15. From the procedural standpoint, the first important issue which arises is one of ascertaining why the
Court did not consider the Application in two separate phases: one devoted to the consideration of its
jurisdiction and the admissibility of the Application and the other, to the merits of the case (in the event it
had ruled that it had jurisdiction and had considered the Application admissible). Rule 52(3) of the Rules
indeed provide that when preliminary objections are raised with the Court, it shall rule on the objections or
incorporate its ruling in its decision on the substantive case; it also provides that "...such objections shall
not cause the proceedings on the substantive case to be suspended unless the Court so decides".
16. In the instant case, the Court did not decide to suspend proceedings on the substantive case as the
written4 as well as the oral submissions5 of the parties dwelt both on issues of the jurisdiction of the court
and admissibility of the Application and on matters regarding the merits of the case. Through it did not also
formally decide to join consideration of the preliminary objections with that of the merits of the case, it would
appear that such joinder actually took place because, as I just indicated, the merits of the case were argued
by the parties in their written submissions and during the oral pleadings.
17. Rule 52(3) of the Rules does not specify the circumstances in which proceedings on the substantive
case may be suspended nor does it spell out the circumstances in which the joinder to the merits of the
case may be ordered; it would therefore be proper for the Court to bridge that gap so as to clear any
uncertainty in that regard. The practice at the International Court of Justice, for instance, requires that
proceedings on the merits of the case be automatically suspended once a preliminary objection is raised 6
and consideration thereof joined with the merits of the case where such objection "does not possess, in the
circumstances of the case, an exclusively preliminary character"7 in other words, when the Hague Court
cannot rule on the objection without considering the merits of the case. For purposes of interpretation and
application of the second sentence of Rule 52(3) of the Rules, the "not exclusively preliminary" character of
an objection could be used as a criteria by the Court in deciding on joining or incorporating its ruling on a
preliminary objection in its decision on the substantive case.
18. In the instant case and based on such a criteria, a joinder was not required as the Court could have
ruled On the preliminary objections raised by the African Union without delving into the merits of the case.
This clearly emerges a posteriori among the grounds for the judgment and specifically in paragraph 73
wherein the Court held the opinion that, having concluded that it does not have the jurisdiction to hear the
Application, "it does not seem necessary to examine the necessary to examinethe |...| merits of the case".
19. To ensure strict compliance with the prescriptions of Rule 52(3) of the Rules, Members of the Court
ought therefore to have interrupted its proceedings on the merits of the case as allowed by the above Rule,
and pronounced itself firstly on its jurisdiction and on the admissibility of the Application. The main
consideration of the written8 as well as all of the oral submissions ought then to have focused solely on the
issue of the jurisdiction of the Court and on the admissibility of the Application.
20. The purpose in having a preliminary phase devoted to the consideration of issues of jurisdiction and
admissibility is to avoid arguments on the merits as long as issues regarding the jurisdiction of the Court
and the admissibility of the Application had not, been resolved. Incidentally holding such a preliminary
phase also allows for the avoidance of a dissenting opinion, which would eventually be attached to the
judgment, to deal, with issues relating to the merits of the case. It is only when an objection does not have
an exclusively preliminary character and when its consideration is joined to the consideration of the merits
of the case that a dissenting opinion could deal with issues relating to the merits of the case; in such
circumstances, consideration of the substantive case us by definition necessary so as to make a
determination on matters jurisdiction and admissibility.
21. In the light of the foregoing, it seems to me that the Court should revisit Rule 52(3) of the Rules and
determine whether its prescriptions really meet the specific demands of its jurisdiction, in other words if they
contribute to the proper administration of justice by a judicial organ charged with hearing and ruling on
disputes in the field of human rights essentially pitting individuals against States. If the answer is no, then
that Rule ought to be amended.
22. The other matter of procedure which the Court does not seem to have resolved satisfactorily in my
opinion is that of the legal status to be given to some of the documents9 tendered by the parties during the
oral proceeding.
23. On 20 March 2012, that is two days before the beginning of the public hearings, the Registrar asked the
parties to submit "a copy of their oral pleadings" for the purpose of facilitating the work of the interpreters. 10
The documents tendered by the parties at the beginning of the public hearings, one of which was titled
"Oral Submissions", did not in any manner reflect the content of the arguments presented orally during the
hearings. The Rules of Court do not provide for the filing of such a document during the oral hearings; the
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