Western Sahara before the African Court of Human and Peoples’ Rights:  Is there a “brother’s keeper” obligation for the Member States of the African Union?

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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 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.

Legal and political context of the complaint

The complaint is lodged by a national of Ghana, chairperson of a domestic political party, against Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania and Tunisia. The Sahrawi Arab Democratic Republic (SADR) and Mauritius were authorized by the Court to intervene, while Morocco did not request for such an intervention. This calls for several remarks.

First, while the ECHR and the Optional Protocol to the ICCPR complaint mechanisms are accessible to those who claim to be victims of a violation of their rights, the African litigation system allows both subjective and objective actions. Therefore, as stressed by the Court in response to the ratione personae objection of the Respondents, there is no requirement for the Applicant to prove that he was victim of a violation of his rights under the African Charter (paras. 120-121).

Second, the complaint is lodged against a very small group of States. Only eight (8) are targeted – among all States Parties of the AU –, which is explained by the fact that only these States have accepted the jurisdiction of the Court to receive complaints brought by individuals and non-governmental organizations (Article 34-6 of the Protocol to the African Charter establishing the African Court on Human and Peoples’ Rights).

Finally, the Court stressed that even if of the eight States concerned, three (Tanzania, Benin and Côte d’Ivoire) have withdrawn their Article 34-6 declaration, this was done after the introduction of the current complaint and therefore, it does not affect the case.

Against this background, the Applicant claimed that the “unconditional admission of Morocco” requested in 2016 and effective in January 2017 was in breach of the practice of the AU and its predecessor, the Organization of the African Unity (OAU) (para. 17). More precisely, he claimed that the “continued occupation of the territory” of the SADR (para. 8), admitted as a member of the OAU in 1984 should have been a ground for refusal to admit Morocco back in the AU. His claim is therefore that the admission is contrary not only to the African Charter, but also of the 2000 Constitutive Act of the AU and the 2007 African Charter on Democracy, Elections and Governance (para. 15). As a remedy, the Applicant asks the Court to compel the Respondent States to “call an emergency session of the Assembly of the AU” with the aim to expulse Morocco from the Organization “until it is prepared and ready to recognize the right of the Sahrawi people to self-determination” (para. 40).

Political question v. judicial settlement

Following its well-established methodology, the Court addressed first the objections to its jurisdiction and then the admissibility under Article 56 of the African Charter. I will focus on three objections put forward by the Respondent States.

One of the main Respondent’s objections concerns the Court’s material jurisdiction, challenged on various grounds. Some affirmed that the dispute is mainly “political and diplomatic.” Others claimed that the complaint concerns a matter – the admission of a State to the AU – that is under the exclusive jurisdiction of the AU Assembly. It is also pleaded that the AU has transferred to the United Nations the matter of the Western Sahara independence (para. 94) and thus, it cannot be addressed by an AU judicial body.

The African Court dismissed these objections and stressed that in spite of the obvious political and diplomatic dimension of the case, violations of human rights are raised and it is sufficient to established its jurisdiction (paras. 65, 97-98). It also highlighted that even if “international law is essentially a product of the consensual undertaking of States”, these latter “cannot raise sovereignty as a defence or justification to preclude the tribunal from exercising its jurisdiction over a dispute insofar as the dispute relates to issues that fall within the scope of the tribunal’s statutory competence.” (para. 65).

The territorial jurisdiction is another important objection raised by the Respondents. In essence, they claimed that the facts – the continued occupation and its consequence on Sahrawi people – occurred outside their territory and thus, they could not be responsible for extraterritorial acts or omissions (paras. 132 et seq.) Referring to Article 29 of the Vienna Convention on the Law of Treaties, Tanzania highlighted the lack of “causal link” between the Respondents’ obligations and the human rights violations due to the continued occupation (para. 133). Mali and Côte d’Ivoire pleaded for a strictly-delimited territorial application of the African Charter (paras. 134-135). On the contrary, the SADR (as intervener) affirmed that a strict delimitation of territorial jurisdiction could not apply to the right to self-determination (para. 140). Citing the ICJ Opinions on the Wall and Chagos, the SADR stressed the “erga omnes nature of the right to self-determination,” incompatible with a restrictive approach.

The African Court endorsed this latter position and recalled that the African Charter “does not specify the territorial scope of its application” (para. 146). Quoting the General Comment No. 12 of the Human Rights Committee on Article 1 of the ICCPR, the Court affirmed that the States’ obligations extend “beyond their national territories” (para. 151). In the present case, the alleged breaches concern the Respondents’ omission to protect the SADR’s integrity and sovereignty and thus, this omission “has had an extraterritorial effect” (para. 156).

Finally, regarding the conditions of admissibility, the exhaustion of domestic remedies is extensively discussed by the Respondents (paras. 189 et seq.) They claim that the petition should be declared inadmissible, as the complainant has not exhausted any of the remedies available in the States concerned. Tanzania defends a slightly different position: it admits that the exhaustion rule does not apply (para. 190) as the question raised by the complaint is political and not judicial. Therefore, the matter is out of the competence of both domestic and regional judicial organs.

The African Court dismissed this ground for inadmissibility. It first highlighted that this complaint is unique in terms of number of Respondents and question raised (para. 205). Interestingly, it noted that if some matters related to the conduct of international relations have been recently brought to domestic courts – quoting the decision of the High Court of South Africa on the withdrawal of the State from the ICC Statute -, the nature of the claims targeted several States for their individual and collective international responsibility, is not compatible with the exhaustion rule (para. 209). This is an important procedural step that could inspire other bodies when dealing with cases targeted multiple States as in the field of climate change (here).

Right to Self-Determination, Admission in the AU and International Responsibility of Member States

The Applicant’s substantive claim may be summarized as follows: when Morocco was re-admitted in the AU, none of the Respondent States did require, either individually or collectively, to end “its colonization and occupation of Western Sahara.” They thus bring the individual and collective responsibility of the continued situation that triggers harmful consequences on the rights of Sahrawi people to enjoy their self-determination (para. 243). The Respondents objected with different arguments that could not be reflected in details in the present note. However, the common features of the position are twofold.

First, the admission decision is an act of the AU Assembly and not of the Member States. The AU has its own international legal personality and its members cannot be held accountable for its actions or omissions. In particular, Tanzania referred to a previous case settled by the African Court where this principle was affirmed.

Second, the Respondent States maintain that the dispute is political and as such, only political organs as the AU Assembly and the UN could settle it. For instance, Mali highlights the “[partial] supra national or supra state character [of the UN] and accordingly, it should be the reference framework for the legality and legitimacy of international intervention” (para. 258).

The African Court synthetized the question as “essentially and firmly linked to the rights to self-determination, particularly, the right of the Sahrawi people to obtain assistance in their struggle for freedom from foreign occupation” (para. 285). Therefore, the Court decided to focus its examination on the alleged breach of Article 20-3 of the African Charter. Stressing the special “resonance” and the “deep meaning” of self-determination in Africa (para. 290), the Court establishes the distinction between the provision and the ICCPR/ICESCR (para. 295):

“Unlike the ICCPR and ICESCR, the Charter weaves the right to self-determination into the right to existence of peoples, something that denotes a wholesale entitlement or right to survival as people […]”

It also reaffirmed the peremptory norm status of the right to self-determination and the “obligation erga omnes on all States” it triggers. (para. 298) and clarified the fact that according to the relevant ICJ and UN General Assembly decisions, the “international community” has never accepted the claim of Morocco over the occupied territory (para. 302).

Turning then to the substance, the Court analyzed the Respondent States’ behavior vis-à-vis the readmission of the State in 2017.

Against this background, the African Court considered that the absence of conditional admission does not constitute an international wrongful act that could trigger the Member States’ individual or collective responsibility (para. 314). It indeed interpreted the concept of “assistance” of Article 20-3 of the Charter as leaving a wide margin of action for those States to provide their support to the occupied people. In addition, considering the voting rules under Article 29 of the AU Constitutive Act, the Court affirmed that the States individually or collectively would have not had the power to influence the outcome of the admission decision partly taken by simple majority by the AU Assembly (para. 318).

It therefore concluded to the non-violation of the right to self-determination. Consequently, the Court recalled its previous jurisprudence that no reparation was due in the absence of an international wrongful act.

Judicial modesty, missed opportunity or reasonable prudence?

There are many ways to read the decision. Yet, the outcome is a non-violation conclusion. However, the judgment may also be read as a call for political and diplomatic action for the AU, its members and the UN (para. 323) and a certain modesty of the African Court, pressured by the deep attachment of the States to the non-intervention principle. The cautious approach adopted by the African Tribunal to the legal matters at stake is counterbalanced by a bold interpretation of the procedural conditions of the complaint and the overall outcome must be read in light of the current situation of backlash against the Court itself, illustrated by Tanzania, Benin and Côte d’Ivoire withdrawal of direct access of individuals to the Court above mentioned. As pointed out by Apollin Koagne Zouapet (here), these decisions are a “sword of Damoclès […]” for the Court, especially when matters with such an important political dimension are discussed.

The judgment could also be read in a broader international judicial context and in particular, in light with the Front Polisario ‘saga’ before the EU Court of Justice and the progressive development of the content and meaning of the “obligation to secure” (para. 343 of here) the rights of Sahrawi people. This obligation may have multiple dimensions in relation with the external relations of an international organization (European Union) and Morocco (here). The new judgement of the African Court sheds light on the internal dimension of the AU Members’ obligations and raises questions on the existence of an African collective guarantee system in the human rights field.

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