The International Court of Justice rendered a judgment last week that may have slipped under the radar at this heady time of year. This judgement has fascinating implications for the practice of international diplomacy.
The International Court of Justice’s (ICJ) judgment concerned the status of a property in Paris, at 42 Avenue Foch. Across several months in 2011 and 2012, the French authorities had searched and seized items from the property on multiple occasions. Eventually, the French courts ordered the attachment of the property. These actions formed part of an ongoing criminal investigation into the former second vice-president of Equatorial Guinea, Teodoro Nguema Obiang Mangue, who was alleged to have bought the property (among other things) using funds misappropriated during his term in office.
Equatorial Guinea consistently objected to these actions as they took place, arguing that the property was being used as the premises of its diplomatic mission in France and was therefore protected from search and seizure (“inviolable”) under international law. France disagreed, persisting with its searches and seizures on the view that the property was not entitled to diplomatic protection. Equatorial Guinea turned to the ICJ to resolve their legal dispute in 2016, advancing a number of claims, including that the entire proceedings against Mangue violated his personal immunity from criminal jurisdiction under international law. However, the Court only had jurisdiction to decide its claim relating to the alleged inviolability of the premises.
In its judgment of 11 December 2020, the Court was essentially required to determine one question: did the property have the status of “premises of the mission” under the relevant international treaty, the Vienna Convention of Diplomatic Relations? If it did, then France’s actions had clearly violated the requirement under Article 22 of the Convention that the premises be “immune from search, requisition, attachment or execution.” If not, then the premises attracted no protection, and France had acted consistently with its international obligations.
A majority of the Court (nine of sixteen judges) sided with France: the property was not a “premises of the mission” under the Convention. It found that Equatorial Guinea, as the “sending state,” could not unilaterally designate a building as diplomatic premises. Rather, under the Convention, France (as the “receiving state”) was entitled to object to the sending state’s designation. If such an objection is timely and neither arbitrary nor discriminatory in character, as France’s was in the circumstances, then the designated property does not acquire protected status.
The Court’s approach to treaty interpretation will no doubt be critiqued from all sides in the coming weeks. But it is also worth considering how significant this outcome may be for the practice of international diplomacy.
On the one hand, the judgment turns conventional wisdom about the requirements for designating a diplomatic mission on its head. The notion that a receiving state can object to a designation is entirely absent from the text of the Convention. Although a few states have a “prior approval” or “consent” requirement in their domestic laws (the Court itself referred to 13, including Germany, Brazil, and South Africa) or employ an informal “no-objection” practice (such as France itself), many more do not. Accordingly, this finding has put many states’ laws and practices out of kilter with international law as now understood. Australia, though, is one of those 13 states whose practices the Court has seemingly vindicated: the Department of Foreign Affairs and Trade’s protocol guidelines for foreign diplomats in Australia specify that any diplomatic premises located on Australian Capital Territory (ACT) land, “but not within commercial premises such as an office building,” require approval from the ACT government.
On the other hand, one must be careful not to overstate the disruptive impact of this judgment. For one, it will likely not have any effect on the hundreds of diplomatic premises already established. The condition that an objection must be “timely” will preclude receiving states from objecting to all but the most recent designations.
Secondly, the “arbitrariness” criterion will likely serve as a sieve through which very few objections will proceed. The facts of this case were extraordinary and are unlikely to surface often. For instance, the property in question was central to an ongoing criminal investigation into a Cabinet Minister of Equatorial Guinea, of which Equatorial Guinea was aware at the time of designation. Equatorial Guinea could not produce any evidence that it had actually used, or was preparing to use, the property to perform any diplomatic functions. Additionally, Equatorial Guinea had maintained other diplomatic premises in Paris throughout the relevant period. All these factors informed the Court’s conclusion that France’s objection was not arbitrary. This fed the implication that the designation was not bona fide, and represented an abuse of Equatorial Guinea’s entitlement to diplomatic privileges (i.e., by invoking them to obstruct a criminal investigation).
However, in run-of-the-mill diplomatic relations involving a designation made in good faith, there will be no legitimate basis to object, and an objection will be futile. This may not stop states from trying – but it will be at some cost to their credibility and to the mutual trust necessary for functioning diplomatic relations. By way of analogy, the United Kingdom threatened in 2012 to withdraw its consent under domestic law to the diplomatic status of the Ecuadorian embassy in London because it was being used to house Julian Assange. That concerned the distinct question of when a property loses rather than acquires protected status; academic opinion deemed it very likely that doing so would have been unlawful, given the absolute protection that diplomatic inviolability affords. Nonetheless, the UK’s reluctance to follow through indicates that even in jurisdictions where a right to object or withdraw consent has existed under domestic law, the credibility cost of exercising it has figured heavily in the state’s risk calculus. So, while receiving states now have the power to object, there will be no reason to exercise it – indeed, and good reason not to exercise it – in most instances.
Finally, for run-of-the mill relations, this new “power to object” does not change the steps involved in designating a property as a diplomatic mission. A sending state will notify a receiving state of its designation, and the receiving state will either expressly approve, or simply do nothing, rendering any objection down the road untimely. Either response gives rise to an effective designation under international law, no differently than before (saying nothing of any additional requirements in either state’s domestic law). The only difference now is that there is a clearer legal basis and parameters for receiving states to contemporaneously challenge a designation in the rare instances that this is appropriate.
In sum, the judgment has not caused any seismic shift to the practice of diplomacy. But it has introduced a new element into the mix. A receiving state’s right to object to the designation of diplomatic premises provides another means to counter abuses of diplomatic privileges and immunities. Such a policy-driven development, whether or not compelling as a matter of treaty interpretation, is welcome to the extent that it ensures that the law governing international diplomacy remains, as the Court put it, “balanced, realistic and mutually beneficial.”
Rhys Carvosso is an LLM Candidate at the University of Cambridge, and a former intern at AIIA NSW.
This article is published under a Creative Commons License and can be republished with attribution.