Niger, Mali and Burkina Faso’s withdrawal from ECOWAS: The Revised ECOWAS Treaty and withdrawal with ‘immediate effect’

Author: Marko Svicevic
Lecturer and Researcher, Centre for International Humanitarian and Operational Law, Faculty of Law, Palacky University, Olomouc

On 28 January 2024, the military leaders of Niger, Mali and Burkina Faso simultaneously announced their withdrawal from the Economic Community of West African States (ECOWAS) with ‘immediate effect’. Although the move is not all too surprising given rising tensions between the bloc and the three States, it is a historical and significant development in the region. All three States were suspended from ECOWAS following military takeovers; and they had faced varying degrees of sanctions in the last three years.

Established in 1975 as a regional economic community, ECOWAS has 15 Member States and a combined population of nearly half a billion people. In contrast to some of the other African Union’s (AU) Regional Economic Communities (RECs), the ECOWAS treaty law framework is one of the most comprehensive. ECOWAS maintains a number of significantly developed institutional structures and dozens of treaties regulating, trade, natural resources, human rights and the environment. Most comprehensive are those relating to regional peace and security, having adopted treaties concerning non-aggression; mutual defence; democracy and good governance; small arms and light weapons; and a conflict prevention and management mechanism (see here, p. 289 – 341). In 1993, the bloc also revised its founding treaty, placing a renewed focus on matters of regional peace and security.

Despite its refocused outlook and six previous military interventions into its Member States, ECOWAS and the broader West African region have encountered a resurgence in military coups. ECOWAS sanctioned and suspended coup-hit States, including Mali, Niger, Burkina Faso and Guinea. In response to threatened military intervention by the bloc, on 16 September 2023, Mali, Niger and Burkina Faso signed the Liptako-Gourma Charter – a mutual defence pact establishing the Alliance of Sahel States. The suggestion that these States were therefore drifting ever further from ECOWAS was clear even before they announced their intention to withdraw.

Withdrawal under the ECOWAS Revised Treaty

The Revised ECOWAS Treaty of 1993 is the organisation’s constituent document, detailing its establishment, principles and functions. All three States ratified the Revised Treaty: Burkina Faso and Niger in 1994 and Mali in 1995. Like many other treaties establishing international or regional organisation, the Revised Treaty includes provisions on withdrawal. Article 91(1) states that:

‘Any Member State wishing to withdraw from the Community shall give to the Executive Secretary 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.’

Article 91(2) goes on to state that during this one-year period of notice, Member States shall continue to comply with the provisions of the treaty and remain bound to discharge their obligations under the treaty.

The provisions of the Revised Treaty are relatively straightforward. ECOWAS Members, as sovereign States, may withdraw from the treaty if they so choose. The only procedural requirements laid down are that Member States intending to withdraw must give one year’s notice in writing to the Executive Secretary. Until the one-year period lapses, these Member States remain bound by the provisions of the Revised Treaty and must comply with their obligations under the treaty. There is therefore no possibility of withdrawal with ‘immediate effect’.

Withdrawal under the Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties (VCLT) – which governs various aspects relating to the functioning, modification and interpretation of treaty law, provides for withdrawal in Article 54. It states that a party may withdraw from a treaty ‘in conformity with the provisions of the treaty.’ In cases where a treaty does not include a withdrawal clause, withdrawal may only take place if it is established that the parties to the treaty intended to admit the possibility of withdrawal or the right of withdrawal may be implied by the nature of the treaty. Notably, even in such cases, parties to a treaty must give no less than 12 months’ notice of their intention to withdraw. This suggests that even under the VCLT, the possibility of terminating a treaty by withdrawal with ‘immediate effect’ does not exist.

Withdrawal from other ECOWAS treaties

A question open to debate is whether, by virtue of its withdrawal from the Revised Treaty, the States in question automatically withdraw from all other ECOWAS treaties they had previously ratified. The Revised Treaty does not indicate the position in this regard. Some of the ECOWAS treaties provide for their own withdrawal, but do not indicate whether withdrawal from ECOWAS as a whole automatically results in a withdrawal from other ECOWAS treaties. For example, the Protocol Relating to Mutual Assistance on Defence of 1981 in Article 23(1) provides that Member States wishing to withdraw from the Protocol shall give the Executive Secretary one year’s written notice. Similarly, Member States remain bound by their obligations under the Protocol until that one-year period has lapsed. A literal interpretation suggests that in addition to withdrawal from the organisation itself, States would have to withdraw from individual ECOWAS treaties. The position is complicated where such treaties do not expressly provide for withdrawal themselves.

With that said however, it is difficult to see how Member States could withdraw from the organisation itself without also terminating their obligations under other ECOWAS treaties. The broader ECOWAS treaty framework primarily bases cooperation among ECOWAS Member States, correspondingly granting rights and obligations only to these States. Non-ECOWAS Member States cannot reasonably continue fulfilling their obligations under these treaties without being ECOWAS members.

Can suspended members withdraw from ECOWAS?

Notably, Mali, Niger and Burkina Faso remain suspended from the organisation. This brings into question whether suspended members – whose participation in ECOWAS is intentionally limited by the organisation, can terminate their obligations by withdrawing from the organisation. It is worth noting that sanctions for non-fulfilment under the Revised Treaty are themselves limited. Article 77 provides for, among others, suspension of new Community loans or assistance, suspension of voting rights, and suspension from participating in the activities of ECOWAS. The sanctions imposed on the three States thus far have been primarily financial in nature. For example, on 9 January 2022, ECOWAS recalled its Ambassadors to Mali, closed land and sea borders to Mali, froze Malian State assets, and suspended all financial and commercial transactions with Mali. Similarly, ECOWAS suspended Guinea in all governing bodies following the military coup there.

The suspension of these States however does not in and of itself limit their sovereignty; this much is confirmed by the limited measures ECOWAS itself may take against them. While States inevitably restrict their sovereignty by ratifying treaties and entering into regional or international organisations, there is little to indicate that under the Revised Treaty their competence to withdraw from ECOWAS has been limited. Even if one considers the provisions of the ECOWAS Protocol on Democracy and Good Governance which provides sanctions when ‘democracy is abruptly brought to an end’ (Art. 45(1)-(2)), its impact remains limited. As sovereign States under international law, they retain the right to enter into and withdraw from organisations and treaties alike. It is precisely on this basis that a change in government (even one by military coup or revolution) does not discharge the State from existing obligations under treaties it is a party to. As such, Mali, Niger and Burkina Faso remain bound by the ECOWAS treaty law framework.

Finally, it is worth noting that under the law of international organisations, suspension of a State’s activities in an international organisation merely deals with its membership in that organisation. The suspension of membership in an organisation does not impact on the sovereign character of the State subject to suspension. As such, even States suspended from an organisation retain their right of withdrawal.

Concluding remarks

That States in international law have the right to withdraw from international and regional organisations is without dispute. The Revised ECOWAS Treaty of 1993 makes clear provision for the withdrawal of Member States. While the wisdom of such a withdrawal may be debatable, its legality is well founded. With that said, neither general treaty law nor the ECOWAS treaty framework provides for withdrawal with immediate effect. Procedurally, Mali, Niger and Burkina Faso are required to give one year’s notice to the ECOWAS Executive Secretary. Only once this period has lapsed are these States discharged from their obligations under the Revised Treaty. For the time being, both the ECOWAS Commission and the Authority of Heads of State and Government have merely noted the withdrawal, without directly addressing the issue of ‘immediate withdrawal’.

About the Author:

Marko Svicevic is a Lecturer and Researcher at the Centre for International Humanitarian and Operational Law, Faculty of Law, Palacky University in Olomouc