8. In my view, the Court should have concluded its Opinion by reaffirming what it had
developed in the reasons, namely that:
i.
SERAP is an African organization within the meaning of Article 4 (1) of the
Protocol
ii.
SERAP is not recognized by AU
iii.
The Court cannot therefore answer the second question posed by SERAP
as to whether extreme, systemic and widespread poverty is a violation of
certain provisions of the African Charter, in particular, Article 2 which
prohibits discrimination based on "any other status," in the absence of the
the Applicant’s capacity to seek an advisory Opinion.
9. This position is firmly grounded in the jurisprudence of the Permanent Court of
International Justice (PCIJ) and in that of its heiress, the International Court of
Justice (ICJ).
10. With regard to PCIJ, the august Court had to reject a request on one occasion.
The Opinion concerned is that of 23 July 1923 in the matter of the Status of Eastern
Carelia2. In that Opinion, the Court does not declare that it has no jurisdiction. It
explains that its discretionary refusal to give the requested Advisory Opinion was
motivated by the following factors:
1. the fact that the question raised in the request for an Advisory Opinion
related to a dispute between two States (Finland and Russia);
2. the fact that answering the question was tantamount to settling that
dispute;
3. the fact that one of the States Parties (Russia) to the dispute in respect
of which an Advisory Opinion was sought, was neither a party to the Statute
of the PCIJ nor, at that time, a member of the League of Nations , and had
refused to give his consent;
4. the fact that the League of Nations did not have jurisdiction to deal with
a dispute involving non-member States which refused its intervention on
the grounds of the fundamental principle that no State should be obliged to
submit its disputes with other States, either for mediation or arbitration, or
for any other method of peaceful settlement, without its consent;
5. the fact that, following Russia’s refusal, the Court could not establish the
facts on equal terms between the Parties, and was therefore faced with the
concrete lack of "material information necessary to enable it to pass
judgment on the question of fact" raised in the request for Advisory
Opinion.
2
PCIJ, Advisory Opinion, Status of Eastern Carelia, 23 July 1923, Serie B No. 5
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