Court to foresee in this case.
33. Up to 9 April 2009, the date on which the Registry received the written observations of Senegal, there
was the possibility that Senegal might accept the jurisdiction of the Court. It was only on this date that it
became unequivocally clear that Senegal had no intention of accepting the Court's jurisdiction to deal with
the application.
34. It was therefore up to the Court to take into account Senegal's refusal to consent to the jurisdiction of
the Court to deal with the application and to draw the consequences thereof by putting an end to the matter
and removing the case from the general list.
35. Under the former Rules of the International Court of Justice (before 01 July 1978), when a case was
brought against a State which has not previously accepted the jurisdiction of the Court by filing the optional
declaration and such a State did not accept the Court's jurisdiction in regard to the case after having been
invited to do so by the Applicant State, such a case was closed by the issuance of a succinct order.16 In the
European Court of Human Rights where the problem of jurisdiction occurs less frequently than that of
admissibility of applications, when there is no serious doubt as to the inadmissibility of an application, the
corresponding decision is notified to the applicant through a simple letter.17
36. In the present case, Senegal having formally raised preliminary objections in its "statement of
defense"18 dated 9 April 2009, the Court deemed it necessary to comply with the provisions of Rule 52 (7)
of its Rules which stipulates that "The Court shall give reasons for its ruling on the preliminary objection"19 .
[Ed. Note: The expression "arr?t motive" in French appears as "ruling" in the English version of Rule 52 (7)
of the Rules].
37. However, consideration by the Court of Senegal's preliminary objections, in a judgment, required that it
addresses the question of it's [sic] jurisdiction in a more comprehensive manner by developing in particular
the possibility of a forum prorogatum. This possibility is all the more suggested in paragraph 37 of the
Judgment where the Court, on the grounds of its ruling that Senegal has not made the optional declaration,
concluded that the said State, on that basis, "has not accepted the jurisdiction of the Court to hear cases
instituted directly against the Country by individuals or non governmental organizations". [Ed. Note: The
expression "sur cette base" in French does not appear in the English version of paragraph 37 of the
Judgment.]
38. Nevertheless, it is this possibility of a forum prorogatum, however slight, that explains why the
application of Mr. Yogogombaye was not rejected right after 10 February 2009; and it is the filing of
preliminary objections by Senegal which explains why the Court did not close the case in a less solemn
manner by issuing an order or by simple letter by the Registry.
39. The submission of preliminary objections by Senegal may, in turn, be explained by scrupulous
compliance by this State with the provisions of Rule 37 and 52 (1) of the Rules.
40. Today, the question is whether "all" applications filed with the Registry should be placed on the Court's
general list, notified to the States against which they are directed, and above all, as provided for under
Article 35 (3) of the Rules, notified to the Chairperson of the African Union Commission and, through him,
to the Executive Council of the Union, as well as to all the other States Parties to the Protocol. As a judicial
organ, once the Court receives an application, it has the obligation to ensure, at least in a prima facie
manner, that it has jurisdiction in the matter20 . Certainly, here lies the object of preliminary consideration by
the Court of its jurisdiction as provided for in Rule 39 of its Rules. A selection should then be made between
individual applications in respect of which, at a glance, the Court has jurisdiction and those in respect of
which it has not, which is the case when the State party concerned has not made the optional declaration.
In this latter hypothesis, the application should be rejected de plano by simple letter by the Registry. It could
eventually be communicated to the State Party concerned, but it is only if such a State accepts the
jurisdiction of the Court that the application could be placed on the Court's general list21 and notified to the
other States Parties. The idea is to avoid giving untimely or undue publicity to individual applications in
respect of which the Court clearly lacks jurisdiction.
41. In this regard, it is important to point out that the potential authors of individual applications may in the
present circumstances experience difficulties knowing the situation of an African State vis-?-vis the optional
declaration. Indeed, only the list of the States Parties to the Protocol is being published on the African
Union Commission website and this list does not mention the States that have made the optional
declaration. It would therefore be desirable that the list of the States that have made the said declaration be
similarly published on the website for the purposes of bringing the information to the knowledge of
individuals and non governmental organisations.
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