The Court shall reject such standpoint. Indeed, under the arrangement set out
above, it would be unreasonable, and even unrealistic, to condition the
enjoyment of the benefits of the subjects of such international law to the
administration of the evidence of reciprocity. In cases of such nature, it shall be
up to the person challenging the exercise of such right – and also having the
means of determining whether or not the treaty may be applied by the other
party – to bear the burden of proof, since the issue at stake concerns States.
Neither the letter of the above-cited Article 34 nor the spirit of the condition
regarding reciprocity, are of such nature as to shift the burden of proof upon an
individual, in terms of whether or not an aspect of the treaty is applicable by one
party or the other.
Incidentally, in international practice, it is the States, in possessing the
diplomatic means for so doing, which are responsible for proving the reciprocal
terms of treaties signed among themselves, a condition which is often clearly
stated in international conventions. In other words, the Defendant State has no
right to contest Maître William Bourdon’s right to represent and assist the
Applicant before the Courts of Burkina Faso, since Maître William Bourdon is a
lawyer registered with the Bar Association of Paris. It is up to Burkina Faso to
provide proof if it considers that the condition regarding reciprocity is not
fulfilled. Still, nothing in the case-file compels one to think that such reciprocal
terms are lacking.
It must thereby be concluded that it is appropriate to dismiss this argument, as
advanced by the Defendant State.
The second argument of Burkina Faso relates to the situation of other lawyers
who plead UEMOA rules for the purposes of contesting the refusal by the trial
judge of the Ouagadougou Military Tribunal to grant them the right of legal
representation and assistance.
The text invoked by the lawyers is Article 7 of the 1 January 2015 Rules of
Procedure No. 05/CM/UEMOA, which provides:
“Lawyers registered with the Bar Association of a Member State of UEMOA may
practice their profession in the other Member States of UEMOA, or permanently
establish their main firm there, or else create a subsidiary law firm there, in
accordance with the provisions relating to the Regulations on Free Movement
and Establishment of Lawyer Citizens of the Union in the UEMOA Space”.
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