What is the binding effect of VCLT

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

Commission as the communication involves massive violation of human rights.

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

the treatys end.2

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

reference to customary international law3.

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

A remedy is considered available if the petitioner can pursue it without impediment; it is

deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of

redressing the complaint. (Jawara case para 32)

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

human and peoples rights as provided for by the African Charter.6

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

the human rights violations7

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

detain alleged terrorists preventively.

Alongside the liberal paradigm a new paradigm of prevention has developed. However, the

difficulty to reconcile both is apparent. The European

Court of Human Rights has acknowledged the danger counter-terror ism measures pose of

"undermining or destroying democracy on the ground of defending it9

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