The Legal Validity of the AU–ECOWAS Regional Military Intervention Legal Regimes Under Conventional and Customary International Law

Abstract

In Chaps. 5 and 6, I addressed the validity question from a legal and moral standpoint. The present chapter represents the third and final leg of my tripod in this inquiry into the legal validity of the AU–ECOWAS regional military intervention legal regimes. Like the two previous chapters that inquired into the validity of the AU and ECOWAS intervention treaties, the present chapter is also focused on the legal validity from a theoretical perspective. However, unlike the previous chapters, the interrogation is undertaken within the framework of the two main sources of international law (treaties and customary law). The chapter is divided into two major sections. In Sect. 7.2, I examine the legal validity of the AU–ECOWAS regional military intervention legal regimes under conventional international law. I ask three questions: since the AU–ECOWAS regional military intervention legal regimes are treaty-based, what is the impact of member states’ consent on the validity question under the UN Charter? Have the conditions for states assuming obligations under the UN Charter in 1945 been met? If no, what are the legal implications for such Charter obligations and the validity of the AU–ECOWAS regional military intervention legal, particularly in relation to articles 53(1) and 103 of the UN Charter with respect to the principle of ribus sic stantibus? It is asserted that the AU–ECOWAS framework cannot be valid because they sanction use of force, arrogate the right of unilateral intervention to the AU and ECOWAS in violation of articles 2(4), 53(1) and 103. I advance three main arguments in reply: First, I argue that article 2(4) of the UN Charter only prohibits aggressive use of force and the AU–ECOWAS regional military intervention legal regimes deal with consensual use of force, which is not the same thing as aggressive use of force. Secondly, I argue that article 53(1) of the UN Charter relates to “enforcement action” and since lack of consent is a fundamental requirement in enforcement actions, the AU–ECOWAS regional military intervention legal regimes do not constitute “enforcement action” within the meaning of Chapter VIII because consent was given via treaties and so do not violate articles 2(4), 53(1) and by implication article 103. Thirdly, I argue that treaties of intervention based on valid state consent constitute an exercise of state sovereignty which is the sovereign right of states under the UN Charter. Therefore, treaties of intervention like the AU–ECOWAS regional military intervention legal regimes that are based on the valid exercise of sovereignty are legally valid. In Sect. 7.7 of this chapter, I examine the validity question from a customary international law perspective. I ask whether the AU–ECOWAS regional military intervention legal regimes treaties violate norms of jus cogens and if so, whether the treaties are null and void. Secondly, I ask whether there was a regional customary law of unilateral humanitarian intervention in Africa prior to the AU–ECOWAS regional military intervention legal regimes. And if so, do the AU–ECOWAS regional military intervention legal regimes constitute a codification of such regional customary law existing side by side with customary general international law and the UN Charter?