Overview of the Dispute
On 13 June 2016 Equatorial Guinea (the Applicant) filed an Application instituting proceedings against France (the Respondent) before the International Court of Justice (ICJ or ‘the Court’) claiming that certain ongoing criminal proceedings in France against the Equatoguinean Second Vice-President – Mr. Teodoro Nguema Obiang Mangue – constituted a violation of the immunity from criminal jurisdiction he is entitled to under international law. The Application also claimed that the seizing of a building located in Paris used for the purposes of the diplomatic mission of Equatorial Guinea in France constituted a breach of the norm on the inviolability of the premises of diplomatic missions. The Applicant maintained that the ICJ had jurisdiction both on the basis of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic Relations of 18 April 1961(the ‘Optional Protocol’)and of Art. 35 of the United Nations Convention against Transnational Organized Crime of 15 November 2000(the ‘Palermo Convention’).
In the third of its preliminary objections of 30 March 2017, France affirmed that the case’s referral to the ICJ is ‘completely artificial’ (para. 59), because ‘Equatorial Guinea links its claims to conventional provisions which, given the facts of the case, cannot be regarded as a credible basis for the exercise of the Court’s jurisdiction’ (para. 58) and, as claimed in the oral proceedings, ‘en l’absence manifeste de toute voie de droit’ (p. 48, para. 8) (i.e.through an abuse of process). France also upheld that the Application filed by Equatorial Guinea constituted an abuse of rights and should, therefore, be dismissed.
The case is interesting because it confirms the tendency of the ICJ to not uphold claims by Respondent States aimed at asserting the commission of an abuse of process by the Applicant party, this time providing few more indications as to the scope of application of this principle.
The Notion of ‘Abuse of Process’ and the ICJ Case Law
The abuse of process can be defined, in general terms, as the use of a legal process to accomplish an unlawful purpose, by resorting to illegal, malicious, or perverted means.As Kolb puts it, abuse of process ‘consists of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for the purpose of pure propaganda’. The notion at stake can be considered as a corollary of the international law principle of good faith with which the former shares a certain degree of vagueness.
While the notion of abuse of process has become dangerously popular in international investment arbitration in recent years,the same cannot be said with regard to the practice of the ICJ, which has not yet provided for a definition of abuse of process and have thus far rejected all claims concerning this particular conduct. One of the first cases where the ICJ was faced with this issue was the Arbitral Award of 31 July 1989, in which Senegal upheld that Guinea-Bissau’s Application was inadmissible since Guinea-Bissau was trying to misuse a declaration with the intention of casting doubts on the validity of the arbitral award. However, the judges rejected the argument affirming that ‘Guinea-Bissau’s Application [was] properly presented in the framework of its right to have recourse to the Court in the circumstances of the case’.In Certain Phosphate Lands in Nauru Australia upheld that Nauru had failed to act consistently and in good faith in relation to rehabilitation of the phosphate lands at stake, but the judges concluded again that the Application by Nauru had been properly submitted and that its conduct did not amount to an abuse of process.In Armed Activities in the Territory of the Congo Rwanda contended that the re-submission of the same application by Congo was a clear abuse of process, but the ICJ decided not to remove the case from its list, without giving any further explanation.
These judgments show that abuse of process only concerns the preliminary phases of proceedings (not the merits) and is, in particular, linked to the admissibility of a claim. This is confirmed by the judgment on the Immunities Case, discussed below.
The Content of the Claim of ‘Abuse of Process’ made by France and the Position of the ICJ
As mentioned earlier, France claimed that the Application submitted by Equatorial Guinea should be rejected, constituting an abuse of process. More specifically, the Applicant allegedly reversed the ordinary procedural sequence, claiming breaches by the Respondent of its international obligations and requesting the Court to make a finding to that effect, but remaining ‘evasive’ and ‘cursory’ as to the basis for the exercise of the Court’s jurisdiction.Therefore – as argued by France – the conduct of Equatorial Guinea is in contrast to the fundamental principle of international law, which provides that no State may be subject to the jurisdiction of an international court without its consent.Moreover, according to the Respondent, the Application contained similar submissions to those articulated in a previous one, dated 25 September 2012, when France had not accepted the exercise of the ICJ’s jurisdiction, which has led Equatorial Guinea to find a strategy to devise that lack of consent in the present case. This strategy consisted, on the one hand, in acceding to the Optional Protocol – yet without specifying which provision of the Vienna Convention on Diplomatic Relations is at the origin of the dispute with France – and, on the other, in invoking the Palermo Convention, whose provisions, according to France, do not concern the present facts.
On its part, in its written statement, Equatorial Guinea contended that it had recourse to dispute settlement procedures in good faith and in accordance with the conditions and requirements laid down in the Optional Protocol and in the Palermo Convention. In particular, the Applicant maintained that seizing the ICJ, ‘even immediately after accepting its jurisdiction’, does not constitute an abuse of process and that under international law ‘there is no limitation period for invoking bases of jurisdiction’.
In its judgment on Preliminary Objections of 6 June 2018, the ICJ first drew a distinction between the concepts of abuse of process and abuse of rights. While admitting that ‘the basic concept of an abuse may be the same’, the judges argued that consequences stemming from the two may be different.After having mentioned earlier cases in which the ICJ had to deal with those issues, the judges tried to clarify the scope of application of the abuse of process, by saying that it ‘goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings’.In light of this, the Court concluded, by fourteen votes to one,that ‘Equatorial Guinea, having established a valid title of jurisdiction, should [not] be barred at the threshold without clear evidencethat its conduct could amount to an abuse of process. It is only in exceptional circumstancesthat the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process’ and this was not the case.
The ruling of the Court confirms that abuse of process only comes into play as a preliminary objection as to admissibility. The concept is defined in very narrow terms by the judges, so as to raise the threshold of application. Furthermore, a clear explanation of why the abuse of process did not occur in the present case is hardly substantiated. Judges seem to assert that when a valid title of jurisdiction is present, hardly ever an abuse of process can prevent the continuance of proceedings.In so doing, the Court seems almost to put those two distinct concepts on a hierarchical scale of values, with the one corresponding to a valid title of jurisdiction prevailing.
Moreover, the way the Court deals with this aspect looks slightly dismissive. In particular, it remains uncertain what is to be meant as ‘clear evidence’ and what France should have proved for its claim to be upheld. Even analysing the Respondent’s arguments, the diversity and vagueness of the elements supporting the claim of an abuse of process against Equatorial Guinea seem to confirm the view that the content of this concept is still unclear in the context of international adjudication.Yet this was a good (missed) opportunity for the Court to clarify the issue, in order to avoid applicant States to take advantage of this case law in the future.
According to Art I of the Optional Protocol, ‘[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [ICJ] and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol’.
Art 35, par 2, of the Palermo Convention provides that ‘[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’.
In the present post we will only deal with the concept of abuse of process– considered as an application of the abuse of rightsprinciple – having the ICJ ruled that the latter requires an examination of the merits of the case which has yet to be done at the time of writing. It is however interesting to note how the Court is extremely careful to keep the two concepts distinct from one another, probably with a view to raise the threshold for inadmissibility.
ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Written Statement of the Observations and Submissions of the Republic of Equatorial Guinea on the Preliminary Objections Raised by the French Republic, 31 July 2017, para 1.73.
Judge Donoghue against.
Undue shortness and evasiveness of the question of the Court’s jurisdiction, lack of any conventional provisions binding the Parties to submit such a dispute to the Court, prior lack of consent by France to its exercise of jurisdiction, etc.