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1 EXTRATERRITORIAL HUMAN RIGHTS OBLIGATIONS FROM AN AFRICAN PERSPECTIVE

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3 EXTRATERRITORIAL HUMAN RIGHTS OBLIGATIONS FROM AN AFRICAN PERSPECTIVE Edited by Lilian Chenwi Takele Soboka Bulto Cambridge Antwerp Portland

4 Ltd Sheraton House Castle Park Cambridge CB3 0AX United Kingdom Tel.: Fax: Distribution for the UK and Ireland: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7PP United Kingdom Tel.: Fax: Distribution for Europe and all other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: Fax: mail@intersentia.be Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) Fax: info@isbs.com Extraterritorial Human Rights Obligations from an African Perspective The editors and contributors severally 2018 Th e editors and contributors have asserted the right under the Copyright, Designs and Patents Act 1988, to be identified as authors of this work. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, without prior written permission from, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to at the address above. Image on cover: Arthimedes Shutterstock; RF123 ISBN D/2018/7849/31 NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

5 To our respective children Lilian: For Liora Takele: For Ilillii and Mootii

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7 FOREWORD Th is book is published as the African Union (AU) recently celebrated its Year of Human Rights, based on the fact that the year 2016 marked 30 years since the entry into force of the African Charter on Human and Peoples Rights (African Charter), on 21 October The African Charter is the normative backbone of the African human rights system. It is therefore an opportune moment to reflect on the extent to which the Charter and the African regional human rights system more generally has achieved its aim of ensuring the enjoyment of the fundamental rights and freedoms of Africa s people. Although the scholarly literature about the African human rights system has grown over these three decades, it remains relatively sparse. By exploring the topic of extraterritorial application of rights, this book is a remarkable landmark, in that it opens a perspective on the African regional system that has received limited scholarly attention over these 30 years. It supplements the only comprehensive work focused on extraterritoriality in Africa, by one of the co-editors (Bulto, The Extraterritorial Application of the Human Right to Water in Africa (Cambridge University Press, 2014)). In the process, it also makes a significant contribution to emerging global scholarship on a topic of growing importance. Th e extraterritorial application of human rights in Africa is a topic ripe for and worthy of further examination. The negative forces of globalisation have had a profound effect on Africa. Characterised by small economies and weak state infrastructure, a number of African states are extremely exposed to the might and influence of foreign and multinational companies operating on their soil. This position of relative weakness has seen the perpetuation of abhorrent practices such as cheap, exploitative labour practices and land grabbing. The topic is also relevant in the epoch of wars on terror, internationalised and de-territorialised terrorism and the responses thereto. These responses have also affected Africa, exemplified in drone strikes and extraordinary renditions. Th e international community has only slowly awakened to these emergent realities. In response to greater awareness of states complicity in international trade and investment, to name but one salient issue, a group of experts from across the globe in 2011 adopted the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. To its credit, the African Commission on Human and Peoples Rights (African Commission) in November 2015 adopted its Third General Comment, dealing with Article 4 of the Charter, the right to life. In it, the African Commission clarifies that a state party to the African Charter must respect the right to life of individuals outside vii

8 Foreword its territory. It adds that the nature of such obligations depends on the extent to which the state exercises effective authority, power, or control over either the perpetrator or the victim (or the victim s rights), or exercises effective control over the territory on which the victim s rights are affected, or whether the State engages in conduct which could reasonably be foreseen to result in an unlawful deprivation of life (paragraph 14). In this book, the authors develop a variety of perspectives on the issue of extraterritorial application of human rights. From these perspectives, one can draw a typology of potential forms of accountability with an extraterritorial dimension. In doing so, a distinction should at the outset be drawn between AU member states, on the one hand, and non-au member states having an effect on Africa, on the other. It is important to emphasise that AU member states may be held accountable for actions or omissions affecting the territory of another AU member state. In such an instance, accountability on an extraterritorial basis may come about when individuals (or non-governmental organisations) in one AU member state (state A) submit an individual communication against another AU member state (state B). Let us take a concrete example. A company registered and headquartered in state A engages in operations in another (state B), where it contaminates the environment with hazardous waste. Overlapping accountability is possible. A communication against state A may allege that this state has failed to effectively regulate the extraterritorial activities of companies recognised within its legal regime. Such a communication may be lodged by persons in either state A or B (or as a matter of fact, in any other state). The legal basis could be that state A has not lived up to its obligation (under the African Charter, for example) to protect individuals and communities of state B, where the violations occurred, against non-state actors interference. A communication against state B may allege that the targeted state (state B) has not taken adequate measures to prevent the harm on its own territory. The human rights violations in this case occur on the territory of state B, but have an indirect extraterritorial origin. Another possibility for accountability is by way of inter-state communication. In such a scenario, one AU member state (state A) may, for example, allege that another AU member state (state B) has violated the rights in an AU human rights treaty on its (state A s) territory. Although the realpolitik of international relations discourages the submission of cases by one state against another, the African human rights system provides a salient example that it is possible. In this example, the African Commission found that the military forces of three states (Burundi, Rwanda and Uganda) had committed human rights violations on the territory of a fourth state (the Democratic Republic of the Congo). This approach can usefully be translated to the conduct of a company of one state operating on the territory of another, where the company has contaminated the environment in which the people of that country live. viii

9 Foreword Th e starkest form of potential accountability at the regional level lies with the unequivocally binding judgments of the African Court on Human and Peoples Rights (African Court). Cases may reach the African Court indirectly, through the African Commission. In exceptional cases, where states have made an optional declaration to this effect, cases may be submitted directly to the African Court. So far, the Court has not had the opportunity to face the issue of extraterritoriality head on. Th e present Court may over time morph into the African Court of Justice and Human Rights, with three chambers, including one chamber dealing with international criminal responsibility. This will eventuate only when 15 AU member states have ratified this Court s founding Protocol (the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, or the Malabo Court Protocol of 2014). The Malabo Court Protocol incorporates the principle of corporate criminal liability. Therefore, wherever a company is registered or headquartered (irrespective of whether this is an AU or non-au member state), if it commits one of the crimes under the Protocol (such as trafficking in hazardous wastes, or corruption) it can be held criminally accountable and be found guilty by this Court. Th e laws, policies, actions and omissions of states that are not AU member states also affect the lives of Africans. Since these states are not party and cannot be party to AU human rights treaties, they cannot be held in violation of any of these treaties. Instead, the accountability of non-au members is most likely to be derived from their obligations under United Nations (UN) human rights treaties such as the Convention on the Elimination of all forms of Discrimination against Women and the International Covenant on Economic Social and Cultural Rights (ICESCR). However, the number of individual communications submitted under UN treaties is very low. Under the ICESCR, the option of individual access to the treaty body has only been available for the last few years. Under these treaties, the main mechanism of accountability is more indirect, and operates through the state reporting procedure. In recent years, this mechanism has proven to be an avenue through which attention has been brought to and scrutiny undertaken of states extraterritorial human rights obligations. Th e recent examination of Sweden s sixth periodic report to the UN, in June 2016, presents an example of the spotlight of a UN human rights treaty body falling on extraterritorial obligations emanating from UN human rights treaties. In their alternative reports, civil society drew attention to some investments of the Swedish National Pension Funds in mining, agricultural and fossil fuel projects that occasioned human rights abuses to local communities. In its Concluding Observations (UN Doc. E//C.12/SWE/CO/6), the Committee on Economic, Social and Cultural Rights expressed its concern about the lack of systematic control by the State party of the investments made abroad by enterprises domiciled under its jurisdiction, including by the Swedish National ix

10 Foreword Pension Funds (paragraph 11, emphasis added). The Committee recommended that Sweden fully exercise its regulatory powers and strengthen its oversight of investment decisions made by the Swedish National Pension Funds and other investors acting abroad, with a view to ensuring that such decisions respect and protect human rights (paragraph 12, emphasis added). Th is is a book of promise. By dealing with the fledgling practice pertaining to extraterritoriality of the African human rights system, in general, and the African Commission, in particular, it sheds light on a promising development of potential benefit to many Africans. Brought together and edited by two young academics, and with the majority of chapters written by young African scholars, the research in this publication is evidence of a new generation of exciting researchers, exemplifying the promise of African human rights scholarship for the decades ahead. Frans Viljoen, Director, Centre for Human Rights, University of Pretoria, South Africa x

11 P R E FAC E Th ough the human rights framework has been primarily conceived of as implying universal human rights and domestic or territorial state duties, violations of human rights at the domestic level have come to be increasingly committed by extraterritorial actors that could be state or non-state entities. Territorially-bound responsibilities of states thus leave gaps in the protective regime of international (and regional) human rights law. Extraterritoriality is an emerging concept in the context of international human rights law, and has generally not been the focus of many books, and even less so in the African context. The adoption of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights in 2011 an expert opinion (adopted by experts from various regions including Africa) that is seen as an authoritative elucidation of the concept of extraterritorial obligations in human rights law has led to increased attention on extraterritorial human rights obligations. However, the analysis of the spatial reach of states human rights duties from an African perspective in existing literature on extraterritorial obligations remains limited. Th e African Commission on Human and Peoples Rights has, in fact, long received complaints involving the extraterritorial reach of states human rights obligations. There are thus discernible trends in the jurisprudence of the regional system regarding the extraterritorial scope of the guarantees in the African Charter on Human and Peoples Rights of 1981 (African Charter), states human rights duties, and individuals and groups rights to seek and enforce extraterritorial remedies. The African regional system is therefore ripe for an analysis of extraterritorial obligations, as the African regional mechanism could offer a framework within which to hold a foreign perpetrator responsible for the transboundary violations of African Charter-based rights of residents of third states. Th e focus of this book is thus on extraterritorial obligations from an African regional perspective. The aim of this book is to address, among other things, the question of whether African regional human rights instruments impose extraterritorial obligations on states parties, and if so, the extent and scope of these obligations. The book s purpose is humble, as it seeks to highlight the imperatives of extraterritorial application of human rights and corresponding duties in Africa without purporting to answer all or even most of the related conceptual, theoretical or legal questions. Hence, though the subject is a new area of study in the African regional human rights system, and therefore allows xi

12 Preface for a wide range of topics, it is not possible to exhaust every topic in the book. The scope of the book is thus limited in this respect and also in relation to its exclusion of an analysis of the human rights duties of non-state actors and their extraterritorial reach. However, the latter topics are addressed indirectly through the states extraterritorial duty to protect human rights, and through the extraterritorial reach of specific domestic laws of African states both areas that the editors of this book suggest could form the basis for further research on extraterritoriality in the African context. Th e book deals with selected general and specific themes relating to extraterritorial obligations with emphasis on the African context. The choice of the themes was based primarily on a preliminary survey of current literature and jurisprudence on human rights obligations broadly and on extraterritorial obligations in particular, having the African context in mind, which revealed key issues requiring extraterritorial analysis in the African context. The book can be divided into two broad sections: first, an analysis of the concept of extraterritoriality and its recognition in an international and African context (with brief coverage of other regions); and second, an examination of extraterritoriality in the various contexts of commercialisation of education, development assistance to African states, the right to food, the right to water, torture and extraordinary renditions, indigenous communities facing displacement due to climate change, land grabbing and ensuing evictions, and in the context of ensuring accountability for the failure of a state s military to respect and protect civilians in areas of rebel activities/conflict. In a nutshell, the main message of this book is that African regional human rights instruments at least those considered in the book do impose extraterritorial obligations on states parties, and the rights, or at least some of the rights, contained therein do have extraterritorial reach. Th is book would not have been possible without the research funding obtained from our respective universities University of the Witwatersrand (South Africa), RMIT University (Australia) and Addis Ababa University (Ethiopia) and from the National Research Foundation of South Africa over the last two years as well as the contribution of the respective chapter authors. We would also like to acknowledge Martin Rollo, who provided language editorial services. Lastly, and not the least, we thank our respective families for their understanding and support as we worked on this book. Lilian Chenwi and Takele S. Bulto xii

13 CONTENTS Foreword vii Preface xi List of Cases, Advisory Opinions and Other Decisions xvii List of Treaties and Other Instruments xxiii About the Contributors xxxi Introduction Lilian Chenwi and Takele Soboka Bulto Extraterritoriality in the African Regional Human Rights System from a Comparative Perspective Lilian Chenwi and Takele Soboka Bulto Introduction Human Rights in Africa Extraterritoriality in African Regional Human Rights Law Extraterritoriality in International Human Rights Law Extraterritoriality in Other Regional Human Rights Law Conclusion Commercialisation of Educational Services and Extraterritorial Human Rights Obligations Fons Coomans Introduction The Right to Education and Duties of States Privatisation of Education Private Actor Education Initiatives in African Countries An Analysis of Extraterritorial Human Rights Obligations Conclusion Extraterritorial Human Rights Obligations in the Context of Development Assistance to African States Lilian Chenwi Introduction Territorial and Extraterritorial Dimensions of the Duty of International Assistance and Cooperation xiii

14 Contents 3. Extraterritorial Obligations to Respect, Protect and Fulfil Human Rights in Development Assistance Development Assistance to Africa Conclusion The Right to Food Beyond Borders: The Extraterritorial Reach of the Right to Food in Africa Nadia C.S. Lambek and Claire Debucquois Introduction The Right to Food and Recognition in Africa Ensuring the Right to Food as an Extraterritorial Human Right Obligation Extraterritorial Right to Food in Context: Addressing Transnational Land Deals from an Extraterritorial Human Rights Perspective Conclusion Extraterritorial Application of the Right to Water under the African System for the Protection of Human Rights Khulekani Moyo Introduction The Legal Basis of the Right to Water under International Law The Right to Water under the African System Extraterritorial Obligations Regarding the Right to Water Conclusion Tortured Unity: United States Africa Relations in Extraordinary Renditions and States Extraterritorial Obligations Takele Soboka Bulto Introduction Extraordinary Rendition: Meaning and Process The Torture Room, The Torture Team The Legal Position: Prohibition and Ritualism State Obligations and Extraordinary Rendition Africa: The Status Quo Multiplicity of Actors and Problems of Attribution Conclusion xiv

15 Contents Indigenous Communities Displaced by Climate Change and Extraterritorial Application of States Obligations in Africa Ademola Oluborode Jegede Introduction Indigenous Communities and Climate-Related Displacement Extraterritorial Application and Regional Human Rights Instruments Conclusion Land Grabbing, Extraterritorial Obligations and the Failure of Justice in Uganda: The Mubende Case Christopher Mbazira Introduction Land Grabbing and the Ugandan Context Extraterritorial Obligations of States in the Context of Land Grabbing Conclusion Extraterritorial Obligations of Uganda for its Military s Failure to Respect and Protect Civilians in Areas of the Lord s Resistance Army Activity Prudence Acirokop Introduction Human Rights Protection in Conflict Situations Extraterritorial Application of International Human Rights Law Obligations of States for Violations of International Humanitarian Law and International Human Rights Law Conclusion Bibliography Index xv

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17 LIST OF CASES, ADVISORY OPINIONS AND OTHER DECISIONS AFRICAN COMMISSION AND COURT ON HUMAN AND PEOPLES RIGHTS AND AFRICAN SUB-REGIONAL BODIES Advisory Opinion of the African Commission on Human and Peoples Rights on the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the African Commission on Human and Peoples Rights at its 41st Ordinary Session held in Accra, African Union Association Pour la Sauvegarde de la Paix au Burundi v. Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia, Communication No. 157/96, (2003) AHRLR 111 (ACHPR 2003) , 61, 265 Centre for the Independence of Judges and Lawyers v. Yugoslavia, Communication No. 3/88, 7th Annual Activity Report ( ) Commission Nationale des Droits de l Homme et des Libert é s v. Chad, Communication No. 74/92, (2000) AHRLR 66 (ACHPR 1995) Committee for the Defence of Political Prisoners v. Bahrain, Communication No. 7/88, 7th Annual Activity Report ( ) Dawda K Jawara (Sir) v. The Gambia, Communication Nos. 147/95 and 149/96, (2000) AHRLR 107 (ACHPR 2000) Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Communication No. 227/1999, (2004) AHRLR 19 (ACHPR 2003) , 36, 39 41, 61, 139, 176, 222, 224, 266 Free Legal Assistance Group and Others v. Zaire, Communications Nos. 25/89, 47/90, 56/91, 100/93, (2000) AHRLR 74 (ACHPR 1995) Georges Eugene v. USA and Haiti, Communication No. 37/90, 7th Annual Activity Report ( ) Iheanyichukwu A Ihebereme v. USA, Communication No. 2/88, 7th Annual Activity Report ( ) Institute for Human Rights and Development in Africa v. Angola, Communication No. 292/2004, (2008) AHRLR 43 (ACHPR 2008) Lawyers for Human Rights v. Swaziland, Communication No. 251/2002, (2005) AHRLR 66 (ACHPR 2005) Mohammed Abdullah Saleh Al-Asad v. Djibouti, Communication No. 383/10, 55th Ordinary Session, 28 April to 12 May 2014 (ACHPR 2014) , 187, , , 202, 204 SERAP v. Nigeria, ECOWAS Community Court of Justice, , ECW/CCj/JUD/07/ xvii

18 List of Cases, Advisory Opinions and Other Decisions Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, (2001) AHRLR 60 (ACHPR 2001) , 26, 103, 139, 164, , 188, 190, , , 246, 274 Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v. Sudan ( COHRE ), Communication Nos. 279/03-296/05, ACHPR/LPROT/COMM/279/03 and 296/05/ ( ), (2009) AHRLR 153 (ACHPR 2009) , 165 Wesley Parish v. Indonesia, Communication No. 38/90, 7th Annual Activity Report ( ) AFRICAN AND OTHER NATIONAL CASES Dominic Liswaniso v. Vedanta PLC and Konkola Mines PLC, [2016] EWHC 975 (TCC) Mathew Okwanda v. Minister of Health and Medical Services, & 3 Others, [2013] eklr Mazibuko and Others v. City of Johannesburg and Others, 2010 (4) SA 1 (CC) Moses Munyendo & 908 Others v. Attorney General & Another, [2013] eklr Nyasulu and 2000 Others v. KCM 2007/HP/ Peoples Union for Civil Liberties v. Union of India [(Civil) No.196 of 2001] (SC) Satrose Ayuma & 11 Others v. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others, [2013] eklr Sesana and Others v. Attorney General, High Court Judgment, (2006) AHRLR 183 (BwHC 2006), ILDC 665 (BW 2006) EUROPEAN COMMISSION AND COURT OF HUMAN RIGHTS Abu Zubaydah v. Lithuania, Application No /11, (2012) European Court of Human Rights , 204 Al-Adsani v. The United Kingdom, Application No /97, (2002) 34 EHRR 11, , European Court of Human Rights Al Nashiri v. Poland, Application No /11, (2012) European Court of Human Rights , 204 Al Nashiri v. Romania, Application No /12, (2012) European Court of Human Rights , 204 Al-Saadoon v. United Kingdom, Application. No /08, (2010) European Court of Human Rights Al-Skeini and Others v. United Kingdom, Application No /07, 7 July 2011, European Court of Human Rights , Bankovic and Others v. Belgium and Others, Application No /99, (2001) European Court of Human Rights , 58 60, 199, 203, 225, 268, 270 Costello-Roberts v. United Kingdom, Application No /87, 25 March 1993, Series A, No. 247-C (1993) European Court of Human Rights xviii

19 List of Cases, Advisory Opinions and Other Decisions Cyprus v. Turkey, Application No /94, Grand Chamber, 10 May 2001, European Court of Human Rights (2001-IV) , El-Masri v. The Former Yugoslav Republic of Macedonia, Application No /09, Grand Chamber, (2012) European Court of Human Rights , 201, 204 Ergi v. Turkey, Application No /93, (1998) European Court of Human Rights Husayn (Abu Zubaydah) v. Poland, Application No. 7511/13, (2013) European Court of Human Rights , 204 Ilascu and Others v. Moldova and Russia, Application No. C-48787/99, (2005) 40 EHRR 46, European Court of Human Rights Isayeva v. Russia, Application No /00, (2005) European Court of Human Rights Issa and Others v. Turkey, Application No. C-31821/96, (2005) 41 EHRR 27, European Court of Human Rights Loizidou v. Turkey (Merits), Application No /89, (1997) 23 EHRR 513, European Court of Human Rights , 267 Loizidou v. Turkey (Preliminary Objections), Application No /89, (1995) 20 EHRR 99, European Court of Human Rights , Öcalan v. Turkey (Merits), Application No /99, Grand Chamber, 12 March 2003, European Court of Human Rights , 194, 203 Soering v. The United Kingdom, Case No. 1/1989/161/217, 7 July 1989, Series A, Vol. 161, European Court of Human Rights , 60, 191, 200 Stocke v. Germany, Application No /85, Case No. 28/1989/188/248, (1989) European Commission of Human Rights X and Y v. Switzerland, Application Nos. 7289/75 and 7349/76, Admissibility Decision of 14 July 1977, European Commission of Human Rights Xhavara and Others v. Italy and Albania, Application No /98, (2001) European Court of Human Rights INTER-AMERICAN COMMISSION AND COURT OF HUMAN RIGHTS Armando Alejandre Jr., Carlos Costa, Mario De La Pe ñ a, And Pablo Morales v. Cuba (Brothers to Rescue), Case Report N º 86/99, Case , 29 September 1999, Inter-American Human Rights Commission Binyam Mohamed and Others v. United States, 2011 (pending), Inter-American Commission on Human Rights Coard and Others v. The United States, Case No , 29 September 1999, Inter-American Commission on Human Rights, Report No. 109/ , 192, , 267 Decision 259/02 on Detainees held by the United States in Guantanamo Bay, 23 July Djamel Ameziane v. United States, Petition , Report No. 17/12, Inter-American Commission on Human Rights Haitian Centre for Human Rights v. United States (US Interdiction of Haitians on the High Seas), Case No , [1997] Inter-American Commission on Human Rights Report No. 51/ , 228 Juan Carlos Abella v. Argentina, Case No , Report N º 55/97, Inter-American Commission of Human Rights, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (1997) xix

20 List of Cases, Advisory Opinions and Other Decisions Khaled El-Masri v. United States, 2008 (pending), Inter-American Commission on Human Rights , 204 Salas and Others v. United States (US Military Intervention in Panama ), Case , October 14, 1993, Inter-American Commission on Human Rights Report No.31/93, Yanomami v. Brazil, Case 7615, Inter-American Commission on Human Rights Resolution No. 12/85 of INTERNATIONAL COURT OF JUSTICE Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium ) [2002] ICJ Reports Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain ), [1970] ICJ Reports Case Concerning Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda ) [2005] ICJ Reports , Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports , 243, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Reports Military and Paramilitary Activities in and Against Nicaragua ( Nicaragua v. United States ), [1986] ICJ Reports The Corfu Channel Case [1949] ICJ Reports INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Prosecutor v. Anto Furundzija, (Trial Judgment ), IT-95-17/1-T, ICTY, 10 December , 192 UNITED NATIONS Advisory Opinion of the UN High Commissioner for Refugees on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Relating to the Status of Refugees and its 1967 Protocol, 26 January f17a1a4.html (accessed ) , 227 Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, UN Doc. CCPR/C/38/D/167/1984 ( ) Chitat Ng v. Canada, Communication No. 469/1991, UN Doc. CCPR/C/49/D/469/ 1991 (1994) , 60 Decision 1/CMP.3 of UNFCCC Conference of the Parties on Adaptation Fund, UN Doc. FCCC/KP/CMP/2007/9/Add.1 ( ) xx

21 List of Cases, Advisory Opinions and Other Decisions Decision 1/CP.10 of UNFCCC Conference of the Parties on Buenos Aires Programme of Work on Adaptation and Response Measure, UN Doc. FCCC/CP/2004/10/ Add.1 ( ) Decision 7/CP.7 of UNFCCC Conference of the Parties on Funding under the Convention, FCCC/CP/2001/13/Add. ( ) Kindler v. Canada, Communication No. 470/1991, UN Doc. CCPR/C/48/ D/470/ 1991 ( ) Lopez v. Uruguay, Communication No. 52/1979, UN Doc. CCPR/C/13/ D/52/ 1979 ( ) , 225, 267 Munaf v. Romania, Communication No. 1539/2006, UN Doc. CCPR/C/96/ D/1539/2006 ( ) , 229 xxi

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23 LIST OF TREATIES AND OTHER INSTRUMENTS * AFRICAN TREATIES African Charter on Human and Peoples Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982)..... vii viii, xi, 5, 10, 14, 16 23, 25 40, 42, 54, 59, 62, 65, , 103, 126, 137, 139, 157, , , 182, 186, 188, 191, , , , 225, , , , , , 271, 274 African Charter on the Rights and Welfare of the Child, adopted 1 July 1990, entered into force 29 November 1999, OAU Doc. CAB/LEG/24.9/49 (1990) , 19, 22 23, 27, 29 30, 34 35, 65, 102, 137, , 157, 163, 175, 244 African Convention on the Conservation of Nature and Natural Resources (Revised Version), adopted 1 July African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted 23 October 2009, entered into force 6 December , , 227 Charter of the Organization of African Unity, adopted 23 May 1963, entered into force 13 September 1963, 479 UNTS , 69, 100, 262 Constitutive Act of the African Union, adopted 11 July 2000, entered into force 26 May 2001, OAU Doc. CAB/LEG/ , 24, 100, 108, , 140 Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted 10 September 1969, entered into force 20 January 1974, 1001 UNTS , Pact on Security, Stability and Development for the Great Lakes Region, adopted 15 December 2006, amended November 2012, International Conference on the Great Lakes Region , Protocol for the Prevention and Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all Forms of Discrimination, adopted 29 November 2006, entered into force June 2008, International Conference on the Great Lakes Region * Th is list of treaties and other selected instruments excludes domestic instruments referred to in the footnotes of the respective chapters. xxiii

24 List of Treaties and Other Instruments Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, STC/Legal/Min/7(I) Rev.1 (revised edition as at 15 May 2014) ix, 27, 36, 180 Protocol on Judicial Cooperation, adopted 1 December 2006, entered into force June 2008, International Conference on the Great Lakes Region Protocol on the Prevention and Suppression of Sexual Violence against Women and Children, adopted 30 November 2006, entered into force June 2008, International Conference on the Great Lakes Region Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights, adopted 10 June 1998, entered into force 25 January 2004, OAU Doc. OAU/LEG/EXP/ AFCHPR/PROT (III) , 274 Protocol to the African Charter on Human and Peoples Rights on the Rights of Older Persons in Africa, adopted 31 January 2016, not yet in force Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, adopted 1 July 2003, 25 November 2005, AU Doc. CAB/ LEG/ 66.6 ( ) , 17, 19, 22, 27, 30, 33 34, 102, 137, 140, 157, 164, 175, 244 SELECTED GENERAL COMMENTS African Commission on Human and Peoples Rights, General Comment No. 3 on the African Charter on Human and Peoples Rights: The Right to Life (Article 4), adopted during its 57th Ordinary Session, held in Banjul, The Gambia, in November , 192, African Commission on Human and Peoples Rights, General Comment No. 4 on the African Charter on Human and Peoples Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), adopted at its 21st Extra-Ordinary Session, held in Banjul, The Gambia, from 23 February to 4 March , 182 African Committee of Experts on the Rights and Welfare of the Child, General Comment No. 1 (Article 30 of the African Charter on the Rights and Welfare of the Child) on Children of Incarcerated and Imprisoned Parents and Primary Caregivers, , 30 OTHERS Declaration of Ny é l é ni, adopted 27 February New Partnership for Africa s Development, adopted in , 100, , 125, 140 Principles and Guidelines on Human and Peoples Rights while Countering Terrorism in Africa, adopted during its 56th Ordinary Session in Banjul, The Gambia, from 21 April to 7 May 2015 (African Commission on Human and Peoples Rights) Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples Rights, adopted in November 2010 and formally launched in 2011 (African Commission on Human and Peoples Rights) , 19, 22 23, 25, 28, 101, 163, 274 xxiv

25 List of Treaties and Other Instruments EUROPEAN [European] Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, entered into force 3 September 1953, ETS 5, 213 UNTS , 186, 199, 225, 263, 274 European Social Charter (Revised), 1996, entered into force 7 January 1999, ETS No EXTRATERRITORIAL OBLIGATIONS Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, adopted 28 September vii, xi, 3 5, 10 11, 21, 23 25, 28, 30, 49, 78 79, 91, , 144, 146, 203, , 220, 230, 244, , 254, 258, 266, , 272, 275 Tilburg-GLOTHRO Guiding Principles on the World Bank, IMF and Human Rights, 2003, revised , 120 INTER-AMERICAN TREATIES Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted 17 November 1988, entered into force 16 November 1999, O.A.S. Treaty Series No. 69 (1988) , 137 American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted 2 May 1948, entered into force 18 July 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992) , 59 62, 265 American Convention on Human Rights, adopted 22 November 1969, entered into force 18 July 1978, O.A.S. Treaty Series No. 36, 1144 U.N.T.S , 137, 186, 263, 274 OTHERS Resolution N º 2/06 on Guantanamo Bay Precautionary Measures, 28 July 2006, Inter-American Commission on Human Rights UNITED NATIONS TREATIES Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 1945, 59 Stat. 1031, T.S. 993, 3 Bevans , 25, 43 44, 82, 89, 93, 120, 134, 144, 180, 257, 262, 268 xxv

26 List of Treaties and Other Instruments Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, entered into force 26 June 1987, GA Resolution 39/46, UN Doc. A/39/51 (1984) , 273 Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979, entered into force 3 September 1981, GA Resolution 34/180, UN Doc. A/34/46 (1979) ix, 50 53, 137, 162 Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted 21 May 1997, 36 ILM 700 (1997); GA Resolution 51/229, U.N. GAOR, 51st Sess., 99th mtg., UN Doc. A/RES/51/229 (1997) Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, entered into force 3 May 2008, GA Resolution 61/106, Annex I, UN Doc. A/61/49 (2006) , 137, 162 Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, GA Resolution 44/25, UN Doc. A/44/49 (1989) , 65, 96, 137, 144, 162, 261 Convention Relating to the Status of Refugees, adopted 28 July 1951, entered into force 22 April 1954, 189 UNTS , Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, adopted 18 October 1907, entered into force 26 January Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted 12 August 1949, entered into force 21 October 1950, 75 UNTS , 272 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted 12 August 1949, entered into force 21 October 1950, 75 UNTS , 272 Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted 12 August 1949, entered into force 21 October 1950, 75 UNTS , 261, 272 Geneva Convention relative to the Treatment of Prisoners of War, adopted 12 August 1949, entered into force 21 October 1950, 75 UNTS , 272 International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, GA Resolution 2200A (XXI), UN Doc. A/6316 (1966) , 161, 186, 225, , 267, 274 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entered into force 3 January 1976, GA Resolution 2200A (XXI), UN Doc. A/6316 (1966) ix, 47 50, 21 22, 65 67, 79, 94, 96, 121, 134, 137, 142, 144, 157, 162, , 175, 253, 265 Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted 11 December 1997, entered into force 16 February 2005, UN Doc. FCCC/CP/1997/7/Add.1 ( ), 37 ILM 22 (1998) , 236 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, adopted 25 May 2000, entered into force 12 February 2002, GA Resolution 54/263, Annex I, UN Doc. A/54/49, Vol. III (2000) , 261 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 10 December 2008, entered into force 5 May 2013, GA Resolution 63/117 (2008), UN Doc. A/63/435 (2009) xxvi

27 List of Treaties and Other Instruments Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted 8 June 1977, entered into force 7 December 1978, 1125 UNTS Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, adopted 8 June 1977, entered into force 7 December 1978, 1125 UNTS Protocol Relating to the Status of Refugees, adopted 31 January 1967, entered into force 4 October 1967, 606 UNTS Statute of the International Court of Justice, 18 April United Nations Framework Convention on Climate Change, adopted 9 May 2005, entered into force 21 March 1994, 1771 UNTS 107; S. Treaty Doc No ; UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992) , 212 Universal Declaration on Human Rights, adopted 10 December 1948, GA Resolution 217A (III), UN Doc. A/810 at 71 (1948) , 26, 42, 65, 100, 137, 161, 251, 275 Vienna Convention on the Law of Treaties, adopted 23 May 1969, entered into force 27 January 1980, United Nations, Treaty Series, vol. 1155, p SELECTED GENERAL COMMENTS Committee on Economic, Social and Cultural Rights, General Comment No. 3 on the Nature of States Parties Obligations, UN Doc. E/1991/23 ( ) , 66, 79, 95 Committee on Economic, Social and Cultural Rights, General Comment No. 8 on the Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc. E/C.12/1997/8 ( ) Committee on Economic, Social and Cultural Rights, General Comment No. 12 on the Right to Adequate Food, UN Doc. E/C.12/1999/5 ( ) , 145, 149 Committee on Economic, Social and Cultural Rights, General Comment No. 13 on the Right to Education, UN Doc. E/C.12/1999/10 ( ) , 82 Committee on Economic, Social and Cultural Rights, General Comment No. 15 on the Right to Water, UN Doc. E/C.12/2002/11 ( ) , 48, 105, , 170, Committee on Economic, Social and Cultural Rights, General Comment No. 19 on the Right to Social Security, UN Doc. E/C.12/GC/19 ( ) , 104 Committee on Economic, Social and Cultural Rights, General Comment No. 22 on the Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 ( ) , 95, 121 Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to Just and Favourable Working Conditions, UN Doc. E/C.12/GC/23 ( ) , 95 Committee on Economic, Social and Cultural Rights, General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, UN Doc. E/C.12/GC/24 ( ) , 48 50, 93 Committee on the Elimination of Discrimination against Women, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 ( ) xxvii