ECOWAS Withdrawal and the law of treaty withdrawal

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On 28 January 2024, the governments of Burkina Faso, Mali and Niger issued a coordinated joint communiqué on national television in their respective countries announcing their withdrawal from the Economic Community of West African States (ECOWAS). All three countries had been under political and economic sanctions from ECOWAS following coup d’états and unconstitutional changes of government.  Commentators on West Africa observed that these withdrawals seem designed to undermine ECOWAS’ authority. Multiple crises are affecting all three countries, including an ongoing an insurgency from jihadist groups in the Sahel region, and in their joint communiqué all three States cited the inability of ECOWAS to assist them as grounds for their withdrawal.

Article 91 of the of the revised ECOWAS Treaty sets out that States wishing to withdraw must ‘give to the Executive Secretary one year’s notice in writing’ and during that period a ‘Member State shall continue to comply with the provisions of this Treaty.’ However, on 7 February, the government of Mali issued a statement saying it would not follow the one year wait period in Article 91 and it would ‘withdraw without delay from ECOWAS due to the violation by the organization of its own texts, as well as the other legitimate reasons.’  The rest of this post looks at whether this position is any way legally tenable.

Withdrawal Clauses

Article 54 of the Vienna Convention on the Law of Treaties (VCLT) states that withdrawal from a treaty may take place in ‘conformity with the provisions of the treaty’ which entails that where there is a withdrawal clause it should be used to withdraw from a treaty. Most treaties concluded since 1945 have withdrawal clauses. Duration, or “wait” provisions, regulating the time between the depositary receiving a notification of denunciation by a state party and the termination of legal obligations as withdrawal becomes effective, are a relatively common feature of withdrawal clauses. Of the treaties with withdrawal clauses a plurality require a wait period of a year between denunciation and withdrawal becoming effective, with Weapons and Disarmament treaties being the only type of treaty where the majority of wait provisions are under a year in length (Cowell, 2023:91). In 1999 Mauritania formally announced its withdrawal from ECOWAS, in part out of concern about the organisation’s plans for a West African currency, but in line with Article 91 its withdrawal did not become effective until 2000.

Withdrawal clauses are indivisible from the rest of the provisions in a treaty and, as Article 42(2) of the VCLT sets out, the ‘the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty.’ It is not open to a state to claim that their original act of consent to that treaty is invalidated by its issuing of a notice of denunciation, as a withdrawal clause specifically constrains a state in respect of future actions. Burkina Faso (under its old name Upper Volta), Mali and Niger had all become party to the original ECOWAS Treaty of 1975 and would have been aware of, and had consented to, its withdrawal clause, which were also incorporated, unmodified, into the revised 1993 ECOWAS Treaty. There is no basis in customary law for the existence of an independent right to resile from a treaty that can operate outside a treaty’s express withdrawal clause. Even in circumstances where there is no withdrawal clause, as the Inter-American Court of Human Rights held in Ivcher-Bronstein v Peru, Article 56(2) of the VCLT imposes a 12-month wait provision that under the ‘requirements of good faith … according to the law of treaties’ means there is no ‘possibility of a termination or “release” with “immediate effect”’ (para. 53).

If there is no way of affecting an instantaneous termination of obligations to the ECOWAS Treaty, there are two additional possibilities suggested by the Malian statement of 7 February: that ECOWAS actions in suspending the three States and imposing various sanctions on them constituted a material breach of the treaty on the part of ECOWAS institutions (engaging Article 60 of the VCLT); or that the current crisis and ECOWAS actions constitutes a change of circumstances (as envisaged by Article 62 of the VCLT). These could provide a route for the departing States to avoid the one-year duration provision. 

Suspension and Sanctions as a Breach of Obligations by ECOWAS

The current wave of suspensions – Burkina Faso in January 2022, Niger in August 2023  and Mali in 2021 (where the sanctions were eased in July 2022 following a negotiated pathway to return to democratic rule), all took place under the  2001 ECOWAS Protocol on Democracy and Good Governance  (the Protocol). This contains what can be described as a series of anti-coup provisions, such as prohibiting States from altering election law in the six months prior to an election and allows for the suspension of States from ECOWAS if there is an unconstitutional transfer of power. The Protocol was ratified by all three parties and came into force in 2005 and contains its own withdrawal clause – interestingly the Protocol and ECOWAS Treaty withdrawal clause are not interlinked. Niger had previously been suspended from ECOWAS under the Protocol in 2010 after a coup following an attempt by the then-President to remain in office past his term limit, but was readmitted in 2011 following a transfer to civilian rule.

Of course, a lawful exercise of powers under the Protocol could not constitute a ‘material breach’ by ECOWAS as defined in Article 60(3)(b) of the VCLT, entitling the three countries to suspend their participation in ECOWAS. It could be argued that ECOWAS suspensions are contrary to the object and purpose of the ECOWAS treaty under Article 2(a) to ‘promote co-operation and integration’ and ‘maintain and enhance economic stability’. However, the Protocol is expressly clear that ‘ECOWAS may impose sanctions’ where ‘democracy is abruptly brought to an end by any means’ (the Protocol Article 45(1)). Even if the argument was that ECOWAS was not negotiating with the suspended state, or was not recognising its transition to democracy, this would still be unlikely to justify a breach justifying termination. In the Gabčíkovo-Nagymaros Project the International Court of Justice (ICJ) held that only a ‘material breach’ would justify termination and that a violation of ‘other rules’ would not necessarily justify termination, even though it may justify countermeasures from the affected state (para 44).

Change of Circumstances

The second argument advanced in the joint communiqué from the withdrawing States was that ECOWAS did not ‘provide assistance ….for our existential fight against terrorism and insecurity’ referring to the ongoing battles all three States are facing with the Islamic State in the Sahel . This is unlikely to qualify as a fundamental change of circumstances as defined by Article 62(1) of the VCLT, in relation to ECOWAS membership, because the claim is not that the security situation changed the circumstances on which these States entered either the ECOWAS Treaty or ratified the Protocol, but rather is a political dispute about the provision of assistance. To invoke changed circumstances as justifying termination it is necessary to show that the new circumstances ‘have resulted in a radical transformation of the extent of the obligations still to be performed’ (ICJ Fisheries Jurisdiction para. 43). The obligations to be performed in this case were to agree a timetable to democratisation and to restore constitutional rule, neither of which have a demonstrable causal connection to the security situation. In September 2023 the three withdrawing States appear to have created an alternate regional grouping: the Alliance of Sahel States. According to some analysts, withdrawal seems to be a way of boosting this cooperation mechanism and also distancing themselves from ECOWAS and France and promoting closer military ties with Russia. This is a separate political action on the part of the three withdrawing States and is not a situation of the sort covered by Article 58 of the VCLT, where parties may conclude an agreement suspending the operation of a treaty. There is no provision in either the ECOWAS treaty or the Protocol to do so and arguably the Alliance of Sahel States has been created to circumvent the object and purpose of the Protocol, by forming a separate military alliance without returning to democratic governance.

Wider regional problems?

There is a school of thought that instruments like the Protocol are too politically inflexible and ECOWAS’ overall political decision-making has come in for criticism. However, the Protocol and ECOWAS Treaty are still legally binding instruments and ‘wait’ provisions provide an important function, giving time for disputes to be resolved, property claims to be dealt with and arrangements for protecting individual rights to be put in place, prior to termination of a treaty coming into effect. Asserting the right to instant termination, which has no obvious legal basis, risks a much broader threat to the international rule of law in the region, especially when ECOWAS contains a complex array of trading agreements and is linked to the regional monetary union.

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