Is the Malabo Protocol for the African Court a legitimate protocol if it is amending a Protocol that has yet to enter into force?

Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the “Malabo Protocol”) was adopted to amends the Protocol on the Statute of the African Court of Justice and Human Rights known as the “Merger Protocol”, which itself was intervened to replace two earlier treaties Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights and the Protocol of the Court of Justice of the African Union.  Yet the Merger Protocol itself has never entered into force, and only one of the courts established by the two earlier treaties has been created to date.  This unusual structure – a protocol amending an as-yet-ineffective protocol that itself sought to replace two earlier treaties – raises important questions about the relationship between the Malabo Protocol and the Merger Protocol:  Is it possible to amend a protocol that has not yet entered into force?  Even if it is possible, can the Malabo Protocol enter into force after 15 ratifications if the underlying Merger Protocol never receives a sufficient number of ratifications to enter into force?

Although amendments to unratified treaties are rare, the precedent that exists confirms that it is both possible to amend a treaty that has not yet entered into force and that the revised protocol can enter into force even if the underlying protocol never does.  It is therefore possible to transition from the existing court to the Malabo Protocol court without ever establishing the ACJ or the Merged Court.

Also, contrary to some expressed concerns, entry into force of the Malabo Protocol without entry into force of the Merger Protocol does not increase the risk that States which previously ratified the Merger Protocol will “renege” on those ratifications. According to the Vienna Convention on the Law of Treaties (art. 40(4), a State which ratifies a treaty prior to its amendment has the choice of whether to be bound by the original treaty (in this case the Merger Protocol) or whether to ratify and be bound by the amended treaty (the Malabo Protocol).  If a State which already has ratified the Merger Protocol chooses not to ratify the Malabo Protocol and the Malabo Protocol enters into effect, only the provisions of the un-amended Merger Protocol will apply to that State.  The largest consequence of this situation will be that the African Court’s international criminal jurisdiction will not extend to that State.  In addition, any difference or conflict between the provisions, however small, will have to be resolved in favor of the provisions of the Merger Protocol with respect to that State.  The State would not, however, have a basis for withdrawing from the Merger Protocol because the Merger Protocol does not have a provision permitting withdrawal and no right of withdrawal can be implied in it, because the provisions of the Malabo Protocol are not so incompatible with the Merger Protocol as to prevent their provisions from being simultaneously applied to different States Parties, and because the State’s obligations would not be transformed.