Without UN approval, ECOWAS cannot justify its intervention in Niger, according to Falana

The threat follows an ultimatum of one week that ECOWAS gave to putschists in the West African country last Sunday, demanding their release and the reinstatement of Mohamed Bazoum, the elected president of Niger.

The Economic Community of West African States (ECOWAS) is legally required to seek the approval of the United Nations Security Council before conducting any interventions in the Niger Republic, human rights attorney Femi Falana, SAN, cautioned on Sunday.

The ECOWAS, commanded by President Bola Tinubu, gave putschists in the country of West Africa a one-week deadline last Sunday to free and restore Mohamed Bazoum, the elected president of Niger who has been detained by the military for more than ten days.

In a statement, Falana emphasised that, in accordance with Article 53(1) of the UN Charter, ECOWAS must approach and secure the UN Security Council’s approval before attacking a sovereign state.

The senior lawyer cited Article 53(1) while stating that, “Where appropriate, the Security Council shall utilise such regional systems or bodies for enforcement action within its authority.

But without the permission of the Security Council, no enforcement action under regional agreements or by regional agencies shall be initiated.

He interprets this to suggest that, as a regional agreement, the ECOWAS is subject to the laws of the United Nations Charter, in particular article 53(1), as well as general international law.

As a result, he stated, “ECOWAS cannot justify any intervention in Niger without the Security Council’s approval.”

In addition to requiring Security Council approval, it is obvious that any ECOWAS involvement must be done so collectively rather than unilaterally.

Falana continued, “Unless it concerns a situation of self-defence, which is clearly not the situation in the planned intervention in Niger, any intervention by the ECOWAS would be illegal in the absence of explicit Security Council authorisation.”

See the full statement below:

LEGAL REQUIREMENTS FOR DECLARATION OF WAR AGAINST NIGER REPUBLIC
Notwithstanding the resolution of the Economic Community of West African States to resort to the use of force to flush the military junta in Niger in a bid to restore President Mohamed in Bazoum, the Bola Tinubu administration is mandatorily required to seek the approval of both houses of the National Assembly. This is in compliance with section 5(4) of the Constitution of Nigeria 1999 (as amended), which stipulates as follows:

“(4) Notwithstanding the foregoing provisions of this section:

(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and

(b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.
However, by virtue of section 5(5) thereof, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger:

Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days.

In addition to the above constitutional mandate, the ECOWAS is required to seek and obtain the authorisation of the UN Security Council to launch an attack on a sovereign nation pursuant to article 53(1) of the United Nations Charter. Article 53(1) provides in part, “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council….”

This means that the conduct of the ECOWAS, as a regional arrangement, is subject to the provisions of the United Nations Charter, particularly article 53(1) and general international law.

Therefore, the ECOWAS can not justify any intervention in Niger without the authorisation of the Security Council.

It is also clear that any intervention by the ECOWAS, apart from being subject to the authorisation of the Security Council, must be on a collective basis and not a unilateral one.

In the absence of explicit Security Council authorisation, any intervention by the ECOWAS would be illegal, unless it concerns a situation of self- defence, which is clearly not the case in the situation of the planned intervention in Niger.

Femi Falana SAN
The Chair,
Alliance on Surviving Covid 19 and Beyond (ASCAB)
6th August, 2023.