37.
The Respondent prays the Court to take judicial notice that debate regarding
the withdrawal for review, was a matter within the purview of the African Union.
38.
In her written submissions of 15 April 2016, the Applicant argues that in the
absence of provisions for withdrawal of the declaration pursuant to Article 34(6)
of the Protocol, Article 56 of the Vienna Convention on the Law of Treaties
(hereinafter referred to as "the Vienna Convention") should be applied in the
interpretation of the Protocol. The Applicant further argues that prohibiting
States from withdrawing from a treaty or declaration that they made voluntarily
may be too radical a position and would interfere with State sovereignty. The
Applicant argues however, that this should not be viewed as allowing States to
withdraw at any moment or in any manner. The Applicant urges the Court to be
guided by the principle of pacta sund servanda, which requires parties to a
treaty to perform their duties in good faith.
39.
The Applicant argues further that the principle of good faith requires a
reasonable time for withdrawal to serve as a cooling off period.
40.
To this end, the Applicant cites the case of Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) Jurisdiction and
Admissibility, Judgment of 26 November 1984, in which the International Court
of Justice held that:
"But the right of immediate termination of declarations with indefinite
duration is far from established. It appears from the requirements of good
faith that they should be treated, by analogy, according to the law of
treaties, which requires a reasonable time for withdrawal from or
termination of treaties that contain no provision regarding the duration of
their validity."1
1
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
Jurisdiction and Admissibility, Judgment of 26 November 1984, /CJ Reports 1984 p. 420, para. 63.
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