Source: African Court on Human and Peoples' Rights
1. Bernard Anbataayela Mornah (hereinafter referred to as “the Applicant”) is a Ghanaian national and the National Chairman of the Convention People’s Party, a political party registered in Ghana. The Applicant alleges violations of human rights of the Sahrawi people as a result of the failure of the Respondent States to safeguard the territorial integrity and independence of the Sahrawi Arab Democratic Republic.
297. The Court notes that the right to self-determination imposes both positive and negative obligations on State Parties. Positive obligations comprise the duty to protect, promote, and fulfil conditions for the realization of the right. 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 selfdetermination.
298. The Court also observes that in international law, the right to selfdetermination 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.
299. 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.
303. The Court stresses that 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 Charter. The question here is whether the Respondent States should be held responsible for such violation. The Parties disagree on this point.
318. As it can be discerned from this provision, the admission of a State as a member to the Union depends both on the decision of each Member State as well as the collective decision of the Member States constituting a simple majority within the Assembly. Accordingly, the Respondent States’ individual decision to support or oppose the admission of Morocco does not alone necessarily determine the final outcome. Nor could the Respondent States, individually or collectively, determine the admission of a candidate State or subject it to conditions requiring it to respect the right to selfdetermination of the people of the SADR. The Court stresses that their inability to do so cannot constitute a breach of their international obligation in the Charter or violation of the right to self-determination of the people of the SADR.
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