On 7 December 2016, the International Court of Justice issued an order on the request for the indication of provisional measures submitted by Equatorial Guinea in the case concerning “Immunities and Criminal Proceedings” (Equatorial Guinea v. France) (the Order). The proceeding represents a classic example of the application of provisional measures in public international law.
On 13 June 2016, Equatorial Guinea filed an application with the ICJ instituting proceedings against France. Equatorial Guinea claimed that France had permitted its courts both to initiate criminal proceedings against the Second Vice-President of Equatorial Guinea and to order the attachment of Equatorial Guinea’s diplomatic mission in Paris. It claimed that, by doing so, France had breached its obligations under the Convention against Transnational Organized Crime, the Vienna Convention on Diplomatic Protection and general international law. Equatorial Guinea requested that France make full reparation for the harm suffered.
On 29 September 2016, Equatorial Guinea submitted a request for the indication of provisional measures in which it asked the ICJ, inter alia, to order France to: (i) suspend all criminal proceedings against its Second Vice-President; (ii) ensure the inviolability of the building in Paris presented as housing Equatorial Guinea’s diplomatic mission; and (iii) refrain from taking any other measure that might cause prejudice to the rights claimed by Equatorial Guinea.
In its Order, the ICJ recalled that it “may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded”. It noted that Equatorial Guinea sought to found jurisdiction on Article 35 of the Convention against Transnational Organized Crime and on the Optional Protocol to the Vienna Convention on Diplomatic Protection. The Court found that it only had jurisdiction under the Optional Protocol – since there was a prima facie dispute between the parties concerning the interpretation or application of Article 22 of the Vienna Convention – and that it could therefore only examine Equatorial Guinea’s request for provisional measures concerning the inviolability of its diplomatic premises.
The ICJ recalled that it may exercise its power to indicate provisional measures under Article 41 of its Statute if “it is satisfied that the rights asserted by the party requesting such measures are at least plausible” and if “there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision”. The ICJ found both of these tests were met. It unanimously ordered that “France shall, pending a final decision in the case, take all measures at its disposal to ensure that the premises presented as housing the diplomatic mission of Equatorial Guinea at 42 avenue Foch in Paris enjoy treatment equivalent to that required by Article 22 of the Vienna Convention on Diplomatic Relations, in order to ensure their inviolability”.
For the ICJ Order on the request for the indication of provisional measures, click here.