                     340

                                                SEPARATE OPINION
                                               OF PRESIDENT YUSUF

                        Disagree with the contradictory conclusion of the Court on Article 1 (i) of the
                     Vienna Convention on Diplomatic Relations — Provision characterized as
                     “unhelpful” in reasoning and set aside — Later, used in dispositif to deny status of
                     “premises of the mission” to building at 42 avenue Foch — Court should have
                     ascertained as threshold matter whether building at 42 avenue Foch was “used” as
                     “premises of the mission” within meaning of Article 1 (i) — Criterion of effective
                     use is the key — Jurisprudence of domestic courts and international tribunals
                     confirm that conclusion — Relevance of definitional provisions to applicability and
                     operation of other provisions should have been analysed — It is illogical to dismiss
                     relevance of “use” criterion in Article 1 (i) but deny status of “premises of the
                     mission” to building on the basis of the same article.

                        Requirement of “prior approval” or “power to object” has no basis in the
                     Convention — Object and purpose of the Convention insufficient to establish these
                     requirements — Vienna Convention is a self-contained and reciprocal régime that
                     specifies the means at disposal of receiving State to counter possible abuses —
                     Requirement of “prior approval” or “power to object” will generate unnecessary
                     misunderstandings and tensions in diplomatic relations — Court should have
                     analysed Articles 41 and 21 of the Vienna Convention as relevant context to
                     Article 1 (i) — Practice of few States on a different plane from concordant practice
                     embracing all parties to treaty — Convention does not make compliance with
                     domestic laws and regulations of receiving State condition to the application of
                     Article 1 (i) — France did not have general, well‑known and transparent practice
                     at the relevant time — Requirement of “prior approval” or “power to object” is
                     unqualified and unclear — Criteria for exercise of this power have no basis in the
                     Convention.

                        Actions taken by the French authorities and diplomatic exchanges — Building
                     at 42 avenue Foch became part of Applicant’s diplomatic premises as of 27 July
                     2012 — Entries and searches by French officials prior to that date not a violation
                     of Article 22, paragraph 1, of the Convention — Attachment and confiscation of
                     building did not affect actual use of premises and effective performance of
                     diplomatic functions therein — They do not amount to violations of Article 22,
                     paragraph 3, of the Convention — Ownership of building not relevant for
                     characterization as “premises of the mission” under Article 1 (i).

                     44

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                                                  I. Introduction

                          1. I voted against subparagraph (1) of paragraph 126 of the Judgment
                     because I do not agree with the Court’s decision on the status of the
                     building at 42 avenue Foch, in Paris; nor do I agree with the analysis that
                     led the majority to endorse that decision. My vote in favour of other
                     subparagraphs of the dispositif does not also mean that I agree with the
                      reasoning of the Court in reaching those conclusions. This reasoning is
                      based on the erroneous proposition that the prior approval, or at least the
                      absence of objection by the receiving State, is required for a property to
                      be considered as “premises of the mission” under the Vienna Convention
                      on Diplomatic Relations (hereinafter the “VCDR” or the “Vienna Con-
                      vention”).
                          2. Such a requirement is not to be found in any of the sources of
                      international law. Nor does the Judgment identify a rule of treaty law
                       or of customary law, or a general principle of international law, which
                       prescribes such a requirement with regard to diplomatic premises. It is a
                       concept that appears to have been plucked out of thin air.
                          3. Moreover, it is stated in subparagraph (1) of the dispositif that the
                       building at 42 avenue Foch in Paris “has never acquired the status of
                       ‘premises of the mission’ . . . within the meaning of Article 1 (i) of the
                       Vienna Convention”. This conclusion is striking for a number of reasons.
                       First, there is absolutely nothing in Article 1 (i) of the VCDR which
                       indicates that a building does not acquire the status of “premises of the
                       mission” unless there is prior approval or lack of objection by the receiv-
                       ing State, contrary to the reasoning of the Judgment. Secondly, the Judg-
                       ment itself states that the provisions of the Vienna Convention are “of
                       little assistance” in appraising the circumstances in which a property
                       acquires the status of “premises of the mission” and that Article 1 (i) is
                       “unhelpful” in determining how a building may come to be used for the
                       purposes of a diplomatic mission. If Article 1 (i) is unhelpful in making
                       such determination, how can it serve as the basis of the conclusion that
                       the building never acquired the status of “premises of the mission”?
                       Thirdly, the Judgment offers no meaningful interpretation of the terms
                       “buildings . . . used for the purposes of the mission” in Article 1 (i), nor
                       does it make the slightest attempt to apply such interpretation to the par-
                       ticular circumstances of this case.
                          4. By ignoring the criterion of “use” — a criterion that has been recog-
                       nized in the case law of both domestic and international courts over the
                       past century as being at the heart of the characterization of a building as
                       “diplomatic premises” under customary law and the VCDR — and by
                       replacing it with a hitherto unknown requirement of prior approval or a
                       power to object, the Judgment is likely to put a spanner into the works of
                       the old law of diplomatic relations, and create difficulties where none
                       existed before in the relations between sending and receiving States. This
                       is another reason that led me to vote against subparagraph (1) of para-
                       graph 126 of the Judgment.

                     45

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                     II. Article 1 (i) of the VCDR: Determination of what Constitutes
                                          the “Premises of the Mission”

                       5. Article 1 (i) of the VCDR reads as follows:

                              “For the purposes of the present Convention, the following expres-
                          sions shall have the following meanings hereunder assigned to them:
                          �����������������������������������������������������������������������������������������������������������������
                          (i) the ‘premises of the mission’ are the buildings or parts of buildings
                                and the land ancillary thereto, irrespective of ownership, used for
                                the purposes of the mission including the residence of the head of
                                the mission.”
                        6. There is no doubt that Article 1 (i) can help us determine what
                     constitutes the “premises of the mission” under the VCDR. As a defini-
                     tional provision, it provides the meaning of a term or expression used in
                     other provisions of the treaty, and thereby determines the extent and
                     manner in which such other provisions are to be applied (see also para-
                     graphs 19-22 below). For example, in the case of the VCDR, it would not
                     be possible to apply Article 22, and therefore determine the rights and
                     obligations of the sending and receiving States with regard to the prem-
                     ises of the mission, without Article 1 (i), which defines what constitutes
                     such premises. Article 1 (i) cannot, however, be interpreted, under any
                     rules of interpretation, and has never been interpreted before by a court
                     of law, to establish a power to object or a requirement of prior approval
                     by the receiving State for a property to be considered as “premises of the
                     mission” (see paragraph 76 of the Judgment). Those words cannot be
                     ascribed to it, nor to any other provision of the VCDR.

                        7. The text of Article 1 (i), interpreted in its ordinary meaning, pro-
                     vides, among others, two important indications with regard to the quali-
                     fication of a property as “premises of the mission”. First, the property
                     must be “used for the purposes of the mission”. In other words, the essen-
                     tial functions of the mission of the sending State must be carried out in
                     such a building. The word “used” is the key here. It means that the build-
                     ing has already been put to the purpose it was intended for, which in this
                     case is the performance of the functions of the mission. As stated in the
                     preamble of the VCDR “the purpose of [diplomatic] privileges and
                     immunities is . . . to ensure the efficient performance of the functions of
                      diplomatic missions as representing States”. It is therefore the place where
                      such functions are performed that can be characterized as “premises
                      of the mission”, including the residence of the head of mission.

                        8. Secondly, Article 1 (i) indicates that the ownership of the building
                     is not relevant for the premises to be considered as “premises of the mis-
                     sion”. Such premises may be rented or leased or placed free of charge at

                     46

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                     the disposal of the mission by the receiving State or by a private party.
                     The buildings may also be owned by the mission; however, such owner-
                     ship does not determine their character as “premises of the mission”.

                         9. The pre-eminence of the criterion of “use[] for the purposes of the
                     mission” in the determination of what constitutes “premises of the mis-
                     sion” has been established in the case law of domestic courts in many
                     countries, and also by international tribunals in more recent years. It is
                     surprising that the Judgment of the Court does not refer to any of those
                     authoritative judgments which have applied the rules of both customary
                     international law and of the VCDR in order to determine whether a cer-
                     tain building constituted the premises of the mission and was, as a result,
                     entitled to diplomatic privileges and immunities.
                         10. Among the judgments based on customary international law, the
                     following examples may be mentioned. In 1929, the Tribunal civil de la
                     Seine (France), in Suède v. Petrocochino, rejected Sweden’s claim of
                     diplomatic immunity over a building purchased by its embassy in Paris,
                      noting that the mere acquisition of property does not, ipso facto, confer the
                      privileges and immunities applicable to embassies; rather, such privileges
                      are created “only [by] the assignment — once it has taken place — of the
                      said property to the offices of the embassy of that State” 1.
                         11. Similarly, in 1947, in Echref v. Fanner (1947), an Egyptian
                      court rejected the claim of diplomatic immunity over the real estate prop-
                      erty purchased by the Yugoslavian Embassy in Cairo, on the basis that
                      there had been no effective use of the said building by the legation. It
                      stated:
                             “Whereas, in order for the said prerogatives to receive in this
                          instance the full diplomatic or judicial protection that they entail,
                          there must at least have been an impediment to the legitimate exercise
                          thereof;
                             But whereas the facts of the present case do not justify such claims,
                          since there has been no interference with the Yugoslavian legation’s
                          peaceful possession of the premises effectively occupied by it.” 2
                          (Emphasis added.)
                     The court then concluded that “it [was] legally insufficient for the State
                     of Yugoslavia to assign such premises to its legation solely by its own
                     will” 3.

                        1 Tribunal civil de la Seine (Chambre du Conseil), Suède v. Petrocochino, 30 October

                     1929, reported in Journal du droit international (JDI), 1932, Vol. 59 (4), p. 945 [translation
                     by the Registry].
                        2 Tribunal civil mixte du Caire (2e Chambre), S. E. Echref Badnjević ès qualité de Ministre

                     de Yougoslavie en Egypte v. W. R. Fanner, 29 April 1947, reported by Maxime Pupikofer,
                     “Bulletin de jurisprudence égyptienne”, JDI, 1946‑1949, Vols. 73-74, p. 117 [translation by
                     the Registry].
                        3 Ibid., p. 118.

                     47

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                        12. Also, in 1959, the Supreme Restitution Court of Berlin (hereinafter
                     the “SRCB”), in Cassirer and Geheeb v. Japan 4, referred to the Inter
                     national Law Commission’s (hereinafter the “ILC”) revised Draft Arti-
                     cles on Diplomatic Intercourse and Immunities and its acceptance of
                     the theory of functional necessity 5 and explained that:
                          “[t]he rationale of functional necessity makes it clear that the immunity
                          of diplomatic premises exists because of their possession, coupled with
                          their actual use, for diplomatic purposes. Absent the elements of pos-
                          session and of actual use, a mere intention to use such premises for
                          diplomatic purposes in the future, prior to their actual use, is of no
                          legal significance upon the question of resurrection of the privilege of
                          immunity . . . Immunity is a shield, not a sword.” 6 (Emphasis added,
                          references omitted.)
                     The SRCB came also to the same conclusion in Tietz and Others v. Bul
                     garia 7, Weinmann v. Latvia 8 and Bennett and Ball v. Hungary 9.

                        13. After the conclusion of the VCDR in 1961, the case law of domes-
                     tic tribunals interpreted the provisions of the Convention, which
                     mostly reflected customary law, while sometimes referring to the work
                     of the ILC. Thus, in 1962, in the Jurisdiction over Yugoslav Military Mis
                     sion (Germany) Case, the Federal Constitutional Court of Germany
                     recalled the previous jurisprudence relating to the criterion of “use” and
                     noted:
                             “The courts, in determining the immunity of the foreign State from
                          the jurisdiction of the local courts, regarded as relevant the circum-
                          stance whether the premises were in fact being used for diplomatic pur
                          poses. This permits the inference that according to the view of these
                          courts foreign States are not granted unlimited immunity concerning
                          their embassy premises but only to the extent required by the object
                          and purpose of diplomatic privileges and immunities . . . The invio-
                          lability of the premises of the mission, as set out in the commentary
                          of the Commission to the relevant provision of the draft, is not the
                          necessary consequence of the inviolability of the chief of the mission
                          but is a right attributable to the sending State, by reason of the fact
                          that the premises are used as the seat of the diplomatic mission (Year

                        4 Supreme Restitution Court of Berlin (SRCB), Cassirer and Geheeb v. Japan, 10 July

                     1959, reported in American Journal of International Law (AJIL), 1960, Vol. 54 (1),
                     pp. 178‑188.
                        5 Ibid., pp. 185‑186.
                        6 Ibid., p. 187.
                        7 SRCB, Tietz and Others v. People’s Republic of Bulgaria, 10 July 1959, reported in

                     International Law Reports (ILR), 1963, Vol. 28, pp. 369, 381-382.
                        8 SRCB, Weinmann v. Republic of Latvia, 10 July 1959, reported in ibid., pp. 385, 391.

                         9 SRCB, Bennett and Ball v. People’s Republic of Hungary, 10 July 1959, reported in

                     ibid., pp. 392, 396.

                     48

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                          book, 1958, Vol. II, p. 95). It may be assumed, therefore, that Arti-
                          cle 22 of the Vienna Convention is also based on the view that the
                          immunity of the mission premises is justified but limited by the object
                          of granting protection to the exercise of diplomatic functions.” 10
                          (Emphases added.)
                        14. In 1989, in the case of R. v. Secretary of State for Foreign and
                      ommonwealth Affairs (ex parte Samuel), the English Court of Appeal
                     C
                     upheld a judgment of the High Court which accepted the opinion of the
                     Secretary of State that the former Embassy of Cambodia in London
                     did not qualify as “diplomatic premises” for the purposes of Article 22
                     of the VCDR, noting that
                          “[t]he embassy premises are no longer ‘used for the purposes of the
                          mission’ within the meaning of Article 1 (i) of the Vienna Convention
                          and thus do not enjoy the special status, particularly inviolability,
                          provided for by Article 22. That is correct, Article 22 is dealing with
                          ‘the premises of a mission’. That term is defined by Article 1 as build-
                          ings and land ancillary thereto ‘used for the purposes of the mission’.
                          The embassy premises were not ‘used’ for the purposes of a mission
                          at the date of the Order or at any subsequent time. There has not been
                          a mission since 1975 or thereabouts.” 11
                        15. Also, in 1998, the Ontario Court of Justice, in Croatia v. Ru-Ko Inc.,
                     rejected the argument of Croatia that a certain piece of property was
                     immune from execution as “premises of the mission” within the meaning
                     of Article 1 (i) of the VCDR. It explained its reasoning as follows:

                             “[17] In analyzing Article 1 (i) it would appear that the operative
                          words of that subsection are ‘used for the purposes of the mission
                          including the residence of the head of mission’.
                             [18] It follows therefore that if the lands are ‘premises of the mis-
                          sion’ they must be used for the purposes of the mission. The verb used
                          being in the past tense and/or present.
                             [19] There may be many buildings owned by foreign states in the
                          City of Ottawa and in Canada, but it is clear that the Vienna Conven
                          tion would allow immunity to be granted to only such lands and buildings
                          that are used for the purposes of the diplomatic mission of that foreign
                          sovereign state.” 12 (Emphasis added.)

                        10 Federal Constitutional Court of the Republic of Germany, Jurisdiction over Yugo

                     slav Military Mission (Germany) Case, 30 October 1962, reported in ILR, 1969, Vol. 38,
                     pp. 162, and 165-167.
                        11 English Court of Appeal, R. v. Secretary of State for Foreign and Commonwealth

                     Affairs (ex parte Samuel), 28 July 1989, reported in ILR, 1990, Vol. 83, pp. 231, 239.
                        12 Ontario Court of Justice (General Division), Croatia v. Ru-Ko Inc., 15 January 1998,

                     reported in Ontario Trial Cases (1998), Vol. 52, p. 191, paras. 17-19.

                     49

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                        16. Turning now to the case law of international courts, the 2005 judg-
                     ment of the European Court of Human Rights (hereinafter the “ECtHR”)
                     in the case of Manoilescu and Dobrescu v. Romania and Russia is instruc-
                     tive. In this case, the ECtHR dealt with the claims of two Romanian
                     nationals under Article 6 of the European Convention on Human Rights
                     that Romania had failed to enforce a judgment awarding to them a real
                     estate property that had been unlawfully taken by them, and was cur-
                     rently used by the Russian Federation as its embassy. The ECtHR rejected
                     the claims, and observed that the building was “used” for the purposes of
                     the mission:
                             “77. As regards the applicants’ argument that the property in issue
                          was transferred unlawfully to the Russian Federation, and hence to
                          its embassy in Romania, the Court observes that no distinction is
                          made in the relevant provisions of international law on immunity as
                          regards the means, whether lawful or otherwise, by which the prop-
                          erty in the forum State intended for use as ‘premises of the mission’
                          passed into the ownership of the foreign State. It is sufficient for the
                          property to be ‘used for the purposes of the mission’ of the foreign State
                          for the above principles to apply, a condition that appears to have been
                          satisfied in the instant case, seeing that the property in question is used
                          by officials of the Russian Federation Embassy in Romania.” 13 (Empha-
                          sis added.)
                        17. The above case law clearly indicates that whenever the issue of
                     what constitutes “premises of the mission” and whether a building should
                     be considered to have the status of diplomatic premises has come before
                     a domestic court or an international tribunal, it was always resolved
                     on the basis of the criteria established under Article 1 (i) of the VCDR,
                     which also reflect customary international law. Similarly, in the present
                     case, the Court should have resorted to the text of Article 1 (i) of the
                     VCDR, in order to determine whether the building at 42 avenue Foch
                     in Paris could be considered to have the status of “premises of the mis-
                     sion”.
                        18. A first step in that direction seems to have been made in para-
                     graph 41 of the Judgment, but it has not been followed through. It is
                     stated in that paragraph that “[t]he Court must first determine in which
                     circumstances a property acquires the status of ‘premises of the mission’
                     within the meaning of Article 1 (i) of the Vienna Convention”. Unfortu-
                     nately, this is not done anywhere in the Judgment. Instead, we find a
                     statement in paragraph 62, according to which
                          “[t]he Court considers that the provisions of the Vienna Convention,
                          in their ordinary meaning, are of little assistance in determining the
                          circumstances in which a property acquires the status of ‘premises of

                       13 European Court of Human Rights (Third Section), Manoilescu and Dobrescu v.

                     Romania and Russia, 3 March 2005, No. 60861/00, para. 77.

                     50

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                          the mission’. While Article 1 (i) of the Vienna Convention provides
                          a definition of this expression, it does not indicate how a building may
                          be designated as premises of the mission. Article 1 (i) describes the
                          ‘premises of the mission’ as buildings ‘used for the purposes of the
                          mission’. This provision, taken alone, is unhelpful in determining how
                          a building may come to be used for the purposes of a diplomatic
                          mission, whether there are any prerequisites to such use and how such
                          use, if any, is to be ascertained.”

                     This conclusion is neither supported by an examination of the provisions
                     of the VCDR, nor by an analysis of the text of Article 1 (i). It is therefore
                     difficult to understand how it was arrived at or the reasoning on which it
                     is actually based, even less how, in light of the above statement, it is pos-
                     sible to declare afterwards in subparagraph (1) of the dispositif that the
                     building at 42 avenue Foch in Paris “has never acquired the status of
                     ‘premises of the mission’ . . . within the meaning of Article 1 (i) of the
                     Vienna Convention”. (Emphasis added.)
                         19. Moreover, the role and significance of a definitional provision,
                     such as Article 1 (i), appears to have been downplayed in the Judgment.
                     Definitional provisions are central to the applicability and operation
                     of the other provisions of the treaty. Their function is to assist in the
                     interpretation and application of such other provisions. The Court has
                     often applied them to interpret and apply “operative provisions” of
                     treaties. It should have done the same here with regard to Article 22 of
                      the VCDR.
                         20. For instance, in Ukraine v. Russia, the Court explained that the
                      International Convention on the Suppression of the Financing of Terror-
                      ism (ICSFT) “imposes obligations on States parties with respect to
                      offences committed by a person when ‘that person [finances]’ acts of ter-
                      rorism as described in Article 2, paragraph 1 (a) and (b)”. Thus, the
                      Court made a direct connection between the operative obligations set
                      forth in the ICSFT and the definition of “financing acts of terrorism”
                      under Article 2, paragraph 1 (1) (a) and (b) of the ICSFT 14. By contrast,
                     in so far as the financing of terrorism by States fell outside the scope of
                     the definitional provisions, it was not “addressed” by the ICSFT 15. In the
                      case concerning Certain Iranian Assets, the Court explained that Iran’s
                      claims with respect to Bank Markazi would fall under the 1955 Treaty of
                      Amity only to the extent that Bank Markazi could fall within the defini-
                      tion of a “company” under Article III (1) of the Treaty 16. Consequently,

                        14 Application of the International Convention for the Suppression of the Financing of

                     Terrorism and of the International Convention on the Elimination of All Forms of Racial
                     Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment,
                     I.C.J. Reports 2019 (II), p. 585, para. 59.
                        15 Ibid.
                        16 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Prelim

                     inary Objections, Judgment, I.C.J. Reports 2019 (I), pp. 36‑37, paras. 84-87.

                     51

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                      the extent of the United States’ obligations under Articles III, IV and V
                      of the 1955 Treaty of Amity was intrinsically linked to the scope of “com-
                      panies” under Article III.
                         21. Similarly, in several judgments relating to the law of the sea, the
                      Court extensively analysed and interpreted definitional provisions, such
                      as those defining islands or the continental shelf, in order to determine the
                      scope and applicability of the other provisions of treaties, especially the
                      United Nations Convention on the Law of the Sea (UNCLOS). In the
                      North Sea Continental Shelf cases, for example, the Court took note of
                      the various definitions suggested by the ILC on the concept of the conti-
                      nental shelf as a relevant factor for the determination of the applicable
                      delimitation methodology 17. The Court underlined the relevance of the
                      definition of the continental shelf for the purposes of maritime delimita-
                      tion in Tunisia/Libya and Libya/Malta 18. In the case concerning Territo
                      rial and Maritime Dispute (Nicaragua v. Colombia), the Court recalled its
                      previous conclusion in Qatar v. Bahrain that “the legal definition of an
                      island embodied in Article 121, paragraph 1, [of UNCLOS forms] part of
                      customary international law”, as a relevant principle for delimitation pur-
                      poses 19. In the case concerning Delimitation of the Continental Shelf
                      between Nicaragua and Colombia beyond 200 Nautical Miles, the Court
                      observed that Article 76 of UNCLOS, which contains the definition of
                      the continental shelf, also “makes provision” for the establishment of the
                      Commission on the Limits of the Continental Shelf (CLCS) for the delin-
                      eation of the continental shelf beyond 200 nautical miles 20. It follows that

                         17 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal

                      Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 95, referring
                      to Yearbook of the International Law Commission (YILC), 1956, Vol. I, p. 131, para. 46
                      (detailing the “Terminology and Definitions approved by the International Committee on
                      the Nomenclature of Ocean Bottom Features” adopted by the International Committee of
                      Scientific Experts at Monaco in 1952).
                         18 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982,

                      p. 46, para. 42 (“The fact that the legal concept, while it derived from the natural phenom-
                      enon, pursued its own development, is implicit in the whole discussion by the Court in
                      that case of the legal rules and principles applicable to it.”); ibid., pp. 48‑49, para. 49,
                      (concluding that “[t]he definition in Article 76, paragraph 1, therefore affords no criterion
                      for delimitation in the present case.”); Continental Shelf (Libyan Arab Jamahiriya/Malta),
                      Judgment, I.C.J. Reports 1985, p. 30, para. 27 (“[t]hat the questions of entitlement and of
                      definition of continental shelf, on the one hand, and of delimitation of continental shelf on
                      the other, are not only distinct but are also complementary is self-evident”); ibid., p. 32,
                      para. 31 (“the definition given in paragraph 1 [of Article 76] cannot be ignored”).
                         19 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports

                      2012 (II), p. 674, para. 139; Maritime Delimitation and Territorial Questions between Qatar
                      and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 99, para. 195
                      (“On these bases, the Court concludes that the maritime feature of Qit’at Jaradah satisfies
                      the above-mentioned criteria and that it is an island which should as such be taken into
                      consideration for the drawing of the equidistance line.”).
                         20 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia

                      beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Prelimi
                      nary Objections, Judgment, I.C.J. Reports 2016 (I), p. 137, para. 111.

                      52

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                      the definitional provisions in UNCLOS are of direct import to the inter-
                      pretation and application of other provisions of that Convention, such as
                      those concerning maritime delimitation.
                         22. Definitional provisions, such as the one in Article 1 (i) of the
                      VCDR, frequently lie at the very heart of a treaty’s régime 21, and apply
                      conjunctively with other provisions. By defining the scope of terms, they
                      determine the precise extent of the rights, obligations and relations regu-
                      lated by the treaty. Thus, when Article 1 (i) of the VCDR defines the
                      “diplomatic premises”, the obligations set forth in Article 22 of the
                      VCDR are circumscribed and clarified by reference to those buildings
                      that may qualify as “premises of the mission”. Consequently, the Court
                      should have ascertained, as a threshold matter, whether a building quali-
                      fies as “premises of the mission” within the meaning of Article 1 (i) of the
                      Convention before being able to assess whether a State, in this case
                      France, has breached its obligations under Article 22 of the VCDR. The
                      Judgment should have followed such a logical approach in order to
                      address the subject-matter of the dispute between the Parties in the pres-
                      ent case. Instead, it pivots sometimes to a concept of prior approval and
                      sometimes to that of the power to object of the receiving State. Unfortu-
                      nately, the legal basis of neither of these requirements is indicated in the
                      Judgment, which appears to borrow them from other provisions of the
                      VCDR that have nothing to do with the “premises of the mission”, or by
                      reference to the practice of a few States (not including France) that
                      require prior approval in their domestic legal systems.

                      III. Is the Prior Approval or the Power to Object of the Receiving
                           State Required under the VCDR for a Property to Qualify
                                          as “Premises of the Mission”?

                        23. At paragraph 76, the Judgment states that
                           “[h]aving determined that the objection of the receiving State prevents
                           a building from acquiring the status of the ‘premises of the mission’
                           within the meaning of Article 1 (i) of the Convention, the Court will
                           now consider whether France objected to the designation of the build-
                           ing at 42 avenue Foch in Paris as premises of Equatorial Guinea’s
                           diplomatic mission.”
                        24. The Judgment reaches this conclusion without adhering to the cus-
                      tomary rules of treaty interpretation, which are identified in its para-
                      graph 61. Neither the ordinary meaning to be given to Article 1 (i), which

                         21 Cf. Florian Jeßberger, “The Definition and the Elements of the Crime of Genocide”

                      in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary, Oxford University
                      Press, 2009, p. 88, noting that the definition of the crime of “genocide” forms the “heart”
                      of the Convention’s régime.

                      53

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                      is not properly analysed in the Judgment, nor the interpretation of its
                      terms in their context, or in the light of the object and purpose of the
                      Convention can lead to such a conclusion. It is also not clear how this
                      conclusion was arrived at on the basis of the VCDR, when in para-
                      graph 62 of the Judgment it is stated that “the provisions of the
                      Vienna Convention, in their ordinary meaning, are of little assistance in
                      determining the circumstances in which a property acquires the status of
                      ‘premises of the mission’”. Moreover, the Judgment does not indicate
                      whether the power to object is derived from a source outside the VCDR,
                      such as customary international law, or the practice of the few States
                      referred to in paragraph 69.
                         25. What the Judgment attempts to do, despite the above statement on
                      the provisions of the VCDR, is to extrapolate a power for the receiving
                      State to object to the designation of a property as “premises of the mis-
                      sion” from the object and purpose of the Vienna Convention, considered
                      independently of Article 1 (i), and from the requirement of “mutual con-
                      sent” under Article 2 of the Convention. Neither the preamble nor Arti-
                      cle 2 of the VCDR makes any reference to premises of the mission, nor
                      can their terms serve as the basis of a power to object. The VCDR clearly
                      specifies those instances in which any type of consent is required. They
                      relate, in particular, to the establishment of diplomatic relations, for
                      which mutual consent is required (Art. 2), the prior consent for offices in
                      localities other than those where the mission is established (Art. 12), and
                      the agrément necessary for the head of mission (Art. 4). Nowhere in the
                      VCDR is to be found a requirement of prior approval for a property to
                      qualify as “premises of the mission” (as suggested in paragraphs 71 and 72
                      of the Judgment) or a power of receiving States to object to the designa-
                      tion of diplomatic premises by sending States (as indicated in para-
                      graphs 68, 72, 73 and 76). Had the drafters of the VCDR intended to
                      subject the acquisition of the status of “premises of the mission” to the
                      prior or subsequent consent of the receiving State, they would have done
                      that explicitly.

                         26. A rule which supposedly determines the circumstances in which a
                      property can or cannot qualify as “premises of the mission” cannot be
                      based solely on the object and purpose of the VCDR, or on the Conven-
                      tion’s aim to “contribute to the development of friendly relations among
                      nations”. It has to be founded on a provision of the Convention. The
                      only provision in the VCDR which provides a definition of what consti-
                      tutes “premises of the mission” is Article 1 (i) and, when it is interpreted
                      “in good faith in accordance with the ordinary meaning to be given to the
                      terms of the treaty in their context and in the light of its object and pur-
                      pose” (Article 31, paragraph 1, of the Vienna Convention on the Law of
                      Treaties), it does not yield any criterion or condition other than that of
                      being “used for the purposes of the mission”. Moreover, there is nothing
                      unfriendly about a sending State choosing the building where its embassy

                      54

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                      351 	 immunities and criminal proceedings (sep. op. yusuf)

                      is to be housed in the receiving State as long as such building, in order to
                      be eligible for diplomatic immunities and privileges, is effectively used to
                      perform the functions of the mission.
                         27. In trying to find a basis in the preamble of the VCDR for the
                      power to object or the requirement of prior approval, the Judgment por-
                      trays the old law of diplomatic relations among States, now codified in
                      the VCDR, as being disadvantageous to the receiving State and imposing
                      restrictions on its sovereignty (see paragraphs 66 and 67 of the Judgment)
                      so that the “power to object” or the “prior approval” of the receiving
                      State can be considered as a counterweight. No evidence, however, is pro-
                      vided of the disadvantages or restrictions on the sovereignty of the receiv-
                      ing State imposed by the VCDR. Nevertheless, two references are made
                      in paragraphs 66, 67 and 68 to the significant “privileges and immunities”
                      accorded to the representatives of sending States and the indication in the
                      preamble of the VCDR that “the purpose of such privileges and immuni-
                      ties is not to benefit individuals but to ensure the efficient performance of
                      the functions of diplomatic missions as representing States”. If what is
                      being sought through such references is a remedy to the possible abuse or
                      misuse of privileges and immunities (and that is indeed the impression
                      given in paragraphs 66 and 67 of the Judgment), then the VCDR does not
                      at all require such a new remedy in the form of prior approval or the
                      power to object by the receiving State. As the Court observed in the case
                      concerning United States Diplomatic and Consular Staff in Tehran (United
                      States of America v. Iran), which is quoted at the end of paragraph 67 of
                      the Judgment,

                           “[t]he rules of diplomatic law, in short, constitute a self-contained
                           régime which, on the one hand, lays down the receiving State’s obli-
                           gations regarding the facilities, privileges and immunities to be
                           accorded to diplomatic missions and, on the other, foresees their pos-
                           sible abuse by members of the mission and specifies the means at the
                           disposal of the receiving State to counter any such abuse” 22.
                        28. What is actually overlooked in the Judgment is that the self-
                      contained and reciprocal régime, reflected in the VCDR, has withstood
                      the test of time, and has served through the centuries the interests of both
                      sending and receiving States without the power to object or the require-
                      ment of prior approval by the receiving State, that are being proposed
                      here. It is a régime that is balanced, realistic and mutually beneficial. A
                      régime that does not need a new requirement or a set of requirements for
                      a property to qualify as the “premises of the mission” because it already
                      defines it and because this definition, as interpreted by the courts of many
                      countries, has over the years been applied throughout the world to the
                      satisfaction of both sending and receiving States. A newly created require-

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

                      Iran), Judgment, I.C.J. Reports 1980, p. 40, para. 86.

                      55

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                      ment, which is not based on any of the sources of international law, can
                      only generate unnecessary misunderstandings and tensions where none
                      had never existed before.
                          29. Furthermore, the VCDR provides for the respect of the laws and
                       regulations of the receiving State by all persons enjoying diplomatic priv-
                      ileges and immunities (Art. 41, para. 1) and obligates the receiving State
                      either to facilitate, in accordance with its laws, the acquisition by the
                      sending State of premises for the latter’s mission, or to otherwise assist
                      the sending State’s mission in obtaining accommodation in some other
                      way (Art. 21, para. 1). Thus, the Convention appears to give a measure of
                      discretion to the receiving State to regulate the matter under its national
                      legislation, and some States have effectively done so. However, the Judg-
                      ment does not analyse Articles 41 and 21 of the VCDR as relevant con-
                      text to the interpretation of Article 1 (i), and selectively examines the
                      legislation or diplomatic practices of a few States, without addressing the
                      qualitative differences and nuances between them (see paragraph 69 of
                      the Judgment). Apart from the fact that no customary rule of interna-
                      tional law can be deduced from the existence of such legislation or
                      diplomatic practices, the scope of these regulations varies considerably
                       from one country to the other, and is mostly concerned with the acquisi-
                       tion of property, urban planning, local building laws or the security of
                       the mission itself. Much less does the Judgment attempt to explain
                       the significance of the practice of all other Contracting Parties to the
                       Vienna Convention, which have no regulation in place to require their
                       prior approval for the designation of premises by sending States, apart
                       from the general application of their domestic legislation to such prem-
                       ises.
                          30. The existence of domestic legislation or diplomatic practices in a
                       few States does not, therefore, warrant the conclusion that such a “power
                       to object” (or requirement of prior approval) is based in the VCDR or in
                       international law in general. As the ILC observed in 1964,

                                “the practice of an individual party or of only some parties as an ele-
                                ment of interpretation is on a quite different plane from a concordant
                                practice embracing all the parties and showing their common under-
                                standing of the meaning of the treaty. Subsequent practice of the latter
                                kind evidences the agreement of the parties as to the interpretation of
                                the treaty and is analogous to an interpretative agreement.” 23
                         31. Moreover, while the VCDR provides for the respect of all the laws
                      and regulations of the receiving State, none of its provisions makes a renvoi
                      to such laws and regulations with regard to the characterization of a prop-
                      erty as “premises of the mission” in such a manner as to make compliance
                      with internal law or the application of domestic procedures a condition for
                      its application. Therefore, the fact that the domestic laws or diplomatic
                           23   YILC, 1964, Vol. II, p. 204, para. 13.

                      56

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                      practice of a few countries provide for prior approval in the designation of
                      a building as the premises of the mission does not justify the transposition
                      of such requirement to international law or its representation as a condition
                      that has hitherto been well hidden, like a rare gem, in the nooks and cran-
                      nies of the VCDR. After all, the Judgment itself acknowledges that the
                      practice of those few States cannot establish the “agreement of the parties”
                      within the meaning of Article 31, paragraph 3 (b) of the Vienna Conven-
                      tion on the Law of Treaties (see paragraph 69 of the Judgment).
                         32. It should also be underlined that France is not one of the countries
                      that have adopted such legislation or diplomatic practice, although coun-
                      sel for France argued that the Ministry for Europe and Foreign Affairs
                      had an old and constant practice of “no objection” or “implicit consent”
                      with regard to the granting of diplomatic status to buildings which a
                      sending State wishes to assign to its diplomatic mission (cf. CR 2020/2,
                      p. 33, para. 23 (Bodeau-    Livinec); Counter-  Memorial of the French
                      Republic, para. 3.44). No clear evidence of the existence of a general,
                      well-known and transparent practice of such nature was, however, pro-
                      duced by France during the proceedings. All the documents submitted by
                      France in support of this affirmation (namely, the four Notes Verbales of
                      6 May 2016, 24 June 2016, 12 January 2017 and 20 January 2017, the
                      Note Verbale addressed to Equatorial Guinea on 28 March 2012, and the
                      Note Verbale addressed to the investigating judges on 11 October 2011)
                      post-date or are contemporaneous with the date when the dispute con-
                      cerning the building at 42 avenue Foch in Paris, arose. They do not show
                      the existence of an old and constant practice, nor of a general practice
                      known to all diplomatic missions accredited to France.

                         33. Besides lacking a basis in the law, the “power to object” (or require-
                      ment of “prior approval”) put forward in the Judgment is further compli-
                      cated by (a) its all-encompassing and unqualified character, and (b) the
                      equally unfounded custom-made criteria proposed for its exercise by the
                      receiving State.
                         34. With regard to (a), the Judgment does not distinguish between the
                      acquisition of property, its lease or its temporary rental for the purposes
                      of the receiving State’s “power to object” or this newly minted require-
                      ment of “prior approval”. These transactions reflect different needs and
                      interests and are not treated equally in the domestic legislation or prac-
                      tices mentioned above. It does not also make a distinction between prem-
                      ises used for the chancery and those used for the residence of the head of
                      mission. The application of such requirement by the receiving State might
                      delay or impede the heads of mission from taking up their duties after
                      having obtained the necessary agrément from the receiving State, since
                      they would have to choose their residence (in the case of a new mission or
                      an existing mission without an official residence) and have it approved by
                      the receiving State. Similarly, an embassy would be unable to sign a lease
                      or a rental agreement, even for a furnished apartment for the temporary
                      residence of its the head of mission, without first securing the approval of

                      57

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                      the receiving State. Otherwise, the sending State would run the risk that
                      such lease or rental agreement be frustrated by the subsequent objection
                      of the receiving State. The need to obtain such authorizations and their
                      accompanying complications for foreign missions do not exist today in
                      international law nor in the domestic legislation of more than 180 Mem-
                      ber States of the United Nations.

                         35. It is however with regard to (b) above that the creative develop-
                      ment in the Judgment of these newly minted requirements runs into its
                      most profound contradiction. In order to establish certain criteria for the
                      application of its creative interpretation, the Judgment first uses the
                      expression “power to object” (cf. paras. 72, 73, 74 and 76) as a synonym
                      of the “prior approval of the receiving State before a building can acquire
                      the status of ‘premises of the mission’” (cf. paras. 69 and 72), and then
                      characterizes this power as a discretionary one, which has to be exercised
                      in a timely, reasonable, non-arbitrary and non-discriminatory manner
                      (para. 73). Almost half of the Judgment is then devoted to an examina-
                      tion of whether France’s discretionary “power to object” was exercised in
                      accordance with those criteria. The question arises here whether this
                      newly minted “power to object” developed in the Judgment for a prop-
                      erty to qualify as “premises of the mission” is permissive or binding? Is it
                      a right of the receiving State (as suggested in paragraph 73 of the Judg-
                      ment) or a negative condition to the exercise of the sending State’s right
                      to designate its diplomatic premises (as suggested in paragraphs 67 and 68
                      of the Judgment)? Is it a requirement which has to be applied in all cir-
                      cumstances, or a discretionary power which may be exercised or not by
                      the concerned authorities of the receiving State? Does the absence of a
                      timely objection by the receiving State entail its implicit consent or tacit
                      approval (or perhaps its acquiescence) to the designation of diplomatic
                      premises by the sending State, or will the express approval of the receiv-
                      ing State be required at all times?
                         36. Similar questions arise with regard to the criteria developed in
                      paragraphs 73 to 74 of the Judgment. Where in the VCDR or other
                      sources of international law is such discretionary power of the authorities
                      of the receiving State to be found? What is the origin or legal basis of the
                      criteria proposed in the Judgment (except for the one on non-
                      discrimination mentioned in Article 47 of the VCDR) to assess the exer-
                      cise of the discretionary power of the authorities of the receiving State?
                      At least an attempt ought to have been made to clarify or address these
                      questions in the Judgment.

                                 IV. The Actions Taken by French Authorities:
                               Is There a Breach of the Provisions of the VCDR?

                        37. The factual context and the unfolding of diplomatic exchanges
                      between the two States with regard to the building at 42 avenue Foch in

                      58

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                      Paris, in 2011 and 2012, are important for understanding the claims of
                      Equatorial Guinea and the actions taken by French authorities with
                      regard to the building. It is therefore worthwhile to go through those
                      exchanges as well as the measures taken by France in a detailed manner,
                      without, however, trying to cover each and every specific event that may
                      be relevant to the case.
                         38. It is on 4 October 2011 that the Government of Equatorial Guinea
                      claims for the first time, in a Note Verbale to the French Foreign Minis-
                      try, that the Embassy of Equatorial Guinea in Paris had at its disposal, for
                      a number of years, a building located at 42 avenue Foch, Paris, which “it
                      uses for the performance of the functions of its diplomatic mission, a fact
                      which it has hitherto not formally notified to your [Protocol] department”.
                      This was done at a time when a judicial investigation, focused on the
                      methods used to finance the acquisition of movable and immovable assets
                      in France by several individuals, including Mr. Teodoro Nguema Obi-
                      ang Mangue, the son of the President of Equatorial Guinea, who at the
                      time was his country’s Minister of State for Agriculture and Forestry, was
                      underway in Paris. On 15 September 2011, Mr. Teodoro Nguema Obiang
                      Mangue, as sole shareholder, transferred to the State of Equatorial Guinea
                      all his shareholder rights in five Swiss companies that owned the building
                      at 42 avenue Foch in Paris. According to Equatorial Guinea, this is how it
                      acquired ownership of the building at 42 avenue Foch, Paris.
                         39. Following this transfer of ownership, Equatorial Guinea first
                      claimed that the building formed part of the premises of its diplomatic
                      mission (4 October 2011); it then asserted that the official residence of
                      Ms Bindang Obiang, the Permanent Delegate of Equatorial Guinea to
                      UNESCO, was on the premises of the diplomatic mission located at
                      42 avenue Foch, Paris, which “is at the disposal of the Republic of Equa-
                      torial Guinea” (17 October 2011).
                         40. On 14 February 2012, the President of Equatorial Guinea wrote to
                      his French counterpart to inform him, inter alia, that his son
                           “purchased a residence in Paris, however, due to the pressures on him
                           as a result of the supposed unlawful purchase of property, he decided
                           to resell the said building to the Government of the Republic of Equa-
                           torial Guinea.
                              At this time, the building in question is a property that was lawfully
                           acquired by the Government of Equatorial Guinea and is currently
                           used by the Representative to UNESCO.”
                        41. On the same date, the Permanent Delegation of Equatorial Guinea
                      to UNESCO sent a Note Verbale to the Protocol Department of
                      UNESCO stating that “the official residence of the Permanent Delegate
                      of Equatorial Guinea to UNESCO is located at 42 avenue Foch, 75016
                      Paris, property of the Republic of Equatorial Guinea”.

                         42. On 9 March 2012, the Minister of Justice of Equatorial Guinea wrote
                      to the French Minister of Justice, stating that “[s]ince 15 September 2011 the

                      59

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                      Republic of Equatorial Guinea has been the owner of a property located at
                      40/42 avenue Foch in Paris, assigned to its diplomatic mission and declared
                      as such . . . by Note Verbale No. 365/11 of 4 October 2011”. This was fol-
                      lowed by a Note Verbale on 12 March 2012 in which the Embassy of Equa-
                      torial Guinea asserted that the premises of 42 avenue Foch in Paris were
                      used for the purposes of its diplomatic mission in France.
                         43. On 27 July 2012, the Embassy of Equatorial Guinea stated in a
                      Note Verbale to the Protocol Department of the French Ministry of For-
                      eign and European Affairs that it had “the honour to inform [the French
                      Ministry] that, as from Friday 27 July 2012, the Embassy’s offices are
                      located at 42 avenue Foch, Paris (16th arr.), a building which it is hence-
                      forth using for the performance of the functions of its diplomatic mission
                      in France”.

                        44. This was the clearest statement made by Equatorial Guinea
                      throughout this period with regard to the use of the property at 42 ave-
                      nue Foch, as premises of its Embassy in Paris. Contrary to previous
                      notifications and communications to the French Ministry of Foreign

                      and European Affairs, some of which contradicted each other, and
                      most of which also placed the emphasis on the ownership of the build-
                      ing by Equatorial Guinea, it is interesting to note that in the Note
                      Verbale of 27 July 2012, Equatorial Guinea not only asserted that

                      as from that date the offices of the Embassy were located at 42 avenue
                      Foch, but also clearly indicated that the building would henceforth be
                      used for the performance of the functions of the diplomatic mission in
                      France.
                        45. Thus, the Note Verbale of 27 July 2012, together with that of
                      2 August 2012, which confirmed that the chancery of the Embassy of
                      Equatorial Guinea was indeed located at 42 avenue Foch, Paris, “a build-
                      ing that it uses as the official offices of its diplomatic mission in France”,
                      appear to have finally clarified the issue of whether the property at
                      42 avenue Foch was actually being used as premises of the mission of
                      Equatorial Guinea in France.

                        46. This issue, which was disputed at the time by the two States, and is
                      indeed still at the heart of the dispute brought before the Court, led the
                      French Foreign Ministry to take publicly the position (in a Note Verbale
                      to the Embassy of Equatorial Guinea dated 11 October 2011) that
                      “the . . . building [at 42 avenue Foch in Paris] does not form part of the
                      premises of Equatorial Guinea’s diplomatic mission. It falls within the
                      private domain and is, as such, subject to ordinary law”. Similarly, in a
                      reply to a request for information from the French Ministry of Justice,
                      the French Foreign Ministry stated on 11 October 2011 that “[t]he
                      above‑mentioned building is not included among those covered by the
                      Vienna Convention on Diplomatic Relations”.

                      60

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                        47. Following these statements by the French Foreign Ministry, French
                      investigators entered the building at 42 avenue Foch on several occasions
                      between 28 September 2011 and 23 February 2012 as part of a judicial
                      investigation into the assets owned by Mr. Obiang Mangue in France.
                      They also seized luxury vehicles belonging to him which were parked in
                      the premises. Subsequently, on 19 July 2012, the building at 42 avenue
                      Foch was attached (saisie pénale immobilière) on the order of the French
                      investigating judge. Finally, on 27 October 2017, the Tribunal correction
                      nel of the city of Paris delivered its judgment in the case involving
                      Mr. Obiang Mangue and ordered the confiscation of the assets seized,
                      including the building located at 42 avenue Foch in Paris. This sentence
                      was confirmed by the Cour d’appel on 10 February 2020.

                          48. The facts narrated above indicate, in my view, that the building at
                      42 avenue Foch in Paris may be considered to have become part of the
                      premises of the Embassy of Equatorial Guinea in France as of 27 July
                       2012. The Note Verbale of the Embassy of Equatorial Guinea of 27 July
                       2012 is quite clear in this regard. Prior to that date, there might have been
                       an intention on the part of Equatorial Guinea to use the building as dip-
                      lomatic premises, but there was no clear indication that the building was
                      actually being used for the performance of the functions of the Embassy.
                      Rather, the Notes Verbales sent to the French Foreign Ministry prior to
                      that date were characterized by equivocation and conflicting assertions.
                      Moreover, the searches carried out by the French investigators in
                      September 2011 and February 2012 found various private objects of con-
                       siderable value, which allegedly belonged to Mr. Obiang Mangue, while
                       noting that there were no offices, as such, at that time in the building.

                         49. It indeed appears to me that, it is only as of 27 July 2012 onwards,
                      that the building may be considered to meet the requirements laid down
                      in Article 1 (i) of the VCDR. In other words, this is the critical date with
                      regard to the status of the building as “premises of the mission”. The
                      Note Verbale of that date may also be considered as an appropriate noti-
                      fication that, thenceforth, the building would be used for the performance
                      of the functions of the mission. There is also some evidence that French
                      authorities, despite formal denials during the pleadings before the Court,
                      have to a certain extent acknowledged this reality.

                        50. In this connection, Equatorial Guinea has produced a number of
                      documents which clearly show not only the visits of French officials to the
                      premises of the Embassy at 42 avenue Foch, but also several Notes Ver-
                      bales addressed to the Embassy of Equatorial Guinea at that address by
                      the French Ministry of Foreign and European Affairs, most of which
                      were sent in 2019. While France has argued before the Court that these
                      Notes Verbales were sent by mistake to 42 avenue Foch, it is difficult to
                      overlook the visits by French officials to the Embassy at 42 avenue Foch,

                      61

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                      and the protection afforded to the building by French authorities in 2015
                      (in response to a protest), and in 2016 on the occasion of the presidential
                      elections in Equatorial Guinea. All these facts appear to support that the
                      building at 42 avenue Foch was used at the time, with effect at least from
                      27 July 2012, by Equatorial Guinea for the performance of certain diplo-
                      matic functions in France.

                         51. Moreover, it should be noted that the building was never entered
                      or searched again by the French authorities with effect from the end
                      of July 2012. This cannot be solely attributed to the Order on provi-
                      sional measures issued by the Court on 7 December 2016, which indicated
                      that
                           “France shall, pending a final decision in the case, take all measures
                           at its disposal to ensure that the premises presented as housing the
                           diplomatic mission of Equatorial Guinea at 42 avenue Foch in Paris
                           enjoy treatment equivalent to that required by Article 22 of the Vienna
                           Convention on Diplomatic Relations, in order to ensure their invio-
                           lability” 24.
                         52. It appears from the case file that the building was effectively treated
                      by the French authorities as “premises of the mission”, and apparently
                      never entered or inconvenienced in any way, for more than four years —
                      from July 2012 to December 2016 — before the Order of the Court was
                      issued, despite the continued legal proceedings before French courts
                      against Mr. Obiang Mangue and on the ownership of the building.
                         53. In light of the above, the question arises whether the entries by
                      French investigators in the building and the searches conducted therein
                      by French officials between 28 September 2011 and 23 February 2012, as
                      well as the attachment and confiscation ordered by the French courts,
                      constitute a violation of Article 22 of the VCDR.

                         54. First, with regard to the entries and searches, as pointed out above,
                      the building can be considered, in my view, to have acquired the status of
                      “premises of the mission” as of 27 July 2012. Therefore, the searches con-
                      ducted by French officials in the premises before that date concerned a
                      building that was not yet eligible for or entitled to diplomatic immunity
                      and protection under Article 22 of the VCDR, although it was by then
                      owned by the Government of Equatorial Guinea. Consequently, no viola-
                      tion of the provisions of the VCDR appears to have taken place as a
                      result of those entries or searches.

                         55. Secondly, the next significant measure taken by the French author-
                      ities with regard to the building, namely the attachment ordered by the
                      senior judge in charge of the investigation in the Tribunal de grande

                        24 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional

                      Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1171, para. 99.

                      62

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                      instance on 19 July 2012, also took place prior to 27 July 2012, the critical
                      date for the status of the building as premises of the mission under the
                      VCDR, although it has not been rescinded ever since. It is therefore a
                      measure, which might still produce its effects with respect to a building
                      that must currently be considered as the diplomatic premises of the
                      Embassy of Equatorial Guinea. It should, however, be stated that this
                      measure, as well as the measure of confiscation ordered by the tribunal,
                      affect, in particular, the ownership of the building. In this context, it is
                      important to recall the terms of Article 22, paragraph 3, of the VCDR,
                      which provides that “the 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”. What is the
                      scope of the immunity under this provision? Does it shield a building
                      from jurisdiction with regard to the determination of the ownership of the
                      premises or a suit concerning title to the property? Or does it cover only
                      measures of execution or enforcement jurisdiction, which have an adverse
                      effect on the use of the premises?

                          56. I am of the view that the latter interpretation is to be preferred. As
                      pointed out earlier in this opinion, the ownership of the property is not
                      relevant for its characterization as “premises of the mission” under the
                      VCDR. A building used as “premises of the mission” may be rented or
                      leased from a private person or a company, and local courts may decide
                      to attach the building to ensure the payment of debts by the owner or as
                      a result of transfer of ownership, without such decision necessarily affect-
                      ing the use of the building by the diplomatic mission. It is true that in the
                      instant case, the issue of the initial acquisition of the building by Mr. Obi-
                      ang Mangue and its current ownership are before the French courts,
                      which have ordered, for that purpose, the attachment of the building.
                      However, the order of attachment has not so far affected the use of the
                      building by the Embassy of Equatorial Guinea and has had no adverse
                      impact on the performance of the functions of the Embassy in that
                      building. Thus, as long as there is no measure of execution that could
                       impair the use of the building by the Embassy itself, in the sense of
                       further searches or entries, or an eviction order or other action affecting
                        the performance of its diplomatic functions within the premises, there is no
                        violation of the immunity from attachment or confiscation prescribed
                        by Article 22, paragraph 3, of the VCDR.

                         57. Thirdly, and lastly, the measure of confiscation is still under appeal
                      to the Cour de cassation in France and has not therefore been executed so
                      far. However, even if the ownership title of the property was to be trans-
                      ferred to the French Government or to some other entity as a result of the
                      execution of the French court judgments, this would not necessarily have
                      an impact on the immunity provided by Article 22, paragraph 3, unless
                      the French Government decided to take measures that would directly

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                      affect the actual use of the building by the Embassy of Equatorial Guinea
                      for the performance of its diplomatic functions in France.
                         58. I am, therefore, of the view that the confiscation ordered by the
                      French courts may not be considered to be violative of Article 22, para-
                      graph 3, of the VCDR as long as the French authorities do not take mea-
                      sures that may have an adverse impact on the actual use of the building
                      at 42 avenue Foch in Paris as premises of the mission by the Embassy of
                      Equatorial Guinea. One can only hope that such measures will not be
                      taken by the French authorities despite the present Judgment of the
                      Court.

                                                     V. Conclusion

                           59. The building at 42 avenue Foch in Paris has been constantly used
                      since at least 27 July 2012 as premises of the Embassy of Equatorial
                      Guinea. It has not been disturbed, searched or otherwise inconvenienced
                      by French authorities since that date. To the contrary, it has been pro-
                      tected, treated as embassy premises by French authorities and visited by
                      officials of the Ministry of Foreign Affairs on various occasions even
                      before the Order on provisional measures issued by the Court in
                      December 2016. Whatever may be the differences of view on the history
                       of the ownership of the building, on how it was acquired, and by whom
                       it is currently owned, its use by the Embassy of Equatorial Guinea for
                       the past eight years cannot be put in doubt, and the issue of ownership
                       does not have much relevance for its characterization as “premises of the
                       mission”. It is the criterion of being “used for the purposes of the mission”,
                       clearly established in Article 1 (i) of the VCDR, that qualifies a build-
                       ing as diplomatic premises. And that is clearly fulfilled in this case. A
                       freshly minted requirement of “prior approval” or power to object of
                       the receiving State, which is not based on any of the provisions of the
                       VCDR or on any other source of international law, will not be of
                       much help to resolve the differences between the two States with regard to
                       the building. Nor will the contradictory conclusion reflected in the
                       dispositif, which denies the status of “premises of the mission” to the
                        building at 42 avenue Foch in Paris on the basis of Article 1 (i) of the
                        VCDR, while characterizing this provision as “unhelpful” in the determi-
                        nation of how a building becomes the “premises of the mission” (para-
                        graph 62 of the Judgment), be of assistance to them or to other States in
                        the future.

                        60. In its Order on provisional measures of 15 December 1979 in the
                      case concerning United States Diplomatic and Consular Staff in Tehran,
                      the Court observed that
                           “the institution of diplomacy, with its concomitant privileges and
                           immunities, has withstood the test of centuries and proved to be an

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                           instrument essential for effective co‑operation in the international
                           community, and for enabling States, irrespective of their differing
                           constitutional and social systems, to achieve mutual understanding
                           and to resolve their differences by peaceful means” 25.
                         61. I have no doubt that the law on diplomatic relations can, likewise,
                      withstand whatever spanner is thrown in its way. However, to ascribe to
                      international law a concept which may be found in the domestic laws of
                      a few countries and to treat it as a requirement applicable to the diplo-
                      matic relations among all States does not contribute to the development
                      of harmonious diplomatic relations. Similarly, to try to found on the
                      object and purpose of the Vienna Convention a requirement or power
                      that is not prescribed by any of its provisions neither reflects the applica-
                      tion of the customary rules of treaty interpretation nor does it promote
                      friendly relations among States as stated in the preamble of the VCDR.
                      To the contrary, it might work to the detriment of such relations and cre-
                      ate undesirable complications, imbalances and tensions where none
                      existed before.

                                                             (Signed) Abdulqawi Ahmed Yusuf.

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

                      Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 19,
                      para. 39.

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