Case Comment: Immunities and Criminal Proceedings (Equatorial Guinea v. France)

Rakshit Sharma



Introduction


In 2008, Transparency International France filed a complaint for misappropriation of funds against African Heads of State (Immunities and Criminal Proceedings [Equatorial Guinea v. France]) before the International Court of Justice. The principal accused person was Mr. Teodoro Mangue, the son of the President of Equatorial Guinea. The alleged misappropriation had been conducted by acquiring certain properties out of which the building located at 42 Avenue Foch in Paris, was the centre of investigation. As the investigation progressed, Guinea put out a Note Verbale (diplomatic communication) to France regarding the building, which was seized by France being a part of its diplomatic mission, and deemed the seizure by France to be in violation of the ordinary laws. France, in reply to it, claimed that the building was not a part of the diplomatic working of Guinea, and neither was the entire issue subject to ordinary law.


The case revolved around whether or not a property which is located in France, which was bought by Mr. Teodoro Mangue, son of the Vice President of Equatorial Guinea, can come under the ambit of diplomatic property and mission. This affected the decision on whether or not Mr. Teodoro Mangue will be protected under the blanket protection of diplomatic property. If it was to be a diplomatic property, then no action could have been taken against Mr. Teodoro Mangue.


As of 27th July 2012, the building had officially become attached to the case under the Code of Criminal Procedure, 2012. After 5 years from the inception of the trial, Mr. Tedoro Mangue was found guilty of money laundering. The Tribunal, Correctionnel de Paris (a court in which legal proceedings are begun or first heard) ordered to confiscate all the moveable assets pertaining in any relation to the concerned building and also imposed further penalties on the guilty. The Tribunal Correctionnel de Paris also contended that the confiscation of the building was not possible since the building was a subject of the proceedings of the International Court of Justice (ICJ). Mr. Mangue further appealed to the decision in the Paris Court of Appeals wherein the sentences handed to them were suspended and hence no action was taken as such. Furthermore, the Court of Appeals upheld the confiscation of the 40-42 Avenue Foch property. On the other hand, the ICJ found the building to have never acquired the status of being a premises where activities related to the diplomatic mission of Equatorial Guinea were being carried out under Article 1(i) of the Vienna Convention on Diplomatic Relations, and that France is not to be considered going ultra vires (beyond the powers) in its move.


Judgement of the Court


The court examined the conditions and essentials under the Vienna Convention which were needed to be fulfilled in order to get a certain piece of property, the status of “premises of the diplomatic mission” which would have absolved any liability arising with respect to Equatorial Guinea. It contended that the interpretation of Article 1(i) may not take under its ambit the power given to any country to make a unilateral choice with respect to mission premises in any other country, especially when the other country has specifically objected to the choice. It is also important to note that the objections must not be discriminatory or arbitrary in nature. It was made sure by the court that a scenario of such nature was deemed to be out of question. The court, upon checking the ethicality of the objection, went on to investigate whether the objection was made within the required timeline by France, which it was, as per findings of the court.


It was finally concluded that since the merits of the case tilted towards France, because it had cleared the two factor test, containing two conditions, i.e., of submitting in objection within the timeline limits and the objection being non-arbitrary, the decision should be in the favour of France too. Hence, the claim of Equatorial Guinea regarding the building at 42 Avenue Foch in Paris being a part of its diplomatic mission was rejected. It is important to add here that no immunity would be granted to Mr. Mangue, since his claim of the building being a part of the diplomatic mission failed before the Court.


Dissenting Opinion


Judge Xue


Judge Xue stated in the judgment that there seemed to be an error on the part of the court with respect to the jurisdiction it enforces since it was stated in the principal content that on one hand, it had jurisdiction to investigate the case regarding immunity, and on the other, the issue with respect to the building being a part of the diplomatic mission of Equatorial Guinea was against the principles of law. The rationale given behind it may be divided into two parts. The first part pertains to the transaction to obtain the building, which though is deemed to be lawful, but is still a subject of objection. Judge Xue opined that the objection made by France, though on legitimate grounds, was mostly intended that way due to the criminal case investigation against Mr. Mangue, which as a fact, carries the capability to change the applied jurisdiction on the suit. Judge Xue also opined that the conduct of France indicates that it does not have a problem with the transaction itself but with the ownership of the property. It is willing to give private ownership so that the party remains under the ambit of the VCDR, and is not protected by diplomatic immunity. Judge Xue also considers that the labelling of the property as diplomatic should not be a unilateral decision. Judge Xue found the objections made by France to not be in good faith and held that France should be deemed liable for not consulting with Equatorial Guinea when it decided to nullify the proposition of making that building a premise of its diplomatic mission by Equatorial Guinea.


Judge Bhandari


Judge Bhandari contended that the sole criteria for not allowing a property to be considered under diplomatic mission cannot be just the non- arbitrariness and non- discriminatory nature and the objection being made within time. Neither VCDR nor customary law provide for a requirement of this sort. Judge Bhandari further tackled the issue on four grounds. Firstly, Judge Bhandari cited the preamble of the VCDR which states an intent “to ensure the efficient performance of the functions of diplomatic missions” which placed functional necessity as priority for granting privileges and immunities. Secondly, Judge Bhandari emphasised upon the essence of the treaty and how one sovereign nation must be in equal standing as compared to the other with respect to the law. Judge Bhandari also contended that paragraph 74 of the judgment goes against this essence as it is not consistent with the idea of peaceful conflict resolution. Thirdly, Judge Bhandari noted that, in accordance with the VCDR, there is nothing which necessitates the idea of taking consent of the receiving state for the establishment of mission premises. Lastly, Judge Bhandari inferred that the two acts of sending a notification to the receiving state and actually using the premises for diplomatic mission serve enough of the requirements in order to be granted the status of diplomatic property by virtue of Article 31 and 32 of the VCDR and Article 1(i) read with Article 22.


Judge Robinson


Judge Robinson stated that the claims made by Equatorial Guinea were legitimate and that the property should rightfully be declared as a part of diplomatic mission of the Equatorial Guinea as per the VCDR. Judge Robinson also declared that the steps taken by France to be in violation of Article 22 of the VCDR because nowhere in the VCDR or the customary law, is there a point which reinstates the prerequisite of getting a green-light or a no-objection declaration from the receiving country. The building, if being used for the diplomatic mission, becomes a diplomatic property by virtue of that fact itself.


Implications of the Judgement


Two contentious spots which are involved here, pertain to the interpretation of the spirit or the jurisprudential intent of the VCDR. According to the preamble “the maintenance of international peace and security, and the promotion of friendly relations among nations”, is one of the motives of VCDR. Here, two of the objectives mentioned are the maintenance of international peace and security and that of friendly relations. There seems to be an ambiguity as to what needs to be done when one of these objectives start to encroach upon the existence of the other.


The security and peace should take precedence over friendly relations among nations. It is because of the simple reason that security and safety of one’s nation will have to exist if it is to have friendly relations. A nation which is under constant threat of breach of security, cannot in any way, be able to focus on making efforts to harness relations.


According to Article 2 of the VCDR, “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.” Due to the aforementioned, it seems to be clear that the consent of France was a necessary condition in this deal to work and since it was never present in an unconditional manner. France had every right to object and Equatorial Guinea had a duty to accede to those objections or choose to opt out of the deal, with respect to the property.

Secondly, according to Judge Xue in the concerned case, the diplomatic interactions between France and Guinea “were not of two sovereign states". As stipulated in the preamble of the VCDR, while forging relations, the state parties should take into consideration the premises of the United Nations Charter regarding, inter alia, the sovereign equality of States. Thus conceived, the polarized diplomatic relations between France and Guinea in this case seem to encroach upon the very formation of the diplomatic mission of Guinea to France.