The Assertion of a Regional Specificity of the Right of Peoples to Self-determination by the African Court on Human and Peoples’ Rights

In the judgment of Bernard Anbataayela Mornah v. Republic of Benin and others on 22 September 2022, the African Court on Human and Peoples’ Rights made a significant step forward regarding the justiciability of the right to self-determination. Traditionally viewed as part of international relations and thus non-justiciable, the right to self-determination was, in this case, brought into the legal domain by the Court, which affirmed its justiciable dimension. The Court paved the way for the justiciability of a right that has historically been treated as a political principle rather than a legal norm. Until now, claims of self-determination were largely perceived as matters of state sovereignty and inter-state relations, beyond the direct reach of international and regional courts. This decision represents a paradigm shift as it contributes to the consolidation of the right to self-determination as an imperative and justiciable right. Furthermore, the Court recognized the possibility of an actio popularis, meaning the ability of an individual to file a complaint in defense of the right to self-determination, even if not personally affected by the violation of this right. This approach allows for the defense of the right to self-determination beyond individual interests. The decision is based on the imperative nature of the right to self-determination, which the Court identifies as a jus cogens norm.