CONCURRING OPINION OF JUDGE CAFLISCH, JOINED BY JUDGE ZIEMELE

(Translation)

1. I agree with the Chamber ' s conclusions as to the violation of Article 6 § 1 in the present case. I do so mainly on the basis of the finding set forth in paragraph 60 of the judgment, where the Court states:

“ ... even if the [Peace Corps] did indeed enjoy such immunity, this in no sense acted as a bar to the transfer to the applicant of ownership rights over the disputed property. As that transfer did not in itself entail the eviction of the tenant, it was open to the latter, in the event of a dispute over the occupancy of the building, to submit defence arguments, including arguments relating to its alleged immunity from jurisdiction. ”

2. It would appear from paragraphs 402 and 403 of its judgment of 26 February 2007 concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro ) that the International Court of Justice is not very favourably disposed towards specialised international courts – a category which includes this Court ­ – ruling on issues of public international law. Despite the reservations of the main judicial body of the United Nations, I would have liked to see the majority of this Court adopt a position on the immunity issues raised by the ongoing presence of the United States Peace Corps in the building which is the subject of the present case, rather than leaving these matters to the Romanian courts. On this subject I have to say, moreover, that I fail to understand the refusal of the legal department of the Peace Corps to provide the Court with information on its status, particularly as it may have stood to benefit from so doing.

3. The A greement of 24 January 1992 b etween the Government of the United States and the Government of Romania c oncerning the p rogram of the United States Peace Corps in Romania says nothing about the status of the organisation as such. It merely states, in Article IV, as follows:

“The Peace Corps representative and his/her staff members will be granted the same treatment as personnel of comparable rank in the United States Embassy in Romania, except that they will not have diplomatic status and immunity.”

4. Two conclusions can be drawn from this wording: (1) Peace Corps staff enjoy the same status as members of the United States Embassy, although the Peace Corps as such is not placed on the same footing as the Embassy; (2) the similarity in treatment does not extend to diplomatic privileges and immunities. While the 1992 Agreement tells us nothing about the situation of the Peace Corps as such, the information possessed by the Court in this case – the refusal of the Peace Corps legal department to provide it with details, the fact that the Peace Corps as such is not placed on the same footing as the Embassy and the explicit exclusion of Peace Corps personnel from diplomatic privileges and immunities – suggest that the organisation does not have diplomatic status in Romania.

5. This preliminary finding is confirmed by the definition of diplomatic functions contained in the Vienna Convention of 18 April 1961 on diplomatic relations and by the activities carried out by the Peace Corps. Article 3 of the Vienna Convention states:

“1.The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.”

This provision makes it clear that diplomatic missions must perform a series of tasks which fall mainly within the sphere of official inter-State relations with the possible exception, at least to some extent, of those which consist in promoting friendly relations and developing economic, cultural and scientific relations with the receiving State (Article 3 (1) (e)). Diplomatic missions perform all the functions listed. It is abundantly clear that an organisation, even an official one, whose sole task consists, for instance, in promoting friendly and cultural relations between the States concerned does not have the character of a diplomatic mission.

6. Leaving aside the reference to the perform ance of “ mutually agreed tasks ” in Romania (Article I, first paragraph), the Agreement of 24 January 1992 between the United States and Romania does not enter into details about the activities of the Peace Corps. However, on the basis of publicly accessible information, it can be said that the aim of this organisation is to help in training men and women in the host countries in order to contribute to the development of the latter, and to promote better understanding between the people of the States concerned. Americans sent abroad with the Peace Corps work in the following spheres: education, development of community activities and business, environmental protection and agriculture, health and medical care and information technologies. This brief description of the tasks of the Peace Corps shows us in any event that the organisation is not a diplomatic mission and cannot therefore enjoy the privileges and immunities conferred on such missions by the 1961 Vienna Convention.

7. The matter does not, however, end there. There can be no doubt that the Peace Corps is an instrumentality of the United States Government. It is therefore the latter, through the Peace Corps, which is the tenant of the property claimed by the applicant. It is true that the last written lease concluded with the Romanian Government ended on 31 March 2002, as noted by the Court in its judgment (paragraph 56); however, the Peace Corps continues to occupy the building, seemingly wholly undisturbed, that is to say, with the consent of the Romanian Government, which is presumably collecting rent. Hence, the Peace Corps is far from being a “squatter”, but is occupying the building on the basis of a tacit lease of indeterminate duration. No doubt the Romanian Government could put an end to this state of affairs, observing if necessary the notice period laid down by Romanian law for indefinite-term leases. But so long as they do not do so, the presence of the Peace Corps is perfectly lawful and the United States , through the intermediary of that organisation, has a legitimate interest in continuing to use the premises.

8. Is that interest protected by international law and if so, in what way? In the instant case the United States could seek to rely on the rules of customary international law governing State immunity, codified by the Convention of 2 December 2004 on Jurisdictional Immunities of States and their Property (United Nations General Assembly, Resolution 59/38 of 2 December 2004).

9. Article 13 of the 2004 Convention, which lists the exceptions to jurisdictional immunity, provides:

“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of:

(a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum;

(b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia ; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.”

Under the terms of (a) above, the United States (or Romania, with a view to avoiding any internationally unlawful conduct vis-à-vis the United States) cannot invoke immunity from jurisdiction before the Romanian courts. Paragraph (a) prevents the foreign State from invoking such immunity, as it does not cover any right or interest of that State in immovable property , or its use thereof. Hence neither the United States nor Romania can invoke immunity from jurisdiction in the present case. What is more, this case extends beyond the judicial phase and is concerned with the execution of a judgment.

10. Article 19 of the 2004 Convention, meanwhile, deals with State immunity in relation to post-judgment measures of constraint , and hence to immunity from execution. It provides:

“No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:

(a) the State has expressly consented to the taking of such measures as indicated:

(i) by international agreement;

(ii) by an arbitration agreement or in a written contract; or

(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or

(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or

(c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum ... ”

11. This provision appears to be more appropriate to the situation envisaged here, which relates to a dispute resolved by a judgment whose execution is being sought. In such situations, according to Article 19, no measure of execution may be taken against the foreign State unless one of the conditions set forth in subparagraphs (a) to (c) is met; this is clearly not the case. Romania cannot therefore take any measure of constraint against the United States as the de facto tenant.

12. Romania could therefore consider one or both of the following measures: (1) it could request the United States to vacate the premises in order to return the property to the applicant. Should the United States refuse, this would have no effect, since no measure of constraint is possible; and/or (2) it could transfer ownership of the property to the applicant without granting him possession (see, on this subject, paragraph 60 of the judgment). Were this to be done, the applicant would be entitled to compensation in respect of the entire period during which he was unlawfully deprived of the use of his property. If, on the other hand, the transfer of ownership were to be accompanied by restitution, compensation would be due only in respect of the deprivation of property to which the applicant was subjected prior to restitution.

13. Were neither of these measures to be taken, the compensation to be paid by the Romanian Government would have to be calculated on the basis of the market value of the property and the length of time for which the applicant was deprived of his possession.