The African Court on Human and Peoples’ Rights in Arusha, Tanzania has in a landmark judgment held that “the Moroccan occupation of Western Sahara is a serious violation of the right to self-determination.” 

The court held that “all states have legal obligations to assist the Sahrawi people in the full realisation of their right to self-determination and independence.”

The judgment delivered last week followed a suit filed by human rights lawyer Femi Falana SAN against eight African Union member states before the court over “the failure of the countries to discharge their legal duty to defend the sovereignty, territorial, integrity and independence of Western Sahara.” 

The case brought on behalf of Bernard Anbataayela Mornah, a Ghanaian citizen and the National Chairman of the Convention of People’s Party, a political party in Ghana against Burkina Faso; Cote D’ivore; Ghana; Mali; Malawi; and Tanzania relates “to the legal duty on the defendants to defend the sovereignty, territorial, integrity and independence of Western Sahara.”

In the judgment, the African court held that “the presence of Moroccan forces in Western Sahara is a military occupation, which violates international law.” 

The judgment, read in part: “The continued occupation of the SADR by Morocco is incompatible with the right to self-determination of the people of SADR as enshrined in Article 20 of the African Charter on Human and Peoples’ Rights.”

“The Court notes that at the core of the instant Application lies the Applicant’s allegation that the admission of Morocco to the AU was not opposed by Respondent States in spite of their individual and collective obligation to defend the sovereignty of Western Sahara.” 

“Considering the facts of the case and the submissions of the parties, the Court is of the view that the present Application is essentially and firmly linked to the right to self-determination, particularly, the right of the Sahrawi people to obtain assistance in their struggle for freedom from foreign occupation.”

“Although the other rights are autonomous by their nature, their violation in the instant case basically flows from the alleged denial of the right to self-determination of the people of Western Sahara.” 

“It is the occupation of the SADR and the deprivation of its people of their right to self-determination that have occasioned and facilitated the alleged violations of their other rights, including their right to development, right to disposal of their natural resources, their right to peace and to non-discrimination.”

“The Court observes that the notion of self-determination has strong resonance with Africa and carries a special and deep meaning to its people. Colonisation, apartheid, military occupation and various forms of foreign oppressions that the continent experienced has defined the African identity and history as inherently and inextricably intertwined with the struggle for self-determination.”

“The African States have also consistently exhibited unwavering commitment to the right to self-determination by supporting or sponsoring resolutions adopted in the United Nations and other regional and international fora.”

“Despite the fact that the Constitutive Act of the AU, did not explicitly mention the right to self-determination, the defence of ‘the sovereignty, territorial integrity and independence of its Member States’ is specified as one of the objectives of the Union.”

“The Constitutive Act also makes the promotion and protection of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights, and other relevant human rights instruments’ its additional objective.”

“The Charter guarantees the right to self-determination under its Article 20 as follows: All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”

“States are required to take actions individually and jointly to facilitate the realization of the right to self-determination, including by offering assistance to people struggling for independence and freedom from domination.”

“On the other hand, negative obligations involve the duty to respect the right, that is, abstaining from engaging in acts or taking measures that adversely affect people from fully enjoying their right to self-determination.”

“The Court also observes that in international law, the right to self-determination has achieved the status of jus cogens or a peremptory norm; thereby, generating the corollary obligation erga omnes on all States. As such, no derogation is permitted from the right and ‘all States have a legal interest in protecting that right’.”

“Where a peremptory norm is breached, States are also under an obligation not to recognize the illegal situation resulting from such breach and not to render aid or assistance in maintaining the situation.”

“Furthermore, the Court recalls that the obligations resulting from the right to self-determination are owed by States not only towards those who are under their jurisdiction but also to all other peoples who are not able to exercise or have been deprived of their right to self-determination.”

“In line with this, Article 20 of the Charter confers the right to get assistance on ‘all peoples’ without geographical or temporal limitations.”

“The Court observes that the right to self-determination is essentially related to peoples’ right to ownership over a particular territory and their political status over that territory. It is inconceivable to materialise the free enjoyment of the right to self-determination in the absence of any territory that peoples could call their homeland.”

“The Court recalls that although Morocco has always laid claim on the territory it occupies, its assertion has never been accepted by the international community.”

“The Court recalls that in international law, a State incurs international responsibility where three cumulative conditions are proven to have existed: an act or omission violating international law, that is, an internationally wrongful act; the act must be attributed to a State (attribution); and the ac must cause a damage or loss (causal link).”

“In addition, there should not be circumstances precluding responsibility. These conditions are spelt out in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts and have been generally considered as reflecting customary international law.”

“The Court also reiterates that the right to self-determination under Article 20 of the Charter imposes an international obligation on all State Parties to take positive measures to ensure the realisation of the right, including by giving assistance to oppressed peoples in their struggle for freedom and refraining from engaging in actions that are incompatible with the nature or full enjoyment of the right.”

“The Court notes that, in view of the fact that part of the SADR’s territory is still under occupation by Morocco, there is no question that State Parties to the Charter have an obligation, individually and collectively, towards the people of SADR to protect their right to self-determination, particularly, by providing assistance in their struggle for might have resulted from such occupation.”

“All State parties to the Charter and the Protocol, as well as all Member States of the AU, have the responsibility under international law, to find a permanent solution to the occupation and to ensure the enjoyment of the right to self-determination of the Sahrawi people and not to do anything that would give recognition to such occupation as lawful or impede their enjoyment of this right.”

“The Moroccan occupation of part of the territory of the SADR seriously violates the right to self-determination and independence of the Sahrawi people.”

“Consequently, the Court finds, AU Member States have an obligation to assist the Saharawi people in the realisation of their right to self-determination and not to recognise the situation and violations resulting from this illegal occupation.”

“Indeed, the right to self-determination and independence “imposes an international obligation on all States Parties to take positive steps to realise this right, including assisting oppressed peoples in their struggle for freedom and refraining from actions incompatible with the nature or the full enjoyment of this right.”

The suit with application number 028/2018, read in part: “The territory known as Western Sahara in North Africa was forcefully and illegally colonized by Spain for several years until it pulled out and relinquished its claim as a colonial power over the territory in February 1976 as a result of the violent resistance of the Saharawi people.

“The defendants are members of the African Union which have accepted the competence of the Protocol of the African Court on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights.”

“Despite the illegal occupation of Western Sahara by Morocco not less than 84 countries have accorded diplomatic recognition to the Saharawi Arab Democratic Republic, a member state of the African Union. In Liberia, Sierra Leone and The Gambia the Economic Community of West African States (ECOWAS) intervened militarily to restore democratic governments with the support of the African Union.”

“In line with the provisions of its Constitutive Act, the African Union suspended Niger, Burkina Faso and other member states of the African following unconstitutional change of governments.”

“From the facts in support of this application it is indisputable that the defendants are members of the African Union which are bound to comply with its Constitutive Act as well as the African Charter on Human and Peoples Rights (African Charter) the Protocol on Democracy, Good Governance and Elections of the African Union as well as the International Covenant on Civil and Political Rights (ICCPR).”

“The gravamen of the complaint of the Applicant is that the Defendants took part in the decision of African Union to admit Morocco to the African Union when it has not ceased to occupy parts of the territory of Western Sahara, a member state of the African Union.”

“It is the submission of the Applicant that by supporting the admission of Morocco to the African Union the defendants deliberately violated articles 3(b), (g), (f) and (g) of the African Union which require them to defend the sovereignty, territory, integrity and independence of the members states of the African Union including Western Sahara.”

“The defendants have colluded with Morocco in the subversion of the basic principles of the African Union to respect the borders existing on achievement of independence.”

“The African Charter on Human and Peoples’ Rights which provides that: ‘’Nothing shall justify the domination of a people by another. All peoples shall have the unquestionable and inalienable rights to self-determination. They shall freely determine their political status.” Vanguard