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Not Iss1 Applica
Not Iss1 Applica
Not Iss1 Applica
the withdrawal from treaty does not affect duty of any State to fulfil any obligation
embodied in the treaty to which it would be subject under international law independently of
the treaty.
Where a right is not covered by domestic law and not acknowledged, there cannot be
effective remedial action and the applicant is not requered to exhaust local remedies.
standing
The applicant is entitled to submit this case to the Court in terms of article 5(1) (a) of the
Court Protocol and Rules 84(2) and 118(3) of the Rules of Procedure of the African
In our case, the case is brought in attention of the court after few days of Renunciation Act.1
Thus the jurisdiction of the court has not yet terminated. During the notice period, the legal
obligations of all States parties including the nation that seeks to withdraw from or terminate
the agreement continue unabated. States also remain responsible for any breaches that occur
prior to or during the notice period, a responsibility that survives the States withdrawal or
Pursuant to Article 70(2) of VCLT unless the treaty otherwise provides or the parties
otherwise agree, the withdrawal from treaty does not affect any right, obligation or legal
1
. Para. 23 and 24 of the case
2
. Roodal v Trinidad and Tobago, Case 12.342, Inter-AmCHR
situation of the parties created through the execution of the treaty prior to its withdrawal.
Nor does it impair the duty of any State to fulfil any obligation embodied in the treaty to
which it would be subject under international law independently of the treatyan implicit
Under Roodal v Trinidad and Tobago, Case; Notwithstanding Trinidad and Tobagos
denunciation of the Convention [on 26 May 1999] the Commission have retained jurisdiction
over complaints of violations of the Convention by Trinidad and Tobago in respect of acts taken
by that State prior to the date the denunciation became effective.4
Local remedies
Supreme court
Bringing the case to Supreme Court having a rejection trend is just a futile exercise, no hope
of success.
3
. At 43 of , Vienna Convention on the law of treaties, Concluded at Vienna on 23 May 1969
4
. Roodal v Trinidad and Tobago, Case 12.342, Inter-Am Commn HR 89, OEA/ser L/V/II114, doc 5 rev (2001)
<http://cidh.org/annualrep/2001eng/TT12342.htm> (concluding that [n] [on 26 May 1999]
On this regard the African Commission has stated that local remedies are unavailable and
ineffective if the likelihood of succeeding in obtaining a remedy that would redress the situation
complained of is so minimal.5
To add, the communication involves massive violation of human rights. In such cases, the
applicant contends that this Court shall interpret article 56(5) in the light of its duty to protect
The rst category of cases subject to this exception concerns serious and massive human rights
violations. The four communications initiated by several NGOs against Zaire (now the
Democratic Republic of Congo) between 1989 and 1993 reported a high number of cases of
arbitrary arrests, torture, extrajudicial executions and restrictions to fundamental freedoms. The
Commission declared the communications admissible: The Commission never considered that
the requirement of exhaustion of domestic remedies was to be applied strictly when it is neither
practical nor advisable that the plaintiff submits his case to national tribunals in the case of each
violation. This is the case in the present communications in view of the extent and diversity of
Furthermore, the Commission also submits that the exception to the rule on the basis of unduly
prolonged procedure should apply. In determining what constitutes unduly prolonged procedure
in Zimbabwe Lawyers for Human Rights and Another v Zimbabwe the Commission held that it
5
Lawyers for Human Rights v Swaziland (2005) AHRLR 66 (ACHPR 2005) (Swaziland case), para 27.
6
Amnesty International v Sudan (2000) AHRLR 297(ACHPR 1999), para 38 & 39.
7
Communications 83/92, 88/93 and 91/93, Jean Y. Degli (in the name of N. Bikagni) v. Togo, and
Communications 64/92, 68/92, 78/92, Krischna Achuthan for Aleke Banda and Amnesty International for Orton
and Vera Chirva v. Malawi
can be guided by the circumstances of the case and by the common law doctrine of a reasonable
man test.8 The applicant argues that given the nature of the present communication, prolonged
procedure of more than three years cannot be defensible in the eyes of reasonable man.
Thus, in the view of many governments, security can no longer be provided only with the means
of traditional criminal law. Around the globe, the attacks of 9/11 have unleashed a large panoply
of new practices and rules, both inside and outside the framework of crimi nal law, in order to
Alongside the liberal paradigm a new paradigm of prevention has developed. However, the
Court of Human Rights has acknowledged the danger counter-terror ism measures pose of
8
Zimbabwe Lawyers for Human Rights and Another v Zimbabwe (2008) AHRLR 120 (ACHPR 2008), para
60.
9
Klass v. Germany, 2 E.H.R.R. 214 (1978), para 48