You are a legal assistant to one of the judges of the African Court on Human and People’s Rights. A highranking
citizen of the Republic of North Korea (Ms NN) is currently staying at an undisclosed location in
Spain. She has filed an application before the Court against the Republic of Zendia. NN alleges that Zendia
has violated her right to be protected against torture, which is guaranteed by Article 5 of the Charter of
African Human and People’s Rights. Zendia is a party to the Charter.
The basis for NN’s claim is that Zendia’s embassy in Spain refused to issue a tourist visa for her to being
able to visit Zendia. At the embassy, where NN ultimately stayed for three hours before she left, she
insisted that the purpose of her visa application was to pay a social visit to her uncle, who had been granted
asylum by Zendian authorities a decade earlier. The embassy – fearing that she would blow the cover of her
uncle – advised her to seek asylum as a political refugee, but NN dismissed this as she feared the
repercussions for her family in North Korea. This she also told the Embassy staff, who advised her to leave.
It is uncontested that NN, where she to return to North Korea, would be subjected to treatment by North
Korean officials that would amount to ‘torture’ within the meaning of Article 5 of the Charter.
NN’s counsel has submitted that Zendia must be held responsible for a breach of Article 5 of the Charter.
They refer to the fact that Zendia has accepted the competence of the Court to consider individual
complaints, and they refer, in particular, to Article 3 of the Protocol to the African Charter on Human and
People’s Rights on the Establishment of an African Court on Human and People’s Rights:
The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any other relevant Human Rights
instrument ratified by the States concerned.
NN’s counsel also submits that no provision of the African Charter itself, including Article 5, contains a
clause restricting the responsibility of Zendia to be held accountable for placing her in a situation in which
she risked, if denied a visa, would be tortured upon returning to Pyongyang. The Government of Zendia
responds that the applicant never has been under the jurisdiction of the Republic of Zendia and for that
reason alone, the application must be rejected as inadmissible before the Court. It does not matter
whether the African Charter regulates the question of States’ jurisdiction.
Article 3 § 2 of the Protocol to the Charter states that the Court must decide whether it is competent to
consider the claim. This depends on whether what occurred at the embassy was within Zendia’s jurisdiction
for the purpose of the African Charter. The judge has asked you to give him “a brief consisting to two
different parts, one which sets out the main legal arguments in favour of rejecting the applicant’s complaint
and one which identifies legally convincing reasons why I should support that the Court considers the
merits of this poor woman’s complaint”. The judge asks you to find arguments in legal material in “the
practice of a variety of international courts and tribunals”. He throws de Schutter’s textbook to you as a
“useful source of reference” and mentions in passing that “there may be some information to be gathered
from the European Court of Human Rights’ recent Grand Chamber decision in M.N. and Others v. Belgium
paras. 96-126”, delivered on 5 March 2020.