INTRODUCTION
Ten years after the signing of the Protocol on Mutual Assi stan ce. the highest decision-making body in ECOW/\S. the Authority of Heads of State and Government, recently accepted. in principle. to implement the Protocol. This is most timely, in view of the situation which has hitherto existed in the su b-regio n in matters of security, inter-state and intra-state relations.
Within the space of a few years, relations between ECOWAS memher States have undergone a number of crises, of which the most serious have been the clashes between Burkina Paso and Mali, and between Mauritania and Senegal. At no point during these crises did ECOWAS, as a regional Community comprising all the States of West Africa, take active and positive steps towards their resolution, despite the provisions of the Protocol of Non-Aggression of 22 April 1978 and those of the Protocol on T\1 utual Assistance of 22 May 1981.
As regards the domestic situation, the last decade has been marked by violent political crises, outbreaks of armed vio le nce , and civil war in a number of states without any attempt by ECOWAS to include these matters on the agenda of its ruling bodies. Not until the outbreak of the Liberian civil war, which, because of its political, milital)' , social and security repercussions seriously compromised relations between certain states and threatened the peace of the entire sub-region, did in d iv idual governmen t , followe d later by the Commun ity as a whole, react, with a view to working towards the restoration of peace and security in that count ry. Thus, the peace-keeping in it ia tive, spear-headed by ECOWAS and known as ECOT\10G, had indub itably served as a trigger to react iva te the Protocol on Mutual Assistance, which had remained in abeya nce up till then, and has served to revive the Pro tocol on Non-Aggression.
* Fro m French original
II ads f tat an d G v rnrncnt
of the ANAD in terms of institutions and operation al know-how, and experience 0 EJOW A S with regard to ECO~10G).
1\ furth er consideration is the wind of politi a ha nge at the national evel which is sweeping over the African continent a') a whole, and affecting West frica in particular, bringin g democratisation in its p th po litical pluralism, and respect for hu ma n righ ts. ur n cha nges freq ue n t ly go hand in hand with domestic tensions, which vary fro m one co u ntry to another. The common denominator is, however, the importance'accorded to the need to set up mechanisms, techniques and procedures to regulate and contain the most se rio us , ch ro n ic domestic problems which could radically affect political and social stahility and threaten the process of economic integration.
The re is one final argument in favour of a reassessment of the ECOWI\S legal instruments relating to peace and security. This is the emergence of movements which call into question the legitimacy of the pre sent leadership, of the existing administrative and economic '))ste rns. the concept of national unity, and, in certain rases, the very idea of territorial in tcgrity.
The contradiction between these developments and the rompulvion for the central government to protect national unity eng<.'nd<.'r\ unrvvt, \\ hich grows further when it comes into contact with the voriu! and political agitation associated with the democratisation process. Both phenomena fall beyond the scope of the traditional mean" adopted in the settlement of international disputes, even when,
h) their seriousness and their repercussions, they compromise peace in the sub-region and affect relations between countries.
The last two socio-political considerations are a challenge to I ( ()\V
v-. .1'
dvmonvtrutcd in the extreme case of Liberia. From all indil.lllon, ih« Community will, in future, have to pay greater .uu-rnion to the problem of internal stability, and make provisions for pre cruive and curative measures, within the framework of existing legal instruments and structures, adapting them as necessary to deal with any type ol intra-state instability such as was experienced in the Liberian ca sc,The decisive factor in the search for a new approach to sub-regional peace and security which will necessita te the preparation of new protoco ls , or at the very least, subs tan tia l amendment of existin g protocols, lies in the political wil l of the ECOWAS leadership to further advance a pen of region al cooperation pe rtaining to pe ace, stab il ity and security . The all-i m p orta nt Decl aration on Poli tic a l Principles of ECOWAS recently adopted by the Au tho r ity of Heads of State and Government. extends the harmo nisation of nationa l policy into the poli tical field. It reaffirm ' the need to ensure a sta ble, secure and peace ful political environment. It reiterates the determination of mem ber Sta tes to refrain from any threat or use of force, to se ttle all
di p utc by pc arct u l mean I an d t secu re pe a • nd main tain t.l hi li t) wit h in the fra m ework of th Prot n n-Aggrc ion.
It there ore clear that a 0 no w imp leme nt. tion of the I t )\ \S I g. I inst r u men ts - the Pro to 01of on - gg r s ion and th '
"lolll l'OJ n ~I u t lla l ssist.mcc - must take into .on id cr : tion the
u.uional. sub-r 'ginn al. c ntincntal and internation a l implic a tions . It call f r \\idcvpr c,rd po liti.al coo p e r a t io n in term s 0 inter- t te milit; f) se cur ity. political stahility between and within q at ' , t king into du • cou n t democratis ation processes and deman ds
r
r r pe tor uma n .md ch il righ ts .
THE PROTOCOL ON NON-AGGRESSION (PNA)
rill' Proto 0101 No n-Ag gr ssio n was igrwd on 1.1. pri I 78, .1I1d entered into lorrc on that date. Its sc pc is Iar \\ idcr than its nan c would se e m to indic.uc. This is partly \\ h) it should he cxte nsiv I) amen ded . spe .ifi II) h) the inr lus ion of cr t.t i n provis ions of th '
E prot r Is and agreements on pear Iu l ulcrncnt of disp ut . I n , r ) to include fl xi blc m (ha n ism . to pr \ nt int r -st t confli -t an d • pp ropr ia tc pr vi i ns or the prcvention an res lution ( f internal c nlli ts.
In addition to the provisi on n non- aggr s io n. \\ hi h is cnshri ned in the ni ted Nations and Ol\ll ...hurters . and the prohibition of su bver ion in an) rrn. the I:CO\ ;\ S Protr '01on on -Aggre sio n orua ins a large s tion on p '~ll.. Iu l 'i ulcrn in t of disp ut ' , Article h oj th Prot 101 sta t th,u m .mb r St tc\ und -rt .rkc to set t l all disput s hy p ar cfu l m • ns. lurth rrno rc . it convriu uc two bodi s for r er r a l in the event of failu re to ttl ' di pu \ t pe ace ful m ans - the Com m itte of th Au thr rit) an d th Au t hori ty itself. which ifoi the final referral hod).
However, neither the p ace fu l means to be adopt I nor the rcl vant operating pro r cdur 01 th unril and the '\lItho fit) are explicitl) lip It ou t in the Prot o col on on -..\g g r \ ion. In f.l 'l, on many issues it i rather sk 'tch ) . In the r \ i ~I r " t) ih rc must vnecc ssarfly h ' .l n e t n i\" rev icw the ntr n t\ nl this Protocol and the in titulion st.ihlivh d th -r 'in. m ng til . I h.ing requ ired are the follo wing:
(.1) Ih . titll' of the proto 01 hould be arn nd .J to r
n
lth l 0ntl'nt ()I th ' in tru m -n \ m re ( .u t i) . It u I lo r in tam l' e tit l-d "Pro tor I on on-z g~r' \1( n • nd Pace ul ~ 'ttl m ru () Di ute f t .
5
(b ) 'he preamble sho u ld include a detailed reference to
the United Nations and O;\U Charters on the obligation o States to seek the peaceful et tlcmcn t of disput'So
(c) The preamble should make reference to the Declaration of Political Principles adopted in Abuia on 6 July 19<)1
\' the ECOWAS Authornv of Hea ds of Sta c ,l nd
~ ,
Gov e r n m e n t , which bv virtue~ f its solern n l tv,
.
importance and pertinence, can rightly he considered a r Ierenr c document.
The En g lish and French versions of the original c py of the Protocol are both equally authentic. However, they are ull of di crcpancics and there arc at least -4--4- differences of form and ontent in both of them, a number of which considerably alter the lcucr and sp ir it of the text of the Protocol.
Modalities for the peaceful settlement of disputes:
Article 5 which provides for peaceful settle m e n t of disputes should be broken up, and extensively amended. It could be presented as a series of articles on the following:
the very principle of states undertaking to seek peaceful settlement of their disputes:
the difl crcn t modal i tio for peace fu I settlemen t ( n c go t ia t ion , good 0 IIi( (... medi.uion. c () nriIia t ion, arbitration). The prov ivion... III the Protocol on Peaceful Settlement of DhJ1111(· ... Idllpted h~ the vup rcrnc authority of the Cl.At: III lv.un .rko on 2() October I<)R-4-could ht' useful in hclrun . iormuli ...l' these prov i'ion"i and la~ down the pn)( ('d l • ~(l\l'rning each.
It would be advisable to Spl'tII~ . In ihe body 01 the protocol, the composition, mandate and operating I onditions 01 the Committee of the Authority which gh'es a first hcaruu; in the event of the failure to settle by peace! ul means .
Preven t io n of int er-St at e con fl ic ts: ;\ con IIin r.HeI~
bre a ks out be tween States without pr ior signs of a gradual bre akdown of relations. The preserv a ti o n of a sub-regional and regional political climate cond u ri v ' to inte grat ion requires trurtur '.. mec h a n isms and procedures to pull tog et h er all rele v a n t poxitive or nc g.uive inform a tion and anal y vc and pro css them for use in torrn u l.uing app ro p r iate me a s u re s to co nta in and neutralise any conflicts .
Pa r ticular atten tion sho u ld b paid to the most scnsiti e i sue s involved in relation s betwe en Africa n Sta tes . Borde r ron fl ic ts , free movement of persons and goods, right of establis hmen t and residence,
mino r ity groups and pcopl . fo u nd in two or more ncighbourin 1 State , di put over land .md cstatcs etc . ho u ld rcc e ivc in-depth onsid ration, as sh o u ld other area s of potcntiul conflict xur h as dire t and indirect acts of dcstnhi lisutlon and subversion. The latter are , pre ntly, the only factors taken into co n vid c ra tio n in agreements an d protocols on non-aggression.
1\ list of me hanisrns to be adopted for the prevention of inter-State con ll ict should i ncl ude period ic and regular consultations between administrative authorities at harder areas, establishment of local or national joint commissions to examine all problems involvin t neigh bouring communities, organisation of meetings between sc.toral ministries to disr us s difTctent aspects of inter-State rclu tio n s , csta b lishrncnt of observer groups ~ r peace an d scr urity under the a gis f the secretariat of the om m u n ity , Other measures sh o u ld in clude adoption of a d) nurnir policy of diplomatic consultations between the Excc u r i v c . cr retartat of the Community ,u1<.1 th
.over n m c n ts of the member Stales .on cc r ned and the prov ision of fac i li t ie s for peaceful imcrvcntion bv the .ornmunity in ases 0
tension between member States.
The incumbent Chairman of th uthority of II ' ds ( f State and Go 'crnrucru als has a prim rd ial role to play in the pr .ve n u : n of conflicts betwe en C mrnunity member Stat s, /\ L tand ine P c-K ping Com m itte .hould h . t up comprising a f w II .ds f tat rh o 'en by the su p r e m e dcri 'io n-m a king h dy of the . mmunity.
Th e E W S Proto 01on N n-Aggrc sion should th 'r ' or ' h amended to inr lud th .. b ve r po als ,
THE PROTOCOL ON MUTUAL ASSISTANCE (PMAl
We shall .xarn i n e this protocol fr irn ihre anglc l he relationship tw .n the Pf-.l and the P ,the limit' ti ns and inudequaci of th P 1 and the n d to .t
no
i rope.Relationship betw en the PMA an d th PNA:
close link betwc n th . tw Pr o tocol . ny m rnb r St te signst ry to or whi h ratifi th Pr ot I on lutual be orne ip 0 jur a iun tory to th e Pr to 01 on ( rticle 21, ub-p r graph 2). C' ndly, rtain Pf-.I/\ relating to arm d co n fl lct b tw n rn rn
pp lic ble only wh r th t bli h pr dur by pe c fu l rn an pr ve ineffc tiv . '1 irdly,
relat to the pr c dure for rn di ti n n ettlernen t to whi h gen ral refe r n i rn d
Limita tions Mutual ista n ce:
and Inad equ a ies of the Prot o a l a n hi Prot I m rk a gr at irnpr v m n t a.
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compared to the Agreement on Non-Aggression and Mutual Assistance signed four years earlier on 9th July 1977, between Members of the CEAO and Togo particularly with regard to the level and extent of solidarity and the effective organisation of mutual assistance. The fact remains, however, that numerous obstacles could stand in the way of the ECOWAS decision to implement the Protocol on Mutual Assistance.
In the first place, supplementary protocols were to have been signed to complete the Protocol on Mutual Assistance (Article 19) - they are yet to be adopted. This considerably reduces the sense and practical scope of the Protocol. Also, Article 12 states that a senior serving military officer should be appointed as Deputy Executive Secretary of ECOW
1\..".
He shall be in charge of the administration and follow-up of the decisions of the Authority of Heads of State and Government relating to the Protocol on Mutual Assistance.
Apart from the fact that the appointment of this senior officer will take some time, the question arises as to the status of the senior military officer. Elsewhere, it has been proposed that, instead, a Military Adviser to the Executive Secretary be appointed and that a new Deputy Executive Secretary be responsible for political cooperation.
The ECOMOG experience has revealed several inadequacies in the Protocol, particularly with regard to the number of organs, applicable procedures, coordination of actions etc. The provisions of Article 4b relating to allied intervention in an internal armed conflict, have, in the case of Liberia, given rise to much controversy.
Certain conditions must be met before such an intervention can be justified. First, there must be internal armed conflict, engineered and actively supported from outside, likely to endanger security and peace in the entire Community. Even if, in such sensitive circumstances, caution should be the watchword it is debatable whether all these conditions would be compatible with regional socio-political realities.
It is questionable whether all these conditions were present at the time the ECOMOG operation was launched.
The second condition is that the successful launching of a military operation such as is envisaged in the Protocol on Mutual Assistance depends on speedy implementation and the mobilisation of well-trained, combat-ready troops. These cannot readily be guaranteed as long as a Standing Community Force is not in place. Do member States of ECOWAS possess the resources to implement this policy?
Thirdly, viewed against the background of the persistent financial crisis facing the organisation, are the ambitions expressed in the Protocol realisable?
Fourthly, one obieetive of the Protocol was to prevent external...
intervention in the sub-region. The ECOMOG experience has shown,
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lOW ' r. that some States were able to participate in the operation nI, b rause they received su bstanrial financial ass is tancc from or iu n rou rnrics. Such massive financial assistance is hardly likely
t hav been gin.'n without political and strategic conditionalities all, ched . Would this kind of situation not appear to have defeated the or ig i na l objective?
The proccdure for provid ing assistance in cases of armed aggre ssion or threat of aggression belies the urgency of the situation to which E .OWA" is expected to react. A letter must be written by the llead of State of the country facing a threat requesting assistance. A copy of this letter addressed to the Chairman of the ECOWAS Authority of Heads of State must be sent to the other States. An ordinal") or extraordi nary emergency meeting of the Authority will then he held - this presupposes the immediate consent of two-thirds of the II ad s or State, into whose busy schedule it is usually impossible to fit unforeseen trips. This emergency meeting must now reach a decision. unanimously or hy a two-thirds majority vote, on this very sensitive issue which rna) also he controversial. This is a combination of conditions with which it is most difficult to comply.
The Authority of Heads of State and Government of I: .OW S .rdopt cd the Dec laration of Politic I Principles in 1()91. What ef n
\\ ill 1111" h.rv« on thr- .rpplication of Article -l-. paragraph h. of tht' I'rll\(It 11\ 1III \ IUlu.1I ,\ ... ivt.mr c relating to internal nllin ? What wiII l1'lJ'J"'lI'11 II '>tIl 11 v,It rn v,irut fundamental principle as the r p ct or hum. 11 l'Ig l1tv. political pluralism and, mor gene II... d .m orr : C) ar
\ lol.lIed hy the gov rn rnc n t in power? What it the itu.u ion r ults in internal ro nIlirt which then satisfies all the co n d it io n s fo r interv vnriun h~ the .om m u n i ty?
Mutual Assistance and Obligatory Interference: It i'i b 1C()IIIi n J inc r asin gIY ram pant f r
r(
rs 0 u ide t\ r h a t( (il .,con ce p ts uch as int rv ntion on hum' nlturian gro u nd nd a UlH) t int rfcrc, ae; ex u for mounting milirary op 4 ti ns in I\. ri . n countri ~ exp ri nrin int rn al cri c , whuh may r may nr t violent and which arc nowaday •us d by the vi is itud I of the democratisation pro . 1 su h int rv nti n nsiitut a thr at ( f aggr sio n . or cv n aggr io n a d fin d in the Pr t 01 on Mutual As istaruc ?
Relations betwe e n ECOW N and the AU in cu rity matters: It wa the - h en c of pan- Irican urity 01 ' hani mat the OAU I.vc l w hi h pr mp t id E W mernb r Stat ' t xign th Protocols on on- ggr '~si n nd on 1u tual i t nc . '1h I I op rat io n ha shown th at h rir n uh-r ion n d u h a s rurity y tern (i magi n th po iuv r I' it mig h t hav pi y d in th pre nt situation in the Ilorn of fri a). : 0 h uld bring pre ure to bear to m kc th e Ol\.lJ t up a co n u n nt I urity
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system. With the end of colonialism and apartheid, the Liberation Committee may now be replaced by a body responsible for collective security within a political and legal framework to be agreed upon.
Need to extend the Scope of the P.M.A.
The upheavals accompanying democratization, the strong resistance being shown by certain authoritarian regimes to accept democratic transition, the widespread resurgence of nationalist separatist movements-ttribalisrn, ethnicism, regionalism etc.) which threaten the already fragile unity and national integration of several African States, the masked intention of several medium and super powers to revert to their erstwhile policies of political and military interference in Africa - all these relate to the burning topical issue of peace, security and stability in Africa. The syndrome of division, civil war and dismantling of territories which led to the breakdown of Yugoslavia and the former Soviet Union has started to spread to East
The upheavals accompanying democratization, the strong resistance being shown by certain authoritarian regimes to accept democratic transition, the widespread resurgence of nationalist separatist movements-ttribalisrn, ethnicism, regionalism etc.) which threaten the already fragile unity and national integration of several African States, the masked intention of several medium and super powers to revert to their erstwhile policies of political and military interference in Africa - all these relate to the burning topical issue of peace, security and stability in Africa. The syndrome of division, civil war and dismantling of territories which led to the breakdown of Yugoslavia and the former Soviet Union has started to spread to East