16. A commentator has sustained a similar view:
“Concerning the customary status of Article 56 (2) [of the Vienna Convention], it is possible to
sustain, with relative certitude, that its fixed period of 12 months does not reflect customary
law. Nevertheless,
the latter seems to impose the obligation of advance
notice to be given
within a ‘reasonable time’; and this appears to be based on the principle of good faith...”°.
17. In the instant case, the Court ought to have pondered on what could be considered
as reasonable time in this situation. And in answering this question, the Court ought
to have asked itself, in line with its reasoning on the need to ensure the legal protection
of the beneficiaries of the declaration made by the Respondent State under Article
34(6)
of the Protocol establishing the Court, which
persons
or entities could
be
aggrieved by a sudden withdrawal of the declaration.
18. In our opinion and from a pragmatic point of view, it can be considered that those
who can be aggrieved by a withdrawal without notice of the declaration are individuals
and NGOs
that were about to submit an application to the Court, building on the
declaration to establish this Court's ratione personae jurisdiction. Along the same
lines, such individuals or NGOs
or had just exhausted
could be those who were on the verge of exhausting
local remedies,
or were considering invoking the abnormal
prolongation of such remedies or even their ineffectiveness.
19. If we go along with this reasoning, it becomes evident that a one-year period is
excessive and therefore unreasonable. Indeed, it cannot reasonably be expected that
potential Applicants in the situation described above should need one year to file their
application.
20. We are of the view that a period of six months from the publication of the withdrawal
should be sufficient to file an application before the Court, since any application will
always
be
followed
at a later stage
by
an
exchange
of more
elaborate
written
6 Theodore Christakis, “Article 56", The Vienna Conventions on the Law of Treaties, a Commentary,
Olivier Corten & Pierre Klein, ed., vol Il, Oxford University Press, 2011, p.1257.
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