Law

Law Notes on Behalf of The Peoples Republic of Zambeziland

The PRZ asks the commission to take into account whether or not it has jurisdiction over this matter since Article 56(5) requires that all local remedies are exhausted, unless it can be shown that there is the excessive delay. As the African Commission previously decided, governments should have an opportunity to remedy human rights violations prior to being ‘called to account by an international tribunal’. No national remedies have been pursued by Zapo notwithstanding the fact that the PRZ has been working with the IMF and the World Bank as a means of addressing the consequences of the national disaster. Thus a claim that there is the exemption to the exhaustion of remedies’ requirement on the grounds that there are no adequate remedies would fail. With respect to derogation, the Banjul Charter does not address the issue of derogation at all and thus it neither forbids derogation nor does it set standards for derogation. Therefore, the only reasonable explanation for this omission is that the Banjul Charter expects derogation to be regulated by customary international law. Under the fiduciary theory of human rights, states may derogate from non-peremptory human rights norms during emergencies as long as such derogation is intended to ensure ‘secure and equal freedom’. Derogation is therefore recognized as a means by which the state takes action for the good of the people and not as a means of advancing the interest of the state. Specifically, under international law, Article 62 of the Vienna Convention on the Law of Treaties 1969 provides specific guidance on the issue of derogation. To begin with, where termination or withdrawal from a treaty is not provided for in a treaty, states may withdraw from the whole of the treaty.6 In particular a change of circumstances in relation to circumstances existing at the time of subscribing to a treaty can justify withdrawal from a treaty.

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