Alex Saab’s counsels fault unfounded reports indicting the special envoy

Following the ruling of ECOWAS court of justice for the release of Special envoy, Alex Saab by the Cape Verde authorities and a sum of $200,000 be paid by way of compensation on March 15, 2021, the legal counsels for Saab have condemned his continuous detention and pray for termination of the extradition process which he has been undergoing at the request of the United States.

In a statement signed by the two legal counsels, Mr Femi Falana, SAN and Mr Jose Manuel Pinto Monteiro, addressed to the Prosecutor General of the Republic of Cabo Verde Dr. Luís José Tavares Landim, they faulted some reports making round attributed to the prosecutor and have condemned such as contradicting the judgment made by ECOWAS court.

The statement reads: “the position of the Prosecutor General’s Office has not changed in relation to the extradition process of Mr. Alex Saab or regarding the acceptance of jurisdiction or the supremacy of the jurisprudence of the ECOWAS Court of Justice over the domestic legal order.”

Both Falana And Monteiro alleged in the statement that the report is unclear, unambiguous, and unauthorized, negating the ethos of estoppel, a general principle law resting on the principles of good faith and consistency.

“We must also state that, despite machinations to the contrary, Cabo Verde is bound to the Additional Protocol A/SP1/01/05 amending Protocol A/P1/7/91 in regard to the Court of Justice of the Community (“the Protocol”). Under the provisions of Paragraph 2 of Article 11 of the Protocol, the Protocol becomes binding on all of the Member States of the ECOWAS, if 9 Member States sign it. In the present case, 14 out of 15 Member States signed the Protocol with the only one not signing was the Republic of Cabo Verde, and that only because its Prime Minister at the time had to return home to deal with an emergency,” the statement continued.

The counsels further added that at the time since the protocol by the prime minister was signed, Cape Verde has never raised any concern about the binding nature of the protocol, adding “Perhaps the prosecutor should provide Cape Verde’s written objection to the binding nature of the protocol to the ECOWAS Commission. It appears that the first and to date only occasion when Cape Verde has felt the need to challenge the binding nature of the protocol is since it decided to conspire in the illegal arrest of Alex Saab.”

Meanwhile Falana augmented the essence of estoppel is the element of conduct which causes the other party, in reliance on such conduct, detrimentally to change its position or to suffer some prejudice [See the North Sea Cases, ICJ Reports (1969), 26, para 30].

”Estoppel may operate to resolve ambiguities and as a principle of equity and justice [See Ian Brownlie, Principles of International Law, 644—645].”

”In the Arbitral Award by the King of Spain [ICJ Reports 1960, 192 at 213], Nicaragua challenged the validity of the award on several grounds: the Court held the award valid and stated that it was no longer open to Nicaragua, who, by express declaration and by conduct, had recognized the award as valid, to challenge its validity.”

In the Jurisdiction Phase of the Nicaragua case, the ICJ held that the “constant acquiescence” of Nicaragua in the various public statement [for example, in the Yearbook of the Court] to the effect that Nicaragua was bound by its 1929 Declaration “constitute a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court under Article 36, paragraph 2 of the statute….” [ICJ Reports 1984, 392 at 411-13].

In the Temple case [ICJ Reports 1962, 6 at 32], Thailand sought to avoid a frontier agreement on the ground of error. In this case also the Court held that Thailand was precluded by her conduct from asserting that she did not accept the treaty.

In the Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, the Court insisted that “The evidence of a tacit legal agreement must be compelling.” [Judgment dated 8 October 2007, para 253].

Article 36 of the Vienna Convention: Treaties providing for rights for third States 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.

However, Alex Saab is entitled to immunity and inviolability following his lawful appointment as alternate Permanent Representative of the Bolivarian Republic of Venezuela to the African Union which took effect from December 24, 2020.

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