The Legal Aspect of the “Immediate Withdrawal” of Niger, Mali and Burkina Faso from ECOWAS

The Economic Community of West African States (ECOWAS) was set up in May 1975 by fifteen States – Benin, Burkina Faso, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Mauritius, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. Cape Verde joined the community in 1977 to bring the number to sixteen. In 1999 Mauritania withdrew from the bloc to bring its members to its founding level of fifteen. The 1975 Treaty was revised in 1993 and replaced with the Revised Treaty of that year. 
Membership of the Community has remained at fifteen since the exit of Mauritania until Burkina Faso, Mali and Niger, jointly announced their “immediate withdrawal” on Sunday 24 January 2024. Incidentally, these three member States, following military takeover of government (Mali, 2020 and 2021; in Burkina Faso, 2022; and in Niger, 2023) have been under severe sanctions, including suspension, from ECOWAS.  The sanctions were imposed on the States as a measure of compliance with the Community’s rule on zero tolerance for unconstitutional change of government.
It cannot be said to be a complete surprise that this has happened. It is even happening later than was expected, given the posture these Juntas in the three States have so far maintained towards ECOWAS, especially since the highly criticised manner ECOWAS reacted to the coup in Niger. The three member States have openly been forging closer ties against ECOWAS and have indeed severally undermined ECOWAS since 2023. One example is the joint statement by Burkina Faso and Mali indicating their intention to fight alongside Niger should ECOWAS go ahead with its threat to use military action in the Niger. https://www.voanews.com/a/mali-burkina-faso-pledge-assistance-to-niger-junta-/7241666.html. The other is the 16 September 2023 mutual defence pact – the Alliance of Sahel States  – between Burkina Faso, Mali and Niger. https://www.france24.com/en/live-news/20230916-mali-niger-burkina-sign-mutual-defence-pact. The States have also been vocal over their belief that “There is bad faith within this organisation,”.
Remarkably, unlike Mauritius that gave no reason for its exit, Niger, Mali and Burkina Faso, in further show of solidarity and determination to undermine ECOWAS, issued a joint statement of their withdrawal from ECOWAS.  In the statement, the States categorically stated that they “decide in complete sovereignty on the immediate withdrawal” from ECOWAS.
The Legal Implications
The starting point is article 91 of the 1993 Revised Treaty of ECOWAS. Under the article:
“any Member State wishing to withdraw from the Community shall give to the Executive Secretary [now the President of the ECOWAS Commission] 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. 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”.
It is clear from this provision that all the parties to the Revised Treaty, including the three states of Burkina Faso, Mali and Niger,  agreed that a one-year written notice of withdrawal is a condition precedent to withdrawing from the community. 
However, and as already noted above, the decision to withdraw from the bloc was issued on the 28 day of January, 2024 and the withdrawal, according to the statement, is “immediate”. On its part, the ECOWAS Commission issued a statement that it has not been notified of the countries’ decision to quit the bloc, emphasising that its (ECOWAS) protocol provides that withdrawal takes up to one year to be completed. It further stated that “Burkina Faso, Niger and Mali remain important members of the Community and the Authority remains committed to finding a negotiated solution to the political impasse.”
An intervention on the legality of the “immediate withdrawal” must call in aid general international law as reflected in the Vienna Convention on the Law of Treaties, 1969 (VCLT), to which all three States are parties. The relevant provisions of the VCLT I would like to highlight are articles 42, 54, and 67.
Article 42 requires that the withdrawal of a member State the ECOWAS Treaty may take place only by the application of the provisions of the treaty or of the VCLT. Article 54 stipulates that the withdrawal of a party may take place in conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States. Article 67 requires that withdrawal be carried out through an instrument communicated to the other member States. It further requires the instrument to be signed by the Head of State, Head of Government or Minister for Foreign Affairs, and for the representative of the State communicating it may be called upon to produce full powers.
If, as the Commission has said, the Commission is yet to receive a formal withdrawal notice from any of the member States, questions will certainly be raised as to whether they have given the requisite notice. This cannot but discredit their “immediate withdrawal” expectation. It is clear from their statement that they are not relying on any ground in law (which I doubt exists) that entitles them to “immediately” withdraw from a Treaty of this nature. It is abundantly clear from the ECOWAS Treaty and customary international law as incorporated in the VCLT, that there is no room for such immediate withdrawal in the current state of development of international law.  
It is correct to say that the States have not actually given any notice of withdrawal, nor can their immediate withdrawal hold any legal ground.  Could it be then that the States are merely grandstanding with a view to forcing a negotiation with ECOWAS? Could it mean that they are prepared for a legal showdown with ECOWAS. Unfortunately, neither of the scenarios is good for ECOWAS, though, from all indications, judging from the recent conducts of the three States, it is more likely that they are pulling their States out of the ECOWAS, irrespective of what the Treaty says.
There have indeed been frustrations on both sides, especially, it would seem, on the side of the three States, Niger in particular. Only recently, Niger invited the ECOWAS Court to determine the legality of some extra-legal sanctions imposed on it by the ECOWAS Authority in Republic of Niger v. The Authority of Heads of State and Government, ECOWAS Application No. ECW/CCJ/APP/34/23. But the court shut its doors against Niger, holding that it lacked the capacity to invoke its jurisdiction to question some of the sanctions imposed by the Authority, which sanctions are really not backed by any ECOWAS law, because it is under suspension.  For the avoidance of doubt, the joint “immediate withdrawal” statement accused ECOWAS of failing to support their fight against “terrorism and insecurity”, while imposing “illegal, illegitimate, inhumane and irresponsible sanctions”. I believe that was a missed opportunity for the court to wade into the stalemate.
This is not the place to rehash the various condemnation by scholars and analysts of the totalitarianism of the ECOWAS Authority’s approach to the Niger coup; it must however be said that the Authority should have handled it better. This is particularly because the three member States seemed to be united against a common enemy – France. In both their utterances and actions, the juntas have not hidden their displeasure over the activities of France in their States, in particular, and the region, in general. While pursuing the legitimate aim of returning the States to civil rule, which ECOWAS is entitled to do, the Authority should have acknowledged the concerns of the States over the activities of France. This is perhaps one of the reasons why the States now feel they have no future in ECOWAS. In fact, it is quite telling that the States accused ECOWAS of acting “under the influence of foreign powers, betraying its founding principles, has become a threat to its member states and its population”. 
Consequences
If the States are minded to be law abiding, the combined provisions of article 91 of the Revised Treaty and article 70 of the VCLT, are there to the fact that they can only be  released from the obligation to further perform the treaty, after one year from the date of giving notice to the Commission. That is assuming they gave the appropriate notice already. The provisions are there to further remind them that they remain bound by any right, obligation or legal situation of the parties created through the execution of the Revised Treaty, prior to their withdrawal.
However, it is not difficult to predict that the States are not prepared to honour any obligation towards the ECOWAS from this point, having really refused to meaningfully engage with ECOWAS for some time now. It is a good thing that ECOWAS has said that the “Authority remains committed to finding a negotiated solution to the political impasse,”. Hopefully, it would match words with action by taking urgent diplomatic steps towards resolving the situation before more damage is done to the Community. But the most realistic approach, while negotiation is being engaged is for ECOWAS to take this announcement as a formalisation of what the three States have actually been doing. ECOWAS should as well begin to prepare for how it would handle the consequence of this “immediate withdrawal” just in case diplomacy fails again. It does not seem to me that the States are prepared to abide by the rules of international law that prescribed what follows from withdrawal. It does appear fitting for ECOWAS to begin to withdraw its personnel, if any remains in the States, or, in the alternative, to put measures in place for their protection. 
Nevertheless, the three States must bear in mind that their duty goes far beyond those imposed by the ECOWAS Treaty. They must bear in mind that they have a duty under article 43 of the VCLT by which their withdrawal from the ECOWAS Treaty does not in any way impair their duty to fulfil any obligation embodied in the treaty to which they would be subject under international law independently of the ECOWAS Treaty.
Niger, Burkina Faso and Mali must also bear in mind that there will be grave implications for the movement of their nationals within the region, given that they have since been part of the ECOWAS common passport that enables free movement within the region. As the sanctions already suspended the movement of goods to and from the States to other ECOWAS States, the Juntas appear to have only the movement of persons to worry about. This, indeed, should be a huge worry for both sides!
Conclusion
This and other problems that have plagued ECOWAS over the last few years cannot but call attention to the need for ECOWAS to reassess its policies and actions. One aspect that it needs to reappraise is its approach to the intervention in the internal affairs of member States. It is difficult to agree that ECOWAS has in recent times satisfactorily performed this function. The double standards even in its application of sanctions which it sometimes do in wanton disregard of the law is an area it really needs to look into.
ECOWAS must reinvent itself in a manner that makes it more beneficial to individuals within the national sphere of member States. The reason the three member states have successfully rebuffed ECOWAS in the recent past is because they believe they can do without ECOWAS sand have indeed done without it since their suspension from the Community.  The ECOWAS Commission must start playing its role as it should.      
 
 Amos Enabulele
Professor of Public International Law
DG, Centre for Community & Oceanic Law