The nature of extra-territorial application of human rights

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RIGHT TO DEVELOPMENT UNDER THE AFRICAN HUMAN RIGHTS SYSTEM

INTRODUCTION

As part of developments in the international human rights, Africa has developed its own regional system for promoting and protecting human rights. The African regional human rights system attempts to blend international human rights standards and African cultural values. Most importantly, it is the only system where the RTD finds clear recognition. This chapter will consider the concept and development of human rights in Africa, the African human rights architecture, RTD in the African human rights system, the jurisprudence of the African Commission and the African Court on Human and Peoples’ Rights on RTD. This is necessary since the RTD is only binding under the African human right system notwithstanding the controversy around the RTD. As it is now known, the RTD is originally an African concept, since it was first conceived as such by Doudou Thiam of Senegal, in 1967 who stated that the RTD must be declared loud and clear for the people of the third world. The RTD gained more prominence after Kéba M’Baye of Senegal lectured on it in France, in 1972. Events afterwards led to the codifying of the RTD under the African Charter. The understanding of the RTD under the Charter will help determine to what extent the African countries have considered it in the EPA negotiations.

THE CONCEPT OF HUMAN RIGHTS IN AFRICA

The expression ‘human rights’ is a relatively new term in Africa. But that is not to say that the African people have not been fighting for freedom, social justice, equality and dignity, it has been found that some resemblance of human rights existed in Africa. Nowadays, ‘human rights’ is a common expression in the African context.
Today, we witness rising public agitation for African countries to respect, protect and fulfil the human rights of its people. ‘A sudden proliferation of opportunists masquerading as human rights experts and activists has recently emerged.’1 In Mwenda’s opinion ‘human right in these parts of the world is, indeed, a lucrative business.’2 Most of the experts and activist are ‘not in search of human rights,’ according to him, ‘their concern is with donor funds and the ideological re-focusing of the continent.’
However, whether the human rights experts and activists in Africa are opportunistic or not, today, the concept of human rights could be found in almost all African countries’ constitutions3 as well as in the African Union’s instruments. Moreover, African countries record of ratification of the human rights treaties of the United Nations is at par with practices around the world.4 Nonetheless, even with the emergence of all of these ‘opportunists’ and development of human rights in Africa, the several ‘sub-cultures of the traditional African set-up are not entirely obliterated.’5
The human rights discursion in the continent of Africa echoes its political and cultural history. 6 Consequently, any debate of human rights in the continent needs to be dealt with in the context of its political, cultural and ideological history, spanning pre-colonial, colonial and post-colonial era.
Africa’s pre-colonial era saw the emergence of traditional African political systems,7 where traditional ethnic communities lived under various socio-political arrangements. These arrangements consist of components of human rights rooted in the religion and culture of these communities. Some African authors are of the view that there is an exceptional African concept of human rights, which is culturally specific but not universal.
A study of the organisation of African social life reveals several organising principles.9 The African social life differs from the Western world; it underscores grouping and commonality, members of the community do not think only of themselves as individuals, neither do they think about individual rights10 (although not widely practiced today). Instead of the survival of the fittest, the African communities are guided by the principle of the survival of the whole community and a ‘sense of cooperation, interdependence, and collective responsibility.
Sudarkasa, 12 has structured the rights and duties possessed by each kinship member in the African community into four fundamental principles: respect, restraint, responsibility, and reciprocity. The most important principle is respect for the elders in the community; it guides the behavior within the family and the community, which is hierarchical.13 A child in the African community learns to respect very early in his childhood. In these communities, anyone older than you, even with a day, commands your respect, which is demonstrated in greetings, how they address their seniors, bows and other gestures.14 As a child grows in the community he moves up in the hierarchy and attains seniority rights, which are strictly guaranteed.
African culture, therefore, promotes respect for human rights; it has a place in the African human rights discourse. To ensure the safeguard of African cultures, the OAU adopted the African Cultural Charter in 1976, and in 2006, Charter for African Cultural Renaissance Consequently; most African constitutions preserve rights to its peoples’ cultural development15 similar to that protected by Article 22 of the African Charter.

THE DEVELOPMENT OF A HUMAN RIGHT SYSTEM IN AFRICA

The African nationalism and pan-Africanism movements started the struggle for respect and protection of human rights in Africa.16 Initially, these movements were involved in the fight against the abuse of human rights in Africa and the despoliation of Africa’s resources by the colonial masters. African nationalists regularly reminded the colonial masters on the need to respect human rights of the people colonized and also educate the Africans on their rights.17 This was demonstrated in the Declaration of the 1945 pan-African Congress held in Manchester, which reads in part:
We are determined to be free. We want education. We want the right to earn a decent living; the right to express our thoughts and emotions, to adopt and create forms of beauty. We will fight in every way we can for freedom, democracy, and social betterment.
During the colonial reign, human rights became a significant part of the fight for independence. According to EI-Obaid and Appiagyei-Atua,19 three international human rights instruments provided a favourable basis for the fight for the respect of human rights by the African nationalists, they are: the United Nations Charter, which commits six of its Articles (particularly Articles 1, 13, 55, 62, 73, 76) to protecting and promoting respect for human rights; the UDHR, which in their opinion provides ‘a powerful source of inspiration for the founding pattern of African nations;’ and the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, the African nationalists also relied on an important right, which is the right to self-determination. It entitles all ‘peoples to freely determine their political status and freely pursue their economic, social and cultural development.’20 Evidently, the right to self-determination became the main right used by the African nationalist in the struggle of Africans independence from European colonialism.

DECLARATION 
SUMMARY 
CHAPTER ONE 
1.1 PROBLEM STATEMENT
1.2 RESEARCH QUESTIONS
1.3. LITERATURE SURVEY
1.4 THEORETICAL FRAMEWORK
1.5 RESEARCH METHODOLOGY
1.6 SIGNIFICANCE OF THE STUDY
1.7 STRUCTURE
CHAPTER TWO
2.1 INTRODUCTION
2.2 THE MEANING AND NATURE OF HUMAN RIGHTS
2.3 CONCEPT OF DUTY
2.4 THE MEANING AND CONCEPT OF DEVELOPMENT
2.5 HISTORICAL VIEW OF RIGHT TO DEVELOPMENT
2.6 THE MEANING OF RIGHT TO DEVELOPMENT
2.7 CONTENT AND NATURE OF RIGHT TO DEVELOPMENT
2.8 THE NORMATIVE CHARACTER OF THE RIGHT TO DEVELOPMENT
2.9 IMPLEMENTING AND MONITORING RIGHT TO DEVELOPMENT
2.10 EUROPEAN UNION’s POSITION ON THE RIGHT TO DEVELOPMENT
2.11 CONCLUSION
CHAPTER THREE
3.1 INTRODUCTION
3.2 THE CONCEPT OF HUMAN RIGHTS IN AFRICA .
3.3 THE DEVELOPMENT OF A HUMAN RIGHT SYSTEM IN AFRICA
3.4 RIGHT TO DEVELOPMENT UNDER THE AFRICAN HUMAN RIGHTS SYSTEM
3.5 CONCLUSION
CHAPTER FOUR. THE NATURE OF EXTRA-TERRITORIAL APPLICATION OF HUMAN RIGHTS 
4.1 INTRODUCTION
4.2 DEFINING EXTRA-TERRITORIAL HUMAN RIGHTS OBLIGATIONS
4.3 UNDERSTANDING THE JURISDICTION CLAUSE IN HUMAN RIGHTS TREATIES
4.4 CONCLUSION
CHAPTER FIVE
5.1 INTRODUCTION
5.2 THE NATURE AND STRUCTURE OF THE EUROPEAN UNION
5.3 THE EUROPEAN UNION’S EXTERNAL RELATIONS
5.4 THE EUROPEAN UNION’S EXTRATERRITORIAL HUMAN RIGHTS OBLIGATION IN THIRD COUNTRIES
5.5 APPLICATION OF EU EXTRATERRITORIAL HUMAN RIGHTS OBLIGATION IN SUB-SAHARAN AFRICA
5.6 DOES THE EU HAVE EXTRATERRITORIAL HUMAN RIGHTS OBLIGATIONS REGARDING RTD?
5.7 CONCLUSION
CHAPTER SIX 
6.1 INTRODUCTION
6.2 INTERNATIONAL TRADE
6.3 THE FRAMEWORK OF INTERNATIONAL TRADE LAW
6.4 INTERNATIONAL TRADE IN SUB-SAHARAN AFRICA
6.5 TRADE LIBERALIZATION IN SUB-SAHARAN AFRICA: DOES ONE SIZE FIT ALL?
6.6 THE EPA BETWEEN EU AND ACP: A SNAPSHOT
6.7 THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES – EUROPEAN UNION ECONOMIC PARTNERSHIP AGREEMENT
6.8 THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY – EUROPEAN UNION ECONOMIC PARTNERSHIP AGREEMENT
6.9 ECONOMIC PARTNERSHIP AGREEMENT BETWEEN EUROPEAN UNION AND CENTRAL AFRICAN REGION
6.10 ECONOMIC PARTNERSHIP AGREEMENT BETWEEN EU AND EASTERN AND SOUTHERN AFRICA REGION
6.11 ECONOMIC PARTNERSHIP AGREEMENT BETWEEN EU AND EASTERN AFRICAN COMMUNITY REGION
6.12 POTENTIAL EFFECT OF THE ECONOMIC PARTNERSHIP AGREEMENTs ON RIGHT TO DEVELOPMENT
6.13 CONCLUSION
CHAPTER SEVEN 
7.1 INTRODUCTION
7.2 SUMMARY OF FINDINGS .
7.3 RECOMMENDATIONS
BIBLIOGRAPHY 
TABLE OF CASES

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