By Ibrahim Umar, Esq, LLM.

The hostile relationship between ECOWAS and three of its Francophone members; Niger, Mali and Burkina Faso, has reached a breaking point. On January 29, 2024 when the three countries announced their withdrawal from the West African bloc. Unsurprisingly, the Community has rejected the action through the government of its host nation, Nigeria.

Although disputes are a normal part of human existence especially among the members of the global community, West Africa is generally considered a region of relative harmony between States, thanks to the efforts of ECOWAS. Nonetheless, tensions recently arise in the region, as a result of sudden military takeovers of democratically-elected governments which already had a significant repercussion on the stability of the region.

In 2020, Mali fell under military control, followed by Burkina Faso in 2022. While these countries were suspended from ECOWAS, the conflict did not gain much attention until the 2023 coup in the Republic of Niger when President Bola Tinubu of Nigeria responded to the coup in Niger with bitter words and even threatened the use of force to restore democracy.

The three Francophone countries accused ECOWAS of unfairness, injustice, and intolerance since their suspension. Niger Republic, in particular, claimed that it had tried to resolve the conflict peacefully, but ECOWAS wasn’t cooperative and considerate. As a result, the head of the Niger Military Junta, on behalf of Niger, Burkina Faso, and Mali, announced their withdrawal from the regional bloc.

This withdrawal led to a controversy which stems from the fact that ECOWAS rebuked the decision of the three countries to withdraw. It raises the question of whether ECOWAS has the authority to deny the countries their right to withdraw from the regional bloc. While membership in ECOWAS is voluntary, it is also governed by a number of treaties and agreements that establish the rules and procedures for membership. The question of undermining the sovereignty of member states is also another important aspect interested by this article.

The withdrawal of the three aggrieved countries from ECOWAS is not entirely without precedent, as Mauritania had previously submitted its notice of withdrawal from the bloc in line with the provisions of the treaty. However, the current situation is unique due to the ongoing disputes and hostility between the countries and ECOWAS.

Article 91 (1) of the establishing and apex law of the Community known as the Treaty provided thus:

“Any Member State wishing to withdraw from the Community shall give to the Executive Secretary one year’s notice in writing who shall inform Member States thereof. At the expiration of this period, if such notice is not withdrawn, such a State shall cease to be a member of the Community.”

This provision expressed that the intending Member States are required to give a one-year prior notice of intention to withdraw from the Community. Obviously, the Community might have driven its powers to rebut the withdrawal under this provision.

However, the controversies are sparked by (2) of the Provision which states that:

“During the period of one year referred to in the preceding paragraph, such a Member State shall continue to comply with the provisions of this Treaty and shall remain bound to discharge its obligations under this Treaty.”

Consequently, one would ask, what happens to the doctrine of sovereignty and consent? How can the Community have the power to force Member States to remain in it.

In response to the question of sovereignty, Article 2(2) of the ECOWAS Treaty states that member states “pledge to pool progressively and partially their respective sovereignties for the purpose of attaining the objectives of the Community.” This raises the question of whether countries that have withdrawn their consent to the Treaty can still be bound by its provisions.

Under the Vienna Convention on the Law of Treaties, treaties are only binding if the parties express their consent to be bound by them. Article 42(2) of the Convention states that:

“The termination of a treaty, its denunciation or the withdrawal of a party may take place only as a result of the application of the provisions of the treaty or of the present Convention.”

This means that a party’s withdrawal from a treaty must follow the procedures set out in the treaty or the Convention itself.

In a similar provision, Article 54 of the Convention provided that the

“Termination of or withdrawal from a treaty by consent of the parties requires the consent of all the parties after consultation with the other contracting States.”

The consequences of the termination of a treaty are expressed in Article 70 which states that:

“1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.”

Thus, it is explicit that the ECOWAS Treaty specifies that withdrawal from the Community can only take place in accordance with its provisions or by mutual consent from the High Contracting Parties. The question remains as to whether Niger, Mali, and Burkina Faso can be considered part of the Community if they withdraw against their will. Do they still have obligations under the Treaty, even if they no longer wish to be part of the Community?

Ibrahim Umar, Esq, LLM., Umarusmanibrahim6@gmail.com