Human rights lawyer Femi Falana, SAN, advised the Economic Community of West African States (ECOWAS) on Sunday that any involvement in Niger Republic must be approved by the United Nations Security Council.
The threat comes after President Bola Tinubu’s-led ECOWAS issued a one-week ultimatum to putschists in Niger last Sunday, demanding the release and reinstatement of the country’s elected president, Mohamed Bazoum, who has been detained by the military for more than ten days.
According to Article 53(1) of the United Nations Charter, ECOWAS is required to seek and get authorization from the UN Security Council before launching an attack on a sovereign nation.
Citing Article 53(1), the senior advocate said, “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….”
According to him, 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,” he said.
“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.”
Falana added that 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”.
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.