                      442

                                              DISSENTING OPINION
                                            OF JUDGE AD HOC KATEKA

                         Disagreement with the operative part of the Judgment — Disagreement with the
                      reasoning on procedural and substantive grounds — Preliminary issues —
                      The VCDR preamble alone cannot be basis of consent condition — Circumstances
                      for a property to acquire status of “premises of the mission” — Judgment ignores
                      “use” condition and prefers “consent” condition — Interpretation of Article 1 (i)
                      of the Vienna Convention on Diplomatic Relations — Status of the building at
                      42 avenue Foch in Paris — Test of timeliness, non-arbitrary and non‑discriminatory
                      character — Fate of the diplomatic premises of Equatorial Guinea.

                                                     I. Introduction

                         1. Regrettably I disagree with the Court’s finding that the building at
                      42 avenue Foch has never acquired the status of “premises of the mis-
                      sion” of the Republic of Equatorial Guinea in the French Republic within
                      the meaning of Article 1 (i) of the Vienna Convention on Diplomatic
                      Relations (hereinafter the “VCDR” or the “Vienna Convention”). I also
                      disagree with the Judgment’s declaration that France has not breached its
                      obligations under the VCDR. I have thus voted against the operative
                      paragraph 126 of the Judgment, including the subparagraph where the
                      majority rejects all other submissions of the Republic of Equato-
                      rial Guinea. I am of the view that the building at 42 avenue Foch acquired
                      the status of diplomatic mission of Equatorial Guinea and that France
                      breached its obligations under the VCDR by its measures of constraint
                      against the building. I disagree with the Court’s reasoning on procedural
                      and substantive grounds. Procedurally I do not share the Court’s reading
                      into the VCDR of the consent requirement on which the Convention is
                      silent and the putting aside of the “use” requirement which is mentioned
                      in the instrument. In this connection, I disagree with the Court’s over-
                      reliance on the preamble under the guise of interpreting the object and
                      purpose of the VCDR. I shall deal with the substantive issues of the con-
                      ditions (referred to as “circumstances” in the Judgment) and the status of
                      the building after considering some relevant preliminary issues.

                      146

6 Ord_1204.indb 288                                                                                19/01/22 08:24

                      443 	 immunities and criminal proceedings (diss. op. kateka)

                                                II. Preliminary Issues

                            2. The majority concludes that — where the receiving State objects to
                      the designation by the sending State of certain property as forming part
                      of the premises of its diplomatic mission, and this objection is communi-
                      cated in a timely manner and is neither arbitrary nor discriminatory in
                      character — that property does not acquire the status of “premises of the
                      mission” within the meaning of Article 1 (i) of the Vienna Convention,
                      and therefore does not benefit from protection under Article 22 of the
                      Convention (paragraph 74 of the Judgment). The majority is of the view
                      that the dispute between the Parties can be resolved by reliance on the
                      consent or non‑objection condition. This is because the Judgment merely
                      adds (para. 75) that “[i]f necessary, the Court will then examine the
                      second condition which, according to France, must be met for a property
                       to acquire the status of ‘premises of the mission’, namely the requirement
                       of actual assignment”. This conclusion is rather surprising because of
                       several reasons. First, before reaching this conclusion, the Court analyses
                        considerably the two conditions for designating diplomatic premises
                        (paragraphs 61 to 73 of the Judgment). Secondly, it is surprising because
                        the condition of consent or non-    objection is not provided for in the
                        VCDR. The Convention is silent on this condition. Thirdly, the majority
                        uses reasoning — of treaty interpretation under the Vienna Convention
                        on the Law of Treaties (hereinafter the “VCLT”) — which I do not share
                        to reach its position of relying on the consent or non-objection condition
                        and conveniently ignoring the “use” condition. The majority avoids the
                        “use” condition which is provided for in the Vienna Convention.
                        The “use” condition is referred to in paragraphs 107, 108 and 109 of the
                        Judgment as actual assignment. These are passing references in the con-
                        text of justifying the majority’s consent or non-objection argument and
                        the criminal proceedings in France against Mr. Teodoro Nguema
                        Obiang Mangue. I thus regret the selective invocation of a non-existing
                         criterion of consent or non-objection including its coupling to the test
                         or standard of “timely, non-arbitrary and non-discriminatory character”.
                        I shall explain further when I consider the conditions for designation of
                        a diplomatic mission.

                         3. The Judgment rightly invokes the rule of treaty interpretation in
                      paragraph 61. However, the Judgment does not do justice to the interpre-
                      tation rule in Article 31 of the VCLT. First, the majority considers the
                      VCDR provisions in their ordinary meaning to be of little assistance in
                      determining the circumstances in which a property acquires the status of
                      “premises of the mission”. Without attempting to interpret Article 1 (i)
                      of the VCDR, the majority merely concludes that the provision is unhelp-
                      ful in determining how a building may come to be used for the purposes
                      of a diplomatic mission (paragraph 62 of the Judgment). Secondly, the
                      Judgment uses the Convention’s object and purpose by invoking the pre-
                      amble, in particular, the third preambular paragraph on contributing to

                      147

6 Ord_1204.indb 290                                                                                19/01/22 08:24

                      444 	 immunities and criminal proceedings (diss. op. kateka)

                      the development of friendly relations among nations. Unfortunately, this
                      creates an element of confusion as to which object and purpose to take.
                      For the Judgment also invokes the purpose of ensuring the efficient per-
                      formance of the functions of diplomatic missions as representing States
                      (fourth preambular paragraph of the VCDR cited at paragraph 66 of the
                      Judgment). In the process, the majority agrees with the respondent State
                      that diplomatic privileges and immunities impose weighty obligations on
                      the receiving State. I do not share this view. It may be recalled that reci-
                      procity permeates diplomatic practice. It is misleading for the majority to
                      state that the receiving States have weighty or onerous obligations. As
                      rightly stated by Denza 1, “[e]very State is both a sending and a receiving
                      State”.

                        4. The view of weighty obligations leads the majority to state that
                      there is an imbalance in the obligations of the receiving State (para-
                      graph 65 of the Judgment) in relation to the sending State concerning
                      privileges and immunities of diplomats and diplomatic missions. This is a
                      misconceived view. The VCDR in Article 2 provides for the establishment
                      of diplomatic relations by mutual consent. The benefits for diplomatic
                      missions are counterbalanced by the sanctions provided for in the VCDR.
                      The Judgment (para. 67) refers to the well-known passage in the Hostages
                      case 2:

                              “The rules of diplomatic law . . . constitute a self-contained régime
                            which, on the one hand, lays down the receiving State’s obligations
                            regarding the facilities, privileges and immunities to be accorded to
                            diplomatic missions and, on the other, foresees their possible abuse
                            by members of the mission and specifies the means at the disposal of
                            the receiving State to counter any such abuse.”
                      This Court’s view reaffirms the well‑established rule of reciprocity in dip-
                      lomatic law as a sanction against non-compliance.
                         5. I am of the view that the drawbacks referred to above would have
                      been avoided if the majority had not placed too much reliance on the
                      preamble of the VCDR in the present case. Although the Court has given
                      legal significance to preambles in its jurisprudence 3, the legal weight
                      given to the VCDR’s preamble is, in my opinion, rather excessive. It is
                      true that preambles are part of a treaty and that tribunals refer to them in
                      the context of the interpretive provisions of the VCLT. However, by
                         1 E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic

                      Relations, Oxford University Press, 4th edition, 2016, p. 2.
                         2 United States Diplomatic and Consular Staff in Tehran (United States of America v.

                      Iran), Judgment, I.C.J. Reports 1980, p. 40, para. 86.
                         3 Rights of Nationals of the United States of America in Morocco (France v.

                      United States of America), Judgment, I.C.J. Reports 1952, p. 196; Territorial and Maritime
                      Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 624.

                      148

6 Ord_1204.indb 292                                                                                19/01/22 08:24

                      445 	 immunities and criminal proceedings (diss. op. kateka)

                      using the preamble to interpret the VCDR, the Court makes far‑reaching
                      pronouncements which are not in the Convention. I have already referred
                      to the alleged imbalance against the receiving States and their so-called
                      weighty obligations. Of concern is the use of the object and purpose
                      mechanism by the majority to read into the Convention what is not pro-
                      vided for, while ignoring the condition set out in the VCDR, as I explain
                      below.

                         6. In view of the fact that the majority has given an eminent role to the
                      preamble of the VCDR in the context of treaty interpretation, it bears
                      recalling some canons of treaty interpretation laid down in Article 31 of
                      the VCLT. They show that the drafters of the VCDR intended to empha-
                      size the process of interpretation as a unity 4. This unity applies not only
                      in the textual‑contextual object and purpose circumstances but also by
                      not considering an isolated treaty provision but reading the treaty as
                      a whole.

                          7. While preambles have normative influence on the understanding of
                       a treaty’s meaning 5, this influence is limited. Preambles on their own, not
                      supported by specific operative provisions of a treaty, do not create
                      substantive obligations to the parties to a treaty. As stated by Judge
                       ad hoc Mensah 6:
                               “Specifically, I do not subscribe to the view that the ‘object and
                            purpose of UNCLOS, as stipulated in its Preamble’, in and by them-
                            selves, impose on parties to the Convention obligations vis-à-vis other
                            States which have taken a conscious decision not to agree to be bound
                            by that Convention.”
                      This was stated by Judge Mensah in response to the Court’s statement
                      that “[g]iven the object and purpose of UNCLOS, as stipulated in its
                      Preamble, the fact that Colombia is not a party thereto does not relieve
                       Nicaragua of its obligations under Article 76 of that Convention” 7.

                        8. The conclusion I draw from the above analysis is that while pream-
                      bles are of assistance in treaty interpretation, they should not be elevated
                      to play a role that would change the meaning of a treaty to the detriment
                      of what the drafters intended. For example, the Court has been against a
                      construction that would involve radical changes and additions to the pro-

                         4 Commentary to Article 27 (now Article 31), International Law Commission (ILC),

                      Yearbook of the International Law Commission (YILC), 1966, Vol. II, p. 220.
                         5 O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties: A

                      Commentary, Heidelberg: Springer-Verlag, p. 10.
                         6 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports

                      2012 (II), declaration of Judge ad hoc Mensah, p. 765.
                         7 Ibid., p. 669, para. 126.

                      149

6 Ord_1204.indb 294                                                                                19/01/22 08:24

                      446 	 immunities and criminal proceedings (diss. op. kateka)

                      visions of the 1880 Madrid Convention by invoking the purposes and
                      objects of the Convention. Doing so would not be to interpret but to
                      revise the treaty 8.

                        III. Circumstances in which a Property Acquires the Status of
                                “Premises of the Mission” under the Convention

                           9. The two conditions that were argued by the Parties in their plead-
                      ings are consent or non‑objection and use of a property as requirements
                      for the status of premises of the mission. The respondent State argued
                      for two cumulative conditions of consent and actual assignment, i.e. effec-
                      tive use for the purposes of the mission. The applicant State contended
                      that the VCDR did not make the granting of diplomatic status subject to
                      the consent of the receiving State. As for the use condition, Equato-
                      rial Guinea was of the view that this criterion was met where a building
                      was designated by the sending State. I shall consider the two conditions
                      in turn.
                           10. I start with the condition that the majority has preferred, namely,
                      consent/non-objection. The Judgment states that — if France’s objection is
                      communicated in a timely manner and is neither arbitrary nor discrimina-
                      tory in character — the property does not acquire the status of “premises
                      of the mission” within the meaning of Article 1 (i) of the Vienna Conven-
                      tion and thus does not benefit from protection under Article 22 of the Con-
                      vention (paragraph 74 of the Judgment). This conclusion is reached after
                      considering the object and purpose of the Convention. In addition to the
                      use of the preamble, the majority has formulated the standard or test of
                      “timeliness, non‑arbitrariness and non-discriminatory character”.
                           11. I disagree with the majority when it states that the consent or
                      non-objection of the receiving State is required for the designation of a
                       building as diplomatic mission. First, as already observed, the Conven-
                       tion is silent as to this requirement. It does not make the granting of
                       diplomatic status subject to the consent or non-objection of the receiving
                       State. Secondly, where the consent of the receiving State is required it is
                       so stated in the Convention. There are numerous provisions such as Arti-
                       cles 5 (1), 6, 7, 8 (2), 12, 19 (2), 27 (1) and 46 of the VCDR which spell
                       out the requirement of the consent or non-       objection of the receiving
                       State.
                           12. Here one may use a few of these provisions to illustrate when
                       consent or non-objection is needed. Article 4 requires that the agrément
                        of the receiving State is obtained for the accreditation of a head of mis-
                        sion; so does Article 10, which requires notification for the appointment
                        of members of the mission. The logic of these provisions is reinforced by
                        Article 4 of the 1963 Vienna Convention on Consular Relations which

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

                      States of America), Judgment, I.C.J. Reports 1952, p. 196.

                      150

6 Ord_1204.indb 296                                                                                19/01/22 08:24

                      447 	 immunities and criminal proceedings (diss. op. kateka)

                      requires consent for the establishment of a consular post. Thus, when
                      the drafters of the VCDR considered it necessary to have the consent
                      of the receiving State, they provided so explicitly in the Vienna Conven-
                      tion.

                          13. A further illustration is that the majority claims not to be per-
                      suaded by Equatorial Guinea’s a contrario reading of Article 12 — the
                      provision for consent to open a branch office by the sending State. The
                      majority does not consider such a contrario reading to be consistent with
                      the object and purpose of the Vienna Convention. The reason given for
                      this rejection is not convincing. It is said that the receiving State would
                      have to make special arrangements for the security of that branch office.
                      In my view, the receiving State is obligated to provide security for all
                      diplomatic missions, whether in the capital or other cities. Furthermore,
                      this argument is based on the false premise of weighty obligations on the
                      receiving State. I have already dealt with this matter above (para-
                      graphs 3 and 4 of this opinion). The same logic applies to the majority’s
                      argument in paragraph 67 of the Judgment about the sending State
                      unilaterally imposing its choice of mission premises upon the receiving
                       State.
                          14. The majority also states that it is difficult to reconcile an interpreta-
                       tion of the Convention that would allow the sending State to use property
                       for diplomatic missions despite express objection of the receiving State.
                       The majority invokes Article 2 of the VCDR on the establishment of dip-
                       lomatic relations taking place by mutual consent. In my view, this is mix-
                       ing up two different concepts. While the establishment of diplomatic
                       relations is by mutual consent, it does not follow automatically that two
                       States with diplomatic relations will open diplomatic missions in their
                       respective capitals. Relations can be promoted from the respective
                       capitals. However, once a diplomatic mission is opened the reciprocal
                        responsibilities between the sending and receiving States apply under the
                        VCDR.

                         15. The analogy (paragraph 65 of the Judgment) between the persona
                      non grata provision in Article 9 of the VCDR and lack of an equivalent
                      mechanism for mission premises is misplaced. As I stated in paragraph 4
                      above, the Convention is a self-contained régime that concerns persons,
                      premises and property. It must not be read in isolation. It must be read as
                      an integrated régime. Thus, the sanctions available to a receiving State in
                      respect of persons can also be used for solving disputes concerning prem-
                      ises or property. A receiving State can break off diplomatic relations with
                      a sending State that disregards the rules in the VCDR. It can also use the
                      persona non grata provision to expel diplomats of a State that offends
                      against the VCDR régime.

                      151

6 Ord_1204.indb 298                                                                                19/01/22 08:24

                      448 	 immunities and criminal proceedings (diss. op. kateka)

                        16. With respect to consent or non-objection, the majority takes issue
                      with Equatorial Guinea’s contentions concerning advance notification
                      and consultation (referred to as “co‑ordination” in paragraphs 71 and 72
                      of the Judgment). The advance notification is required in the context of
                      domestic law in the receiving State. In my view, it is not uncommon that
                      where a State does not have national legislation in respect of diplomatic
                      law, it issues circulars through the Foreign Office to diplomatic missions.
                      Such circulars are guidelines to enable diplomatic missions to be aware of
                      the practice in a particular State.

                         17. The issue of consultation (co‑ordination) is not far‑fetched either.
                      The Applicant argues that in the absence of legislation or established
                      practice, the receiving State may only object to the designation by the
                      sending State of its diplomatic premises in consultation with the sending
                      State. The majority (para. 71) is of the view that this condition among
                      others does not exist under the VCDR or in general international law.
                      And yet the majority has acknowledged the fact that the receiving State’s
                      power to object to a sending State’s designation of its diplomatic mission
                      is not unlimited. Such a power must be exercised reasonably and in good
                      faith. France itself refers to the consensual letter and spirit of the Vienna
                      Convention (paragraph 54 of the Judgment). It adds that the significant
                      restrictions on the receiving State’s territorial sovereignty through the
                      inviolability régime calls for the sending State to use the rights conferred
                      on it in good faith. France also refers to a “bond of trust” between the
                      sending State and the receiving State. In my view, this is a clear acknowl-
                      edgment of the need for consultation. The mutuality régime in Article 2
                      of the VCDR carries the same spirit of the need for consultation.

                        18. As for the State practice of France, the Respondent claims to have
                      a practice of general tacit consent. This is called non-objection coupled
                      with effective assignment i.e. actual use. The majority (para. 69), like
                      France, cites the practice of a dozen States 9 which have legislated on the
                      requirement of obtaining prior consent. It is not clear how the practice of
                      a handful of States can be construed. Is it customary law? It cannot be.
                      The majority does not consider that this practice necessarily establishes
                      the agreement of the parties within the meaning of Article 31 (3) (b) of
                      the VCLT. In my view, there is no constant and consistent practice of
                      France. This is because the Respondent’s explanation varies. When it
                      denied recognition to the request of the Embassy of Equatorial Guinea,
                      France invoked the use condition in its Note Verbale of 11 October 2011.
                      France stated that the premises fell within the private domain and were
                      subject to ordinary law. Subsequently France used the attachment of the
                      building on 19 July 2012 as the reason.

                        9   Out of the 192 States parties to the VCDR.

                      152

6 Ord_1204.indb 300                                                                                19/01/22 08:24

                      449 	 immunities and criminal proceedings (diss. op. kateka)

                         19. It is this lack of consistent practice that leads Equatorial Guinea to
                      accuse the Respondent of arbitrariness and discrimination. I share this
                      view, as explained below, concerning the status of the building and the
                      test of reasonableness and non-discrimination to deny recognition to the
                      building as the premises of Equatorial Guinea’s diplomatic mission.

                         20. I now turn to the second condition of “use” of the premises. As
                      already indicated (paragraph 2 above), the majority does not consider it
                      necessary to rule on the alleged “actual assignment” requirement for
                      a building to benefit from the protections provided for in Article 22. The
                      “if necessary” phraseology in paragraph 75 of the Judgment is not uti-
                      lized in any meaningful way. In the majority’s view, the dispute between
                      the Parties can be resolved through an analysis of whether France’s objec-
                      tion to the designation of the building at 42 avenue Foch as premises of
                      Equatorial Guinea’s diplomatic mission was “communicated in a timely
                      manner, and was neither arbitrary nor discriminatory in character”. As
                      already stated, I disagree with this approach which ignores the condition
                      of “use” which is mentioned in the VCDR and instead the majority
                      adopts the consent or non-objection condition on which the Convention
                      is silent. I am also not persuaded by the non-       arbitrary and non-
                      discriminatory test. It is adopted by the majority to rationalize the invo-
                      cation of the consent or non-objection condition which is not provided
                      for in the VCDR.

                         21. The majority finds itself in the situation of having to put aside the
                      “use” condition and adopting a condition on which the Convention is
                      silent. They also face the awkward situation of using arguments based on
                      the “use” condition in order to justify the consent or non-objection condi-
                      tion (paragraphs 108 and 109 of the Judgment). In my view, the majority
                      has erred in taking this approach.
                         22. The Judgment states that Article 1 (i) of the VCDR has a defini-
                      tion of what constitutes “premises of the mission” which does not
                      expressly establish how and when a building may come to be diplomatic
                      premises (paragraph 62 of the Judgment). Nevertheless, the majority does
                      not interpret the provision in detail. Article 1 (i) defines “premises of the
                      mission” as buildings and the land used for the purposes of the mission. I
                      am of the view that this circular definition is more than descriptive. The
                      term “used” indicates one of the conditions for establishing premises of
                      the mission. Disagreement may be on what is meant by the term “used”.
                      France interprets the term to mean effective or actual use (where a diplo-
                      matic mission has completely moved into the premises in question),
                      while Equatorial Guinea is of the view that the term encompasses prem-
                      ises assigned for diplomatic purposes, i.e. intended use. I share the latter
                      view.

                        23. The term “use” can be interpreted differently. For “use” includes
                      planning for the mission premises and their refurbishment. It is a gradual

                      153

6 Ord_1204.indb 302                                                                                19/01/22 08:24

                      450 	 immunities and criminal proceedings (diss. op. kateka)

                      process. Once a sending State gives notification of its opening a diplo-
                      matic mission and assigns a building for this purpose, it takes time to
                      complete the moving-in process. Diplomatic missions are not established
                      overnight. For example, the movement of diplomatic missions from Bonn
                      to Berlin in the 1990s lasted for several years for some diplomatic mis-
                      sions.
                         24. In this regard, I share the Applicant’s view in rejecting the notion
                      that “actual” or “effective” assignment occurs only when a diplomatic
                      mission has completely moved into the premises in question. The intended
                      use must be included by accepting the situation where the sending State
                      has assigned premises for diplomatic purposes. From the time of assign-
                      ment and notification to the receiving State to the final move in the prem-
                      ises have to be accorded immunity and inviolability. Otherwise the
                      expression “used for the purposes of the mission” in Article 1 (i) of the
                      VCDR would be deprived of effet utile in this context. The agents of the
                      receiving State can enter the premises — as they did in the present case —
                      under the guise of there not being “actual or effective assignment” of the
                      property. In this connection, I share the view Judge Robinson expressed
                      in paragraph 43 of his dissenting opinion that a building is entitled to
                      immunity on the basis of the intended use as diplomatic premises when
                      that “use” is followed by the actual use of the building as diplomatic
                      premises.
                         25. I conclude this section by stating that the Judgment should have
                      considered both conditions of “consent” and “use” thoroughly. The con-
                      sent or non-objection condition is not found in the VCDR and it does not
                      apply in the present case. As described by President Yusuf in his separate
                      opinion, it is a “freshly minted” condition (para. 59). The condition of
                      use which is mentioned in Article 1 (i) of the Vienna Convention can be
                      interpreted to include the intended use of a diplomatic mission in which
                      the actions of Equatorial Guinea fall for the period from 4 October 2011
                      to 27 July 2012.

                             IV Status of the Building at 42 avenue Foch in Paris

                         26. The Parties exchanged numerous diplomatic Notes between
                      4 October 2011 and 27 July 2012. These two dates are crucial in determin-
                      ing the status of the building at 42 avenue Foch. It should be noted that,
                      because the Court ruled against jurisdiction of the building at 42 avenue
                      Foch as property of a foreign State under the United Nations Convention
                      against Transnational Organized Crime (or Palermo Convention), the
                      claims of Equatorial Guinea prior to 4 October 2011 fall outside the
                      Court’s jurisdiction (paragraph 77 of the Judgment). Equatorial Guinea
                      accepts that events before 4 October 2011 are inapplicable to the present
                      case. Hence it is surprising that the majority invokes the “use” criterion

                      154

6 Ord_1204.indb 304                                                                                19/01/22 08:24

                      451 	 immunities and criminal proceedings (diss. op. kateka)

                      to cite the events of the searches of 28 September and 3 October 2011 as
                      proof that the building at 42 avenue Foch was not being used or being
                      prepared for use for diplomatic purposes. The events of the period prior
                      to 4 October 2011 are irrelevant and should not have been invoked by the
                      majority.

                         27. France claims to have objected consistently to each of the diplo-
                      matic Notes of Equatorial Guinea. The majority agrees with the Respon-
                      dent that French authorities conducting the on-site inspection did not
                      find that the premises were being used or being prepared for use as Equa-
                      torial Guinea’s diplomatic mission. The majority dismisses the evidence
                      of signs at the premises (“Embassy of Equatorial Guinea”) and residence
                      of the Permanent Delegate to UNESCO as inconsequential. It also dis-
                      misses evidence of tacit consent and recognition by France (paragraph 32
                      below). This is a regrettable position.

                         28. As noted in paragraph 20 above, the majority has established a
                      standard or test of whether the objection of France was timely, non-
                      arbitrary and non-discriminatory. This is a standard that is difficult to
                      justify. Whether the actions of France were timely is debatable. It may
                      have responded to the Note Verbale of Equatorial Guinea of 4 October
                      2011 within a week. However, considering the lengthy period of the con-
                      flict, one wonders whether events were dealt with in a timely manner. The
                      stalemate between the Parties lasted from October 2011 to 13 June 2016
                      when Equatorial Guinea instituted proceedings before the Court. The
                      period of nine months, from 4 October 2011 to 27 July 2012, was the apex
                      of the stalemate between the Parties. And yet France as the receiving
                      State, in spite of the sanctions available under the VCDR did not act
                      because it did not want to jeopardize its bilateral relations with Equato-
                      rial Guinea. While this is understandable, it adds to the complication of
                      this unique case.

                          29. In any case, to establish the reasonableness of France’s conduct
                      will depend on the particular circumstances. The majority concludes that
                      Equatorial Guinea was aware on 4 October 2011 of the searches of
                      28 September and 3 October 2011 in the context of criminal proceedings.
                       Hence there were reasonable grounds for France’s objection to Equato-
                      rial Guinea’s designation of the building as diplomatic premises. Unfor-
                      tunately, this argument — as already indicated above — involves the
                      irrelevant period prior to 4 October 2011. It is surprising that this tempo-
                      ral element is ignored by the majority. Furthermore, the circumstances of
                      the present case point to Equatorial Guinea being a victim of unjust
                      treatment. Accusations of abuse of rights were made although they have
                       not been commented upon by the majority. This is another regrettable
                       matter.

                      155

6 Ord_1204.indb 306                                                                                19/01/22 08:24

                      452 	 immunities and criminal proceedings (diss. op. kateka)

                         30. Hence the respondent State cannot be absolved from accusations
                      of arbitrariness and discrimination. For example, French authorities
                      accepted a capital gains tax for the property at 42 avenue Foch when they
                      had no intention to pass on title of the building to Equatorial Guinea.
                      Moreover, France tries to refute accusations of arbitrariness and discrim-
                      ination by citing a single case of State X. It is not persuasive. Nor is the
                      contention that no other sending State has ever conducted itself in France
                      as Equatorial Guinea did in the present case. One may observe here that
                      no other country has ever found itself in the situation Equatorial Guinea
                      found itself in as a sending State. The linkage of France’s actions to the
                      criminal proceedings in French courts completes the unusual nature of
                      the present case. Unfortunately, the majority agrees with France that if
                      the respondent State had acceded to Equatorial Guinea’s assignment of
                      the building, it might have hindered the proper functioning of the French
                      criminal justice system (paragraph 109 of the Judgment). This is in my
                      view, a rather speculative and unnecessary comment which is not persua-
                      sive to justify further French searches of the building as reasonable.

                         31. As for the commencement date of the designation of the building
                      at 42 avenue Foch as diplomatic premises of Equatorial Guinea, I am of
                      the view that the notification by the Applicant on 4 October 2011 should
                      be accepted. The period between this date and 27 July 2012 was used for
                      planning the transfer of the premises from 29 boulevard de Courcelles to
                      42 avenue Foch in Paris.
                         32. In this connection, I observe that the French authorities, by their
                      actions, have repeatedly recognized the building at 42 avenue Foch as the
                      premises of the diplomatic mission of Equatorial Guinea. French officials
                      have visited the building to obtain visas; the building was granted protec-
                      tion in 2015 and 2016; four letters were addressed to 42 avenue Foch by
                      French officials in 2019. The majority (paragraph 114 of the Judgment)
                      attempts to counter these recognition factors by advancing arguments
                      that are not convincing. To argue that the acquisition of visas at 42 ave-
                      nue Foch in Paris does not lead to the conclusion that the premises were
                      recognized (by France) as constituting the premises of the mission —
                      without giving reasons — is not convincing. France, rather unconvinc-
                      ingly, tries to explain that the four letters were sent by mistake (at different
                      times)!
                         33. If the date of 4 October 2011 proves problematic, surely 27 July
                      2012 cannot be in doubt as the commencement date of the diplomatic
                      status of Equatorial Guinea’s mission at 42 avenue Foch. Several judges
                      have recognized and voted in favour of the status of 42 avenue Foch as
                      premises of the diplomatic mission of Equatorial Guinea even though
                      they found no breach of obligations. France concedes that its non‑
                      recognition of the building and the seizures of assets were done before
                      27 July 2012. It further states that since that date, Equatorial Guinea
                      has never reported any incidents that could have affected the peace of the

                      156

6 Ord_1204.indb 308                                                                                19/01/22 08:24

                      453 	 immunities and criminal proceedings (diss. op. kateka)

                      building. I am of the view that this is tacit consent and recognition of the
                      diplomatic status of the premises.

                         34. In light of the above, I am of the view that the building at 42 ave-
                      nue Foch acquired the status of premises of the mission of Equato-
                      rial Guinea in France as of 4 October 2011 and that France is in breach
                      of its obligations under the VCDR.

                            V. Fate of the Premises of Equatorial Guinea in France

                         35. The Court (para. 116) notes that the conduct of France did not
                      deprive Equatorial Guinea of its premises in France and the Applicant
                      already had diplomatic premises at 29 boulevard de Courcelles which
                      France still recognizes. However, the premises at 42 avenue Foch have
                      been recognized by the Court under the Order for provisional measures
                      of December 2016. That recognition/protection will end with the present
                      Judgment on the merits. The fate of these premises will be more uncertain
                      when the appeal against the judgment of the Cour d’appel of 10 February
                      2020 comes to an end. Confiscation of the building will definitely affect
                      the functioning of the Embassy of Equatorial Guinea in France. It is
                      regrettable that the Court has left this matter unresolved. The issue is
                      more than the question of ownership of the premises. It is the issue of the
                      dignity and inviolability of the premises of the mission of Equato-
                      rial Guinea under Article 22 of the VCDR. The stability of the rules of
                      diplomatic law will not be helped by this omission on the part of the
                      Court.

                      (Signed) James Kateka.

                      157

6 Ord_1204.indb 310                                                                                19/01/22 08:24


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L7INCIDENT AERIEN DU
27 JUILLET 1955

(ETATS-UNIS D’AMERIQUE c. BULGARIE)

ORDONNANCE DU 12 AOUT 1958

1958

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
~ AERIAL INCIDENT OF
JULY 27th, 1955

(UNITED STATES OF AMERICA v. BULGARIA)
ORDER OF AUGUST 12th, 1958
La présente ordonnance doit être citée comme suit:

«Affaire relative à l'incident aérien du 27 juillet 1955
(États-Unis d'Amérique c. Bulgarie),
Ordonnance du 12 août 1958: C.I. J. Recueil 1958, p. 37.»

This Order should be cited as follows:

“Case concerning the Aerial Incident of July 27th, 1955
(United States of America v. Bulgaria),
Order of August rath, 1958: I.C.J. Reports 1958, p. 37.”

N° de vente : 191
Sales number

37

COUR INTERNATIONALE DE JUSTICE

1958
Le 12 août
Réle général
n° 36

ANNEE 1958

12 août 1958

AFFAIRE RELATIVE A
L’'INCIDENT AERIEN DU
27 JUILLET 1955

(ÉTATS-UNIS D’AMERIQUE c. BULGARIE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

vu l’article 48 du Statut de la Cour et l’article 37 du Règlement
de la Cour;

Vu l'ordonnance du 19 mai 1958, qui a prorogé au 2 septembre
1958 et au 9 juin 1959 respectivement les délais antérieurement
fixés pour le dépôt du mémoire et du contre-mémoire en cette
affaire;

Considérant que, par une lettre du 21 juillet 1958, parvenue au
Greffe le 25 juillet, l'agent du Gouvernement des États-Unis d’Amé-
rique a demandé une nouvelle prorogation au 2 décembre 1958 du
délai pour le dépôt du mémoire;

Considérant qu’une copie certifiée conforme de cette lettre a été
adressée le 31 juillet 1958 à l’agent du Gouvernement de la Répu-
blique populaire de Bulgarie, qui a été invité à faire connaître le
plus tôt possible les vues de son Gouvernement sur cette demande,
et considérant que le ministre des Affaires étrangères de Bulgarie
a été informé de la demande par voie télégraphique le 30 juillet 1958;

4
38 INCIDENT AÉRIEN (É.-U. C. BULGARIE) (ORD. 12 VIII 58)

Considérant qu'aucune réponse à ces communications n'est
parvenue au Greffe;

Considérant que rien ne s’oppose à donner suite à la demande;

Fixe comme suit la date d’expiration des délais:

pour le mémoire du Gouvernement des États-Unis d'Amérique:
2 décembre 1958;

pour le contre-mémoire du Gouvernement de la République
populaire de Bulgarie: 9 juin 1959;

la suite de la procédure restant réservée.

Fait en français et en anglais, le texte français faisant foi, au
Palais de la Paix, à La Haye, le douze août mil neuf cent cinquante-
huit, en trois exemplaires, dont l’un restera déposé aux archives
de la Cour et dont les autres seront transmis respectivement au
Gouvernement des Etats-Unis d'Amérique et au Gouvernement de
la République populaire de Bulgarie.

Le Président,
(Signé) Helge KLAESTAD.

Le Greffier,
(Signé) J. Lopez OLIVAN.


139

JOINT DECLARATION OF JUDGES GUILLAUME AND
FLEISCHHAUER

[English Original Text]

Article 79, paragraph 7, of the Rules of Court — Objection of mootness
having an exclusively preliminary character.

Actions of the United States in order to obtain the surrender of the suspects
— Last substantive submission of Libya directed against these actions — Juris-
diction of the Court in this respect only to the extent that the actions in question
would be contrary to the Montreal Convention.

We feel prompted to make the following joint declaration with regard
to the Judgment of today’s date on the preliminary objections raised by
the United States in the case concerning questions of interpretation and
application of the 1971 Montreal Convention arising from the aerial inci-
dent at Lockerbie:

I

We voted against the third conclusion in the dispositif that

“the objection raised by the United States according to which the
claims of Libya became moot because Security Council resolutions
748 (1992) and 883 (1993) rendered them without object does not,
in the circumstances of the case, have an exclusively preliminary
character”.

We find that that conclusion is wrong and that it sets a potentially
dangerous precedent as it undercuts the object and purpose of Article 79
of the Rules of Court.

The conclusion is wrong for the following reasons.

This case is about the Montreal Convention. What is in dispute between
the Parties is the applicability of the Convention to the Lockerbie inci-
dent and the observation of the obligations flowing from its provisions in
the aftermath of the incident. The case is not about the Security Council
resolutions 748 (1992) and 883 (1993) which were adopted. by the Council
on 31 March 1992 and 11 November 1993 respectively, i.e., after Libya
had submitted its Application on 3 March 1992. Libya’s substantive sub-
missions as contained in its Application and its Memorial concern the
applicability of the Montreal Convention and the compliance of the
Parties with particular provisions of that instrument in the handling of
the Lockerbie incident. Were it otherwise, the Court would not have
jurisdiction ; the only base for jurisdiction in this matter is Article 14, para-

28
1971 MONTREAL CONVENTION (JOINT DECL.) 140

graph 1, of the Montreal Convention which confers on the Court juris-
diction over “any dispute between two or more Contracting States con-
cerning the interpretation or application” of the Convention.

The United States as Respondent claims, as a matter of preliminary
objection, that “Libya’s claims have become moot because Security Coun-
cil resolutions 748 (1992) and 883 (1993) have rendered them without
object” (Judgment, para. 45). The aim of the objection is to obtain a deci-
sion from the Court that there is no ground for proceeding to judgment
on the merits. This is an exclusively preliminary objection. The Court
could — and should — have decided on it without thereby passing judg-
ment — if only in part — on the merits of Libya’s claims.

Had the Court rejected — in whole or in part — the preliminary objec-
tion in question, then it would now turn — in so far as the preliminary
objection was rejected — to the merits of the Libyan submissions and
examine them one by one within the limits of its jurisdiction. The out-
come of that examination would in no way be predetermined by the
previous examination of and decision on the objection of the United
States.

Had the Court, on the other hand, accepted the objection raised by the
United States, then the Court would have effectively ended the case. It
would, however, have done so without deciding on the merits of any of
the submissions presented by Libya or predetermining them. The Court
would have left the Montreal Convention completely aside. It would
have based its decision exclusively on a new element, extraneous to the
Montreal Convention and not related to it — the Security Council reso-
lutions. In adopting resolutions 748 (1992) and 883 (1993), which contain
decisions made under Chapter VII of the Charter and binding under Ar-
ticle 25, the Security Council has not taken a position with regard to the
Montreal Convention; in no way has it decided whether the provisions of
the Convention are applicable to the Lockerbie incident, nor has it
decided or taken position on the question whether the provisions of the
Convention have been complied with by the Parties. Rather, in the exer-
cise of its primary responsibility for the maintenance of international
peace and security, the Council found it necessary to impose certain obli-
gations on Libya. In accordance with Article 103 of the Charter, those
obligations override all other obligations of the Parties, irrespective of
whether the latter obligations were contested between the Parties or
whether they had been complied with or not. The lack of connection
between the Security Council resolutions and the position of the Parties
under the Montreal Convention precludes the evaluation of the objection
of the United States as a defence on the merits; it also prohibits the
Court from stating, as it does, that the objection “does much more than
‘touch[ing] upon subjects belonging to the merits of the case’ ” (Judgment,
para. 49) or that it is “ ‘inextricably interwoven’ with the merits” (ibid. ).

Because this is so, the third conclusion of the dispositif of the Judg-
ment seems to run counter to the jurisprudence of the Court concerning

29
1971 MONTREAL CONVENTION (JOINT DECL.) 141

the application of Article 79 of the Rules of Court since their 1972 revi-
sion. The Court, with one exception (Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392),
has always dealt with preliminary objections in the first phase of the pro-
ceedings and has indeed favoured a restrictive interpretation of the
notion “not exclusively preliminary” in the interest of speedy and eco-
nomical disposal of the objections (ibid., Merits, Judgment, I. C.J. Reports
1986, pp. 29 ff.).

The Judgment seeks to justify its third conclusion by declaring that
accepting the preliminary objection of the United States would have
meant taking “a decision establishing that the rights claimed by Libya
under the Montreal Convention are incompatible with its obligations
under the Security Council resolutions” (para. 49). It adds that accept-
ance of the objection raised by the Respondent would have constituted
“a decision that those obligations prevail over those rights by virtue of
Articles 25 and 103 of the Charter” (ibid). This might be true, but it is
beside the point for the decision to be taken now on the preliminary
objection of the United States. Defining the meaning and the effect of the
resolutions of the Council and comparing those resolutions with the sub-
missions of Libya regarding the Montreal Convention in no way means
taking position on the rights and obligations of Libya under the Conven-
tion.

That acceptance of the preliminary objection of the United States
would have brought the case to an end is also not in itself an argument
against its exclusively preliminary character: the ending of a case is the
intention of every preliminary objection. This is so in the case of objec-
tions of the kind of those dealt with in the third conclusion of the dis-
positif. The Court has in the past had occasion to deal with such objec-
tions and has considered them separate from the merits; it dealt with
them even before turning to jurisdiction and admissibility (Nuclear Tests
cases (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 259-272,
and (New Zealand v. France), Judgment, I C.J. Reports 1974, pp. 457-
478). In this connection it has also to be pointed out that if the Council
terminated, with effect ex nunc, the measures prescribed by resolutions
748 (1992) and 883 (1993), the position of the Parties under the Conven-
tion would still exist, unchanged.

The third conclusion of the dispositif runs counter to the object and
purpose of Article 79 of the Rules of Court and sets a dangerous
precedent for the future handling of that provision for the following
reasons.

When the Court, in 1972, adopted the text which later became Ar-
ticle 79, it did so for reasons of procedural economy and of sound admin-
istration of justice. Court and parties were called upon to clear away
preliminary questions of jurisdiction and admissibility as well as other
preliminary objections before entering into lengthy and costly proceed-

30
1971 MONTREAL CONVENTION (JOINT DECL.) 142

ings on the merits of a case. Of course, provision had to be made for
objections that did not possess “in the circumstances of the case, an
exclusively preliminary character” (Art. 79, para. 7). In order to make the
necessary determinations the Court, “whenever necessary, may request
the parties to argue all questions of law and fact, and to adduce all evi-
dence, which bear on the issue” (Art. 79, para. 6). The interpretation
given by the Court in the present case to the notion “not exclusively pre-
liminary character” is, however, so wide and so vague that the possibility
of accepting a preliminary objection becomes seriously restricted. Thereby
the Judgment acts counter to the procedural economy and the sound
administration of justice which it is the intent of Article 79 to achieve.

I

We would also like to state that we have voted in favour of the first
conclusion of the dispositif on jurisdiction of the Court over the case on
the following understanding relating to the last of the substantive sub-
missions presented by Libya in its Application and its Memorial.

In the version submitted to the Court in the Libyan Memorial this sub-
mission concerns an alleged legal obligation of the United States

“to respect Libya’s right not to have the [Montreal] Convention set
aside by means which would in any case be at variance with the prin-
ciples of the United Nations Charter and with the mandatory rules
of general international law prohibiting the use of force and the vio-
lation of the sovereignty, territorial integrity, sovereign equality and
political independence of States” (Judgment, para. 33).

We recognize that there is a legal dispute between the Parties concern-
ing this point. That dispute, however, falls under Article 14, paragraph 1,
of the Montreal Convention and therefore within the jurisdiction of the
Court only if, and in so far as, it concerns the interpretation and applica-
tion of one or more of the provisions of the Convention. The dispute
does not fall under Article 14, paragraph 1, and the jurisdiction of the
Court if it concerns the interpretation and application of Article 2, para-
graph 4, of the Charter of the United Nations. That is spelled out in para-
graph 35 of the Judgment, but not so explicitly in the dispositif; that is
why we wish to make our position on the matter quite clear.

(Signed) Gilbert GUILLAUME.
(Signed) Carl-August FLEISCHHAUER.

31