On July 26, 2023, a military junta ousted the democratically elected President of Niger, Mohamed Bazoum, and took him hostage. This coup d’état is one the latest of many coups that have plagued multiple African nations over recent decades. Since 1950, almost half of the coup attempts in the world have taken place on the African continent. Indeed, there have been eight successful coups in the Western and Central African regions since 2020 – and four attempts since June 2023 alone. The coup in Niger has sparked immense criticism, especially because of the coup’s effect on a nation that just celebrated its first-ever peaceful democratic transition with a democratically-elected President.
In response to the coup, the Economic Union of West African States (ECOWAS) suspended Nigerien participation. ECOWAS has even threatened a military intervention if the junta does not restore Bazoum to power. While such action has not taken place as of time of writing, the question still remains whether an ECOWAS intervention would be permissible under international law.
The Nigerien Coup and International Response
This past July 26, less than two years after Niger celebrated its first democratic peaceful transition of power, General Abdourahamane Tchiani, at risk of losing his position of influence, formed a military junta that detained President Bazoum and announced they were in control of Niger. In the weeks following the coup, General Tchiani appointed new ministers for state offices and, at the end of August, announced that the government would be in a three-year transition period.
The coup immediately sparked widespread international condemnation. France, a longtime ally and Niger’s former colonial power, suspended foreign aid to Niger and withdrew all forces from the country. The European Union and other international organizations also suspended aid to Niger. Many, including the United Nations Security Council, called for an end to the coup and demanded the immediate unconditional release of President Bazoum.
ECOWAS held an emergency meeting in Abuja in early August 2023 and suspended Nigerien participation. ECOWAS also called upon Member States to enforce sanctions against Niger, which have largely been imposed. At the end of August 2023, ECOWAS contemplated using military force to end the coup, with the Commissioner even threatening a “D-Day.”
International Law Framework Governing ECOWAS’ Potential Intervention
Article 2(4) of the United Nations Charter prohibits the use of force or threat thereof with three important exceptions: first, a state may consent to another state’s use of force within their borders. Second, a state may use force in self-defense pursuant to Article 51 of the Charter. Third, a state may use force pursuant to Security Council action taken under Chapter VII of the Charter. Since the coup has occurred entirely within Nigerien borders and since the Security Council has not authorized the use of force, consent is the only applicable exception to the current situation.
The issue with relying on consent is that it is unclear who must consent – the military junta, acting as the Nigerien government, or the now-defunct government of President Bazoum. International law primarily applies the “effective control” test to determine whether a declared government should be granted international recognition. That is, whichever government has effective control over the given territory should gain international recognition. Under this approach, the junta should be recognized as the proper government of Niger because of the physical control that the junta now has. However, in recent decades, there has been a trend against recognizing governments that came to power through unconstitutional manners. In its July 28 press statement, the UN Security Council referred to Bazoum as the “legitimate government of Niger.”
President Bazoum penned an op-ed in the Washington Post on August 3, 2023, asking for international support to end the coup. Under an approach recognizing him as the legitimate leader of Niger, one could interpret the op-ed as an invitation to use force in Niger to restore democratic authority. However, since the op-ed lacks a clear invitation to use force, it would require a liberal interpretation of the request to use as a basis for a military intervention.
Previous Consent
Regardless of which government is recognized, some commentators urge that Niger had previously consented to an ECOWAS use of force in the State. In 1999, when Niger was still an active Member State, ECOWAS adopted the Lomé Protocol. Article 25 of the Protocol authorizes ECOWAS to militarily intervene in its member states “in the event of the overthrow or attempted overthrow of a democratically elected government.” However, anticipatory intervention clauses in regional treaties are not generally regarded as providing an independent legal basis for consent to use force separate from a stated intent by a currently recognized government.
However, it is a long-standing international legal rule that consent can be revoked at any time. Anticipatory intervention clauses seemingly subvert this principle by allowing previous regimes to tie the hands of future regimes. However, if Bazoum is still recognized as the leader of the legitimate government, then Niger still has the ability to revoke consent by virtue of Bazoum.
Conclusion
ECOWAS finds itself in between a rock and a hard place as a regional organization seeking to reinforce stability in a region that has been fraught with instability for decades. On one hand, a military intervention that successfully restores President Bazoum’s democratic authority can pave a path forward for Nigerien democracy and signal greater democratic success in West Africa. On the other hand, an intervention may stir discontent with the regional organization and spark international condemnation – indeed, two ECOWAS members have expressly denounced a potential military intervention. Nevertheless, the decision to intervene or not will have a ripple of consequences. Allowing the coup to govern signals discontent with French influence over the region, which is partially to blame for the recent uptick in coup attempts. It also signals closer ties with Russia and the Wagner Group, which is filling the void left by France and others that have left the region. While international law does not clearly bless a military intervention, ECOWAS can make a strong argument that Bazoum has consented to the use of force in Niger to end the coup. Restoring Bazoum to power would signal that a military junta can’t simply override a democratic vote, paving the way for a brighter future for democracy in West Africa.
Author Biography: Austin Newman is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPD) and a J.D. candidate at The George Washington University Law School. He has a Bachelor’s Degree in Political Science from Christopher Newport University.
Editors: Alexander Goodrich & Dahlia Mohamed.