Dr. Anzhela Torosyan
Associate, Teynier Pic
Introduction
By Order dated 12 September 2025, the International Court of Justice (the “ICJ” or the “Court”) dismissed, by thirteen votes to two, the Request for the Indication of Provisional Measures submitted by the Republic of Equatorial Guinea against the French Republic (the “Order”), in the case concerning the Request for the Restitution of Property Confiscated in the Context of Criminal Proceedings (See the full case at https://www.icj-cij.org/fr/affaire/184”).
At the core of the dispute lies the building located at 42 Avenue Foch, in the 16th arrondissement of Paris, which was seized by the French judicial authorities following criminal proceedings related to the misappropriation of public funds by certain African heads of state and members of their families in France, including, in particular, Mr. Teodoro Nguema Obiang Mangue, Vice-President of the Republic of Equatorial Guine.
By an Application dated 3 July 2025, Equatorial Guinea requested, inter alia, that the ICJ order France to take all necessary measures to prevent the sale of the building, to guarantee free and unhindered access thereto, and to refrain from any act likely to aggravate the dispute. This Application was made in the context of proceedings instituted on 29 September 2022, based on the alleged violation by France of several provisions of the United Nations Convention against Corruption (the “Convention” or the “Convention against corruption”), Article 57 thereof, concerning the return of confiscated assets.
This marked the first occasion on which the Court ruled on this matter.
Finding that the requirement of a “plausible right” had not been met, the ICJ held that no legal obligation required France to return the disputed property and accordingly dismissed the request for the indication of provisional measures. This decision forms part of ongoing proceedings instituted in 2022 concerning alleged breaches by France of certain obligations arising under the Convention against Corruption.
At both the provisional measures stage and, should the case proceed, at the merits stage, the dispute raises issues of considerable significance for public international law. It represents the first contentious case brought under the United Nations Convention against Corruption, thereby constituting a landmark in the Court’s jurisprudence. Moreover, the legal questions relating to the restitution of confiscated assets are particularly complex, notably in respect of States’ obligations regarding international cooperation and the mechanisms for the return of ill-gotten assets, all within the framework of established principles of international law.
Genesis of the dispute
The case originates from a complaint filed in 2008 by Transparency International France targeting several African leaders, including Mr. Teodoro Nguema Obiang Mangue, for the alleged embezzlement of public funds invested in France. The investigation, opened in 2010, led in 2012 to the seizure of several assets, including the building located at 42 Avenue Foch, which was allegedly acquired using funds misappropriated from the Equatoguinean Treasury. This property occupies a central place in the broader matter commonly referred to as the “ill-gotten assets” cases. The confiscation was upheld on appeal in 2013.
In 2016, Equatorial Guinea brought the case before the Court, invoking, among other things, the Vienna Convention on Diplomatic Relations. It argued that the building located at 42 avenue Foch constituted diplomatic premises and that, as such, it should enjoy the inviolability provided for by the Convention. In a judgment dated 11 December 2020, the ICJ rejected the argument on the grounds that the building had never acquired that status (the “Judgment”). Subsequently, in 2021, the French Supreme Court upheld Mr. Obiang’s conviction for laundering embezzled public funds and the definitive confiscation of the building at 42 Avenue Foch in Paris. A request for the return of this property was declared inadmissible in 2022, as Equatorial Guinea failed to prove its prior ownership (In its Judgment, the ICJ recalls that the establishment of diplomatic relations and the creation of permanent missions rely on the mutual consent of States (Art. 2) (Judgment, § 63), which excludes the possibility for the sending State to unilaterally impose the designation of diplomatic premises in the event of an express objection by the receiving State (Ibid, § 63). According to the Court, in this case, if a sending State could unilaterally designate the premises of its mission despite the objection of the receiving State, the latter would effectively face the choice of either granting protection to the property against its will or taking the drastic measure of severing diplomatic relations with the sending State (Ibid, § 65). The Court emphasized that the receiving State must exercise its right of objection reasonably and non-discriminatorily. In this case, France clearly refused to recognize 42 Avenue Foch as diplomatic premises, stressing that the property was not intended for diplomatic use and that acquiring such status required both the absence of objection by France and the effective allocation of the premises to diplomatic activities (Ibid, §§ 108–113)).
In response to France’s announcement in July 2022 that it was putting the seized building up for sale, Equatorial Guinea brought a new case before the Court, this time on the basis of the Convention against Corruption. It argues that Article 57 of that Convention imposes an obligation on France to return the property and, more broadly, accuses France of failing to fulfill its obligations of international cooperation and assistance necessary for the purposes of restitution.
The request for provisional measures
On 18 June 2025, French officials took possession of the building without notice, changing the locks and destroying the security devices. In response, Equatorial Guinea brought an application before the Court to indicate provisional measures, requesting that France be ordered to: (i) take all necessary measures to prevent the sale of the building; (ii) guarantee Equatorial Guinea immediate, full, and unimpeded access to the entire building; (iii) refrain from any act that might aggravate or extend the dispute before the Court, or complicate its settlement.
According to Equatorial Guinea, the request was justified by the urgency of the situation and the risk of irreparable harm: the imminent sale of the property by AGRASC would render any future restitution impossible and deprive the Applicant State of the form of reparation in kind to which it claims to be entitled.
According to Equatorial Guinea, this request is justified by the urgency of the situation and the risk of irreparable harm: the imminent sale of the property by AGRASC would make any subsequent restitution impossible and deprive the applicant State of the reparation in kind to which it considers itself entitled.
This note briefly analyzes the international legal framework for asset recovery (I.) and assesses the scope of the Convention against Corruption in relation to the present case (II.).
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- The United Nations Convention against Corruption: legal framework and mechanisms for the return of confiscated assets
Adopted in 2003 and entered into force in 2005, the Convention establishes for the first time in an international treaty the principle of returning misappropriated assets to the State of origin. Chapter V establishes restitution as a “fundamental principle,” marking a major step forward by making asset recovery a central pillar of the fight against corruption (Cecily Rose, Michael Kubiciel et Oliver Landwehr, « Introduction », in Cecily Rose, Michael Kubiciel et Oliver Landwehr (dir.), The United Nations Convention Against Corruption: A Commentary, Oxford Commentaries on International Law, Oxford University Press, 2019, p. 10).
At the heart of Chapter V, Article 57 of the Convention establishes the principle of full restitution of confiscated assets to the State of origin. Its hybrid structure, combining mandatory obligations (paragraphs 1 to 3) and optional provisions (paragraphs 4 and 5), reflects a balance between legal constraint and flexibility (See, Cecily Rose, Michael Kubiciel et Oliver Landwehr, op. cit., p. 10 ; UNODC, Legislative Guide for the Implementation of the United Nations Convention against Corruption, 2ème edn, UNODC 2012).
First, in cases of misappropriation of public funds or laundering of such funds (Article 57(3)(a)), the State to which the request is made is required to return the confiscated property to the requesting State, provided that the confiscation was carried out in the context of international cooperation (Article 55) and on the basis of a final judgment handed down in the requesting State. However, this judgment requirement may be waived by the State receiving the request, in particular where the judgment cannot be obtained due to the death, flight or absence of the defendant, or in other appropriate circumstances.
Second, for other offenses covered by the Convention (Article 57(3)(b)), restitution is also provided for if the confiscation was carried out in accordance with Article 55 and on the basis of a final judgment, a requirement that may be waived. The particularity of this scenario lies in the need for the State requesting restitution to reasonably establish its prior ownership of the property or, failing that, for the State receiving the request to recognize the damage suffered.
Finally, for “all other cases”, the Convention provides that the requested State shall “consider as a matter of priority” either returning the property to the requesting State, returning it to its previous legitimate owners, or compensating the victims (para. 3(c)).
In the latter case, the State is not obliged to return the recovered assets to a particular recipient, or even to return them at all. It is only required to “consider as a matter of priority” the return of the property to one or more of the recipients listed in the provision. In practice, the State remains in a position to exercise its discretion as to both the appropriateness and the terms of restitution, which limits the justiciability of the right to restitution in the strict sense.
It is precisely this latter scenario (paragraph 3(c)) that was submitted to the Court for review in the Order. The controversy centered on the question of whether this provision creates a subjective right to restitution for the State requesting restitution, or whether it should be interpreted as a mere political incentive for international cooperation.
- Article 57§3(c) of the UNFCCC put to the test by the order dated 12 September 2025
In accordance with Article 41 of its Statute, the Court may take provisional measures to preserve the rights of the parties pending its final decision on the merits. These measures, which are legally binding, are intended to prevent the dispute from escalating or the future judgment from losing its effectiveness (On provisional measures before the ICJ, see Cameron Miles, Provisional Measures before International Courts and Tribunals. Cambridge University Press; 2017; Shabtai Rosenne, Provisional Measures in International Law – The International Court of Justice and the International Tribunal for the Law of the Sea, Oxford, 2005.
Moreover, it follows from consistent jurisprudence that the Court may only indicate provisional measures if several conditions are met: the plausibility of the rights invoked by the applicant; the existence of a link between those rights – which constitute the subject matter of the proceedings on the merits – and the measures requested; the existence of a risk of irreparable harm to the rights of the applicant or to the rights of the defence; and urgency, understood as a real and imminent risk of irreparable harm that may materialize before the Court delivers its final decision.
In the Order, the Court recalled that it may indicate provisional measures if the circumstances so require, subject to the fulfilment of cumulative conditions, including the plausibility of the rights invoked. The Court is not bound to examine these conditions in any particular order and, in this instance, chose to begin with the plausibility condition (For a more in-depth discussion of the plausibility requirement in the ICJ’s case law see, Massimo Lando, ‘Plausibility in the Provisional Measures Jurisprudence of the International Court of Justice’ (2018) 31(3) Leiden Journal of International Law 641; Cameron A Miles, ‘The Influence of the International Court of Justice on the Law of Provisional Measures’ in Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015) 218; As for relevant case law, this includes, in particular, the Order of 29 April 1991 on the request for the indication of provisional measures in the case concerning Passage through the Great Belt (Finland v. Denmark) (ICJ Reports 1991, p. 12), as well as the Order of 28 May 2009 in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (ICJ Reports 2009, p. 210).
Ultimately, the Court’s analysis focused on the plausibility of the rights invoked by Equatorial Guinea under Article 57. After reviewing the parties’ arguments on the interpretation of Article 57 (i.), the Court adopted an interpretation that led to the rejection of the existence of a plausible right (ii.), an approach that was criticized in dissenting opinions (iii.).
- The opposing arguments of the Parties on the interpretation of Article 57.
Equatorial Guinea requested the return to the State of the building located at 42 Avenue Foch, and not the proceeds from its sale, as provided for by the French Law No. 2021-1031 of 4 August 2021 on Programming Related to Solidarity-Based Development and the Fight Against Global Inequalities), which was enacted after the confiscation of the building located at 42 Avenue Foch. This law excludes any direct restitution to the victim states and provides for the proceeds of sales to be allocated to official development assistance, in accordance with French foreign policy priorities (See, Verbatim Record 2025/13 of the oral pleadings of Equatorial Guinea on 15 July 2025, p. 19).
Equatorial Guinea based its request on the right to restitution, which it considered to be guaranteed by the Convention against Corruption, as well as on the principle of international cooperation, which is based on Article 51 of the Convention. Equatorial Guinea argued that Article 57 §3(c) imposed a positive obligation to return the assets, particularly when they constituted the proceeds of embezzlement of public funds. The expression “consider as a matter of priority” should not be interpreted as giving States discretionary power, but as a firm obligation geared towards restitution of property in kind (Verbatim Record 2025/13, pp. 37-38).
Equatorial Guinea emphasized that the Convention does not provide for any other means of disposing of confiscated assets and that any interpretation aiming to introduce “innovative mechanisms” or allowing the requested State to unilaterally decide the allocation of the assets or their proceeds lacks any basis in the Convention (Verbatim Record 2025/13, p. 37). Equatorial Guinea asserted that it found itself in a particular position reinforcing its right to restitution: it was both the “requesting State party,” the “prior legitimate owner” of the funds used to acquire the property, and the “direct victim” of the offenses committed by its former vice-president (Verbatim Record 2025/13, p. 35). In addition to Article 57, Equatorial Guinea invoked Article 51 of the Convention (the fundamental principle of restitution), as well as the principles of sovereign equality and non-intervention in the internal affairs of other States (Article 4 §1). It argued that these provisions reinforced its right to full and immediate restitution of the property (Verbatim Record 2025/13, pp. 10–13).
Finally, Equatorial Guinea also emphasized the urgency and the irreversible nature of the harm that would have resulted from the sale of the property by AGRASC. Such a sale would have made restitution in kind impossible and deprived the requesting State of the right to restitution guaranteed by the Convention (Verbatim Record 2025/13, pp. 42–43).
France argued that the request for the restitution of the property at 42 Avenue Foch found no plausible basis in Article 57, and more specifically in its paragraph 3, subparagraph (c). According to France, this subparagraph does not impose any obligation to restitute but merely requires the requested State to “give priority consideration” to the restitution of confiscated assets, which implies a wide margin of appreciation for the requested State. Moreover, France contended that the wording used in subparagraph (c) deliberately differs from that of subparagraphs (a) and (b), which explicitly provide that the requested State “shall restitute the confiscated assets”; this lexical difference reflects the drafters’ intention not to impose an obligation of restitution on the State under subparagraph (c) (See, Verbatim Record 2025/14 of France’s oral pleadings of 15 July 2025, p. 35, §§ 23–25). Furthermore, France emphasized that restitution in kind is not the only form of reparation provided for by the Convention. Other forms, such as compensation to victims or restitution of the value of the confiscated assets, are expressly envisaged. Article 62, paragraph 2, subparagraph (c), and Article 53, subparagraph (b), confirm, according to France, that the recovery of misappropriated assets can be effected by means other than restitution in kind, notably through financial contributions or damages (Verbatim Record 2025/14, pp. 37–38, §§ 35–37)
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- The Court’s interpretation: dismissing the existence of a plausible right
The Court, after recalling that the expression “give priority consideration” allows a margin of discretion to the States Parties, held that restitution to the requesting State does not constitute a mandatory obligation but only one of the possible options (Order, § 49).
In this case, the Court found that Equatorial Guinea had not demonstrated that it possessed a plausible right to obtain the restitution of the property located at 42 Avenue Foch based on subparagraph (c) of paragraph 3 of Article 57 of the Convention against Corruption. The Court specified that this provision requires the requested State to “give priority consideration” to restitution to the requesting State but grants it some leeway regarding the measure to be adopted, restitution being only one of the options to consider; the other two options being restitution to their prior legitimate owners or allocation to compensating victims. In this case, the Court held that restitution to the requesting State was merely one possibility among others that France, as the requested State, was only required to consider. Equatorial Guinea therefore failed to establish the existence of a plausible right to obtain restitution of the property on this basis. The Court also ruled that the other provisions invoked by Equatorial Guinea (Article 4, paragraph 1, and Article 51 of the Convention) did not contain distinct rights requiring provisional protection under the circumstances of the case (Order, § 51).
- The Court’s approach criticized by dissenting opinions
The dissenting or separate opinions of several judges (Elias, Tladi, Yusuf, Tomka, Nolte) reflect the fragility of the Court’s position on this matter, with three of the five judges considering that the Court had unduly prejudged the merits of the case. The dissenting and separate opinions converge in denouncing an approach deemed excessively formalistic, premature, and substantially prejudicial to the rights of Equatorial Guinea, the Court having, according to these judges, confused the assessment of plausibility with an evaluation of the merits, thereby undermining the very nature of the provisional measures procedure.
Judge Elias disputes the Court’s setting of too high a threshold for the plausibility of rights and considers that the reasoning adopted risks prejudging the merits of the dispute. He recalls that the purpose of provisional measures is to preserve the status quo and the possibility of effective redress (Separate Opinion of Judge ad hoc Elias, §§ 3–4). He regrets that Equatorial Guinea was not given the opportunity to respond to France’s arguments during the oral proceedings, which undermines the principle of adversarial proceedings (Separate Opinion of Judge ad hoc Elias, § 2). According to him, the Court should have limited itself to verifying whether the invoked right was not manifestly unfounded, rather than assessing its likelihood of success. He considers that the Court should have granted the provisional measures to preserve the situation until the final judgment (Separate Opinion of Judge ad hoc Elias, §§ 3–4).
Judge Tladi, although voting in favor of the operative part, criticizes the Court’s formalistic approach, which, in his view, delves too much into the merits of the case at this stage (Separate Opinion of Judge Tladi, §§ 1–2). He considers that the plausibility requirement should be understood as the existence of a possible interpretation of the treaty, rather than as an assessment of the likelihood of success (Separate Opinion of Judge Tladi, §§ 9–10). He regrets that the Court chose to dismiss the request solely on the basis of plausibility, without examining the other conditions, and that this may prejudice the merits of the case (Separate Opinion of Judge Tladi, § 17).
Judge Nolte concurs with the Court’s decision but qualifies the interpretation of the discretion afforded to the requested State. According to him, there are situations where this discretion may be limited by considerations of reasonableness or proportionality, and where only one option would be reasonable. He considers that this issue pertains to the merits of the case rather than the provisional phase (Declaration of Judge Nolte, §§ 3–4).
Judge Tomka also voted in favor of the order, but for a different reason: he considers that the risk of irreparable harm is not established, as the sale of the property is not imminent (Declaration of Judge Tomka, § 2). He also criticizes the fact that the Court based its decision solely on the plausibility of rights, without allowing Equatorial Guinea to respond to France’s arguments (Declaration of Judge Tomka, § 5). He believes it would have been more prudent not to rule on the interpretation of Article 57 at this stage (Declaration of Judge Tomka, § 8).
Judge Yusuf criticizes the fact that the Court failed to rule on its prima facie jurisdiction before examining the plausibility of rights, even though this step is, in his view, an essential prerequisite for exercising the power to indicate provisional measures (Separate Opinion of Judge Yusuf, §§ 2–4). He considers that this omission constitutes a departure from the Court’s consistent case law and undermines legal certainty. Judge Yusuf believes that the Court erred in interpreting subparagraph (c) as providing only “options” and not obligations. In his view, the provision does indeed create an obligation for the requested State to give priority to one of the three options provided, thereby establishing a corresponding right for the requesting State. He considers that by denying the existence of such a plausible right, the Court not only misinterpreted the Convention but also, in effect, decided on the merits of the dispute at a preliminary stage – something contrary to the incidental nature of provisional measures proceedings.
Conclusion and perspectives
The case will now proceed on the merits before the Court. Ultimately, the judges will have to rule on a central question: did France fail to comply with the obligations imposed on it by the United Nations Convention against Corruption, particularly those relating to the restitution of confiscated assets?
One of the key issues will concern the interpretation of Article 57(3)(c) of the Convention, particularly regarding the scope of the discretion afforded to the requested State in matters of restitution. Although this question was not – and could not be – decided at the provisional measures stage, several judges – notably Nolte and Yusuf – stated in their separate opinions that this discretion is neither absolute nor beyond judicial review. They suggest an assessment guided by the principles of reasonableness and proportionality, although this view has not, for now, garnered the support of the majority of the Court.
Beyond the interpretation of Article 57, the question also arises regarding the status of the beneficiary of the restitution. The Convention remains silent on the concrete mechanisms for the use of the funds, their actual allocation to the victims or the affected population, and the possible involvement of third parties (civil society, NGOs, independent bodies) in their management or oversight. This ambiguity fuels a well-known tension between, on one hand, the desire to preserve the sovereignty of the States of origin, and on the other, the need to ensure restitution that is effective, transparent, and fair.
In practice, States have developed hybrid approaches, somewhere between direct restitution to sometimes corrupt regimes and the seizure of assets by destination States. For example, in the case of the Obiang Mangue assets, the United States established an innovative mechanism allowing confiscated funds to be used directly to finance goods and services for the benefit of the people of Equatorial Guinea. Similarly, the United Kingdom returned £456,068 to Moldova, derived from embezzled public funds, in the absence of a prior criminal conviction. This restitution was based on Article 57(3)(c) and was governed by a memorandum of understanding providing for the use of the funds for social assistance programs, accompanied by guarantees of transparency and monitoring (see World Bank / STAR Initiative, Asset Recovery and the United Nations Convention Against Corruption, November 2023, pp. 42–43, 57).
The Court’s forthcoming decision on the merits could constitute a decisive milestone in the development of international law on restitution.
