This ruling could have been made expeditiously in terms of the preliminary consideration of the Court's
jurisdiction as provided for in Rule 39 of the Rules.
11. Though of fundamental importance to the question of the personal jurisdiction of the Court, Article 5 (3)
and Article 34 (6) of the Protocol should be read in their context, i.e. in particular in light of Article 3 of the
Protocol entitled "Jurisdiction" of the Court.
12. Indeed, although the two are closely related, the issues of the Court's "jurisdiction" and of "access" to
the Court are no less distinct, as paragraph 39 of the Judgment in fact suggests1 ; it is precisely this
distinction that explains why the Court did not reject de plano the application given the manifest lack of
jurisdiction, by means of a simple letter issued by the Registry, and why it took time to rule on the
application by means of a very solemn Judgment.
13. The application was received at the Court Registry on 29 December 2008 and it was placed on the
general list as No. 001/2008. The application was served on Senegal on 5 January 2009; and on the same
day, the Chairperson of the African Union Commission was informed about the filing of the application and
through him the Executive Council and the other Parties to the Protocol.
14. Thus, upon submission, the application was subject to a number of procedural acts including its
registration on the general list of the Court2 and its service on Senegal.
15. For their part, applications or communications addressed to the African Commission on Human and
Peoples' Rights3 , the defunct European Commission of Human Rights4 , the Inter-American Commission
of Human Rights5 , the United Nations Human Rights Committee6 or the International Court of Justice, for
example7 , undergo a process of vetting prior to being registered or served on the States against which
they were instituted.
16. In this case, the application did not go through this initial procedural phase of vetting. It was treated in
the same way as the applications brought before the International Court of Justice before 01 July 1978,
date of entry into force of its new Rules8 . Prior to that date, all cases brought before the Court, including
those instituted against States that had not previously accepted the Court's jurisdiction by making the
optional declaration accepting the compulsory jurisdiction provided for in Article 36 (2)
× The states parties to the present Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of
international law; c. the existence of any fact which, if established, would constitute a breach of an
international obligation; d. the nature or extent of the reparation to be made for the breach of an
international obligation.
* of the Statute, were indeed placed on the general list and served on the States against which they were
instituted, and on the United Nations Secretary General and, through him, on all the other members of the
Organisation.
17. As indicated in the foregoing paragraph 13, procedural acts similar to the aforesaid were undertaken in
connection with Mr. Yogogombaye's application; this was, inter alia, served on Senegal under covering
letter dated 5 January 2009.
18. Senegal acknowledged receipt thereof by letter dated 10 February 2009 in which it also transmitted the
names of those to represent it before the Court. At that stage, Senegal could have limited itself to indicating
that it had not made the declaration provided for in Article 34 (6) of the Protocol and that, consequently, the
Court had no jurisdiction to deal with the application on the grounds of the provisions of Article 5 (3) of the
Protocol. However, by notifying the Court of the names of its representatives, it gave room for the
suggestion that it did not exclude appearing before the Court and of participating in its proceedings, with
doubts as to the object of its participation: to contest the Court's jurisdiction, contest the admissibility of the
application or to defend itself on the merits of the case.
19. By a second letter dated 17 February 2009, Senegal requested the Court to extend the time limit for
submission of its observations to "enable it to better prepare a reply to the application". By so doing,
Senegal signaled its intention to comply with the provisions of Rule 37 of the Rules according to which "the
State Party against which an application has been tiled shall respond thereto within sixty (60) days provided
that the Court may, if the need arises, grant an extension of time". Even in this letter. Senegal did not
exclude the eventual acceptance of the Court's jurisdiction. Still at this stage, it could have put up the
argument that it has not made the declaration provided for in Article 34 (6) of the Protocol and, on that
ground, contested the jurisdiction of the Court.
20. Even though it would not have made the aforementioned declaration, Senegal, by its attitude, left open
the possibility, however slim, that it might accept the jurisdiction of the Court to deal with the application.
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