation of a building as
                      premises of the mission, nor gives the receiving State the power to object
                      to that designation.
                         45. In Democratic Republic of the Congo v. Segrim NV, a judgment
                      was obtained in the Brussels Cour d’appel against the Democratic Repub-
                      lic of the Congo (DRC); both Belgium and the DRC are parties to the
                      Convention. This judgment remained unsatisfied. The claimant, Segrim,
                      sought to attach a villa owned by the DRC. The villa was a former resi-
                      dence of a diplomatic agent of the DRC but was in need of repairs and at
                      the time was no longer inhabited. Under Article 30 of the Vienna Con-
                      vention the private residence of a diplomatic agent enjoys the same invio-
                      lability and protection as the premises of the mission. The DRC challenged
                      the attachment on the basis that the villa enjoyed immunity from execu-
                      tion under the Vienna Convention. Segrim argued that although the villa
                      was used as a residence in the past to house the Congolese diplomats, its
                      abandonment for several years caused it to lose its immunity under
                      the Vienna Convention and therefore it could be attached. The issue
                      before the Brussels Cour d’appel was whether a private residence of a dip-
                      lomatic agent (premises which enjoy the same inviolability as the premises
                      of the mission), and which was uninhabited, but was intended to be used
                      as a diplomatic residence, enjoyed immunity under the Vienna Conven-
                      tion.
                         46. The Brussels Cour d’appel found that the villa was still entitled to
                      protection under the Vienna Convention because the DRC, which was
                      renovating the villa, when faced with a measure of execution expressed its
                      intention to use the villa for its diplomatic activities. The Brussels
                      Cour d’appel held that
                            “this decision as to its use is sufficient for assuming that the legal
                            principle concerned must be applied. For the period preceding its
                            standing empty, it must therefore be decided that the building was
                            being used by the sending State for diplomatic activities, a function
                            that belongs to national sovereignty and is for that reason not subject
                            to seizure.”
                        47. The Brussels Cour d’appel also stated that
                            “[i]t is sufficient that the foreign State’s sovereign decision as to use
                            is not contradicted by actual practice. The parties Segrim . . . adduce
                            no facts in this connection from which it must be inferred that the
                            designated use is not supported in practice. On the contrary, it is clear
                            from the documents submitted by the appellant that appreciable con-
                            tract works were carried out most recently in 1998 and 1999 in order

                      inviolability. However, such consent may only be given or withdrawn if the Secretary of
                      State “is satisfied that to do so is permissible under international law”.

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                            to remedy the condition of the building, which confirms the desig-
                            nated use as indicated by the Congolese State.”
                         48. The court found that by virtue of Article 22 (3) of the Vienna Con-
                      vention and customary international law, the property seized continued
                      to enjoy immunity from execution 5. This judgment makes three impor-
                      tant points. First, the court took note of the work that was being done to
                      make the building ready for the performance of diplomatic functions.
                      Second, the court placed emphasis on the consistency between the desig-
                      nated use and the actual use of the villa. Third, if the receiving State
                      argues that actual use is inconsistent with designated use, it bears the bur-
                      den of adducing evidence to support that contention.
                         49. Notably, the Brussels Cour d’appel made its finding of immunity in
                      relation to an abandoned villa that was being renovated but was intended
                      to be used as a diplomatic residence. The facts in this case are far more
                      compelling: the building designated by Equatorial Guinea as the premises
                      of the mission was not abandoned; the evidence is that Equatorial Guinea
                      completed its move into the building by 27 July 2012; during the oral
                      proceedings, Equatorial Guinea submitted that between 4 October
                      2011 and 27 July 2012, it was engaged in organizing the transfer of the
                      Embassy and the actual move of its offices from the premises located at
                      29 boulevard des Courcelles, to the new premises at 42 avenue Foch.
                      Although France has submitted that it found no evidence of the carrying
                      out of diplomatic functions in the building, this particular evidence of
                      organizing and preparing the move to establish the building as its prem-
                      ises for the mission does show an intention to use the building as premises
                      of the mission, and it has neither been contradicted by France nor by any
                      argument advanced by the majority. The difficulty faced by France in
                      establishing that the building had no signs of diplomatic activity is that,
                      on the basis of the evidence before the Court, it carried out its last set of
                      searches between 14 and 23 February 2012. That still leaves a period of
                      about six months before Equatorial Guinea’s notification of full use of
                      27 July 2012. That is precisely the period in which there would be prepa-
                      ratory activity for the establishment of the building as the premises of the
                      mission. The designated use was consistent with the actual use as indi-
                      cated by Equatorial Guinea in a Note Verbale of 27 July 2012. In that
                      Note Verbale, Equatorial Guinea confirmed that the building at 42 ave-
                      nue Foch would henceforth serve as its diplomatic premises.

                        50. In Germany (a party to the Vienna Convention), it appears that
                      the intention to use the building as the premises of the mission would be

                         5 Brussels Cour d’appel, Democratic Republic of the Congo v. Segrim NV, judgment of

                      the 8th Chamber, 11 September 2001, RW 2002 03, 1509, International Law in Domestic
                      Courts (ILDC) 41 (BE 2001), paras. 19-23.

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                      accepted as “use for the purposes of the mission” provided this intention
                      was not too remote. In four related cases — Tietz and Others v. People’s
                      Republic of Bulgaria; Weinmann v. Republic of Latvia; Bennet and Ball v.
                      People’s Republic of Hungary and Cassirer and Geheeb v. Japan 6, which
                      can readily be distinguished — the Supreme Restitution Court for Berlin
                      (hereinafter the “SRCB”) considered diplomatic protection in the context
                      of the intended use of the premises and found that there was no diplo-
                      matic activity whatsoever in terms of the conduct of diplomatic relations
                      between a sending State and a receiving State. The SRCB emphasized
                      that a remote intention on the part of a State to use property owned by it
                      for mission premises was not sufficient to give rise to immunity from local
                      jurisdiction. In each case, property in West Berlin was sold by Jewish
                      emigrants to a foreign State which had used it as mission premises
                      until 1945. Fourteen years later, three of the States — Latvia, Bulgaria,
                      and Hungary — maintained no diplomatic relations with the Federal
                      Republic of Germany, while the fourth, Japan, maintained its Embassy in
                      Bonn. The SRCB found on the facts of the case that the immunity of
                      diplomatic premises could be suspended in special circumstances:

                            “‘no diplomatic activity whatever, in the sense of the conduct of dip-
                            lomatic relations between a sending sovereign and a receiving sover-
                            eign, exists in West Berlin’ and the immunity in respect of the premises
                            had come to an end. Immunity could not depend on intention to use
                            the buildings for mission purposes if Berlin should again become cap-
                            ital of a united Germany, but ‘only upon an actual and present use
                            of the premises’.” 7

                         51. The exceptional circumstances that characterize those cases are not
                      present in this case. The intention to use the premises for diplomatic pur-
                      poses if Berlin again became the capital of a United Germany was simply
                      too remote a foundation for diplomatic immunity; in the instant case, the
                      intention to use the building at 42 avenue Foch as “premises of the mis-
                      sion” was translated into actual use only nine months later, and therefore
                      that intention could hardly be described as too remote a foundation for
                      diplomatic immunity.

                        52. Further, in the case of Greece v. B, in Germany, the Higher
                      Regional Court (Bavaria, Munich), held that
                            “[w]hile undeveloped and unused premises did not automatically
                            qualify as serving state functions, as they might be held for commer-

                        6   International Law Reports (ILR), Vol. 28, pp. 369, 385, 392 and 396.
                        7   Ibid.

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                            cial purposes, they could do so in the individual case. To distinguish
                            one case from the other, the intentions present when the property was
                            acquired could be decisive, especially when these intentions were put
                            into practice later.” 8

                         53. What this practice in the United Kingdom (a party to the
                      Vienna Convention) prior to its legislation of 1987 and the cases cited
                      show is that the term “used for the purposes of the mission” must be inter-
                      preted not exclusively on the basis of its ordinary meaning, but on the
                      basis of its ordinary meaning in its context and in light of the object and
                      purpose of the Convention. It is true, as the majority contends, that the
                      ordinary meaning of the term “used for the purpose of the mission” con-
                      notes an actual use for those purposes. However, the ordinary meaning of
                      that term must be interpreted in the context in which it is used and in light
                      of the Convention’s object and purpose. An embassy or mission normally
                      takes some time to be established; this goes to the context in which the
                      term is used. The practice and these cases show that in determining whether
                      a building has acquired the status of mission premises, it is appropriate to
                      take account of a reasonable period of time for preparatory work prior to
                      the actual use of the mission when that intended use is followed by actual
                      use. In considering the value of this practice, the Court should give due
                      weight to the fact that it includes judicial decisions that were obviously
                      very carefully considered by the courts of States parties to the Convention,
                      including an appellate court that is the highest court for the judicial dis-
                      trict of Brussels, Belgium. The situation faced by Equatorial Guinea pres-
                      ents an even stronger case than any of those that has been cited, since
                      Equatorial Guinea was merely relocating its diplomatic premises from one
                      location in Paris to another location in the same city. There is nothing in
                      the object and purpose of the Convention that would operate to discount
                      intended use; on the contrary, the Convention must be interpreted as seek-
                      ing to ensure that the movement of a diplomatic mission from one loca-
                      tion to another does not prejudice the diplomatic status of the building to
                      which the mission is being relocated. In light of the foregoing, it is proper
                      to interpret the Convention as entitling premises to protection under Arti-
                      cle 22 of the Convention when the intended use of those premises for dip-
                      lomatic purposes is followed by actual use for those purposes.
                         54. Another possible interpretation of the practice in the United King-
                      dom prior to its legislation of 1987 and the cases cited is that they might
                      constitute subsequent practice within the meaning of Article 31 (3) (b) of
                      the VCLT. Frankly, in my view, that would not be a proper interpreta-
                      tion since there is nothing to suggest that the practice reflects the agree-
                      ment of the parties to the Convention as a whole. Nonetheless it would

                        8 Greece v. B, Appeal order, Case No. 34 Wx 269/14, 12 September 2014, ILDC 2386

                      (DE 2014), paras. 20-21.

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                      have been for the Court to decide what weight it wished to attach to that
                      practice.

                         55. The practice examined indicates that an intended use of the build-
                      ing is a relevant factor in determining its entitlement to immunity. Evi-
                      dence of the intended use comes from Equatorial Guinea’s uncontradicted
                      statement that in the period from 4 October 2011 to 27 July 2012 it was
                      involved in organizing the transfer and actual move of the Embassy from
                      one location to the building at 42 avenue Foch. Equatorial Guinea also
                      sent a Note Verbale on 27 July 2012, informing the French authorities
                      that actual use of the premises at 42 avenue Foch as its diplomatic mis-
                      sion commenced from that date. This actual use of the building as diplo-
                      matic premises would satisfy even France’s test of “actual assignment and
                      effective use”. However, the examination of the practice of some States
                      (paragraphs 43 to 54 of this opinion shows that a building is entitled to
                      immunity on the basis of its intended use as diplomatic premises when
                      that use is followed by actual use of the building as diplomatic premises).
                      Thus, intended use and actual use may be seen as the beginning and the
                      end of a continuum, every inch of which attracts immunity. Accordingly,
                      the building at 42 avenue Foch acquired immunity on 4 October 2011 on
                      the basis that that was the date of the commencement of its intended use
                      for the purposes of the mission. This status was confirmed by the subse-
                      quent actual use of the premises for diplomatic purposes after 27 July
                      2012.

                         56. Equatorial Guinea bears the burden of establishing that the build-
                      ing at 42 avenue Foch qualified as premises of the mission within the
                      meaning of Article 1 (i) of the Vienna Convention. Equatorial Guinea
                      has discharged this burden because the Court has before it evidence show-
                      ing an intention to use the building as premises of the mission from
                      4 October 2011, followed by actual use of the building as premises of the
                      mission from 27 July 2012. If the Court does not accept that Equato-
                      rial Guinea discharged its burden on the basis of evidence that the build-
                      ing qualified for diplomatic protection from 4 October 2011, it certainly
                      has evidence that from 27 July 2012 the building was effectively used for
                      the purposes of the mission. However, this opinion argues that the build-
                      ing at 42 avenue Foch acquired the status of premises of the mission of
                      Equatorial Guinea as at 4 October 2011.

                        57. Interpreting the Convention in this way is consistent with its object
                      and purpose of promoting the achievement of friendly relations among
                      nations on a basis that respects the principle of the sovereign equality of
                      States and promotes the maintenance of international peace and security
                      because it balances the interests of the sending and the receiving States.

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                                       Part III: Alleged Violations of the Vienna
                                                       Convention

                                         Alleged Violations of the Vienna Convention
                      (a) The Searches from 14 to 23 February 2012
                         58. The French authorities entered and searched the premises at
                      42 avenue Foch without the consent of the head of the mission on a num-
                      ber of occasions between 14 and 23 February 2012. According to Equato-
                      rial Guinea, several valuable objects and furnishings were seized during
                      this search.
                         59. Since the building had acquired the status of premises of the mis-
                      sion on 4 October 2011, the searches from 14 to 23 February 2012
                      breached the inviolability of the premises afforded by Article 22 of the
                      Convention.

                      (b) The Attachment of the Building on 19 July 2012
                         60. Given that the building had acquired the legal status as premises of
                      the mission as at 4 October 2011, it falls to be considered whether the
                      attachment of the building on the 19 July 2012 violated France’s obliga-
                      tions under Article 22 (3) of the Vienna Convention, which provides that
                      “[t]he premises of the mission, their furnishings and other property
                      thereon and the means of transport of the mission shall be immune from
                      search, requisition, attachment or execution”.

                         61. France has disputed that the attachment affects the inviolability of
                      the building. France argues that the attachment only affects the right of
                      ownership of the building and therefore does not breach the inviolability
                      of the building.
                         62. In determining whether building and land constitute premises of
                      the mission, the definition in Article 1 (i) makes it clear that their owner-
                      ship is irrelevant. However, that does not mean that the Vienna Conven-
                      tion allows the receiving State to take action by way of measures of
                      constraint that affects the sending State’s ownership of the building. The
                      attachment order of 19 July 2012 states that its effect is to render the
                      building inalienable 9. It is illogical to contend that ownership cannot
                      have an impact on the inviolability of premises afforded by Article 22.
                      The concept of inviolability under Article 22 imposes a duty on the receiv-
                      ing State to refrain from acts that affect the functioning of the premises as
                      the sending State’s diplomatic mission. It also includes the duty to refrain
                      from acts that affect the dignity of the mission in the exercise of its sover-
                      eign functions. The functioning of the mission and its dignity are elements
                      of the mission’s inviolability. Attachment, which affects the ownership of

                        9   Counter-Memorial of France, p. 13, paras. 1.38‑1.39.

                      138

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                      the building, has financial and economic implications that may impact
                      negatively on the functioning and dignity of the embassy in the exercise of
                      its sovereign functions. At a minimum, the mission must be able to func-
                      tion, and inability to sell the building, resulting from attachment, can
                      affect its functioning; for example, there may be circumstances in which
                      in order to continue functioning as a diplomatic mission a sending State
                      may need to sell a building housing its diplomatic mission, so as to acquire
                      less expensive premises.

                         63. In sum, the attachment breaches Article 22 (3) of the Vienna
                       onvention. It also violates the dignity of the mission under Article 22 (2).
                      C

                      (c) The Confiscation of the Building by the Paris Tribunal Correctionnel
                           Dated 27 October 2017 which Was Upheld by the Paris Cour d’appel
                           Dated 10 February 2020
                         64. Since the building at 42 avenue Foch acquired the status of
                       remises of the mission on 4 October 2011, the order made by the French
                      p
                      tribunal on 27 October 2017 for its confiscation breaches Article 22 of
                      the Vienna Convention.

                                                            Remedies
                      (a) Cessation
                         65. There are two conditions for an order of cessation. First it must be
                      established that “the wrongful act has a continuing character” and sec-
                      ondly “that the violated rule is still in force” at the time of the order 10.
                      The 2001 International Law Commission’s Draft Articles on Responsibil-
                      ity of States for Internationally Wrongful Acts (hereinafter the “2001 Draft
                      Articles”) in its Commentary on Article 30 states that it also applies to
                      “situations where a State has violated an obligation on a series of occa-
                      sions, implying the possibility of further repetitions” 11.

                         10 Case concerning the difference between New Zealand and France concerning the

                      interpretation or application of two agreements concluded on 9 July 1986 between the two
                      States and which related to the problems arising from the Rainbow Warrior affair, Deci-
                      sion of 30 April 1990, United Nations, Reports of International Arbitral Awards (RIAA),
                      Vol. XX, Part III, p. 270, para. 114.
                         11 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with

                      commentaries, in Yearbook of the International Law Commission (YILC), 2001, Vol. II,
                      Part Two, p. 89, para. 3.

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                         66. Following the designation of the building as premises of the mis-
                      sion on 4 October 2011, France carried out searches in the building
                      between 14 and 23 February 2012, subsequently attached it on 19 July
                      2012 and finally issued a confiscation order. France’s failure to recognize
                      the building as “premises of the mission” is a breach that is of a continu-
                      ing character. The searches between 14-23 February 2012, the subsequent
                      attachment and confiscation order constitute violations of Article 22 of
                      the Vienna Convention; these acts are violations of an obligation “on a
                      series of occasions” implying the possibility of further repetition 12.
                      France’s refusal to recognize the building as Equatorial Guinea’s Embassy
                      has continued; it has repeatedly rejected the status of the building as
                      “premises of the mission”. Therefore, the conditions for the issuance of
                      an order of cessation have been satisfied.

                      (b) Assurances and guarantees of non-repetition
                         67. Assurances and guarantees of non-repetition are “most commonly
                      sought when the injured State has reason to believe that the mere restora-
                      tion of the pre-existing situation does not protect it satisfactorily” 13. In
                      the present case, France refuses to accept the building as Equatorial Guin-
                      ea’s diplomatic mission. On the basis of that conduct, which indicates
                      that the restoration of the pre-existing situation will not by itself provide
                      sufficient protection for Equatorial Guinea, the Court should order
                      France to offer appropriate assurances and guarantees of non-repetition.

                      (c) Satisfaction
                         68. According to Article 37 (1) of the 2001 Draft Articles, satisfaction
                      for injuries caused by an internationally wrongful act is only required
                      “insofar as it cannot be made good by restitution or compensation”.
                      Satisfaction may take the form of acknowledgement of the breach, an
                       expression of regret or a formal apology 14.

                        69. The facts of this case support the making of an order for satisfaction.

                      (d) Compensation
                         70. According to Article 36 of the 2001 Draft Articles a State is enti-
                      tled to compensation in respect of any financially assessable damage that
                      it suffers as a result of a wrongful act. There may be some damage that is
                      assessable resulting from the various searches. Moreover, if Equatorial

                         12 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with

                      commentaries, in Yearbook of the International Law Commission (YILC), 2001, Vol. II,
                      Part Two, p. 89, para. 3.
                         13 Ibid., p. 95, para. 9.
                         14 Ibid., pp. 105‑107.

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                      Guinea loses ownership of the building as a result of the confiscation
                      order, it is entitled to compensation for that loss.

                      (e) Contribution of Equatorial Guinea
                        71. France’s argument that account should be taken of Equatorial
                      Guinea’s contribution to its injuries should be dismissed, because there is
                      no evidence that Equatorial Guinea was wilful or negligent in the sense of
                      exhibiting a lack of due care.

                                                        Abuse of Rights
                        72. France has alleged that several acts of Equatorial Guinea consti-
                      tute an abuse of rights, including the admission by the President of Equa-
                      torial Guinea that the building at 42 avenue Foch was sold to the State so
                      that diplomatic privilege could be claimed to protect his son from crimi-
                      nal proceedings. However, in light of the finding of the Court in
                      United States Diplomatic and Consular Staff in Tehran it may not be nec-
                      essary to determine the claim of abuse of rights 15.

                         73. In that case, the Court held that the Convention sets up a “self-
                      contained régime” with special provisions that may be used to address an
                      alleged abuse of rights 16. In that regard the Court pointed to the receiv-
                      ing State’s right to break off diplomatic relations with a sending State and
                      to call for the closure of the offending mission. The Court held that “dip-
                      lomatic law itself provides the necessary means of defence against, and
                      sanction for, illicit activities by members of diplomatic or consular
                      missions” 17 and that a receiving State could utilize this “more radical
                      remedy if abuses of their functions by members of a mission reached seri-
                      ous proportions” 18.

                         74. Consequently, even if the alleged abuse by Equatorial Guinea was
                      established, the Vienna Convention provides a remedy by way of the
                      expulsion of the mission and the termination of diplomatic relations.
                         75. The claim for abuse of rights should therefore be dismissed on the
                      basis that France should use the remedies provided under the Vienna Con-
                      vention to address that conduct.

                         15 United States Diplomatic and Consular Staff in Tehran (United States of America v.

                      Iran), Judgment, I.C.J. Reports 1980, p. 40, para. 86.
                         16 Ibid.
                         17 Ibid., p. 38, para. 83.
                         18 Ibid., p. 40, para. 85.

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                                                Part IV: Conclusions

                        76. One may arrive at the following conclusions:
                         (i) France is correct in what it calls the “essentially consensual letter
                             and spirit of the Vienna Convention” and that what is called for is
                             a “bond of trust” between the sending and the receiving States.
                             These are critically important elements for the proper interpretation
                             and application of the Convention, since mutuality and balance go
                             to the core of the Convention.
                        (ii) The majority’s conflation of the requirement of the receiving State’s
                             consent for the designation by the sending State of a building as
                             premises of the mission with the power of the receiving State to
                             object to that designation robs its conclusion in paragraph 67 of the
                             Judgment of any legal effect. The conclusion is irrational and, there-
                             fore, invalid because the reasoning of the majority does not reveal
                             any discrimination between the two distinct concepts of the require-
                             ment of the receiving State’s consent for the designation of mission
                             premises and the power of the receiving State to object to this desig-
                             nation. Moreover, while the conclusion is framed in terms of the
                             power of the receiving State to object to the designation by the send-
                             ing State of a building as premises of the mission, France’s case
                             includes references to the concept of consent and the separate con-
                             cept of objection, and the Applicant’s case is built on a response to
                             the argument that the consent of France as the receiving State is
                             required for this designation; also, notably the Judgment itself cites
                             State practice that shows the requirement of the receiving State’s
                             consent for this designation, and not practice evidencing the power
                             of the receiving State to object to such designation. In this melee of
                             mixed reasoning, the majority’s conclusion is without any legal
                             effect.
                       (iii) Although this dissenting opinion takes the position that the major-
                             ity has not established that the Convention empowers the receiving
                             State to object to the sending State’s designation of a building as
                             premises of the mission, and that consequently, there is no need to
                             examine whether the discretionary power has been exercised reason-
                             ably, (per Rights of Nationals of the United States of America in
                             Morocco (France v. United States of America)) 19, it pinpoints an
                             example of unreasonable exercise of that power. At certain times,
                             France alludes to its power to object to Equatorial Guinea’s desig-
                             nation of a building as premises of the mission, while at other times
                             it argues that such a designation is subject to its consent. This incon-
                             sistency amounts to an unreasonable and arbitrary exercise by
                             France of its discretionary power, thereby depriving the objection of

                        19 Rights of Nationals of the United States of America in Morocco (France v.

                      United States of America), Judgment, I.C.J. Reports 1952, p. 212.

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                            any legal effect. Therefore, the objections by France on which the
                            majority relies for its conclusion in paragraph 67 were invalid, and
                            thus, the conclusion itself is robbed of any validity.

                       (iv) There is a strong case to be made that France recognized the diplo-
                            matic status of the building at 42 avenue Foch when French o    fficials,
                            including the State Secretary for Development and Francophone
                            Affairs, attended at the building at 42 avenue Foch in order to
                            acquire visas for visits to Equatorial Guinea. This conduct qualifies
                            as tacit recognition. Although Article 5 of the Vienna Convention
                            on Consular Relations lists the issuance of visas as a consular func-
                            tion, Article 3 (2) of the Vienna Convention, provides that “nothing
                            in the present Convention shall be construed as preventing the per-
                            formance of consular functions by a diplomatic mission”. Thus,
                            even though the non‑exhaustive list of the functions of a diplomatic
                            mission set out in Article 3 (1) does not include the issuance of visas,
                            the Convention allows a diplomatic mission to issue visas. The
                            majority’s approach to this question is to proceed by way of asser-
                            tion. It simply states in paragraph 114 of the Judgment: “The Court
                            does not consider that the acquisition of visas at 42 avenue Foch in
                            Paris leads to the conclusion that the premises were recognized as
                            constituting the premises of a diplomatic mission.” In the circum-
                            stances of this case that conclusion is wrong. Consequently, the
                            majority’s conclusion in paragraph 67 is invalid since, far from
                            objecting to Equatorial Guinea’s designation of the building as
                            premises of the mission, France’s conduct shows that it tacitly recog
                            nized that designation.

                        (v) The majority has substantially relied on the preamble as the founda-
                            tion for its very consequential conclusion in paragraph 67 of the
                            Judgment. However, the preamble does not support such a conclu-
                            sion. It is indeed unusual for the principal finding in a Judgment of
                            the Court to be based substantially on the Court’s interpretation of
                            the preamble of a treaty.
                       (vi) The State practice cited in paragraphs 43 to 56 of this opinion indi-
                            cates that a building acquires the status of premises of the mission
                            when its intended use for the purposes of the mission is followed by
                            actual use for those purposes. Based on that practice, the building at
                            42 avenue Foch acquired the status of premises of the mission on
                            4 October 2011 because its intended use for the purposes of the mis-
                            sion from that date was followed by actual use for the same purpose
                            at the latest by 27 July 2012.
                      (vii) In light of the balance that the Convention seeks to strike between
                            the interests of the sending and the receiving States, and having
                            regard to the aim of the Convention of promoting friendly relations

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                             among nations on the basis of respect for the principle of sovereign
                             equality of States, and the purpose of the maintenance of interna-
                             tional peace and security, it should not be interpreted as empower-
                             ing either the sending or the receiving State to impose its will on the
                             other State in determining whether a building has acquired the sta-
                             tus of “premises of the mission”.
                      (viii) What the Convention does is to establish an objective criterion for
                             determining the status of a building as “premises of the mission”.
                             The criterion is that the building must be “used for the purposes of
                             the mission”. This is a pragmatic yardstick that does not include as
                             one of its elements the power of the receiving State to object to the
                             sending State’s designation of a building as premises of the mission;
                             the determination whether the criterion has been met is to be made
                             free from the subjective views of either the sending State or the
                             receiving State as to whether a building constitutes premises of the
                             mission. Thus, in light of this objective criterion, it is not surprising
                             that the Convention remains silent on the roles of sending and
                             receiving States in the designation of mission premises.
                       (ix) How then is a controversy to be resolved when there is disagree-
                             ment, as there is in this case, between the Parties on this important
                             question? In light of the Convention’s relationship with the three
                             fundamental purposes and principles of the United Nations Charter
                             that are set out in its preamble, if there is disagreement, it is to be
                             resolved, by consultation between the Parties carried out in good
                             faith, and if there is no resolution, then on the basis of third-party
                             settlement. In this case Equatorial Guinea has sought judicial settle-
                             ment on the basis of the compromissory clause in the Optional Pro-
                             tocol to the Convention concerning the Compulsory Settlement of
                             Disputes. The Court is to resolve the dispute on the basis of the
                             objective criterion set out in Article 1 (i), and it is to arrive at its
                             decision on the basis of that objective criterion, but having regard to
                             the three fundamental principles and purposes set out in the pre-
                             amble. In the circumstances of this case, the Court had sufficient
                             evidence to conclude that the building at 42 avenue Foch was at the
                             relevant time used for the purposes of the mission of Equatorial
                             Guinea. Consequently, I am unable to agree with the conclusion of
                             the majority that the building at 42 avenue Foch has never acquired
                             the status of “premises of the mission”.

                                                              *
                                                          *       *

                        This opinion reflects the views of the author on the merits of this case,
                      which has been brought by Equatorial Guinea against France. It is not to
                      be seen as in any way reflecting the author’s views on the merits of the

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                      441 	immunities and criminal proceedings (diss. op. robinson)

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

                      (Signed) Patrick L. Robinson.

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