Patching the ‘Legal Black Hole’: The Extraterritorial Reach of States’ Human Rights Duties in the African Human Rights System
South African Journal on Human Rights, Vol. 27, No. 2, 2011
30 Pages Posted: 3 Jun 2011 Last revised: 2 Feb 2015
Date Written: May 31, 2011
This article analyses (the scope of) the legal obligations owed by African states under the African Charter on Human and Peoples’ Rights directly to residents of third states in Africa in the realisation of such non-residents’ human and peoples’ rights guaranteed in the premier continental human rights instrument. The central question is whether a state owes the quartet layers of obligations (to ‘respect, protect, promote and fulfil’) for the realisation of Charter-based guarantees only to those within its own borders or also to those beyond (in another state’s territory). The article thus examines the question of to whom – only to those within or also to those outside a state’s territory - the state’s human rights obligations are owed and on whose behalf the obligations are to be fulfilled in the context of the African Charter. In order to answer this question, the article analyses the corpus of the African Charter, related jurisprudence of the African Commission, and relevant international and regional human rights treaties and case law which may be relied upon as ‘inspirational sources’ for the interpretation and application of the African Charter. The article demonstrates that the African Charter allows wide latitude for the extraterritorial application of the human and peoples’ rights, state duties and Charter-based remedies it enshrines.
Keywords: Extraterritoriality, African Charter, African Commission, Universality, Human rights, regional system, Africa, regional system, extraterritorial application, legal black hole, territoriality, jurisdiction, territory, Burundi Embargo, DRC Invasion, Bankovic case
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