ECOWAS cannot declare war against Niger without UN Security Council approval, says Falana

As the 7 days ultimatum given by ECOWAS to Niger military junta to hand over to the democratically elected government expires, tension continues to build over possible military confrontation with the military junta in Niger Republic.

However, the Nigerian Senate, Catholic Bishops, Muslim clerics and prominent Northern figures have cautioned the current ECOWAS Chairman and President of Nigeria, Bola Ahmed Tinubu against staging war in Niger Republic.

Similarly, a human rights lawyer, Mr Femi Falana (SAN) has warned that any declaration of war without authorisation of United Nations (UN) Security Council would be illegal, unless it concerns a situation of self- defence.

In a statement issued by Falana titled ‘Legal Requirements for Declaration of War Against Niger Republic’, he stated that 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.

He 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.

The statement reads “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 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”.