Guest Contributor Ibrahim Ati
Echoing from the blue Tuareg, inhabitants of the Sahara and its deserts for centuries, comes a timeless proverb: ‘Ihanay amghar awar ihiniy alyad ibdadane.‘ In translation, it reveals: ‘Seated, an elder sees farther than a youth standing.’ This profound wisdom, deeply ingrained in Sahel’s dunes and culture, acts as a compass under the blazing sun, offering vision and perspective through the formidable storms furiously blowing over the region.
Preamble
With two coups in Mali (August 2020 and May 2021), two in Burkina Faso (January and September 2022), one in Guinea (September 2021), and the latest in Niger (July 2023), the Sahel is in a period of intense reflection and action, having witnessed nine military coups in four years. Amidst these changes, on September 16, 2023, the new governments of Burkina Faso, Mali, and Niger, turned a new leaf in their collective history by signing the Liptako-Gourma Charter, inaugurating the Alliance of Sahel States to fortify security and deepen regional integration among the three nations.
The region, known for its abundant raw materials and energy reserves, has not just experienced a disruption of its political status quo but has also been thrust into a critical reevaluation of international agreements, international trade commitments, and traditional approaches of dispute resolution. These political upheavals have ignited a widespread rejection of French colonial legacies and prompted sanctions from regional blocs and international entities cutting across economic, financial, military, and political spheres.
This military recalibration has influenced a wave of constitutional reforms and revisions across a variety of international arrangements. A key outcome is the relegation of French from its former status as the official language in constitutions. Currently, the International Organization of the Francophonie (IOF) encompasses 88 member states and governments, yet, as of December 2023, Niger and the IOF have officially suspended their cooperation, highlighting the shifting dynamics of regional affiliations and cultural identity. This change contrasts with the historical roots of the IOF, originally established as the Agency of Cultural and Technical Cooperation in Niamey, Niger on March 20, 1970.
The intensified collaboration with the French military to combat insurgents in the Sahel following the start of Operation Serval in 2013 has been critically reevaluated by the region’s new administrations. The growing discontentment incited a collective disengagement from French ties, evidenced by cancellation of military pacts, insistence on French troop withdrawal, prohibition of French media, and even the expulsion of French diplomats. The three countries have also simultaneously denounced their bilateral fiscal agreements with France, first established in 1972 to prevent double taxation. This departure was marred by conflict and contention, marking a significant shift from the traditional amicable Franco-African legal and economic ties, with profound repercussions on international legal frameworks, diplomatic and trade disputes.
This analysis seeks to consider these events through the prism of international law, beginning with a judicial review of the imposed sanctions and the legal status of foreign military bases following their retake. Additionally, the narrative extends to the evolving legal landscape influenced by the African Continental Free Trade Area (AfCFTA), with a focus on pioneering legal doctrine on trade and the Sahel monetary union.
The objective is to offer an analysis of the legal developments in the region and of the wide-ranging impacts these changes have, not just within the Sahel but also in the global arena of international dispute resolution. The discourse will highlight the nuanced forum issues at play, considering traditional legal avenues and transnational comparison of emerging regional trade agreements.
Decade of Military Collaboration: Contextualizing French Operations and Bases Reclamation in Mali in the Wake of Bilateral Agreements’ Termination
The recent reclamation of Kidal by the new Malian government in November 2023 — a crucial area of rebellion lost in May 2014 — along with other northern territories, coinciding with the departure of French military contingents, potentially prompts questions about sovereignty rights and legal status of erstwhile foreign military bases upon withdrawal of consent. Central to understanding this situation is the nature of French military operations in Mali, undertaken with the consent of the Malian government to combat insurgencies. International law recognizes the legitimacy of foreign interventions, provided they are requested by the host government, reflecting the State’s sovereign authority. This concept is affirmed in the International Court of Justice’s (ICJ) ruling in “Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America)” on 27 June 1986 (para. 246), which acknowledges the acceptability of interventions at a government’s request, specifically highlighted by the phrase “intervention, which is already allowable at the request of the government of a State.”
Additionally, the United Nations International Law Commission (ILC), in its 1979 Yearbook (Volume II, 2nd part, pg. 112, para. 11), categorically affirms that state consent is a fundamental prerequisite for legitimizing foreign military interventions. This consent must be “valid(…), clearly established, really expressed, internationally attributable to the State and anterior to the commission of the act to which it refers.” This principle is further reinforced and elaborated in the case “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)” adjudicated by the ICJ on 19th December 2005, reinforcing the unequivocal State’s right and power to withdraw or annul its consent, thereby altering the initial legal legitimacy of any ongoing foreign military operations. Mali’s withdrawal of its consent was valid under the international law scope.
Following the withdrawal, the military installations, previously under foreign control for nearly a decade, have been repossessed by Mali. A scrutiny of pertinent international agreements indicates that a significant dispute raised by France against Mali, particularly on potential expropriation grounds, appears improbable.
Moreover, the legal reversion of these bases to Mali is likely to be affirmed without further recourse to international tribunals to settle the issue, as is easily demonstrated per se by looking at the agreements governing French military engagement in Mali and pre-existing international law. Two key bilateral agreements frame the contours of this relationship: the “Décret n° 2013-364 du 29 avril 2013” and “Décret n° 2016-1565 du 21 novembre 2016,” representing formal, ratified legal commitments between Mali and France, setting out terms for military cooperation and post-operation protocols. They detailed operational norms, rights, and responsibilities, forming a binding legal framework. In the context of international law, as illustrated by the Nicaragua case and principles set forth by the UN ILC, the legality of the French military’s presence for operations in Mali, grounded in bilateral consent, is clear. These operations, as per established international norms, were initially valid. Note, however, that central to this legal structure is Article 8 of the “Décret n° 2013-364,” mandating the return of all facilities used by French forces to Mali upon the mission’s end. Concurrently, Article 11 of the decree prescribes that any disputes arising from the decree’s implementation or interpretation are to be resolved diplomatically, preferring bilateral negotiations and effectively curbing the potential involvement of international tribunals. In a similar vein, the latter “Décret n° 2016-1565” in its Article 24, delineates an internal dispute resolution mechanism involving resolution through a monitoring committee. This decree further establishes primacy of bilateral engagement in addressing the treaty disagreements, opposing external tribunal mandates.
Clearly, then, the reversion of ownership to Mali is well-grounded within the legal frameworks governing Mali’s cooperation with France. When Mali revoked consent for the continued French military operations, its withdrawal was consistent with the “Armed Activities” precedent which allowed for Mali’s reclamation of the military bases, adhering to the bilateral possession terms. Consequently, the initiation, conduct, and eventual conclusion of French military operations in Mali, including the reversion of military installations to Malian control, seem to have been largely executed in compliance with international law and the specific terms of the Franco-Malian agreements. The initial consent and following withdrawal by the Malian government are likely to have legally governed these operations.
What would occur in the unlikely scenario that the French contemplate asserting expropriation claims for materials and assets lost during its unexpected military withdrawal? A more rigorous legal analysis would then be imperative. The initial phase of this analysis would involve a thorough examination of forum jurisdiction between the two States. Following this jurisdictional assessment, the focus would naturally progress to evaluating the merits of these hypothetical claims.
The principle of expropriation under international law is notably articulated in Chorzów Factory (Germany v. Poland), which mandates compensation for expropriation, and in CMS Gas Transmission Company v. The Argentine Republic, which further dissects expropriation in scenarios involving state and state-entity assets.
Although these precedents set the stage for understanding expropriation, the unique circumstances of military base reclamation by a sovereign state suggest that the direct applicability of such cases may differ in Mali’s context, where military installations are reclaimed under sovereign authority.
A preliminary review suggests that these claims might struggle to demonstrate strong grounding, considering the context and, above all, the content of the agreements between the two nations.
This decadal process, adhering to principles of sovereign consent, appears to align with international law, affirming the unanticipated yet legally sound transfer of control over military installations back to Mali.
This evolution not only mirrors shifts in Mali-France relations but also ties into larger regional frameworks like the Economic Community of West African States’ (ECOWAS) sanctions on Niger and the AfCFTA. Particularly, sanctions on Mali and Niger have catalyzed a move towards tighter integration among the Sahel’s emerging regimes, forming a collective front against ECOWAS’ measures. This unexpected drive towards unity challenges established structures and intersects with the AfCFTA’s ambitions, suggesting that sanctions may promote stronger regional alliances and reinforce oppositional attitudes. This complex landscape of geopolitical, legal, and economic transitions questions old alliances and highlights the necessity for this article to evaluate the impact of sanctions and the potential role of the AfCFTA as a new entity influencing regional integration and governance.
Regional Compliance and Enforcement: ECOWAS Court Affirms Trade and Customs Sanctions on Niger Amidst Growing Tensions
ECOWAS is a regional group representing 17% of the African continent and established by the Treaty of Lagos on May 28, 1975, acted promptly in response to the political turmoil in the region. ECOWAS’ primary objective is to achieve economic integration and collective self-sufficiency among members, forming a vital and essential trading bloc within the African Economic Community. In the wake of the July 2023 coup in Niger, ECOWAS, to enforce compliance, imposed severe sanctions, including the shutting down of borders and the halting of commercial and financial transactions with Niger, urging it to return to constitutional governance. Notably, Nigeria discontinued electricity supply to Niger, significantly cutting more than two-thirds of Niger’s energy consumption. Parallel to ECOWAS’ response, the European Union (EU) also implemented sanctions against Niger, internationalizing the response to the political crisis. These measures, intended to stabilize the region, have significantly affected trade and economic stability, bearing direct consequences on the lives of civilians as well.
The ECOWAS Court of Justice, seated in Abuja, Nigeria, functions as the judicial arm of the Economic Community of West African States, established as per the Revised Treaty of 1993. Tasked with interpreting and implementing the Community’s treaties, protocols, and conventions, the Court exercises broad jurisdiction in various areas. It can review cases involving non-compliance with Community law, disputes related to the interpretation and application of Community acts, human rights violations and legality of Community laws and policies.
In December 2023, the ECOWAS Court of Justice addressed two significant cases related to Niger in the sanctions’ aftermath imposed due to the coup d’état and the subsequent detention of Nigerien President Mohamed Bazoum.
On December 7, 2023, the Court heard the first case where Niger sought to challenge the sanctions’ legal basis. Niger argued for interim relief, contending that the sanctions were not only disproportionate but also discriminatory compared to the treatment of other ECOWAS States undergoing transitions, including Mali, Burkina Faso, and Guinea. Central to Niger’s argument was the issue of the admissibility of its plea, considering its origin from a government established just a few months post-coup and deemed illegitimate by many, as well as the urgent need to reevaluate the sanctions’ humanitarian impact. However, the Court dismissed the case, upholding that a regime born from an unconstitutional change, such as Niger’s military junta, lacked the standing to initiate proceedings in the Court, reinforcing ECOWAS’s commitment to constitutional legitimacy.
On a consequential ruling on December 15, 2023, in the case “Mohamed Bazoum et 2 autres contre l’Etat du Niger” (ECW/CCJ/JUD/57/23), the Court addressed the human rights concerns of the detained President Bazoum. Relying on the Article 10-d as inserted in the Protocol of the Community Court of Justice of the Additional Protocol A/SP.1/01/05 of January 19, 2005, the Court decisively reaffirmed the illegitimacy of the military government and ordered the immediate release of President Bazoum, reinforcing its stance against unconstitutional changes within the ECOWAS.
The Court’s decision, intended to reinstate constitutional governance by ordering President Bazoum’s release, unexpectedly aggravated the plight of Niger’s civilians. Maintaining sanctions on the military government deepened the nation’s hardship and economic situation.
Those sanctions compounded the adversities faced by the civilian population in Niger, already considered one of the poorest countries on the continent, escalating the crisis in the Sahel region. Judicial interventions, like the ones of ECOWAS, can bring unintended yet increased hardships, where attempts to fortify constitutional governance exacerbate the everyday crisis faced by civilians.
In the context of Niger, ECOWAS’ decision to impose sanctions, including the closure of borders and the suspension of vital transactions going way beyond the financial markets, also casts a spotlight on the strong tensions within regional trade and economic policies, particularly in relation to AfCFTA’s vision for a unified market. This scenario necessitates innovative analysis, encouraging a reassessment of the extent to which sanctions might compromise the broader ambitions for economic integration and seamless trade within Africa. Can the AfCFTA wield its legal authority to oversee regional bodies like ECOWAS, in pursuit of a consolidated market?
AfCFTA’s Free Trade Doctrine and New Dispute Mechanisms: A Potential Supranational Tool to Mitigate Sanctions—Novel Monetary Union Across Africa?
The AfCFTA, adopted on March 21, 2018 and operational since May 30, 2019, is an ambitious Free Trade Agreement aimed at establishing a unified market across Africa. With 54 African member states, its vision is to cultivate a single market for goods and services, facilitated by movement of persons to deepen economic integration of the African continent. The Sahelian governments may see a significant economic opportunity in the commitment to free trade and economic unity, especially as Guinea launches an unprecedented $20 billion project in iron ore, rail, and port development, poised to be the world’s largest mining venture. This free trade vision may also furnish an additional legal foundation for mitigating sanctions imposed by subregional entities, such as ECOWAS, within a larger and perhaps more receptive forum.
Members of the AfCFTA, these States can pursue recourse through dispute resolution mechanisms established in Article 20 of the Agreement, outlining settlement of disputes between State Parties, with formation of panels and an appellate body similar in structure to the dispute settlement system of the World Trade Organization (WTO). In this context, they could contend that those sanctions hinder their rights and responsibilities under the AfCFTA framework, designed to enhance intra-African trade and facilitate economic integration.
In the future, sanctioned African States may ambitiously argue that subregional sanctions conflict with AfCFTA provisions, disrupting the free movement of goods, services, and investment and contravening trade liberalization goals, thus harming both the sanctioned countries and AfCFTA’s broader objectives of African economic unity and integration.
While it’s still early to draw parallels between AfCFTA and the EU’s legal frameworks, even if initial similarities are apparent, AfCFTA shows promise in affecting regional entities like ECOWAS. Similarly to EU legal foundations, notably the Treaty on the Functioning of the European Union (TFEU), particularly Articles 26 and 28 establishing an internal market and prohibiting restrictions on trade among Member States, AfCFTA could require ECOWAS to realign its policies with wider African objectives of economic unity and liberalized trade, surpassing regional trade agreements in legal authority across Africa.
This scenario would establish AfCFTA’s judicial review of sanctions imposed within Africa, where any measures taken by sub-regional groups should defer to the continent’s unified focus on free trade and economic integration, akin to how EU community law takes precedence over national laws under the principle of primacy, established in the Court of Justice of the European Union’s Costa v. ENEL case of July 15, 1964.
In a decisive stride towards more economic autonomy, the Sahelian Federation is also redefining regional monetary norms. The three countries have convened an economic commission, rumored to also forge the ‘Sahel’ currency, with a new gold-measured standard, poised to supplant the existing national currencies. This ambitious move, bolstered by the establishment of a stabilization fund and an investment bank, poses a direct challenge to the widely criticized Franc de la Communauté Financière Africaine (F.CFA) still being co-regulated by France with the Banque Centrale des États de l’Afrique de l’Ouest (BCEAO) and the Union Monétaire Ouest Africaine (UMOA) as partners. Interestingly, this bold step coincides with ECOWAS’ own intentions to gradually move away from the F.CFA, though the Sahelian Federation’s approach is more immediate and radical.
The AfCFTA now finds itself at a pivotal crossroads. It also faces the complex task of potentially arbitrating this significant monetary transition as part of its free continental trade duties. The crucial decision would lie in whether to align with ECOWAS’ traditional monetary policies or to endorse the Sahelian Federation’s progressive monetary reform. This goes beyond a mere currency change—it represents a critical juncture that could alter monetary disputes and significantly influence regional economic policies.
In this complex backdrop, the ECOWAS Court’s rejection of Niger’s appeal regarding the imposed sanctions also serves as a stark reminder for any new governments established post-coup d’état. The increasing influence of supranational legal systems such as ECOWAS, in matters of trade compliance and sanctions is a significant element to consider for the region’s future, even more with the increasing AfCFTA’s advocacy for free trade.
New Horizons
This development has added layers of complexity to the regional dispute resolution framework, sparking important discussions about where regional teamwork is headed and the proficiency of established mechanisms in managing transnational disputes. Indeed, the shift towards regional alliances, along with constitutional reforms and monetary union, indicates a strong move towards novel structures of governance and dispute resolution.
This collective stance is emblematic of a broader movement among the Sahelian States, which may redefine engagement with traditional regional bodies and external powers.
About the Author
Ibrahim Ati is a dual-educated legal professional with training in both civil and common law systems, having passed the New York Bar and graduated with an LL.M. in Alternative Dispute Resolution from the University of Southern California. Co-Chair of the Middle East region for the Young Institute for Transnational Arbitration, he is also one of the youngest members on the New York City Bar Association’s Arbitration and Professional Discipline Committee, and its youngest representative at the UNCITRAL sessions in the United Nations (New York). In addition to serving as Vice-Chair in the American Bar Association, Ibrahim Ati aspires to be among the new generation of leading international arbitrators, aiming to infuse the field with fresh perspectives and innovative approaches.