21. The fundamental principle regarding the acceptance of the jurisdiction of an international Court is
indeed that of consent, a principle which itself is derived from that of the sovereignty of the State. A State's
consent is the condition sine qua non for the jurisdiction of any international Court9 , irrespective of the
moment or the way the consent is expressed10 .
22. This principle of jurisdiction by consent is also upheld by the Protocol. Thus, in contentious matters, the
Court can exercise jurisdiction only in respect of the States Parties to the Protocol. The scope of the Court's
jurisdiction in such cases and the modalities of access thereto are defined in Articles 3 and 5, respectively,
of the Protocol.
23. By becoming Parties to the Protocol, member States of the African Union ipso facto accept the
jurisdiction of the Court to entertain applications from other States Parties, the African Commission or
African Inter-governmental Organisations. The jurisdiction of the Court in respect of applications from
individuals or Non-Governmental Organisations against States Parties is not, for its part, automatic; it
depends on the optional expression of consent by the States concerned.
24. This is provided for in Article 34(6) of the Protocol which states that: "At the time of ratification of this
Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court
to receive cases under Article 5 (3) of this Protocol. The Court shall not receive any petition under Article 5
(3) involving a State Party which has not made such a declaration". As it is drafted, this provision raises two
questions:
25. The first is the meaning to give to the word "shall" used in the first sentence which suggests that filing of
the declaration by the State Party is an "obligation" for the State Party and not simply "a matter of choice".
26. Understood in this way, Article 34 (6) would make it obligatory for State Parties to make such a
declaration after depositing their instruments of ratification (or accession)11 . This prescription does not
however have any real legal effect because it does not set any time limit. It also does not make much
sense when read in light of its context and particularly of Article 5 (3) and the second sentence of 34 (6)
which states that "The Court shall not receive any petition under Article 5 (3) involving a State Party which
has not made such a declaration". It can thus be said in conclusion that the filing of the declaration is
optional: this conclusion is corroborated by an analysis of the "travaux préparatoires" of the Protoco1.12
27. The second question raised in Article 34 (6) is that of whether the filing of the optional declaration by
States Parties is the only means of expressing their recognition of the jurisdiction of the Court to deal with
applications brought against them by individuals.
28. In this regard, it should first be noted that Article 34 (6) does not require that the filing of the optional
declaration be done "before" the filing of the application; it simply provides that the declaration may be
made "at the time of ratification or any time thereafter". Nothing therefore prevents a State Party from
making the declaration "after" an application has been introduced against it. In accordance with Article 34
(4) of the Protocol, the declaration, just as ratification or accession, enters into force from the time of
submission and takes effect from this date. Senegal was therefore free to make such a declaration after the
application was introduced.
29. If a State can accept the jurisdiction of the Court by filing an optional declaration "at any time", nothing
in the Protocol prevents it from granting its consent, after the introduction of the application, in a manner
other than through the optional declaration.13
30. Therefore, the second sentence of Article 34 (6) must not, as the first sentence, be interpreted literally.
It must be read in light of the object and purpose of the Protocol and, in particular, in light of Article 3
entitled "Jurisdiction" of the Court. Indeed, Article 3 provides in general manner that: "the jurisdiction of the
Court shall extend to all cases and disputes submitted to it"; it also provides that "in the event of dispute as
to whether the Court has jurisdiction, the Court shall decide". It therefore lies with the Court to determine in
all sovereignty the conditions for the validity of its seizure; and do so only in the light of the principle of
consent.
31. Consent by a State Party is the only condition for the Court to exercise jurisdiction with regard to
applications brought by individuals. This consent may be expressed before the filing of an application
against the State Party, with the submission of the declaration mentioned in Article 34 (6) of the Protocol. It
may also be expressed later, either formally through the filing of such a declaration, or informally or
implicitly through forum prorogutum.14
32. Forum prorogatum or "prorogation of competence" may be understood as the acceptance of the
jurisdiction of an international Court by a State after the seizure of this Court by another State or an
individual, and this either, expressly or tacitly, through decisive acts or an unequivocal behaviour.15 It was
in particular this possibility that the letters issued by Senegal dated 10 and 17 of February 2009 led the
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