independent candidates are still not allowed to stand
for the position of President or to contest
Parliamentary and Local Government elections... » (par
agraph 84 of the judgment).
11 . The second reason advanced by the Court (the
continuing nature of the violation) is
in orde r and raises no particular difficulty. How
ever , the first reason (the prior ratification
of the Charter) is difficult to grasp and creates
confusion whe n considered against the
specific objection raised by the Respondent State
. In fact, whereas the objection by the
Respondent State is based, as far as it was conc
erned, on the date of entry into force of
the Protocol to establish the Court, the Court's
response is to invoke the date of entry
into force of the Charter which was not an issu
e for the Respondent State . And one
does not quite see wha t the Court draws as conc
lusion from the date of entry into force
of the Charter, regarding the Respondent State
's argument of non-retroactivity of the
Protocol.
12. In my opinion, in orde r to fully address the argu
ment raised by the 2nd Applicant, the
Court ought to have been unequivocal on this
point and should have indicated that
though the Respondent State was already boun
d by the Charter, the Court lacked
temporal jurisdiction with respect to it as long as
the Protocol conferring jurisdiction on it
was yet to beco me operational (unless of course
the argument of the alleged continuing
violation is invoked) . That clarification is all the
more necessary as, in regard to the
application of the principle of the non-retroactiv
ity of treaties, the 2nd Applicant seems to
be making a distinction between treaties of
a normative nature and those of an
institutional nature (supra, paragraph 9).
13. Such distinction however- which seems to
suggest that only the date of entry into
force of treaties guaranteeing substantial right
s is relevant (as opposed to treaties
setting up monitoring institutions)-, is not grou
nded anywhere in international law.
Indeed, to take the instant case as an example,
even though the Protocol establishes
an institutional mechanism for the protection of
substantial rights guaranteed under the
Charter, it still remains « a treaty » within the mea
ning of the Vienna Convention on the
Law of Treaties of 23 May 1969 . Article 2.
1 a) of this Convention provides that
« 'treaty' means an international agreement conc
luded between States in written form
and governed by international law, whether emb
odied in a single instrument or two or
more related instruments and whatever its part
icular designation »(italics added). As
can be seen , on the one hand , any internatio
nal agreement in written form between
States can be considered as a treaty regardles
s of whether they set substantive norms
or establish institutional mechanisms ; on the othe
r, its name is of no consequence.
14. Given that the Protocol establishing the Cou
rt is a treaty within the meaning of the
Vienna Convention, all provisions of the conv
ention are therefore applicable to it. The
relevant provision applicable to the issue unde
r consideration is Article 28 which deals
with the principle of non-retroactivity of treaties
as follows: « Unless a different intention
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