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Immunities and Criminal Jurisdiction (Equatorial Guinea v. France): Preliminary Objections (I.C.J.)

Published online by Cambridge University Press:  07 March 2019

Martins Paparinskis
Martins Paparinskis*
Affiliation:
Reader in Public International Law, University College London.
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Extract

On June 6, 2018, the International Court of Justice (Court) rendered a judgment on preliminary objections in the case of Immunities and Criminal Proceedings (Equatorial Guinea v. France). France had made three preliminary objections: two related to the Court's jurisdiction on the basis of, respectively, United Nations Convention Against Transnational Organized Crime (Palermo Convention) and the Optional Protocol to the Vienna Convention on Diplomatic Protection (VCDR) concerning the Compulsory Settlement of Disputes (Optional Protocol), and the third challenged admissibility for abuse of process and abuse of rights. The Court accepted the first objection regarding jurisdiction on the basis of the Palermo Convention and rejected the other two. This judgment is an important contribution to the development of international law, both regarding the particular instruments at issue and broader questions of law of treaties and international dispute settlement.

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 1 , February 2019 , pp. 1 - 70
Copyright
Copyright © 2019 by The American Society of International Law 

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References

ENDNOTES

1 Immunities and Criminal Jurisdiction (Eq. Guinea v. France), Preliminary Objections, 2018 ICJ Rep. (June 6) [hereinafter Judgment], https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-00-EN.pdf. The French text is authoritative. Opinions of Judges were written in English and translated into French, except for Judge Abraham, whose opinion was written in French and translated into English. I will refer to the English text and translation throughout this note.

2 Judgment, supra note 1, ¶ 67.

3 Id. ¶¶ 23–25.

4 Id. ¶¶ 25–28, 70.

5 Id. ¶¶ 29–34, 68–69.

6 Immunities and Criminal Jurisdiction (Eq. Guinea v. France), Provisional Measures, 2016 ICJ Rep. 1148 (Dec. 7) ¶¶ 94–95 [hereinafter Order], https://www.icj-cij.org/files/case-related/163/163-20161207-ORD-01-00-EN.pdf. The French court accepted that it was therefore impossible to execute the confiscation of the building, Judgment, supra note 1, ¶¶ 39–40.

7 Order, supra note 6, ¶ 50. But see id., Separate Opinion of Judge Xue, 1173; Separate Opinion of Judge ad hoc Kateka, 1178 ¶¶ 3–21.

8 Judgment, supra note 1, ¶¶ 77–85.

9 Id. ¶ 93.

10 Id. ¶¶ 94–102.

11 Id. ¶¶ 113–117; Declaration of Judge Owada, ¶¶ 5–13 [hereinafter Owada], https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-02-EN.pdf.

12 Judgment, supra note 1, Joint Dissenting Opinion of Vice-President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka, ¶ 49, and further ¶¶ 18–57 [hereinafter Joint Dissenting Opinion], https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-01-EN.pdf. Judge Gevorgian, who voted with the majority, seemed sympathetic to the substantive point but was concerned about expanding the Court's jurisdiction by artificial linkage of the Palermo Convention with incidental points of international law, id., Separate Opinion of Judge Gevorgian, ¶¶ 4–9, https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-07-EN.pdf.

13 Judgment, supra note 1, ¶¶ 129–138. See also id., Declaration of Judge Gaja, https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-05-EN.pdf (noting that Article 22 of VCDR and accordingly the Optional Protocol did not cover the dispute over ownership of the building).

14 Judgment, supra note 1, ¶¶ 150–151. See also Owada, supra note 11, ¶¶ 14–21 (on the limits of preliminary objections).

15 Judgment, supra note 1, ¶ 150; Dissenting Opinion of Judge Donoghue [hereinafter Donoghue], https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-04-EN.pdf.

16 Judgment, supra note 1, ¶ 92; Declaration of Judge Crawford, ¶ 4 [hereinafter Crawford], https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-06-EN.pdf.

17 See Judgment, supra note 1, ¶¶ 94–102; Joint Dissenting Opinion, supra note 12, ¶¶ 18–49; Owada, supra note 11, ¶¶ 2–4; Separate Opinion of Judge Abraham, https://www.icj-cij.org/files/case-related/163/163-20180606-JUD-01-03-EN.pdf; Crawford, supra note 16.

18 Judgment, supra note 1, ¶¶ 99–101; Abraham, id., ¶¶ 20–23; Crawford, supra note 16, ¶¶ 5–7. Also an apparently broader argument in Joint Dissenting Opinion, supra note 12, ¶¶ 45–48.

19 Judgment, supra note 1, ¶ 113.

20 Donoghue, supra note 15, ¶¶ 3–4.

21 Owada, supra note 11, ¶ 18.