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Immunities and Criminal Proceedings (Equatorial Guinea v. France) (I.C.J.)

Published online by Cambridge University Press:  11 March 2021

Péter Kovács
Péter Kovács*
Affiliation:
Péter Kovács is Professor of International Law (Péter Pázmány Catholic University, Budapest) and judge of the International Criminal Court (2015–2024). This contribution was written in his personal capacity. The thoughts expressed therein cannot be attributed to the International Criminal Court.
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Extract

On December 11, 2020, the International Court of Justice (ICJ or Court) delivered by majority its judgment on the merits of the litigation between Equatorial Guinea and France concerning the legal status of a building at 42 Avenue Foch, situated in Paris, in the very elegant 16th district, close to the Arc de Triomphe (Place de l'Étoile/Place Charles de Gaulle).

Type
International Legal Documents
Information
International Legal Materials , Volume 60 , Issue 4 , August 2021 , pp. 541 - 636
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Judgment, Dec. 11, 2020 (not yet published in the I.C.J. Reports), https://www.icj-cij.org/en/case/163/judgments.

2 Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections, Judgment, 2018 I.C.J. Rep. 292 (June 6).

3 Id. at 337.

4 Id. at 337–338.

5 Id. at 338.

6 Id.

7 I.C.J. Immunities and Criminal Proceedings, supra note 1, ¶ 26.

8 Id. ¶ 27.

9 Id.

10 Id. ¶ 29.

11 Id. ¶ 27. Later, apparently, Equatorial Guinea slightly changed this argumentation by claiming that the building is the “official residence of [Equatorial Guinea's] Permanent Delegate to UNESCO.” See ¶ 28.

12 Id. ¶¶ 27–29, 33.

13 Id. ¶ 36.

14 Id. ¶ 38.

15 Id. ¶.

16 Id. ¶¶ 31, 38.

17 Id. ¶ 38.

18 Vienna Convention on Diplomatic Relations art. 1, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter VCDR]: “For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: […] i. The ‘premises of the mission’ are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”

19 VCDR art. 22: “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 appropriate 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 property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”

20 Id. ¶¶ 44, 45, 48.

21 VCDR art. 12: “The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.”

22 I.C.J. Immunities and Criminal Proceedings, supra note 1, ¶¶ 56, 59, 60.

23 Id. ¶ 52.

24 Id. ¶¶ 65-67, 74–75.

25 Id. ¶¶ 83, 85, 89.

26 Id. ¶ 114.

27 Id. ¶ 107; see also ¶¶ 108–109.

28 In favour: Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Crawford, Gevorgian, Salam, Iwasawa; Against: President Yusuf; Vice-President Xue; Judges Gaja, Sebutinde, Bhandari, Robinson; Judge ad hoc Kateka.

29 I.C.J. Immunities and Criminal Proceedings, supra note 1, ¶ 106.

30 In favour: President Yusuf; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Crawford, Gevorgian, Salam, Iwasawa; Against: Vice-President Xue; Judges Bhandari, Robinson; Judge ad hoc Kateka.

31 I.C.J. Immunities and Criminal Proceedings, supra note 1, ¶ 106.

32 The reasons for the tacit acceptance of this practice by the Szálasi-government taking power in October 1944, with Nazi Germany's military assistance, are the subject of historians' research. It is to be noted that this was possibly the only issue regarding which the government of the Nazi-friendly “Arrow Cross” party did not follow the repeated instructions of Hitler's envoy, Vesenmayer, who protested against the ever-growing number of buildings under quasi diplomatic immunity. The tacit governmental acceptance is explained by historians partly by the endeavour of the unconstitutionally formed government to get some “international recognition” as a “recompense” and partly by some Hungarian diplomats' successful secret cooperation with Wallenberg and his colleagues.

33 See further: Péter Kovács & Ádány, Tamás, The Non-Customary Practice of Diplomatic Asylum, in Diplomatic Law in a New Millennium 187–189 (Paul Behrens ed., 2017).