6
''Article 3 (I) of the Protocol ( ... ) does not specify which instrument
should be considered as a human rights instmment'' and argues further
"that any Treaty containing provisions on the protection of human rights
should be considered as relevant and within the jurisdiction of the Court"
(Paragraph 13). At the Public Hearing of 15 June 2012, the second
Applicant indicated that "the East African Treaty ( ... ) does have in
Article 6 a provision that protects the human rights'' and ' 'that provision
not the entire treaty but that particular provis ion( ... ) is part of applicable
law before the Court'' (Public Hearing of 15 June 2012, Oral Hearing
Verbatim Record, p. 12, lines 20-23).
I3. Therefore, contrary to what it indicated in Paragraph 87 of the Judgment,
the Court had also to determine whether the Treaty establishing the East
African Community was applicable in the light of Articles 3 (1) and 7 of
the Protocol, as well as Rule 26 (I) (a) of the Rules o f Court.
14. These three provtstons make mention of "any other relevant human
rights instrument ratified by the States concerned" and direct reference to
three requirements:
1) The
instrument in question must be an
international treaty , hence the requirement that it be ratified by the State
concerned, 2) this international treaty must "re1atc lo human righ ts" and
3) it must have been ratiticd by the State conccmed. These three
requirements are cumulative and, if met, the Court would again have had
to ensure that the said treaty is "relevant" to the treatment of the matter.
15. On the issue of whether a particu Jar treaty can be cons idered as "a human
rights instrument", the Court could, for instance, have suggested that
some distinction be made between treaties wh ich deal mainly with the
protection of human rights and those which address other issues but
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