Case law Developments in PIL

The Fluctuating Law of Diplomatic Immunity in France

Cour de CassationIn the last decade, the French law of diplomatic immunity has changed numerous times. This is not great for legal certainty, but it can get much worse if the different rules are applied in the same case. This should not be possible in a democratic State, but this is what happened in Commisimpex v. Republic of Congo.


CHoeij Sassouommisimpex is a Congolese company which conducted serious construction work in Congo in the mid 1980s. It was headed by Lebanese businessman Mohsen Hojeij who was presented by the general press as a personal friend of the President of Congo, Denis Sassou-Nguesso, although Hojeij himself denies it. Commisimpex claimed that Congo did not pay some of the work and initiated arbitral proceedings which eventually led to two arbitral awards ordering Congo to pay various sums which total today over a billion euros. Since then, Commisimpex has been trying to enforce the awards over any assets of Congo that it may find.

To resist enforcement, Congo developed two strategies. The first was to generate a contradictory judgment which might bar the enforcement of the awards. The second was to challenge the enforceability of the waiver of its sovereign immunities.

A Timely Congolese Judgment

A few months after Commisimpex initiated enforcement proceedings of the arbitral awards in France (see below), the Congolese social security institution claimed that Commisimpex had failed to pay its contributions for decades and requested that insolvency proceedings be opened against the company. Two insolvency officials were appointed. French courts would later find that the first had represented the State of Congo, and the second was employed by the Presidency of the State of Congo.

In 2014, Congolese tax authorities also started to review the tax situation of Commisimpex, to eventually fid that Commisimpex owed over a billion euros of taxes to the Congolese State. Remarkably, the amount corresponded pretty much to the amounts of the arbitral awards.

At the end of 2014, the Congolese judge in charge of the liquidation issued an order whereby he ruled that a set off occurred between the claims resulting from the awards and the tax claims, and that the latter being higher than the former, a tax claim still remained. French courts would later find that Commisimpex was neither informed about this particular aspect of the proceedings, and even less heard.

Congo then attempted to have the 2014 Congolese order declared enforceable in France. Its enforcement was denied by the Paris first instance court in 2015, and then by the Paris Court of appeal, on the ground of lack of impartiality of the insolvency officials and violation of the right to be heard.

The Evolving Law of Diplomatic Immunity in France

In a letter of 1993, the Republic of Congo had waived all jurisdiction and enforcement immunities in this case. A critical issue became whether the waiver covered assets protected by diplomatic immunity.

A New Rule of Customary International

In two cases of 2011 and 2013, the French Supreme Court for Criminal and Civil Matters (Cour de cassation) invented a rule of customary international law, allegedly grounded in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property, providing that diplomatic immunity could not be waived by a general waiver of all sovereign immunities, whether of jurisdiction or enforcement, but that it could only be waived by a declaration which was both express and “special”, i.e. specifically mentioning diplomatic immunity.

Meanwhile, in the same year 2011, Commisimpex attached the bank accounts of the diplomatic mission of Congo and its delegation to UNESCO in Paris. French lower courts applied the new 2011 precedent of the Cour de cassation and set aside the attachements, as Congo has not expressly and specifically waived its diplomatic immunity.

A New Precedent

Commisimpex appealed to the Cour de cassation which, remarkably, overruled itself in a judgment of 13 May 2015 and held that customary international law only required an express waiver of diplomatic immunity. Indeed, that is all that the 1961 Vienna Convention on Diplomatic Relations ever required. The waiver of Congo did not mention diplomatic immunity and was thus not specific, but it was express. The Court allowed the appeal.

The case was thus sent back to the Paris Court of Appeal. In June 2016, the Paris Court of Appeal applied the new doctrine of the Cour de cassation and ruled that Commisimpex could attach the bank accounts of the Diplomatic Mission and UNESCO Delegation in Paris. Congo appealed to the Cour de cassation.

A New Law

However, the French Parliament got concerned that creditors of States could enforce too easily their awards (or judgments) in France and thus intervened in December 2016 to reinstate a requirement that diplomatic (and consular) immunities may only be waived by express and specific waivers (see today Article L. 111-1-2 and L. 111-1-3 of the French Code of Civil Enforcement Procedures). Of course, the new law could only apply to enforcement proceedings initated after its entry into force.

Two years later, the case came back before the Cour de cassation, which it seems, took very seriously the message sent by the Parliament that France should be more understanding with foreign states. In a judgment of 10 January 2018, the Cour de cassation ruled that, although the Cour of Appeal of Paris had perfectly applied the 2015 ruling, the law had changed, and a waiver of diplomatic immunity could only be enforced if express and specific. Of course, the Cour de cassation noted, the new law was not applicable to enforcement proceedings initiated 7 years earlier, but it still decided to apply the new requirements in the present case, because

it was absolutly necessary, in a field touching on the sovereignty of states and the preservation of their diplomatic representation, to treat like cases alike. Thus. the objective of legal consistency and certainly requires to come back to the previous case law [the 2011-2013 precedents] conforted by the new law.

And as if it was not enough, the Cour de cassation decided to close the case and thus, instead of sending it back to a lower court, to finally rule that the diplomatic monies attached in 2011 were protected by a diplomatic immunity which had not been waived.

Is this Constitutional? A New Rule of Customary International Law

The most remarkable part of the 2018 judgment was that the Cour de cassation decided to apply retroactively new rules in a case where it had taken an entirely different position a few years earlier. At first sight, that looks contrary to the most basic principles of the rule of law.

Commisimpex’s lawyers decided to create a situation to allow them to bring the matter before the French Constitutional Council. They attached again diplomatic funds. Lower courts ruled that they could not, as per the 2018 judgment of the Cour de cassation. Commisimpex appealed to the Cour de cassation, and requested that the issue of the constitutionality of the retroactive application of the new rules (whether judge made or statutory) be put to the Contitutional Council.

In a judgment of 2 October 2019, the Cour de cassation ruled that there was no issue, and thus no need to petition the Constitutional Council, on the ground that the 2018 judgments had not applied the new law, but only Articles 22 and 25 of the 1961 Vienna Convention and customary international law.

The French reconstruction of customary international law continues.

Meanwhile, Commisimpex has attached a Falcon 7X business jet belonging to the presidency of Congo. Is it covered by diplomatic immunity? Stay tuned.

5 comments on “The Fluctuating Law of Diplomatic Immunity in France

  1. Very very interesting. From a comparative point of view, and focusing on Greek law of diplomatic immunity, the situation is the same: To enforce against a State is mission impossible. For more info, visit

  2. May I just add that, to my understanding, the German Constitutional Court, stating that customary international law in this respect goes beyond the rules of the Vienna Conventions, likewise requires a waiver to specifically address assets covered by diplomatic immunity in order for enforcement proceedings to be allowed. (See BVerfG, Order of June 12, 2006 – 2 BvM 9/03, published e.g. in NJW 2007, 2605, concerning government bonds issued by Argentina.)

  3. Thanks for that interesting information. Did the German constitutional court explain how it could reach this conclusion? Did it identify a practice of states requiring a specific waiver?

    • The court did carry out an analysis of whether there is a practice that a general waiver suffices. Concluding that German, UK, US, French (citing only the Cour d’Appel de Paris of August 10, 2000), and Swedish case law and doctrine did not yield such a practice, it held that a specific waiver is necessary. One might, of course, wonder whether the analysis should not have been just the other way around…

  4. I agree with the starting point of the analysis of the court: there is no state practice. But it is hard to see, indeed, why it then concludes that customary international law should be considered to say the opposite.

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