In the current international context where States are ‘(re)discovering’ the virtue of international judicial litigation tools (before the ICJ or before the European Court of Human Rights), the African Court of Human and Peoples’ Rights was presented with a unique request against the backdrop of protecting the right to self-determination of the Sahrawi people. The latter have been opposed to Morocco since 1975 in a frontal struggle claiming sovereignty over the Western Sahara (here). When, in 2016, Morocco asked to be readmitted to the African Union (AU), the question may have arisen as to the extent to which it would have been imperative to condition this admission by imposing respect for the self-determination of the Sahrawi people. In other words, would the “unconditioned” admission of Morocco in breach of the right to self-determination – a peremptory norm – be an internationally wrongful act that triggers AU States’ individual and collective responsibility?
On 22 September 2022, the African Court issued its judgement on the matter and concluded unanimously that the Respondent States had not violated the right to self-determination of Sahrawi people linkedin database under Article 20 of the 1981 African Charter on Human and Peoples’ Rights and all other related provisions raised by the Applicant. It consequently rejected the request for reparation of the Applicant that would “place Morocco on probation until it respects the rights of the Sahrawi people or to be expelled from the [African] Union” (para. 324).
In this post, I briefly analyze the political and legal context of the complaint and the main procedural questions raised before the African Court. However, the heart of the 100 page-long judgment is the substantive claim that the AU Member States are the ‘brother’s keeper’ (para. 247) of the Sahrawi people and their right to self-determination under Article 20 of the African Charter and Article 1 common to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Court was therefore requested to draw the boundaries of individual and collective international responsibility of AU Member States vis-à-vis another State that would be in continuous breach of the erga omnes obligation to respect self-determination.