The Economic Community of West African State (ECOWAS) Court of Justice has rejected an application by Niger Republic seeking an order to lift the sanctions imposed by the Heads of State and Government of the Community against the country.
In rejecting the application, the Court said it took into consideration the view that an entity that is the product of an unconstitutional change of government, which is not recognized by ECOWAS as a government of a Member State, lacks the capacity, prima facie, to bring a case before the Court, seeking to derive benefit or reprieve.
Consequently, the court said the request for provisional measures in the name of Niger was prima facie inadmissible, as it was brought by an unconstitutional and unrecognized governmental authority.
The Court ruling read by Justice Dupe Atoki on behalf of the presiding judge, President of the Court, Justice Edward Amoako Asante, said the decision MSC.A/DEC.05/07/23 of July 30, 2023, by the regional leaders imposed sanctions on Niger aimed at restoring constitutional order in the country following the July 26, 2023 coup.
The sanctions, the court noted, were imposed by the regional leaders following their extraordinary meetings of ECOWAS on July 30, 2023, and August 10, 2023, in Abuja, including the closure of land and air borders between ECOWAS countries and Niger; the suspension of commercial and financial transactions between Member States and Niger as well as the freezing of the assets of the Republic of Niger and those of its parastatal agencies in the central or commercial banks of ECOWAS Member states.
In its initiating application, the Republic of Niger, which was joined by seven other government entities, had asked the Court to order the suspension of all politically and economically binding sanctions against the Republic of Niger and its population until the merits of the case were decided.
It also urged the Court to order the suspension of the August 10, 2023 decision by the ECOWAS leaders, especially, the activation and deployment of the ECOWAS Standby Force against Niger until the merits of the case were decided, while all ECOWAS Member States and ECOWAS Institutions should comply with the provisions of Article 23(2) of the Protocol of the Court.
In the application, the Niger government justified the requirement for the urgency of the suit as necessitated by the serious economic, financial, social, and human consequences of the measures taken by the Mediation and Security Council and by the ECOWAS Authority.
“The sanctions have had far-reaching consequences for Niger, its citizens, and its business community, hindering the free movement of capital, goods and services. There are tens of thousands of Nigerien students and interns who have to travel to continue their studies, but are blocked due to the sanctions,” the Nigerien government lamented in the application.
Also, the government said the sudden cut of electricity supply by Nigeria, as part of the sanctions, has deprived hospitals of electricity and was precariously impacting the living conditions of the population.
In addition, the court said “in light of these circumstances and having regard to the fact that the country was facing a sub-regional threat of terrorism, applicants submitted that there is an urgent case for the Court to order the suspension of the measures imposed on Niger.
On the issue of jurisdiction, the Republic of Niger submitted that the Court has the competence to rule on the application under Article 9(1)(c) and (2) of the Protocol of the Court as well as Articles 1, 2, 10, and 23 of the Protocol of the Court.
On admissibility, Niger argued that Article 21 of the Protocol of the Court indicated that the Court may order any provisional measure it deemed necessary or appropriate whenever it is seized of a dispute.
Under Articles 32 and 33 of the Rules of the Court, the application for provisional measures must be made in a separate document.
However, the Applicants contended that the application was admissible since it complied with the Rules of the Court, having been submitted as a separate document after the substantive Application was filed.
On the merits of the application, the Applicants submitted that Article 79 of the Rules of the Court, applications for provisional measures under Article 21 of the Protocol of the Court, must specify the subject matter of the dispute, circumstances demonstrating the urgency of the measures sought, and the pleas in law and fact which justify, prima facie, the granting of the provisional measures sought.
But the Respondents, the Authority of Heads of State and Government of ECOWAS, the Community’s Mediation and Security Council, and the ECOWAS Commission raised a challenge to admissibility because the First Applicant, the Republic of Niger, and the other persons and entities suing as applicants with Niger cannot file the substantive application.
Concerning the Republic of Niger, the Respondents contended that it was currently being controlled by a military junta that seized power unconstitutionally in violation of ECOWAS legal instruments and which ECOWAS does not recognize.
Since such an unconstitutional government was denounced by ECOWAS, the international community cannot be legally deemed to represent the country.
At its sitting of November 21, 2023, after hearing the submissions of the parties, the Court In its ruling found that the substantive Application as prima facie inadmissible in respect of the Second to the Eighth Applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court.
Also, the Court held that the second to eighth applicants made generalized allegations of the effect of the sanctions on their businesses and individuals and that they did not plead the exact nature and extent of the harm caused to each of them by the measures imposed on Niger, to distinguish their legal interest in the case.
“At first glance, none of the reliefs sought in the Application, aims to redress any specific injuries that have been pleaded by, and are personal to, the individuals and entities suing alongside Niger in this case. In the circumstances, the Court is constrained to hold that the Application is prima facie inadmissible in respect of the non-state applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court,” the Court added.
Consequently, the Court stated that international law also permits states to decide whether they recognize a particular entity as the government of another state and to determine the extent to which they wish to have economic, political, or diplomatic relations with such a government.
Individual states may, therefore, make ascension to power by democratic or constitutional means a condition for recognizing and dealing with the government of another state.
Similarly, the Court held that within the context of international organizations, members may collectively establish rules requiring that governments of member states must come to power through democratic or constitutional means for them to be recognized as such.
