Many headlines: “ECOWAS plans military intervention in Niger”. But no one informs whether this would be allowed under international law.
In the wake of the military coup in Niger, politicians and the media are silent on whether military intervention by the West African Economic Community would be supported and legitimate under international law. French media in particular are in favor of intervention. The U.S. is concerned about its military base there. Niger is also the seventh largest producer of uranium.
Obviously, international law is invoked à la carte or at will. When Turkey occupies and de facto annexes the border area in Syria, hardly anyone criticizes this blatant violation of the UN Charter. When Russia annexes Crimea, a violation of international law is immediately denounced.
The public is entitled to expect the media to provide information about all violations of the UN Charter – regardless of who commits them.
The most recent example is Niger, a country of 25 million people in the Sahel. For days, media reported a possible military intervention by ECOWAS states in Niger to overthrow the coup militants there and restore the elected president to power.
Since World War II, however, the UN Charter has established the principle of non-interference in the internal affairs of another country. Non-interference is considered a high precept of international law and an essential prerequisite for world peace.
In exceptional cases, military intervention in another country can – to put it somewhat simplistically – only be decided by the UN for humanitarian or peace-threatening reasons.
Plain language and differentiations from international law experts
The independent German-language internet newspaper Infosperber has asked some professors of international law what the situation is with the non-interference requirement in Niger.
Norman Paech, Professor Emeritus of International Law at the University of Hamburg:
“International law is perfectly clear on this issue. In the absence of a mandate from the UN Security Council under Articles 39/42 of the UN Charter, an attack on the territorial sovereignty of a foreign state is illegal under international law. This would therefore also apply to any military attacks on Niger by ECOWAS.
The only exception would be if ECOWAS could rely on requests from Niger for military assistance, for example, from the captured President and a majority of the population in Niger. I think that’s pretty hard to determine at this point. I see popular support more on the side of the coup plotters.
But I assume that ECOWAS will lean on that in the event of an invasion and will probably be supported by France, the U.S., and other countries.”
Rainer J. Schweizer, Professor Emeritus of International Law at the University of St. Gallen:
“Military intervention by some neighboring states in Niger would be permissible only in self-defense of those individual states or after an order by the UN Security Council. Regime change is not yet a reason to intervene armed in another country. Nor are humanitarian reasons apparent.”
Professor Sebastian M. Heselhaus, Professor of International Law at the University of Lucerne:
“I do not have time to research the exact situation in Niger. I gather from the press that the previous president has not resigned and has asked ‘the world’, i.e. also other states, for help. Provided that the previous president continues to be authorized to represent the country, there would therefore be no prohibited military interference, but rather assistance by invitation. If the facts are so, which I cannot judge, that would explain why no one is raising the issue of the legality of an operation: because it is obvious.”
Infosperber question:
The president in Niger has been deposed and no longer has decision-making power. You say that because he has not resigned, he could possibly ask for military help from abroad or from ECOWAS states, which would then be in conformity with international law (such as Assad’s invitation to Russia to help him in Syria).
Would a Saddam Hussein then also have been able to ask Russia for military intervention after his fall in accordance with international law?
Heselhaus response:
“This is more complicated because the UN Security Council has taken action, legitimizing (and legalizing) (certain) measures.”
Infosperber:
Or the illegally deposed Ukrainian President Yanukovych could have requested military assistance from Russia in 2014 in accordance with international law?
Heselhaus response:
“The formation of the government follows domestic guidelines. It could have been illegal at the time (disputed). In practice, however, it must be politically recognized by the other states in contact with the outside world. Under international law, recognition is not a constitutive characteristic: Other states should not be able to deny a state’s legitimacy simply at their discretion. In practice (politics), however, it is weighty, such as the question of political recognition of Taiwan.”
Infosperber:
Doesn’t a coup belong to the category of domestic affairs in which third countries are not allowed to interfere (unless – somewhat simplified – an interference is decided by the UN for humanitarian or peace-threatening reasons)?
Heselhaus response:
“International law and international politics are intertwined here. In purely formal terms, there is no interference if the legal situation is unclear internally and mutual relations are at stake, because these are external matters. But they have an impact internally as well.”
Stefan Oeter, Professor of International Law at the University of Hamburg:
“Military intervention would in principle be a violation of the prohibition of the use of force, and the two classic grounds for exception – authorization under Chapter VII by the Security Council or the right of self-defense – do not apply.
In the case of ECOWAS, however, there are two special features that complicate the case. First, the ECOWAS treaty regime itself contains an authorization for military intervention in the event of serious violations of certain fundamental ECOWAS principles. The Protocol on Democracy and Good Governance of 2001 made explicit standards of democracy and good governance binding on member states, with principles of ‘rule of law with autonomy for parliament and the judiciary, free and fair elections and political participation, civilian supremacy over military forces, and civil liberties’.
ECOWAS has also committed itself to ‘zero tolerance for power obtained or maintained by unconstitutional means’ (Article 1c). Procedurally, these commitments are underpinned by the Protocol Relating to the Mechanism for Conflict Prevention of 1999, which, in response to the ad hoc interventions of the 1990s in Liberia, Sierra Leone, Guinea, etc., vested a newly created Mediation and Security Council with the authority to conduct political and military interventions in member states in the ‘event of serious and massive violation of human rights and the rule of law’ or in the case of an ‘overthrow or attempted overthrow of a democratically elected government’.
Under international law, however – in view of the jus cogens character of the prohibition of the use of force [= norm from which no deviation is permitted] – it is disputed whether such prior authorizations for the use of military force are permissible at all. […][i]
You see from these remarks that the assessment is not quite simple and can be seen differently with good reasons.”
Oliver Diggelmann, Professor of International Law at the University of Zurich:
“Your questions are not easy to answer. On the contrary, the subject matter is demanding. It cannot be answered seriously in a few sentences. The problem is the relationship between the UN system and the regional security architecture.”
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FOOTNOTE
[i] Professor Stefan Oeter adds:
“Similarly controversial is the recourse to Chapter VIII of the UN Charter, specifically Art. 53 UNC. This gives regional collective security organizations (among which ECOWAS is also counted) a role in the system of international peacekeeping, including the implementation of coercive measures. However, Article 53(1) of the UN Charter expressly binds the implementation of coercive measures by regional arrangements to prior authorization by the Security Council (which does not exist here).
In the practice of the SC and ECOWAS, a clearly shifted handling of this provision has emerged over time, namely first intervention by ECOWAS on the basis of its own decisions, and only subsequently approval of this intervention by the Security Council. This is clearly contrary to the wording of Article 53 of the UNC (“The Security Council shall, where appropriate, draw upon such regional agreements or bodies to implement coercive measures under its authority. However, no coercive measures shall be taken on the basis of regional agreements or by regional bodies without authorization by the Security Council”), but at the same time there is probably agreement that Art. 53 UNC is ultimately a misconstruction and that the practice followed makes more sense than the procedure provided for in the provision. One could interpret this as an interpretative further development of Art. 53 UNC in the sense of a ‘subsequent practice’, but with the problem that here a contrary wording is corrected, which would actually require a formal treaty revision.”