The pertinent question to ask in this instance is whether a regional organization can legally resort to the unilateral use of force in order to restore democracy in any of its Member States? In other words, how far can a regional organization like ECOWAS go in ensuring constitutional order in its Member States? Can it legally circumvent UN Security Council authorization in its bid to use force to achieve benign aims in any of its member states? The answer to this question is becoming increasingly important in light of recent happenings on the African continent.
Article 2(4) UN Charter
In discussing this issue, the starting point of our investigation must be Article 2(4) of the United Nations Charter which is widely known to embody customary international law on the use of force. This provision of the Charter urges all member states of the UN to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” Some Scholars have argued that Article 2(4) only prohibits the use of force against the “territorial integrity and political independence of States.” As such, a use of force which does not have violation of the territorial integrity and/or political independence of a State as its primary aim is supposedly permitted under the UN charter. The implication of this argument is that a unilateral use of force for benign purposes- like restoration of democracy, for instance- is not prohibited by the Charter. With respect, nothing can be further from the truth.
To understand Article 2(4), it is important to examine what the true intention of its framers was? It must be remembered that the UN Charter itself was put together following the failure of the League of Nations Covenant to prevent the Second World War. As evident in the preamble to the Charter, a fundamental purpose of the United Nations is to maintain international peace and security in order to “save succeeding generations from the scourge of war.” In achieving this objective however, the framers were careful not to leave any room for doubts as to who should ensure the maintenance of international peace and security on behalf of the international community. They thus saddled the Security Council with primary responsibility for this task.
By specifically saddling the Security Council with this task, the framers avoided creating a loophole that would have led to the chaotic emergence of several centres of power if the responsibility for the maintenance of international peace and security had not been specifically assigned to the Security Council. The assignment of the responsibility for international peace and security to the Security Council was thus deliberate. As a body consisting of the world’s principal civilizations, the Security Council is ordinarily considered to be better equipped to make informed and responsible decisions regarding peace and security enforcement throughout the world.
Under Chapter VII of the Charter, the Security Council is the only organ of the UN empowered to use all means available to it to pursue enforcement actions in furtherance of its primary responsibility under the Charter. All of the above point to the fact that the intendment of Article 2(4) of the Charter is to prohibit the use of force by any other entity apart from the UN Security Council. To be legal, any use of force by a State or a group of States must be authorized by the Security Council of the UN.
In accordance with the effet utile rule (the effectiveness principle) often used to interpret international treaties such as the UN charter, when two or more possible interpretations conflict, the one that best serves the recognizable purpose of the treaty prevails. It is unhelpful to resort to a narrow reading of Article 2(4) when it is well known that any frivolous exception to the norm prohibiting the unilateral use of force by a State or a group of States against other State(s) is likely to create a “legion of loopholes” in the norm and render it vulnerable to abuse.
Not only is Article 2(4) of the Charter regarded as a cornerstone of the UN system, it has, over the years acquired a jus cogens character. In other words, it has become a peremptory norm of international law from which there can be no derogation. This much, has been emphasized by the International Court of Justice in a string of cases, including its seminal decision in the 1986 Nicaragua case.
Regional Organisations and the Use of Force
It is true that Chapter 8 of the UN Charter encourages the use of regional arrangements to facilitate international peace and security. But the Charter is very emphatic in its insistence that enforcement actions undertaken by regional organisations must carry Security Council authorisation. Even after securing Security Council authorisation, a regional body undertaking enforcement action must keep the Council abreast of every facet of the enforcement operation. The Charter does not in any way contemplate autonomous or unilateral enforcement actions by regional organisations without Security Council endorsement. In effect, as far as enforcement actions are concerned, the intendment of the Charter is to keep the Security Council seized of such matters at all times with the aim of ensuring that the permission to use force is not abused.
It is therefore very clear that the architecture of the UN Charter is designed in such a way that enforcement actions are meant to be undertaken only under the command of the Security Council. States and Regional Organizations may only undertake enforcement actions with the authorization of the Security Council.
Where then does this leave us? Are regional organizations completely barred from taking proactive measures such as the restoration of democracy in their member States during periods of crisis? Certainly not. The point of this article is that there is no such right to unilaterally use force to restore democracy without the requisite Security Council authorisation. International law does not recognize the unilateral use of force across national lines, except in lawful self-defence as specified in Article 51 of the Charter. Neither human rights nor democracy or self-determination constitute acceptable legal grounds for waging unauthorized war. Unauthorised enforcement actions for whatever reason are illegal under the Charter.
The ECOWAS-Gambia Imbroglio
ECOWAS is a regional organization made up of States, and its military wing is made up of troops provided by its member States. By providing and authorizing troops to undertake a clearly illegal assignment, each of these States and ECOWAS is deliberately violating a cardinal provision of the UN Charter. The Charter obliges ECOWAS as a regional organization to ensure that its activities are consistent with the purposes and principles of the United Nations. Article 53 of the Charter specifically states that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Thus, ECOWAS cannot embark on an activity or a course of action that clearly breaches the Charter.
From our discussion above, the only body that is authorised to make a definitive assessment as to the existence or otherwise of a “threat to the peace, breach of the peace or act of aggression” in any State is the Security Council of the United Nations. It is also the only body that can use force or authorize its deployment in situations such as the one currently playing out in Gambia. While it is true that there have been instances of unauthorized use of force in the past, such instances are few and far between, and they do not in any way render indeterminate, the position of international law on this matter. Contemporary jurisprudence of international courts and tribunals supports this assertion. The example of the 1998 ECOWAS intervention in Sierra Leone is highly unfortunate and cannot be a precedent for unauthorised interventions. Indeed it has been widely criticised and condemned in the literature. And to underscore the illegal nature of the Sierra Leone example, the same ECOWAS sought Security Council authorisation for its subsequent use of force in Cote d’ivoire during the struggle to remove Laurent Gbagbo from office.
We agree that there is no constitutional justification for Yayah Jameh’s seemingly desperate bid to hang on to power. We also agree that everything should be done, within the confines of the Gambian constitution, to ensure that the President-elect, Mr Adama Barrow is sworn in on the 19th of January 2017. The point being made in the previous paragraphs, however, is that ECOWAS cannot unilaterally deploy force to uphold or restore democracy in Gambia, as is being threatened. Such use of force must be authorized by the only body legally mandated to do so, that is the Security Council of the UN. Anything short of this is an illegality that would set the international community on a slippery slope from which it may never recover.
Hopefully, reason will ultimately prevail and Mr Jameh will bow to the wishes of the Gambian people by handing over to Barrow on the 19th of January. Should he fail to do this however, it will be the duty of the UN Security Council, perhaps acting in concert with ECOWAS and the African Union, to adopt and activate the measures outlined under Chapter 7 of the UN Charter with the ultimate aim of upholding and restoring democracy in Gambia.
Conclusion
Article 2(4) of the UN Charter is not indeterminate. It clearly prohibits unauthorized use of force against the territorial integrity or political independence of any State. This provision of the Charter must be given the broadest interpretation possible in light of other provisions of the Charter which clearly establish the Charter’s abhorrence of any forcible intervention by any entity without Security Council authorization. Notwithstanding the Charter’s support for the use of regional organizations in addressing regional conflicts, such organizations are nevertheless required to conduct all enforcement actions in accordance with established principles of the United Nations Charter. One of such principles is the requirement of Security Council authorization for all regional enforcement actions.
Although the strategic role of ECOWAS in promoting democracy, peace, law and order within the West African sub-region is not in doubt, it is nevertheless important to ensure that well established international norms are not sacrificed on the altar of political expediency. Unless it is quickly halted, ECOWAS resort to unauthorized interventions in Gambia could trigger a reign of lawlessness and undue aggression on the continent.
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