Justification Under International Law of The Nigerian Led Invasion of Niger Republic to Restore Democracy.
By Manfred Ekpe, Esq.
INTRODUCTION
On 26 July 2023 the presidential guard in Niger Republic, a West African state, over theew the Government of President Mohamed Bazoum. The Heads of State of West African States under the aegis of the ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) met in Abuja, Nigeria’s capital, and issued 7 days ultimatum to the General Abdourahamane Tchiani led junta to restore democracy or be flushed out by the use of force.
PROHIBITION OF THE USE OF FORCE AGAINST SOVEREIGN STATES UNDER INTERNATIONAL LAW.
Political leadership of a sovereign state or nation is a domestic affair. The general principle of international law is that all independent states are sovereign in their internal affairs to the effect that no other nation is permitted to interfere in the internal affairs of other sovereign nations as provided for under Article 1 of the UN Charter.
The concept “sovereignty” also extends to the norms of international law to the effect that the invasion of sovereign states or country by external forces are prohibited under international law as provided for under Article 2(4) of the UN Charter.
The said Article 2(4) evinces thus:
2(4) “All Member (States) shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, OR IN ANY OTHER MANNER INCONSISTENT WITH THE PURPOSES OF THE UNITED NATIONS.” (Words in bracket and cap lock, mine).
The PURPOSES of the United Nations as envisaged in article 2(4) of the UN Charter include , inter alia, to maintain world peace, security and DEMOCRACY.
Therefore, by legal interpretation, article 2(4) only states that no sovereign state shall be invaded in a manner that is inconsistent WITH THE PURPOSES OF THE UNITED NATIONS. This follows that a sovereign state may be invaded when such invasion is CONSISTENT or INLINE WITH THE PURPOSES OF THE UNITED NATIONS!
Flowing from the foregoing, where a sovereign state behaves in such a way as to endanger the PURPOSES of the United Nations, such a sovereign state can be invaded to bring it in line with the PURPOSES of the United Nations! See United Nations General Assembly Resolution 678 of 1990 permitting the invasion of Iraq for threatening world peace by violating the territorial integrity of Kuwait.
This now takes us to articles 11(3) of the UN Charter which expounds and interprets the meaning of “or in any other manner inconsistent with the Purposes of the United Nations,” as stated in article 2(4) of the UN Charter cited above.
Article 11(3) permits the General Assembly of the UN to report to the Security Council any state who behaves in such a way as to endanger world peace such as a military coup that removes a democratic government from power, democracy being one of the purposes of the United Nations.
Giving vires to Article 11(3) of the UN Charter, the combined provisions of Articles 24, 41, 42, 43, 44,45 and 46 and generally, Chapter VII of the charter permits the use of force by the UN to maintain world peace which includes restoration of democratic rule in any country where democracy has been threatened such as to endanger world peace. This use of force is applied where negotiations to restore world peace and democracy has failed as provided for in article 40 of the UN Charter. Refer to the United Nations General Assembly resolutions 660 and 678 of 1990 which ordered Iraq to maintain world peace and also empowered all member states of the United Nations to use force to compel Iraq’s compliance with the resolutions.
In the circumstances of the decision to invade Niger Republic by ECOWAS, the West African subregional body had already attempted peaceful negotiation with the junta but the junta called the bluff, inconsequence of which on Sunday 30th July 2023 the ECOWAS Heads of State met in Abuja, Nigeria, and gave the junta 7 days ultimatum to restore democracy or be forced out by the use of military force. Nigeria was appointed to lead the military intervention.
Article 53 of the UN Chart empowers the United Nations to employ the help of regional organizations such as the ECOWAS to achieve the PURPOSE of the United Nations. This is the foundation of ECOWAS’s powers to invade Niger Republic. And such foundational powers is in addition to the powers given to ECOWAS in that behalf by the African Union.
Two previous living examples of invasion of sovereign states to restore democracy in West Africa are:
1. The 1997 military intervention in Sierra Leone by the Nigerian led forces under General Sani Abacha’s regime in Nigeria. The military intervention was to restore democracy in Sierra Leone when a military junta led by Major Johnny Koroma overthrew the civilization Government led by President Ahmed Tejan Kabbah.
2. In 2017, the Buhari Administration in Nigeria leading the ECOWAS forces invaded the Gambia to restore democracy when the then Military President of the Gambia, Jayah Jammeh refused to handover power to the elected President, Mr Adama Barrow. Jayah Jammeh after weeks of calling the bluff had to go into exile in Equatorial Guinea before the Nigerian led invasion was called off.
These are just two of the examples of invasion of sovereign states FOR THE PURPOSE OF THE UNITED NATIONS as envisaged by international law under the UN Charter.
FALLACY OF THE NOTION OF ABSOLUTENESS OF STATE SOVEREIGNTY UNDER INTERNATIONAL LAW.
Though the general norm of international law is that sovereign states are supreme in their domestic affairs, however, this is not absolute.
I venture to say that the GreenTree Agreement which enforced the International Court of Justice’s judgment on Bakassi Peninsula between Cameroon and Nigeria have put the Nigerian residents of the peninsula under the protection of international law but not under the absolute domestic laws of Cameroon, yet Bakassi is Cameroon territory, and the domestic laws of Cameroon applies in the territory. That notwithstanding, in virtue of the Green Tree Agreement, which, under the provisions of the Statute of the International Court of Justice and the Vienna Convention on the Laws of Treaties 1969, is an international law, Nigerians residing in Bakassi being foreigners, are however, under the Green Tree Agreement, exempted from being subjected to certain immigration laws and some other internal laws of Cameroon.
This demonstrates the fact that in some instances, domestic laws are subject to international law. As a principle, any domestic law of any country that is inconstant with the principle of jus cogens or peremptory norm of general international law is illegal, invalid, null and void, and in such a situation, international law would take precedence over such domestic law. Please refer to the International Humanitarian Law, which, as jus cogens, is binding on all humanity and supersedes any domestic laws that provides to the contrary. Jus cogens are nonderogable international laws that no State or person is allowed to violate.
CONCLUSION
The notion therefore, that each state or independent nation is absolutely independent in its internal affairs including domestic laws, is nothing but ignorance and fallacious.
Nigeria and ECOWAS have the power under international law to invade Niger Republic for the purposes of the United Nations.
About the Author
Manfred Ekpe Esq.
Is a Nigerian born activist, a lawyer, and Legal Adviser to international organizations including the Pan African Parliament. He speaks in international conferences. He is a proprietor of school, author and writer. He has his legal opinions cited widely by world media including the BBC, and published by reputable publishers of legal works. His legal work on international law has been adopted and published by the South Sudan Liberation Movement which is the main opposition Government of South Sudan. Some of his legal works are available on the internet.
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