Extraterritoriality in the African Regional Human Rights System from a Comparative Perspective

Abstract

INTRODUCTION Where human rights violations occur due to extraterritorial action or inaction, regional or even global human rights supervisory bodies could become the main forums to which victims of human rights violations turn in order to obtain appropriate remedies. Hence, African regional mechanisms could offer a framework within which to hold the foreign perpetrator responsible for the transboundary violations of rights of residents of third states. In fact, the African Commission on Human and Peoples’ Rights (African Commission) – the supervisory body of the African Charter on Human and Peoples’ Rights of 1981 (African Charter), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (African Women's Protocol), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa of 2016 – has long received complaints involving the extraterritorial reach of states’ human rights obligations. There are discernible trends in the jurisprudence of the African regional system regarding the extraterritorial scope of African Charter guarantees, states’ human rights duties, and the right of individuals and groups to seek and enforce extraterritorial remedies. In a sense, quasi-judicial scrutiny of the extraterritorial reach of human rights and states’ duties has leapfrogged related scholarship. This chapter analyses the concept of extraterritoriality in the field of African human rights law in particular and human rights law in general. The chapter first provides an overview on human rights in Africa (their recognition and relevance). This is followed by a consideration of the extent to which extraterritorial state obligations have been recognised in African regional human rights law. This is discussed in the context of the burgeoning case law of the global and other regional human rights supervisory bodies (sections 5 and 6 below), which provide inspirational sources that the African regional system should draw upon. The recognition of extraterritorial state obligations in international human rights law (with specific focus on the United Nations (UN) system) and other regional human rights law (with specific focus, albeit briefly, on the European and Inter-American systems) provides the context within which the extraterritorial reach of African human rights treaties should be further understood.