                      390

                                 DISSENTING OPINION OF JUDGE BHANDARI

                         The object and purpose of the Vienna Convention on Diplomatic Relations,
                      1961 and its application in the present case — The insufficiency of the test that an
                      objection to designation by the receiving State could denude a property from
                      acquiring diplomatic status — The importance of relying upon the provision for
                      mutual consent under Article 2 of the Vienna Convention on Diplomatic
                      Relations — Necessity to balance the interests of the receiving and sending States
                      and duly account for functional necessity — The relevance of the crucial preambular
                      tenets of sovereign equality, the promotion of friendly relations, and the
                      maintenance of international peace and security — Once a property is in actual
                      use, for the purposes of the mission, the guarantees of inviolability should apply.

                                                     A. Introduction

                         1. I regret that I am unable to concur with the conclusion reached by
                      the majority that the building at 42 avenue Foch in Paris has never
                      acquired the status of “premises of the mission”, and consequently that
                      the French Republic (hereinafter “France”) has not breached its obliga-
                      tions under the Vienna Convention on Diplomatic Relations, 1961 (here-
                      inafter the “Vienna Convention” or the “Convention”). I am of the
                      opinion that the building at 42 avenue Foch in Paris acquired the status
                      of premises of the mission, as of 27 July 2012, and was thereafter entitled
                      to benefit from the régime of inviolability guaranteed under the Vienna
                      Convention. I endeavour to explain my hesitations regarding what
                      appears to be the Court’s conclusion, in paragraph 74 of the Judgment,
                      that an objection by the receiving State, which is timely and neither arbi-
                      trary nor discriminatory, would prevent certain property from acquiring
                      the status of “premises of the mission” within the meaning of Article 1 (i)
                      of the Vienna Convention. This test inexorably leads to the conclusion
                      that a property may never acquire diplomatic status without the consent
                      of the receiving State. Such a test or any implication thereof is not to be
                      found in the travaux préparatoires, the work of the International Law
                      Commission (hereinafter the “ILC”), the text of the Vienna Convention,
                      or its very object and purpose.

                         2. In my view, the Vienna Convention, interpreted pursuant to cus-
                      tomary rules of treaty interpretation, does not yield the conclusion
                      reached in paragraph 118 of the Judgment. I write to offer some insights
                      on how a body of law governing the establishment and maintenance of
                      friendly relations between equal sovereign States should be interpreted
                      with the objective of balancing the interests of the Parties.

                      94

6 Ord_1204.indb 184                                                                                19/01/22 08:24

                      391 	immunities and criminal proceedings (diss. op. bhandari)

                         3. The gravamen of the case is whether the building at 42 avenue Foch
                      in Paris acquired the legal status of premises of the mission, and, as such,
                      was inviolable under the Vienna Convention at the time of France’s
                      actions. I also wish to take the present opportunity to present my opinion
                      with respect to “how and when” a property may be characterized as
                      “premises of the mission” under Article 1 (i) of the Vienna Convention
                      and benefit from the protections provided for in Article 22.

                         4. It is recalled that, while Article 2 of the Vienna Convention provides
                      that the establishment of diplomatic relations takes place by mutual con-
                      sent, the Convention contains no express requirement for the consent of
                      the receiving State for the establishment of “premises of the mission”.
                      Article 3 (1) (e) of the Vienna Convention further provides that “[t]he
                      functions of a diplomatic mission consist . . . in: promoting friendly rela-
                      tions between the sending State and the receiving State”. The foregoing
                      provisions, coupled with the object and purpose of the Vienna Conven-
                      tion, as evident from the preamble and the text of the treaty as a whole,
                      lead to the inference that the Vienna Convention contains no implication
                      that an objection to designation could denude a property from being
                      characterized as mission premises, regardless of whether such objection is
                      timely, non-arbitrary and non-discriminatory.

                         5. As I shall discuss in greater detail below, Article 1 (i) of the Vienna
                      Convention should be interpreted to mean that the “premises of the mis-
                      sion” are defined by reference to the sending State’s notification that they
                      are to be used for the purposes of the mission and by their actual use.

                                B. Historical Background of the Vienna Convention

                        6. Diplomatic intercourse and immunities have a firm establishment
                      in history and have been at the core of international relations long
                      before the establishment of the United Nations or even the League of
                      Nations.

                           Privileges and Diplomatic Intercourse Prior to the Vienna Convention
                         7. The sanctity of ambassadors was recognized in early practice and
                      writings. In Roman times, respect for the inviolability of priests of Col-
                      lege of Fetiales who conducted diplomatic negotiations was demanded
                      and obtained by the Republic 1. Hugo Grotius, in De jure belli ac pacis,

                          1 Codification of the international law relating to diplomatic intercourse and immu-

                      nities: Memorandum prepared by the Secretariat, in Yearbook of the International Law
                      Commission (YILC), 1956, Vol. II, p. 132, para. 18.

                      95

6 Ord_1204.indb 186                                                                                19/01/22 08:24

                      392 	immunities and criminal proceedings (diss. op. bhandari)

                      stated that “[t]here are two maxims in the law of nations relating to
                      ambassadors which are generally accepted as established rules: the first is
                      that ambassadors must be received and the second that they must suffer
                      no harm” 2. Oppenheim and Sir Lauterpacht termed the privileges
                      enjoyed by ambassadors as “sacrosanct” 3. To effectuate such privileges,
                      after the Peace of Westphalia of 1648, establishment of permanent diplo-
                      matic missions became the common practice 4. Subsequently, the Con-
                      gress of Vienna in 1815 5 and the Protocol of the Conference of
                      21 November 1818 (Aix-la-Chapelle) 6 codified certain practices concern-
                      ing diplomatic agents.

                         8. The Institut de droit international issued its Règlement sur les immu
                      nités diplomatiques in 1895 and a resolution on Les immunités diploma
                      tiques in 1929. The 1895 Règlement sur les immunités diplomatiques used
                      the term “inviolability” to denote the duty “to protect, by unusually
                      severe penalties, from all offence, injury, or violence on the part of the
                      inhabitants of the country”. “Exterritoriality” was used in the same draft
                      to cover the duty to abstain from measures of law enforcement 7. This led
                      to the conclusion of several bilateral treaties which accorded privileges on
                      the basis of reciprocity 8. The Sixth International American Conference in
                      1928 adopted the Havana Convention regarding Diplomatic Officers,
                      which dealt with diplomatic privileges and immunities 9. In 1932, the Har-
                      vard Research School published a Draft Convention on Diplomatic Priv-
                      ileges and Immunities 10. It is significant that these early practices and
                      instruments did not reference a requirement of consent or objection to the
                      designation of mission premises by the receiving State, and instead they
                      appear to prefer the notion of mutual consent and reciprocal privileges in
                      diplomatic intercourse and privileges. It follows that an objection to des-

                           2H. Grotius, De jure belli ac pacis, Book II, Chap. XVIII.
                           3L. Oppenheim, International Law: A Treatise, Vol. I, Peace, 7th edition, H. Lauter-
                      pacht (ed.), New York, Toronto: Longmans, Green and Co., 1948, pp. 687‑688.
                          4 Codification of the international law relating to diplomatic intercourse and immuni-

                      ties: Memorandum prepared by the Secretariat, YILC, 1956, Vol. II, p. 132, para. 19.
                          5 Ibid., p. 133, para. 22: Ann. XVII, Regulation concerning the relative ranks of diplo-

                      matic agents, Congress of Vienna, 19 March 1815.
                          6 The text of the Protocol is available in C. Calvo, Le droit international théorique et

                      pratique, 5th ed., Paris: Arthur Rousseau, 1896, Vol. III, p. 184.
                          7 E. Denza, “Diplomatic Privileges and Immunities”, J. P. Grant and J. C. Barker

                      (eds.), The Harvard Research in International Law: Contemporary Analysis and Appraisal,
                      W. S. Hein & Co., Buffalo, New York, 2007, pp. 162‑163.
                          8 Codification of the international law relating to diplomatic intercourse and immuni-

                      ties: Memorandum prepared by the Secretariat, YILC, 1956, Vol. II, p. 132, para. 19.
                          9 Adopted 20 February 1928; League of Nations, Treaty Series (LNTS), Vol. 155,

                      p. 259.
                          10 American Journal of International Law (AJIL), Vol. 26, No. 1, 1932, Supp.: Research

                      in International Law, pp. 15‑192.

                      96

6 Ord_1204.indb 188                                                                                19/01/22 08:24

                      393 	immunities and criminal proceedings (diss. op. bhandari)

                      ignation by the receiving State is not in consonance with a régime which
                      provides for mutual consent and reciprocal privileges.

                         9. In 1952, as a result of the political backdrop of discontent arising
                      from incidents of violations of diplomatic custom by the Soviet Union,
                      Yugoslavia submitted a draft resolution requesting the United Nations
                      General Assembly (hereinafter the “UNGA”) to recommend that the ILC
                      give priority to the codification of diplomatic intercourse and immuni-
                      ties 11. Diplomatic law was among the first 14 topics selected for codifica-
                      tion, and the work of the ILC eventually resulted in the adoption of the
                      Vienna Convention. 12

                           The Basis of the Diplomatic Function and the Theory of Functional
                                       Necessity in the Work of the ILC in 1957
                          10. During the discussions of the ILC in 1957, the view was expressed
                       that it would be useful to incorporate into the Draft Articles the “basis
                       of the diplomatic function” 13. Even though members of the ILC expressed
                       diverging views on the relative merits of the theoretical aspects of
                       the diplomatic function 14, the Draft Articles and commentary in 1958
                       incorporated them. According to the “exterritoriality” theory, the
                       “premises of the mission represent a sort of extension of the territory of
                       the sending State . . . [T]he ‘representative character’ theory . . . bases
                      such privileges and immunities on the idea that the diplomatic mission
                      personifies the sending State”; and the “functional necessity” theory
                      justifies privileges and immunities as being necessary to enable the mis-
                       sion to perform its functions 15. The ILC further stated that it was guided
                       by the third theory of functional necessity in solving problems on which
                       practice gave no clear pointers, while also bearing in mind the representa-
                       tive character of the head of the mission and of the mission itself 16.
                       Sir Gerald Fitzmaurice, in particular, in his commentary, seemed to
                       lean in favour of the functional theory on the premise that “it was impos-

                         11 Request to the International Law Commission to give priority to the codification

                      of the topic “Diplomatic intercourse and immunities” (1952); General Assembly resolu-
                      tion 685 (VII).
                         12 R. van Alebeek, “Diplomatic Immunity”, Max Planck Encyclopedia of Public Inter

                      national Law, Vol. 5, 2012, p. 98.
                         13 AJIL, Vol. 26, No. 1, 1932, Supp.: Research in International Law, pp. 15‑192, Vol. I,

                      p. 2, para. 10 (Fitzmaurice).
                         14 Ibid., pp. 2‑3, paras. 10‑13.
                         15 Draft articles on diplomatic intercourse and immunities with commentaries, YILC,

                      1958, Vol. II, pp. 94‑95.
                         16 Ibid.

                      97

6 Ord_1204.indb 190                                                                                19/01/22 08:24

                      394 	immunities and criminal proceedings (diss. op. bhandari)

                      sible for a diplomatic agent to carry out duties unless accorded immuni-
                      ties and privileges” 17.

                         11. Recapitulating the theory of functional necessity, at the
                      United Nations Conference on Diplomatic Intercourse and Immunities,
                      1961, the preamble was based on a proposal which had the merit of stat-
                      ing that the purpose of diplomatic privileges and immunities is “to ensure
                      the efficient performance of the functions of diplomatic missions” 18.
                      In my view, the basis of the diplomatic function, as these theories expli-
                      cate, offers important guidance on the interpretation of the Vienna Con-
                      vention.
                         12. The historical backdrop elucidated above emphasizes that no pre-
                      viously established rule of customary international law required or
                      appears to permit an objection to designation of “premises of the mis-
                      sion”. Rather, the very purpose of the régime of privileges and immuni-
                      ties places at its forefront the efficient performance of the functions of
                      diplomatic missions. Therefore, in my view, the régime for the establish-
                      ment of “premises of the mission” under the Vienna Convention should
                      be interpreted in such a manner that it provides significant leeway to the
                      facilitation of the efficient performance of the functions of diplomatic
                      missions. Such facilitation may be hindered if the Convention is read to
                      permit objections to designation.

                                 C. Object and Purpose of the Vienna Convention
                         13. On 18 April 1961, the United Nations Conference on Diplomatic
                      Intercourse and Immunities adopted the Vienna Convention on Diplo-
                      matic Relations, which became effective on 24 April 1964 19. In the Con-
                      vention’s preamble, the signatory parties indicated “that an international
                      convention on diplomatic intercourse, privileges and immunities would
                      contribute to the development of friendly relations among nations, irre-
                      spective of their differing constitutional and social systems”, and “that
                      the purpose of such privileges and immunities is not to benefit individuals
                      but to ensure the efficient performance of the functions of diplomatic mis-
                      sions as representing States”.
                         14. The objectives of the Vienna Convention mirror the very ethos of
                      the United Nations. The Convention benefits from an increased empha-
                      sis, at the time of its drafting, on the principles of international co‑opera-
                      tion, equality of States, peaceful coexistence, and the establishment of
                      friendly relations 20. A proposal put forward by Hungary at the Vienna
                         17 International Law Commission, Summary Records of the Ninth Session,

                      383rd Meeting, YILC, 1957, Vol. I, p. 2, para. 10 (Fitzmaurice).
                         18 United Nations Conference on Diplomatic Intercourse and Immunities, Official

                      Records, Vol. II, doc. A/CONF.20/C.1/L.1 to L.332.
                         19 United Nations, Treaty Series (UNTS), Vol. 500, p. 95.
                         20 S. Duquet and J. Wouters, “Diplomatic and Consular Relations”, S. Chesterman,

                      D. M. Malone and S. Villalpando (eds.), The Oxford Handbook of United Nations Treaties,
                      Oxford University Press, 2019, p. 567.

                      98

6 Ord_1204.indb 192                                                                                19/01/22 08:24

                      395 	immunities and criminal proceedings (diss. op. bhandari)

                      Conference in 1961 for the preamble of the Convention highlighted that,
                      “differences in constitutional, legal and social systems by themselves shall
                      not prevent the establishment and maintenance of diplomatic relations” 21.
                      These intentions are laid down in the preamble in clear terms. In the con-
                      text of its drafting, the Convention also crystalizes the principles of
                      sovereignty, non-
                                         interference and territorial jurisdiction 22. It thereby
                      presents two thematic considerations that, together, aim to facilitate the
                      efficient performance of the functions of diplomatic missions 23. In order
                      to emphasize these principles, the second recital of the preamble of the
                      Vienna Convention postulates, “[h]aving in mind the purposes and prin-
                      ciples of the Charter of the United Nations concerning the sovereign
                      equality of States, the maintenance of international peace and security,
                      and the promotion of friendly relations among nations”. I will examine
                      each in turn.
                         15. The principle of sovereign equality, in conformity with Article 5 of
                      the ILC’s Draft Declaration on Rights and Duties of States, 1949, is pri-
                      marily understood as assuring States a right to equality in law 24. In pres-
                      ent international law, sovereign equality denotes the exclusion of the
                      notion of the legal superiority of one State over the other, while account-
                      ing for a greater role to be played by the international community in rela-
                      tion to all of its members. All States thus have equal rights and duties and
                      are equal members of the international community regardless of any eco-
                      nomic, social, political or other differences 25.

                        16. The commitment to promote friendly relations was reinforced by
                      the United Nations General Assembly in 1970 when it adopted UNGA
                      resolution 2625 (XXV), titled “Declaration on Principles of International
                      Law concerning Friendly Relations and Co-operation among States in

                         21 United Nations Conference on Diplomatic Intercourse and Immunities, Official

                      Records, Vol. II, doc. A/CONF.20/C.1/L.148.
                         22 S. Duquet and J. Wouters, “Diplomatic and Consular Relations”, S. Chesterman,

                      D. M. Malone and S. Villalpando (eds.), The Oxford Handbook of United Nations Treaties,
                      Oxford University Press, 2019, p. 568.
                         23 Reiterated in the five-power proposal by Burma, Ceylon, India, Indonesia and the

                      United Arab Republic which formed the basis for the preamble. See United Nations
                      Conference on Diplomatic Intercourse and Immunities, Official Records, Vol. II, p. 48,
                      doc. A/CONF.20/C.1/L.329.
                         24 Article 5 of the Draft Declaration on Rights and Duties of States with commentaries,

                      1949 reads:
                              “Every State has the right to equality in law with every other State.
                              This text was derived from article 6 of the Panamanian draft. It expresses, in
                           the view of the majority of the Commission, the meaning of the phrase ‘sovereign
                           equality’ employed in Article 2.1 of the Charter of the United Nations as interpreted
                           at the San Francisco Conference, 1945.”
                        25 B. Fassbender, “Purposes and Principles, Article 2 (1)”, B. Simma, D.-E. Khan,

                      G. Nolte, A. Paulus and N. Wessendorf (eds.), The Charter of the United Nations:
                      A Commentary, Vol. I (3rd edition), Oxford University Press, 2012, pp. 149 and 153-154.

                      99

6 Ord_1204.indb 194                                                                                19/01/22 08:24

                      396 	immunities and criminal proceedings (diss. op. bhandari)

                      accordance with the Charter of the United Nations” 26. This resolution is
                      reflective of customary international law and has been relied upon by the
                      Court time and again 27. The text of the resolution highlights the princi-
                      ples of good faith, sovereign equality of States, the duty to co‑operate,
                      non‑intervention and peaceful settlement of international disputes in a
                      manner that international peace and security and justice are not endan-
                      gered. This intention is further evidenced from the travaux préparatoires
                      of the resolution 28.
                         17. In interpreting the object and purpose of the Vienna Convention, I
                      am obliged to give special consideration to the preventive and corrective
                      elements of diplomatic intercourse. The “maintenance of international
                      peace and security”, as the preamble provides, may be achieved through
                      the prevention of conflict and the peaceful settlement of disputes 29. This
                      was confirmed by the Court in the case concerning United States Diplo
                      matic 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, where it stated that
                            “the institution of diplomacy, with its concomitant privileges and
                            immunities, has withstood the test of centuries and proved to be an
                            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”.
                         18. Apart from the object and purpose described so far, diplomatic
                      intercourse also requires the promotion of a more dynamic co‑operation
                      between States 30. In a field dominated by reciprocal exchanges, the
                      Vienna Convention provides a framework for States to act as equals on a
                      level playing field. The Convention provides a means for States to protect
                      their interests, the interests of their citizens and businesses abroad, and
                         26 Declaration on Principles of International Law concerning Friendly Relations and

                      Co-operation among States in accordance with the Charter of the United Nations (1970),
                      General Assembly resolution 2625 (XXV).
                         27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

                      United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 99, 101, 102-103,
                      106-107 and 133, paras. 188, 191, 193, 202 and 264; Armed Activities on the Territory of
                      the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005,
                      pp. 226 and 268, paras. 162 and 300; Legal Consequences of the Construction of a Wall
                      in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 171,
                      para. 87; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
                      1996 (I), p. 264, para. 102.
                         28 United Nations, Official Records of the General Assembly, 19th Session, doc. A/5746;

                      21st Session, doc. A/6230; 22nd Session, doc. A/6799; 23rd Session, doc. A/7326;
                      24th Session, Suppl. No. 19, doc. A/7619; 25th Session, Suppl. No. 18, doc. A/8018.
                         29 S. Duquet and J. Wouters, “Diplomatic and Consular Relations”, S. Chesterman,

                      D. M. Malone and S. Villalpando (eds.), The Oxford Handbook of United Nations Treaties,
                      Oxford University Press, 2019, p. 567.
                         30 The League of Nations Covenant (Paris, 28 June 1919) only promoted “the prescrip-

                      tion of open, just and honourable relations between nations”.

                      100

6 Ord_1204.indb 196                                                                                19/01/22 08:24

                      397 	immunities and criminal proceedings (diss. op. bhandari)

                      thereby reap the benefits arising out of the exchange of representatives.
                      Mutual benefits facilitate mutual respect for conceptions such as immuni-
                      ties, inviolability and the privileges of diplomats under diplomatic law.
                      These interests and mutual benefits were called for by Member States of
                      the United Nations and are reflected in the Vienna Convention 31.

                         19. The Court, in the settlement of disputes between States concerning
                      the interpretation of diplomatic law, must therefore give due regard to these
                      crucial preambular tenets of sovereign equality, peaceful coexistence,
                      and the development of friendly relations for the purpose of ensuring
                      the efficient performance of the functions of diplomatic missions. Such
                      an approach would create greater coherence in the field of diplomatic
                      privileges and immunities. In my opinion, a reading of the Convention,
                      which permits a unilateral objection to the designation of “premises of
                      the mission”, would impinge upon its foundational principles, thereby
                      disrupting the fine balance enshrined in the object and purpose of the
                      treaty. Furthermore, an objection, whether it is timely and adjudged on
                      the parameter of not being arbitrary, would not further the enabling of
                      friendly relations, and would rather be an impingement on sovereignty.
                      In such circumstances, the result of the discretionary power that the
                      receiving State possesses would not appear capable of being characterized
                      as an exercise of power in good faith, rather, it would further the notion
                      of the legal superiority of one State over the other.

                        D. Mutual Consent under Article 2 of the Vienna Convention

                         20. An issue that lies at the very centre of my opinion is that the Vienna
                      Convention in clear terms provides for the establishment of diplomatic
                      relations between States to take place by mutual consent. When speaking
                      of diplomatic intercourse in general and the establishment of diplomatic
                      relations and missions, Article 2 of the Vienna Convention states that,
                      “[t]he establishment of diplomatic relations between States, and of per-
                      manent diplomatic missions, takes place by mutual consent”.

                         21. The ordinary meaning of Article 2 thus suggests a requirement of
                      mutual consent for the establishment of diplomatic relations. The ILC
                      in 1957 in its commentary to Draft Article 1 (which became Article 2)
                      stated that “[t]he Commission here confirms the general practice of

                         31 S. Duquet and J. Wouters, “Diplomatic and Consular Relations”, S. Chesterman,

                      D. M. Malone and S. Villalpando (eds.), The Oxford Handbook of United Nations Treaties,
                      Oxford University Press, 2019, p. 568.

                      101

6 Ord_1204.indb 198                                                                                19/01/22 08:24

                      398 	immunities and criminal proceedings (diss. op. bhandari)

                      States” 32. Further, in reference to Article 2, the ILC in 1958 elaborated
                      that
                            “[t]here is frequent reference in doctrine to a ‘right of legation’ said
                            to be enjoyed by every sovereign State. The interdependence of
                            nations and the importance of developing friendly relations between
                            them, which is one of the purposes of the United Nations, necessitate
                            the establishment of diplomatic relations between them. However,
                            since no right of legation can be exercised without agreement between
                            the parties, the Commission did not consider that it should mention
                            it in the text of the draft.” 33
                      The ILC further opined that
                            “[t]he most efficient way of maintaining diplomatic relations between
                            two States is for each to establish a permanent diplomatic mission
                            (i.e. an embassy or a legation) in the territory of the other; but there
                            is nothing to prevent two States from agreeing on other methods of
                            conducting their diplomatic relations, for example, through their mis-
                            sions in a third State” 34.

                        22. Apart from this provision for mutual consent, there is nothing in the
                      Vienna Convention which requires the consent of the receiving State for the
                      designation of property as the premises of the mission. A test that permits
                      a unilateral objection to designation of premises of the mission, regardless
                      of whether it is considered reasonable, would not evince the requirement
                      for mutual consent or agreement between the parties, in the establishment
                      of diplomatic relations, that the Convention and ILC assert. It is therefore
                      reasonable to suggest that the inevitable consequence of permitting an
                      objection to designation is that the consent of the receiving State would
                      begin to play an important role in the establishment of “premises of the
                      mission” which is not reflective of the view that the right of legation cannot
                      be exercised without the agreement of both parties.

                                              E. Arguments of the Parties

                         23. Equatorial Guinea’s main contention is that, by the search, seizure
                      and attachment of 42 avenue Foch in Paris, France breached the inviola-
                      bility of Equatorial Guinea’s diplomatic premises. Equatorial Guinea
                      stated that, under the rule on inviolability,

                         32 Draft articles on diplomatic intercourse and immunities with commentaries, YILC,

                      1957, Vol. II, p. 133.
                         33 Ibid., 1958, Vol. II, p. 90.
                         34 Ibid.

                      102

6 Ord_1204.indb 200                                                                                19/01/22 08:24

                      399 	immunities and criminal proceedings (diss. op. bhandari)

                              “police, process servers, safety inspectors, etc. may not enter the
                              premises without the consent of the head of the mission. The premises
                              of the mission may not be searched or inspected in any way. Writs
                              cannot be served within the premises of the mission but only through
                              diplomatic channels.” 35

                         24. According to Equatorial Guinea, Article 22 of the Vienna Conven-
                      tion entails an absolute obligation not allowing any exceptions 36. Equato-
                      rial Guinea argued that, “[e]ven when it is suspected that the premises
                      of a mission are being used in a manner incompatible with the functions
                      of the mission, the premises are still not subject to intrusion by officials
                      of the receiving State” 37. Equatorial Guinea points to the various
                      instances on which the French authorities entered 42 avenue Foch in
                      Paris without the consent of the head of the mission in order to conduct
                      searches 38.
                         25. Equatorial Guinea submitted that “[a] building which has very
                      recently been acquired by the sending State — when, as in the present
                      case, that State intends it to be used as premises of its diplomatic mis-
                      sion — enjoys inviolability on the same basis as a building effectively used
                      for that purpose” 39. The receiving State’s consent is immaterial to iden-
                      tify the moment when certain premises start to enjoy inviolability 40,
                      which is also argued to be the correct interpretation of Article 1 (i) of the
                      Vienna Convention 41. Equatorial Guinea also states that the Vienna
                      Convention creates a presumption of validity of the sending State’s claims
                      that certain premises have diplomatic status 42, and is of the view that its
                      interpretation emerges from the plain language of the Vienna Conven-
                      tion, its drafting history and widespread State practice 43. According to
                      Equatorial Guinea, there is also a long-standing practice between itself
                      and France, under which notification of intention to use certain premises
                      as a diplomatic mission suffices for the acquisition by those premises of
                      diplomatic status 44.
                         26. According to Equatorial Guinea, 42 avenue Foch in Paris became
                      its “premises of the mission” on 4 October 2011, when France was noti-
                      fied in the following terms:

                         35Memorial of Equatorial Guinea (MEG), para. 8.7.
                         36Ibid., para. 8.8. See also CR 2020/1, p. 15, para. 2 (Wood); CR 2020/3, p. 10, para. 6
                      (Wood).
                        37 MEG, para. 8.10.
                        38 Ibid., paras. 8.14 and 8.17-8.19.
                        39 Ibid., paras. 8.15-8.16. See also CR 2020/1, p. 35, para. 21 (Kamto).
                        40 MEG, para. 8.26 and 8.34. See also CR 2020/1, pp. 36‑39, paras. 24-35 (Kamto).
                        41 Reply of Equatorial Guinea (REG), para. 2.47.
                        42 Ibid., para. 2.14.
                        43 Ibid., para. 2.3; MEG, paras. 8.42-8.45.
                        44 REG, para. 2.32.

                      103

6 Ord_1204.indb 202                                                                                19/01/22 08:24

                      400 	immunities and criminal proceedings (diss. op. bhandari)

                                 “[T]he Embassy has for a number of years had at its disposal a
                              building located at 42 avenue Foch, Paris (16th arr.), which it uses
                              for the performance of the functions of its diplomatic mission, a fact
                              which it has hitherto not formally notified to your Department. Since
                              the building forms part of the premises of the diplomatic mission,
                              pursuant to Article 1 of the Vienna Convention on Diplomatic Rela-
                              tions of 18 April 1961, the Republic of Equatorial Guinea wishes to
                              give you official notification so that the French State can ensure the
                              protection of those premises, in accordance with Article 22 of the said
                              Convention.” 45
                         27. Equatorial Guinea also stated that, on that date, Mr. Teodoro
                      Nguema Obiang Mangue did not own 42 avenue Foch in Paris as, on
                      15 September 2011, Equatorial Guinea had become the majority share-
                      holder of the companies which owned the building 46. It also stated that it
                      had decided to relocate the Embassy even before acquiring ownership
                      of the premises 47. Equatorial Guinea concluded that the searches of
                      42 avenue Foch in Paris carried out on 14 to 23 February 2012 and
                      19 July 2012 were unlawful 48 as they breached the inviolability to
                      which Equatorial Guinea’s “premises of the mission” were entitled 49.
                         28. Yet, it was on 27 July 2012 that Equatorial Guinea claimed that
                      its Embassy offices had been “effectively moved” to 42 avenue Foch in
                      Paris and that it was using the building “for the performance of the func-
                      tions of its diplomatic mission” 50. France was notified in the following
                      terms:
                                 “The Embassy of the Republic of Equatorial Guinea presents its
                              compliments to the Ministry of Foreign and European Affairs,
                              Protocol Department, Diplomatic Privileges and Immunities Sub-
                               division and has the honour to inform it that, as from Friday 27 July
                               2012, the Embassy’s offices are located at 42 avenue Foch, Paris
                               (16th arr.), a building which it is henceforth using for the performance
                               of the functions of its diplomatic mission in France.” 51

                        29. France’s main contention is that, on the dates of the searches of
                      which Equatorial Guinea complains, 42 avenue Foch in Paris was not
                      “premises of the mission” within the meaning of the Vienna Convention,

                         45 See MEG, Ann. 33. See also ibid., para. 8.46; REG, para. 1.41; CR 2020/1, p. 43,

                      para. 47 (Kamto). In any event, Equatorial Guinea states that Mr. Obiang, as the owner
                      of 42 avenue Foch in Paris, used to permit the use of the building for diplomatic purposes
                      even in the years before 2011. See REG, para. 1.2.
                         46 MEG, para. 8.31.
                         47 REG, para. 1.25.
                         48 MEG, para. 8.20; REG, para. 2.51.
                         49 MEG, para. 8.22‑8.25.
                         50 Ibid., para. 8.48. See also CR 2020/1, p. 12, para. 6 (Nvono Nca); GEF 2020/33, p. 6.
                         51 See MEG, Ann. 47.

                      104

6 Ord_1204.indb 204                                                                                19/01/22 08:24

                      401 	immunities and criminal proceedings (diss. op. bhandari)

                      and, as a result, was not inviolable under Article 22 of the Vienna Con-
                      vention. According to France, “[a] building can have the status of diplo-
                      matic premises only if, first, France, as the receiving State, has not
                      expressly objected to its being considered part of the diplomatic mission,
                      and, second, it is actually used for diplomatic purposes” 52.

                         30. France acknowledges that the Vienna Convention does not provide
                      details concerning the procedure for recognizing the inviolability of
                      “premises of the mission” 53. However, France disagrees with Equato-
                      rial Guinea’s argument based on Article 12 of the Vienna Convention 54:
                      France argues that the mere requirement of express consent under Arti-
                      cle 12 cannot mean that such consent is not necessary to establish the
                      diplomatic mission in a capital city 55. France also stated that ownership
                      of 42 avenue Foch in Paris is unrelated to the enjoyment by those prem-
                      ises of inviolability under the Vienna Convention 56, as supported by the
                      language of Articles 1 (i) and 22 57. France further submits that Equato-
                      rial Guinea’s declaratory theory is not supported by State practice 58.

                         31. France argues that a building is the “premises of the mission” if it
                      is actually used as such 59, supporting its argument by reference to the
                      drafting history of the Vienna Convention 60 and to the practice of Ger-
                      many, Canada, the United States and the United Kingdom 61. France
                      emphasized that 42 avenue Foch in Paris had not been “assigned to any
                      actual diplomatic activity when it was searched between 28 September
                      2011 and 23 February 2012, nor when the attachment took place on
                      19 July 2012” 62. France also points to Equatorial Guinea’s admission
                      that 42 avenue Foch in Paris acquired diplomatic status on 4 October
                      2011, and that, as a result, the searches which had taken place before that
                      date could not engage the responsibility of France 63. France suggested
                      that 27 July 2012 should be the earliest date from which Equatorial Guin-
                      ea’s “premises of the mission” could be considered to have been effec-

                         52 Counter-Memorial of France (CMF), para. 3.3.
                         53 CMF, para. 3.8.
                         54 Article 12 requires the express consent of the receiving State to establish parts of the

                      mission in localities other than the capital city of that State.
                         55 CMF, para. 3.15.
                         56 Rejoinder of France (RF), para. 2.5.
                         57 Ibid., para. 2.17.
                         58 CMF, paras. 3.16‑3.23. See also RF, paras. 2.25‑2.26 ; CR 2020/2, pp. 31‑32,

                      paras. 19‑21 (Bodeau-Livinec). France relies on the rules and practice in South Africa,
                      Germany, Australia, Brazil, Canada, Spain, Norway, the Netherlands, the Czech Republic,
                      Switzerland and Turkey.
                         59 CMF, para. 3.24. See also CR 2020/2, p. 35, para. 29 (Bodeau-Livinec).
                         60 CMF, paras. 3.26‑3.31.
                         61 Ibid., paras. 3.32‑3.42.
                         62 Ibid., para. 3.54.
                         63 RF, para. 2.39. See also CR 2020/2, p. 39, para. 4 (Grange).

                      105

6 Ord_1204.indb 206                                                                                19/01/22 08:24

                      402 	immunities and criminal proceedings (diss. op. bhandari)

                      tively moved to 42 avenue Foch in Paris 64. Therefore, there was no breach
                      of the inviolability of those premises on the dates on which 42 avenue
                      Foch in Paris was attached and thus France did not incur international
                      responsibility.

                         32. The arguments made by Equatorial Guinea and France present
                      interpretations on the application of the régime of inviolability under
                      the Vienna Convention along a broad spectrum that ranges from “inten-
                      tion to use” to “express consent”. In my view, the ordinary meaning of the
                      text of Article 1 (i) in the light of the object and purpose of the Convention,
                      offers a clear test for the designation of “premises of the mission”.

                               F. Interpreting Article 1 (i) of the Vienna Convention

                        33. Article 1 (i) of the Vienna Convention states:

                                “For the purposes of the present Convention, the following expres-
                            sions shall have the meaning 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.”
                      Under Article 22 of the Vienna Convention,
                               “1. The premises of the mission shall be inviolable. The agents of
                            the receiving State may not enter them, except with the consent of the
                            head of the mission.
                               2. The receiving State is under a special duty to take all appropri-
                            ate steps to protect the premises of the mission against any intrusion
                            or damage and to prevent any disturbance of the peace of the mission
                            or impairment of its dignity.
                               3. The premises of the mission, their furnishings and other prop-
                            erty thereon and the means of transport of the mission shall be
                            immune from search, requisition, attachment or execution.”

                         34. The text of Article 22 does not define “premises of the mission”;
                      it however makes implicit reference to the definition under Article 1 (i).
                      Article 22 therefore creates a régime of inviolability for premises
                      which fall within the definition of “premises of the mission” under Arti-
                      cle 1 (i).

                         64 CMF, para. 3.57 (France referred to MEG, Ann. 47). See also CR 2020/2, p. 43,

                      para. 22 (Grange).

                      106

6 Ord_1204.indb 208                                                                                19/01/22 08:24

                      403 	immunities and criminal proceedings (diss. op. bhandari)

                        35. The provisions of the Vienna Convention have to be interpreted
                      pursuant to rules of customary international law on treaty interpretation
                      as reflected in Articles 31 and 32 of the Vienna Convention on the Law of
                      Treaties (hereinafter the “VCLT”) 65. Under Article 31 (1) of the VCLT,
                      “[a] treaty shall be interpreted in good faith in accordance with the ordi-
                      nary meaning to be given to the terms of the treaty in their context and in
                      the light of its object and purpose”.
                        36. If interpretation under Article 31 leaves the meaning ambiguous or
                      obscure, or leads to manifestly absurd or unreasonable results, “[r]ecourse
                      may be had to supplementary means of interpretation, including the pre-
                      paratory work of the treaty and the circumstances of its conclusion”, in
                      accordance with Article 32 of the VCLT.

                         37. The ordinary meaning of the terms of Articles 1 (i) and 22 do not
                      specify when certain premises become “premises of the mission”, and, as
                      a consequence, begin to benefit from the régime of inviolability. However,
                      Article 1 (i) appears to provide some useful indications. First, pursuant
                      to Article 1 (i) classifying certain premises as “premises of the mission” is
                      independent of ownership, which suggests that the Parties’ arguments
                      relating to the effect of ownership of 42 avenue Foch in Paris are not
                      relevant for the Court to dispose of the present case. In certain instances,
                      a sending State may acquire premises as its diplomatic mission by renting
                      or by other means, and the acquisition of ownership of property may not
                      be a possibility for all States 66. Thus ownership of the premises is irrele-
                      vant in determining the status of the building. Second, Article 1 (i) iden-
                      tifies “premises of the mission” as premises which are “used for the
                      purposes of the mission”. Notably, that provision employs the word
                      “used”, which suggests a criterion of actual use in order to identify the
                      “premises of the mission”; if the Vienna Convention’s drafters had wished
                      to identify the “premises of the mission” by means of a criterion of
                      intended use, they could have employed the expression “intended to be
                      used” in Article 1 (i).

                        38. It is further use of the premises “for the purposes of the mission”
                      that determines their diplomatic status. The phrase “used for the pur-
                      poses of the mission” must be interpreted in the context of the
                      “non‑exhaustive” list of diplomatic functions found under Article 3 (1) of
                      the Vienna Convention. During the work of the ILC it was noted that a
                      definition of diplomatic functions would be “illustrative and [intended to]

                         65 UNTS, Vol. 1155, p. 331. See Question of the Delimitation of the Continental Shelf

                      between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
                      (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
                      p. 116, para. 33.
                         66 E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic

                      Relations, 4th edition, Oxford University Press, 2016, p. 16.

                      107

6 Ord_1204.indb 210                                                                                19/01/22 08:24

                      404 	immunities and criminal proceedings (diss. op. bhandari)

                      provide guidance for States on the nature of diplomatic functions at the
                      present day” 67. It follows that practice in relation to what has been
                      regarded as “used for the purposes of the premises of the mission” would
                      become relevant to assess the point at which a premise may be considered
                      a diplomatic mission. Such practice may provide valuable insights on
                      ascertaining the parameters of the term “used for the purposes of the mis-
                      sion” since the preamble of the Vienna Convention affirms that “the rules
                      of customary international law should continue to govern questions not
                      expressly regulated by the provisions” of the Convention.

                        39. The ordinary meaning of Article 1 (i) therefore suggests that the
                      “premises of the mission” should be identified by reference to a criterion
                      of “actual use” and that such use is “for the purposes of the mission”.

                         40. On the question whether an objection to designation is permissible
                      under the Vienna Convention, the ordinary meaning of the terms of Arti-
                      cle 1 (i) do not allude to such a criterion, they also do not clarify whether
                      any other form of consent by the receiving State is necessary for the
                      designation of “premises of the mission”. In my view the context of the
                       provision, along with the object and purpose of the Vienna Convention
                       offer more guidance in this regard.

                         41. The context of Article 1 (i) is helpful in identifying the time
                      within which, under the Vienna Convention, premises acquire diplomatic
                      status.
                         42. Under Article 4 (1), “[t]he sending State must make certain that the
                      agrément of the receiving State has been given for the person it proposes
                      to accredit as head of the mission to that State”; Article 4 (2) adds that
                      “[t]he receiving State is not obliged to give reasons to the sending State
                      for a refusal of agrément”. Moreover, Article 5 (1) provides that the send-
                      ing State must give “due notification to the receiving State[]” if it wishes
                      to accredit a head of mission or assign any member of the diplomatic staff
                      to more than one receiving State. Such accreditation or assignment is sub-
                      ject to the “express objection by any of the receiving States”. The provi-
                      sion for the accreditation of the same person by two or more States as
                      head of mission under Article 6 is also subject to the “express objection”
                      of the receiving State.

                        43. A contextual reading of Article 1 (i) would indicate that there are
                      no similar requirements of express consent or objection by the receiving
                      State to the establishment of “premises of the mission”. It follows that,
                      such a requirement, cannot be considered to exist on the basis of a con-
                      textual reading of Article 1 (i). If the drafters wanted to include an objec-

                         67 International Law Commission, Summary Records of the Ninth Session,

                      393rd Meeting, YILC, 1957, Vol. I, p. 50, para. 64.

                      108

6 Ord_1204.indb 212                                                                                19/01/22 08:24

                      405 	immunities and criminal proceedings (diss. op. bhandari)

                      tion by the receiving State to the establishment of diplomatic premises,
                      they would have done so expressly, as they did in relation to the accredi-
                      tation of heads of missions. In the absence of an express requirement,
                      while giving due regard to the need to balance the interests of the sending
                      and receiving States, one could infer that, the definition of “premises of
                      the mission” should at the very least, in addition to actual use, require a
                      sending State to notify the receiving State of the use of a certain building
                      for diplomatic purposes.

                         44. The object and purpose of the Vienna Convention can be inferred
                      from the preamble and the text of the treaty as a whole. The second recital
                      of the preamble to the Vienna Convention refers to “the purposes and prin-
                      ciples of the Charter of the United Nations concerning the sovereign equal-
                      ity of States, the maintenance of international peace and security, and the
                      promotion of friendly relations among nations”. The third recital of the
                      preamble to the Vienna Convention states that “an international conven-
                      tion on diplomatic intercourse, privileges and immunities” is to “contribute
                      to the development of friendly relations among nations, irrespective of their
                      differing constitutional and social systems”. The fourth recital of the pre-
                      amble to the Vienna Convention states that “the purpose of [diplomatic]
                      privileges is not to benefit individuals but to ensure the efficient perfor-
                      mance of the functions of diplomatic missions as representing States”.
                         45. Article 3 of the Vienna Convention sets out the functions of the
                      diplomatic mission, which include, inter alia, representing the sending
                      State in the receiving State, protecting the interests of the nationals of the
                      sending State in the receiving State and negotiating with the receiving
                      State’s Government.
                         46. Articles 4 to 19 of the Vienna Convention govern issues relating to
                      the personnel of the diplomatic mission, such as the appointment of the
                      head of the mission, the receiving State’s agrément, accreditation with the
                      receiving State and precedence. Articles 20 to 25 concern the rights and
                      obligations of the sending and receiving States in relation to the premises
                      of the diplomatic mission. Articles 26 to 47 relate to the privileges and
                      immunities of diplomatic agents and their families and diplomatic archives
                      and correspondence.
                         47. The preamble, the structure of the Vienna Convention and the func-
                      tions of diplomatic missions set out in Article 3 thereunder suggest that
                      the Vienna Convention aims to facilitate the establishment and main
                      tenance of diplomatic relations between States, the promotion of friendly
                      relations, and ensuring due respect for the sovereign equality of States.
                         48. In the light of the foregoing, a criterion of intended use for classify-
                      ing certain premises as diplomatic could be excessively nebulous from the
                      perspective of a receiving State. While the Vienna Convention’s provi-
                      sions on the establishment of a diplomatic mission appear not to restrict
                      sending States in their choice as to the location and time of establishment,
                      it seems reasonable that the Vienna Convention would provide the receiv-
                      ing State with the means to achieve an appreciable degree of certainty as

                      109

6 Ord_1204.indb 214                                                                                19/01/22 08:24

                      406 	immunities and criminal proceedings (diss. op. bhandari)

                      to whether certain premises enjoy diplomatic status or not. Such means
                      could be provided by the criterion of actual use, rather than by the cri
                      terion of intended use.
                         49. The object and purpose of the Vienna Convention also seems to
                      entail an additional consequence. In my view it would appear to be con-
                      trary to the object and purpose of the Vienna Convention if a sending
                      State could establish their “premises of the mission” in the receiving State
                      without receiving States being certain, to an appreciable degree, as to
                      which premises are diplomatic in character, and therefore enjoy inviola-
                      bility under Article 22 of the Vienna Convention. The receiving States’
                      uncertainty as to where the “premises of the mission” are located seems
                      not to be conducive to the establishment and maintenance of diplomatic
                      relations with the sending States. The object and purpose of the Vienna
                      Convention therefore suggests that, in the interest of certainty, a receiving
                      State should be at least notified that certain premises are to be used for
                      the purposes of a sending State’s diplomatic mission.
                         50. In support of their respective arguments, the Parties referred to a
                      number of instances of State practice in the application of the Vienna
                      Convention. Since the Court’s task is primarily an interpretive one, the
                      relevance and weight of that State practice should be assessed within
                      the framework of the rules on treaty interpretation. Article 31 (3) of
                      the VCLT states that “[t]here shall be taken into account, together with
                      the context: . . . (b) [a]ny subsequent practice in the application of the
                      treaty which establishes the agreement of the parties regarding its inter-
                      pretation”. However, for subsequent practice to amount to “authentic
                      interpretation”, it must be such as to indicate that the interpretation has
                      received the tacit assent of the parties to a treaty generally; the ILC
                      adopted this approach in its works on the law of treaties 68 and on subse-
                      quent practice in relation to the interpretation of treaties 69.

                         51. However, State practice falling short of “subsequent practice”
                      could be a supplementary means of interpretation within the meaning of
                      Article 32 of the VCLT, as confirmed by the ILC in its 2018 Draft Con-
                      clusions on subsequent practice 70. According to the ILC, “subsequent
                      practice in the application of the treaty, which does not establish the
                      agreement of all parties to the treaty, but only of one or more parties,
                      may be used as a supplementary means of interpretation” 71. If applying
                      the means of interpretation under Article 31 of the VCLT leaves the
                      meaning of Article 1 (i) of the Vienna Convention “ambiguous or

                         68 “Sixth Report on the Law of Treaties”, by Sir Humphrey Waldock, Special Rappor-

                      teur, YILC, 1966, Vol. II, p. 99, para. 18.
                         69 “Draft Conclusions on Subsequent Agreement and Subsequent Practice in relation

                      to the Interpretation of Treaties with Commentaries”, Report of the International Law
                      Commission on the Work of Its Seventieth Session, UN doc. A/73/10 (17 August 2018),
                      p. 13.
                         70 Ibid., p. 20, para. 8.
                         71 Ibid., para. 9.

                      110

6 Ord_1204.indb 216                                                                                19/01/22 08:24

                      407 	immunities and criminal proceedings (diss. op. bhandari)

                      obscure” or leads to “a result which is manifestly absurd or unreason-
                      able”, the practice to which the Parties referred could be used as a supple-
                      mentary means of interpretation alongside the travaux préparatoires.

                         52. While both Parties referred to subsequent State practice in the
                      application of the Vienna Convention, in my view, it does not seem to be
                      sufficiently uniform to point to any particular interpretation of Arti-
                      cle 1 (i). I would reach the same conclusion with respect to the practice
                      of Equatorial Guinea and France between themselves; I would also sug-
                      gest that it is inappropriate to rely on the practice of the Parties inter se
                      in the interpretation of a multilateral treaty. The Court in North Sea Con
                      tinental Shelf ((Federal Republic of Germany/Denmark; Federal Republic
                      of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 43, para. 74)
                      has also stated that “State practice, including that of States whose interests
                      are specially affected[] should have been both extensive and virtually
                      uniform in the sense of the provision invoked”.

                        53. In my view, the application of the means of interpretation under
                      Article 31 of the VCLT neither leaves the meaning of Article 1 (i) of the
                      Vienna Convention ambiguous or obscure, nor does it lead to a result
                      which is manifestly absurd or unreasonable. Therefore, there is no need
                      to resort to supplementary means of interpretation under Article 32 of the
                      VCLT 72. Nonetheless, I will proceed to the travaux préparatoires of the
                      Vienna Convention which confirms and strengthens the interpretation
                      resulting from the application of the general rule of interpretation under
                      Article 31 of the VCLT.
                        54. In the lead-up to the Vienna Convention being adopted in 1961,
                      the view was expressed at the ILC that the issue of the time from which
                      certain premises would enjoy inviolability was a “thorny one” 73. Com-
                      ments by ILC members indicated a variety of views, including that “[t]he
                      inviolability of the premises . . . began from the time they were put at the
                      disposal of the mission” and, similarly, that “[t]here could be no doubt
                      that [inviolability] dated from the time that the premises were at the dis-
                      posal of the mission” 74. It was further stated that
                            “[a]s for the time from which that inviolability commenced . . . it was
                            the practice of the sending State to notify the receiving State that
                            certain premises had been acquired for use as the headquarters of its
                            mission. The beginning of inviolability could, therefore, date from the

                         72 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. 600, para. 112.
                         73 International Law Commission, Summary Records of the Ninth Session,

                      394th Meeting, YILC, Vol. I, pp. 52‑53, para. 17 (Bartos).
                         74 Ibid., p. 53, para. 19 (Fitzmaurice). See also ibid., para. 24 (Spiropoulos).

                      111

6 Ord_1204.indb 218                                                                                19/01/22 08:24

                      408 	immunities and criminal proceedings (diss. op. bhandari)

                             time such notification reached the receiving State, even though the
                             head of the mission might arrive much later.” 75
                          55. No member expressed the view that prior State consent or any
                       other form thereof was a requirement for the inviolability of diplomatic
                       mission premises.
                          56. In its Commentary to the Draft Articles in 1958, the ILC did not
                       elaborate on the definition of “premises of the mission” 76, beyond
                      stating, in relation to Draft Article 20 (which became Article 22), that
                       “[t]he expression ‘premises of the mission’ includes the buildings or parts
                       of buildings used for the purposes of the mission, whether they are owned
                       by the sending State or by a third party acting for its account, or are
                       leased or rented” 77.
                          57. The ILC seems to have implicitly alluded to a criterion of actual
                       use by employing the terms “used for the purposes of the mission”, which
                       confirms the interpretation of the ordinary meaning of Article 1 (i) that
                       this opinion suggests.
                          58. Although the travaux préparatoires do not seem to offer particular
                       assistance in the identification of the time when certain premises acquire
                       diplomatic status, the comment concerning the practice of notifying the
                       receiving State seems to suggest that the ILC’s members understood
                       notification to be the extent to which communication with a receiving
                        State was necessary to acquire the status of “premises of the mission”.
                        This may also be helpful to show that the Commission’s members may
                        have understood that such notification was required under international
                        law or as a matter of diplomatic practice. Consequently, such a reading of
                        the preparatory work for the Vienna Convention confirms the interpreta-
                       tion that I have suggested through the application of Article 31 of
                       the VCLT.

                                         G. Conclusion on the Interpretation
                                                  of Article 1 (i)

                        59. First, the ordinary meaning of Article 1 (i) indicates that the
                      “premises of the mission” are defined by reference to their actual use, not
                      their intended use, by the sending State. This interpretation appears to be
                      supported by the object and purpose of the Vienna Convention.

                        Second, although the text of the Vienna Convention is silent on the
                      means by which a receiving State obtains knowledge that certain premises
                      are to be classified as “premises of the mission” within the meaning of
                      Article 1 (i), the object and purpose of the Convention and the context
                        75  See supra note 73, p. 53, para. 25 (Ago).
                        76  Draft articles on diplomatic intercourse and immunities with commentaries, YILC,
                      1958, Vol. II, p. 89.
                         77 See supra note 73, p. 95, para. 2.

                      112

6 Ord_1204.indb 220                                                                                19/01/22 08:24

                      409 	immunities and criminal proceedings (diss. op. bhandari)

                      of Article 1 (i) suggest that the sending State should notify the receiving
                      State, in whatever form, of the use or intention to use certain premises for
                      diplomatic purposes.
                         60. It follows that the premises chosen by the sending State acquire the
                      status of “premises of the mission”, therefore enjoying the régime of
                      inviolability under Article 22 of the Vienna Convention, provided that
                       two cumulative conditions are satisfied: first, notification is given to the
                       receiving State of the use or intention to use such premises for diplomatic
                       purposes; second, such premises are actually used for diplomatic purposes
                       by the sending State. The first condition seems to be insufficient, in and
                       by itself, to determine the acquisition of diplomatic status by certain pre
                       mises. If notification by the sending State were the only requirement for
                       certain premises to become “premises of the mission”, the possibility of
                       abuse by sending States is apparent. Consequently, I most respectfully
                       cannot agree with the Judgment of the Court which appears to gloss over
                       the requirement for mutual consent and the principles enshrined in the
                       preamble of the Vienna Convention.

                               H. Application of the Vienna Convention to the Facts
                                                     of the Case

                         61. The Parties do not disagree on the facts of the present case, includ-
                      ing the timeline of events relevant to Equatorial Guinea’s claim in rela-
                      tion to 42 avenue Foch in Paris.

                                             Acts of France up to 27 July 2012
                         62. Equatorial Guinea first notified France that 42 avenue Foch in
                      Paris was to be used as “premises of the mission” by the Note Verbale of
                      4 October 2011 78. On this basis, it would appear that any act carried out
                      by France in respect of 42 avenue Foch in Paris before 4 October 2011
                      could not constitute a breach of its obligations under the Vienna Conven-
                      tion vis‑à‑vis Equatorial Guinea.

                        63. However, it is my position that Equatorial Guinea’s notification of
                      the intended use of 42 avenue Foch in Paris, by way of its Note Verbale
                      dated 4 October 2011, as its Embassy was not sufficient in order for that
                      building to acquire the status of “premises of the mission”. In addition to
                      notifying France, Equatorial Guinea also has to show the actual use of
                      42 avenue Foch in Paris as its Embassy. In its written submission, Equa-
                      torial Guinea has not claimed that its diplomatic offices were moved to
                      42 avenue Foch in Paris prior to 27 July 2012, when Equatorial Guinea

                        78   MEG, Ann. 33.

                      113

6 Ord_1204.indb 222                                                                                19/01/22 08:24

                      410 	immunities and criminal proceedings (diss. op. bhandari)

                      sent France a Note Verbale stating that “as from Friday 27 July 2012, the
                      Embassy’s offices are located at 42 avenue Foch, Paris (16th arr.), a build-
                      ing which it is henceforth using for the performance of the functions of its
                      diplomatic mission in France” 79. The timeline therefore does not indi-
                      cate that diplomatic offices were moved to 42 avenue Foch in Paris before
                      27 July 2012 80. Consequently, 42 avenue Foch in Paris had not been in
                      actual use as Equatorial Guinea’s Embassy before 27 July 2012.

                         64. I therefore suggest that 27 July 2012 is the date on which both con-
                      ditions for 42 avenue Foch in Paris to be identified as “premises of the
                      mission” were satisfied. It would follow that 42 avenue Foch in Paris
                      could be considered to be the “premises of the mission” of Equato-
                      rial Guinea from that date, and, as a consequence, to enjoy the régime of
                      inviolability under Article 22 of the Vienna Convention.
                         65. After 27 July 2012, the French authorities have neither entered or
                      searched 42 avenue Foch in Paris, nor attached moveable property found
                      therein. It follows, in my view, that any act by France in respect of
                      42 avenue Foch in Paris carried out before 27 July 2012 could not amount
                      to a breach of its obligations owed to Equatorial Guinea under the Vienna
                      Convention.

                          66. However, France appears not to recognize, as of yet, that
                      42 avenue Foch in Paris constitutes the “premises of the mission” of
                      Equatorial Guinea. This emerges from a statement made at the oral
                      proceedings of 18 February 2020, by which counsel for France stated that
                       “[t]he building at 42 avenue Foch in Paris is not covered by the régime
                       of inviolability under Article 22 of the Vienna Convention as it
                       never possessed diplomatic status” 81.

                                        I. Used for the Purposes of the Mission

                         67. Equatorial Guinea states in its Memorial that all the Embassy
                      offices were effectively moved to 42 avenue Foch in Paris in 2012 82. The
                      building at 42 avenue Foch in Paris has since been officially used, without
                      interruption as Equatorial Guinea’s Embassy in France. It is noteworthy
                      that French officials have visited the building at 42 avenue Foch in Paris
                      to obtain visas to enter Equatorial Guinea 83.

                        79 MEG, Ann. 47.
                        80 Ibid., Timeline (pp. 125‑133 of the English version).
                        81 CR 2020/2, p. 34, para. 25 (Bodeau-Livinec).
                        82 MEG, para. 8.48.
                        83 Ibid., para. 2.13.

                      114

6 Ord_1204.indb 224                                                                                19/01/22 08:24

                      411 	immunities and criminal proceedings (diss. op. bhandari)

                        68. In a Note Verbale dated 12 May 2016, Equatorial Guinea reasser
                      ted its rights in the following terms: 84
                                “The Embassy avails itself of this opportunity to recall that the
                             building located at 42 avenue Foch in Paris (16th arr.) has effectively
                             been occupied by the diplomatic mission of the Republic of Equato-
                             rial Guinea in France since October 2011; that this is, moreover, the
                             address at which requests for visas to enter Equatorial Guinea are
                             submitted by members of the French Government, such as the State
                             Secretary for Development and Francophone Affairs, who made an
                             official visit to Equatorial Guinea from 8 to 9 February 2015; that a
                             law enforcement unit went to that same address on 13 October 2015
                             to provide protection for the diplomatic mission during a protest by
                             members of the Equatorial Guinean opposition in France.
                                The Embassy observes that this contradiction, between the Minis-
                             try’s position and the French Government’s conduct in relation to the
                             legal nature of the building located at 42 avenue Foch in Paris
                             (16th arr.), should not be to the detriment of the Republic of
                             Equatorial Guinea.” 85
                         69. As premises of the mission are to be considered “the buildings . . .
                      irrespective of ownership, used for the purposes of the mission . . .” prem-
                      ises in actual use, as they clearly are in the present circumstances and as
                      evidenced by paragraphs 65 and 66 above, should be accorded diplomatic
                      status. Consequently, France’s refusal to recognize the building at 42 ave-
                      nue Foch in Paris as Equatorial Guinea’s diplomatic mission even after
                      27 July 2012 may appear unjustifiable.

                                    J. Observations on the Judgment of the Court

                         70. In light of the foregoing, I respectfully differ from the conclusions
                      reached by the majority in the Judgment. I wish to take the present
                      opportunity to note the following observations on the Judgment of the
                      Court.
                         71. First, notification alone by the sending State for the designation of
                      certain property as premises of the mission makes the possibility of abuse
                      apparent (Judgment, para. 67). However, a unilateral objection by the
                      receiving State to the choice of mission premises, regardless of whether it
                      is adjudged against parameters of timeliness and non-arbitrariness, does
                      not reflect the balancing of interests required by the Vienna Convention.
                      In interpreting relations between equal sovereign States, it appears erro-
                      neous that the sending State would have no option but to accede to the
                      desires of the receiving State. A unilateral objection to designation of

                        84   MEG, Ann. 51.
                        85   Ibid.

                      115

6 Ord_1204.indb 226                                                                                19/01/22 08:24

                      412 	immunities and criminal proceedings (diss. op. bhandari)

                      “premises of the mission” by the receiving State which has the effect of
                      instantaneously denuding the acquisition of diplomatic status may result
                      in an imbalance to the detriment of the sending State. It follows that the
                      logical consequence of the majority view is that the building at 42 avenue
                      Foch in Paris would never acquire the status of premises of the mission.
                      However, it remains clear that the premises were in fact in use for the
                      purposes of the mission within the meaning of Article 1 (i) of the Vienna
                      Convention, from 27 July 2012. Therefore, the implication which arises
                      out of this Judgment — that the outcome of a régime which lays down
                      conditions for the establishment of friendly relations between equal sov-
                      ereign States, was for certain property to never acquire diplomatic status
                      on the basis of an objection — appears to be a flawed premise.

                         72. Equatorial Guinea asserts that between 4 October 2011 and 27 July
                      2012 it was engaged in organizing the transfer of the offices of its Embassy
                      to the building at 42 avenue Foch in Paris. While Equatorial Guinea has
                      not claimed that all of its diplomatic offices were moved prior to 27 July
                      2012, the Note Verbale of 27 July 2012 indicates that designated use was
                      consistent with actual use by this date. Requests for visas were made from
                      this address by members of the French Government, and a law enforce-
                      ment unit was sent to protect the diplomatic mission during a protest. In
                      these circumstances, the conclusion that the property has never acquired
                      diplomatic status is akin to a state of affairs whereby, three steps arising
                      out of a task of five having been completed, no reconsideration was con-
                      sidered permissible on the completion of the remainder of the steps,
                      despite there being no prescriptive limits. It appears that the French
                      authorities subsequently make no attempt to confirm actual use and do
                      not evaluate the steps taken that evidence such use. In my view, it would
                      appear inconsistent with the purposes of the Vienna Convention
                      for receiving States to possess the power to determine unilaterally
                      which premises each sending State is entitled to use, to allocate premises
                      to one sending State over another or, as in the present case, to refuse
                      diplomatic recognition of premises in actual use by a sending State as its
                      diplomatic mission.

                        73. The objection to designation permits the receiving State to pos-
                      sess discretionary power under the Vienna Convention. The receiv-
                      ing State may at any moment refuse to grant diplomatic status, and
                      even if its decision is neither arbitrary nor discriminatory, it is likely
                      to lead to disputes between sending and receiving States over objections
                      to designation, which could be detrimental to the maintenance of
                      diplomatic relations between States. Further, such an interpretation

                      which favours the receiving State by allowing for discretion in its
                      hands in the designation of mission premises would hardly be consistent
                      with the principle of sovereign equality of States. It is also notable
                      that the Vienna Convention does not appear to envisage any redres

                      116

6 Ord_1204.indb 228                                                                                19/01/22 08:24

                      413 	immunities and criminal proceedings (diss. op. bhandari)

                      sal mechanism in the event that a dispute in this regard arises. Moreover,
                      even if one is to take the view that disputes could be submitted to
                      arbitration or another form of dispute resolution, this does not alter

                      the fact that they are not conducive to the existence of friendly relations
                      between the States concerned. The Court should not shrink away from its
                      duty to pronounce on a régime that requires the balancing of interest.

                         74. Admittedly, the Vienna Convention imposes certain obligations
                      upon receiving States; however, it does so in order to protect the interest
                      of the nationals of the sending State in the receiving State and to provide
                      for instances where a sending State would need to negotiate with the
                      receiving State’s Government. Considering the importance attached to
                      the latter rights and the facilitation thereof from the purview of sovereign
                      equality and the balancing of interests, it appears inappropriate that the
                      Judgment would interpret it as the imposition of weighty obligations
                      upon the receiving State. I am therefore unable to concur with the reason-
                      ing in paragraph 66 of the Judgment.
                         75. Paragraphs 64 and 65 of the Judgment analogize the immunities
                      accorded to “diplomatic personnel and staff of the mission” to that of
                      “premises of the mission”, and assert that under Article 9 of the Vienna
                      Convention, a receiving State is not obliged to grant diplomatic privileges
                      and immunities to an individual indefinitely without its consent. The use
                      of such an analogy to draw conclusions that permit a receiving State to
                      unilaterally object to the establishment of mission premises would be
                      unreasonable. The contrast between the two régimes is evident in the very
                      nature of functions of a diplomatic mission and that of the diplomatic
                      personnel and staff.
                         76. The ongoing criminal proceedings should not affect the crux of the
                      dispute and should not drive the Court’s reasoning. In determining the
                      question whether the objection by France to Equatorial Guinea’s desig-
                      nation of the building as premises of the mission was arbitrary and dis-
                      criminatory in nature, the Court heavily relies on the ongoing criminal
                      proceedings, pending to this date, with respect to Mr. Teodoro Nguema
                      Obiang Mangue, to reason that the searches and seizures carried out were
                      justified and that the objection to designation was reasonable and not
                      arbitrary (paras. 107‑110). The Judgment in paragraph 107 reasons that
                      “France’s conclusion that the building fell within the private domain was
                      not without justification”. In my view, to attach great weight to informa-
                      tion derived out of the ongoing criminal proceedings may appear convo-
                      luted and should not drive the reasoning behind a question which purely
                      relates to the interpretation and application of the inviolability guaran-
                      tees under the Vienna Convention.

                        77. Before concluding, I am compelled — albeit with utmost respect to
                      the Court’s Judgment — to underscore the “objection” and “timely man-
                      ner” standards, which perhaps the Court tries to evolve through its juris-
                      prudence. My opinion upon a perusal of the entire Judgment is that the

                      117

6 Ord_1204.indb 230                                                                                19/01/22 08:24

                      414 	immunities and criminal proceedings (diss. op. bhandari)

                      sources relied upon by the Court, specifically the decided case laws of this
                      Court in paragraph 73 of the Judgment, would only have a persuasive
                      value, when applied in the appropriate context of this case. With regret I
                      opine that these cases, admittedly as per the Judgment, at best rely upon
                      the principle of good faith, like a catena of others rendered by this Court,
                      and offer no distinct assistance to evaluate the “objection” and “timely
                      manner” standards, which the Court purports to establish. While the
                      Court attempts to read good faith in conjunction with the aforemen-
                      tioned standards, I respectfully disagree with such an interpretation. In
                      fact, if at all a good faith argument as made in this paragraph was to
                      sustain in the context of an objection, it would be to the effect that an
                      objection to the acknowledgment of the existence of the premises of a
                      mission would result in bad faith, leading to an impingement of sover-
                      eignty of a member State to the Vienna Convention, thus clearly not in
                      consonance with its object and purpose, for the reasons stated above in
                      my dissent.

                                                    K. Conclusion

                         78. The building at 42 avenue Foch in Paris acquired the status of the
                      premises of the diplomatic mission of Equatorial Guinea from 27 July
                      2012, which is the date of its actual use. I therefore consider the régime of
                      inviolability under Article 22 of the Vienna Convention to apply to the
                      premises from this date onwards. The issue before the Court is of funda-
                      mental importance, having far-reaching implications on the law of diplo-
                      matic privileges and immunities — a body of law based on promoting the
                      maintenance and development of friendly relations among nations,
                      regardless of differing constitutional and social systems. In the absence of
                      an express stipulation to the effect, I opine that the parameters of notifi-
                      cation and actual use, rather than permitting an objection to designation
                      of certain property as “premises of the mission”, would evince mutual
                      consent. I conclude by recalling the Convention’s purpose: “to ensure the
                      efficient performance of the functions of diplomatic missions as represent-
                      ing States”.

                      (Signed) Dalveer Bhandari.

                      118

6 Ord_1204.indb 232                                                                                19/01/22 08:24