Extraterritoriality and International Human Rights Law

This book explores the extraterritorial application of human rights in Africa. It examines the corpus and jurisprudence of the regional African human rights treaties in the light of international treaty and case laws in order to gauge the possibility of the treaties’ extraterritorial scope.

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The overall structure of international human rights law has generally been understood as a regime that is designed in such a way as to protect individuals and groups against abusive domestic state power. The initial stages of the development of international human rights law focused on limiting the harms that the state can do to individuals and peoples in its own territory emphasising ways of enhancing domestic application of international human rights. However, this domestic-oriented approach to a state’s human rights obligations has increasingly proved in recent years to be inadequate for the effective protection and realisation of individuals’ and groups’ rights and freedoms. Violations of human rights at the domestic level have come to be increasingly committed by extra-territorial actors, which could be state or non-state entities. Territorially-bound responsibilities of states thus leave a ‘legal black hole’ in the protective regime of international human rights law where the absence or obscurity of a duty bearer and the resulting lack of redress would lead to a situation where the universal nature of rights becomes empty promises for many of the supposed beneficiaries.

This book examines the corpus and jurisprudence of the regional African human rights treaties in the light of international treaty and case laws. It explores the textual bases of African human rights instruments in order to gauge the possibility of the treaties’ extraterritorial scope where human rights are breached by both State and non-State actors. The question of whether the scope of application of regional treaties is circumscribed by relevant state’s territory or jurisdiction and the victim’s nationality or residence is considered, in reference to human and peoples’ rights, states’ duties and remedies. The case law of the African Commission, the African Committee of Experts on the Rights and Welfare of the Child and the African Court on Human and People’s Rights is analysed as well as sub regional tribunals such as the SADC and the ECOWAC tribunals. The book also looks at the implications of the ‘jurisdiction’ clause inserted in the relatively new African treaty the Protocol establishing the African Court on Human Rights and Justice. The jurisprudence of the UN and regional human rights bodies is referred to in order to appraise the possibility of drawing analogies and use the experiences of those ‘foreign’ human rights systems in a way and to the extent the African region can borrow from them.