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On Expelling Nigeria from the Commonwealth
Published online by Cambridge University Press: 09 March 2016
Summary
In November 1995, the execution of Nigerian writer Ken Saro-Wiwa led to Nigeria’s suspension from the Commonwealth and the possibility of its expuhion from membership. The absence of an expulsion clause for the Commonwealth led to the question whether the association has the inherent power to expel and whether any such power of expuhion is limited by international law. A review of treaties, customary international law, and commentary suggests that the Commonwealth can expel a member by use of implied power. Other factors, however, militate against Nigeria’s expuhion. Once expelled, Nigeria would be free to behave as it saw fit. Expuhion could aho divide the Commonwealth and make other members think twice about their membership obligations. The author concludes that expuhion from the Commonwealth must be a last resort.
Sommaire
En novembre 1995, à la suite de l’exécution de l’écrivain nigérian Ken Saro-Wïwa, on a suspendu le Nigèria du Commonwealth et discuté de la possibilité de l’en expulser. Vu l’absence de clause prévoyant l’expulsion d’un membre du Commonwealth, on s’est demandé si l’association avait le pouvoir inhérent d’expuker un membre et si un tel pouvoir d’expulsion était limité en droit international. Un examen des traités, du droit international coutumier et de la doctrine sur le sujet donne à penser que le Commonwealth peut expulser un membre en vertu d’un pouvoir implicite. Cependant, d’autres facteurs militent contre l’expulsion du Nigeria. Une fois expulsé, le Nigèria sera libre de se comporter comme bon lui semblera. De plus, une expulsion pourrait diviser le Commonwealth et inciter d’autres membres à y regarder à deux fois avant de s’acquitter de leurs obligations. Pour l’auteur, l’expulsion du Commonwealth devrait uniquement être utilisée en dernier recours.
- Type
- Notes and Comments/Notes et commentaries
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 34 , 1996 , pp. 273 - 291
- Copyright
- Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1996
Footnotes
*
Chi Carmody (LL.B., Ottawa, 1992) is a LL.M. candidate at the University of Michigan, Ann Arbor. The author would like to thank Professors José Alvarez and Eric Stein of the University of Michigan Law School for their helpful comments and assistance.
References
1 Saro-Wiwa, K., On a Darkling Plain: An Account of the Nigerian Civil War 248 (London: Saros International Publishers, 1989).Google Scholar
2 A UN General Assembly resolution of December 1995 condemned “recent decisions in Nigeria” and urged a swift return to democracy. Later in April 1 gg6, a UN fact-finding mission visited the country. The mission’s report gave cautious support to the Nigerian regime’s transition to democracy schedule and opposed the imposition of sanctions. In May 1996, the Organization of African Unity said it would not punish Nigeria unless the UN imposed sanctions: see “Nigeria Welcomes Commonwealth Decision to Send Mission,” Africa News (Sept. 30, 1996); “Africa-at-Large Mugabe Rules Out OAU Action against Nigeria,” Africa News (May 9, 1996). In addition, the U.S. indicated that it does not wish Nigeria to be made a “pariah state": see statement of Peter Tarnoff, Undersecretary for Political Affairs, before the Africa Subcommittee of the Senate Committee on Foreign Relations, Africa News (May 16, 1996).
3 Schermers, H. G., International Institutional Law 73 (Alphen aan den Rijn: Sijthoff and Noordhoff, 1980)Google Scholar. Schermers distinguishes expulsion from suspension, which is usually temporary, but he states that “for all practical purposes the distinction has little meaning.” Markarczyck differs from Schermers. He regards suspension as corrective and expulsion as punitive: see Makarczyck, J., “Legal Basis for Suspension and Expulsion of a State from an International Organization” (1982) 25 G.Y.I.L. 476 at 482.Google Scholar
4 There have been two withdrawals from the Commonwealth (Ireland and Pakistan) and two lapses of membership (South Africa and Fiji).
5 E.g., Western Samoa achieved independence in 1962 but did not join the Commonwealth until 1970. The Maldives achieved independence in 1965 but did not join the Commonwealth until 1982.
6 E.g., Myanmar (formerly Burma) decided not to join the Commonwealth upon independence in 1947. The Southern Arabian Federation made a similar decision upon independence in 1967.
7 When Mozambique was admitted, the Commonwealth heads of government requested that an intergovernmental group be established to determine the criteria for assessing future membership applications: see the Auckland Communiqué (Nov. 10–13, 1995).
8 E.g., the Commonwealth heads of government referred to the association as an “international organization” in the Lusaka Declaration of the Commonwealth on Racism and Racial Prejudice (1979).
9 Roberts–Wray, , Commonwealth and Colonial Law 92–93 (London: Praeger, 1966)Google Scholar. The view that the Commonwealth is not an international organization is held by several writers: SirDale, William, The Modern Commonwealth 52–58 (London: Butterworths, 1983)Google Scholar; Fawcett, J. E. S., The British Commonwealth in International Law 88 (London: Stevens & Sons, 1963)Google Scholar; Doxey, M., “The Commonwealth Secretariat” in Groom, A. J. R. and Taylor, P. (eds.), The Commonwealth in the 1980s 15 (London: MacMillan, 1984)CrossRefGoogle Scholar. But, for opposing views, see “Is the Commonwealth an International Organization?” (1982) 31 Int’l & Comp. L.Q. 452; Chan, S., The Commonwealth in World Politics: A Study of International Action, 1965–1985 48 (London: Lester Crook Academic, 1988).Google Scholar
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11 Chan, supra note 9 at 50.
12 The Agreed Memorandum established the Commonwealth Secretariat in London and defined the Secretariat’s co–ordinating role within the association. It also set out the modern Commonwealth’s purpose and aims.
13 A number of declarations dealt with the need to eradicate racism (Gleneagles Agreement on Sporting Contacts with South Africa (1977); Lusaka Declaration on Racism and Racial Prejudice (1979); Commonwealth Accord on Southern Africa (1985); Okanagan Statement (1987); Kuala Lumpur Statement (1989)), but there have also been statements on international security and disarmament, the need for social equity, women in development, the global trading system, and environmental protection.
14 Consensus is the traditional method of decision–making at official Commonwealth meetings. Alfred Smith, the first Commonwealth Secretary–General, wrote that in the Commonwealth context: “Consensus does not mean unanimity, risking inaction or dangerous stalemate through a single veto . . . [it] involves the support of a significant majority sufficient to make the action under consideration practicable.” See Smith, A., Stitches in Time: The Common–wealth in World Politics 44 (London: André Deutsch, 1981).Google Scholar
15 Art. 6 of the UN Charter reads:
A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.
Art. 6 is invoked by a recommendation of the Security Council, requiring the vote of nine Security Council members and the concurrence of the five permanent members, and two–thirds vote of the General Assembly. To date it has never been formally applied, although the General Assembly has taken action just short of expulsion by occasionally refusing to seat certain national delegations, thereby effectively excluding them from the General Assembly’s work.
16 Nigeria contributes approximately 8o per cent of troops for the Economic Community of West African States’ Monitoring Observer Group (ECOMOG) in Liberia. This fact was mentioned by Peter Tarnoff, U.S. Undersecretary for Political Affairs, as a consideration in U.S. policy towards Nigeria, supra note 2.
17 See Rake, A., “Hit Abacha Where It Hurts” (Jan. 1996) New African 11–12.Google Scholar
18 Amnesty International Report 1995 227–30 (London: Amnesty International, 1995).
19 The reaction of the Abacha regime to Ogoni demands has been particularly severe. Amnesty International reported that at least 50 Ogonis were killed and many wounded by security forces in late May and June 1994 when soldiers reportedly attacked towns and villages in Ogoni areas. Hundreds of Ogoni remain in detention: see Amnesty International, Nigeria — A Travesty of Justice: Secret Trials and Other Concerns 6, AI Index 44/23/95 (Oct. 25, 1995).
20 For details of ecological damage in Ogoni areas, see Olowo, B., “Out on Themselves” (November 13–19, 1995) West Africa 1757Google Scholar; Garner, J., “No Minor Matter” (1994) 4–5 Index on Censorship 18–19.Google Scholar
21 The Auckland Communiqué stated:
In response to developments in Nigeria which constituted a serious violation of the principles as set out in the Harare Commonwealth Declaration, the Commonwealth Heads of Government, with the exception of The Gambia, agreed to suspend Nigeria from membership of the Commonwealth pending the return to compliance with the principles of the Harare Commonwealth Declaration. They urged the Nigerian Government to take immediate and concrete steps to adhere to these principles, and offered whatever practical assistance the Government might request in this respect. They called for the release of the 43 prisoners currendy being held for involvement in an alleged coup attempt and the release of Chief Abiola. They further decided that if no demonstrable progress was made towards the fulfilment of these conditions within a time frame to be stipulated, Nigeria would be expelled from the association.
See Gunthorp, D. (ed.), The Commonwealth Yearbook 1996 41 (London: Hanson Cooke, 1996).Google Scholar
22 Commonwealth contact with the regime has been carried on through the Commonwealth Ministerial Action Group (CMAG), composed of foreign min–isters from eight member countries (Britain, Canada, Ghana, Jamaica, Malaysia, New Zealand, South Africa, and Zimbabwe). CMAG met in April 1996 and discussed the possibility of sanctions, but failed to make a decision. Canada unilaterally imposed sanctions against Nigeria in August 1996, including a ban on sporting links and arms sales, and downgraded diplomatic representation and cultural links. Subsequently CMAG conducted its own fact–finding mission to Nigeria in November 1996, and was to make recommendations on further action in early 1997.
23 A chronology of the Auckland meeting is not available, but the suspension and Millbrook were mentioned concurrendy in the Auckland Communiqué.
24 “Commonwealth–Nigeria: After ’Heinous Act,’ Mandela Urges Expulsion,” Inter–Press Service (Nov. 11, 1995).
25 See, e.g., Dale, supra note 9 at 55.
26 (1969) 8 I.L.M. 679. The definition reads:
[“Treaty” means] an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
27 Bernhardt, R. (ed.), Encyclopedia of Public International Law, Vol. 1 899 (Amsterdam: North Holland, 1992).Google Scholar
28 South Africa’s membership was allowed to lapse in 1961 after a plebiscite among white South Africans approved the creation of a republic, and following strong criticism of apartheid by the Commonwealth: see Mansergh, N., The Commonwealth Experience, Vol. II: From British to Multiracial Commonwealth 144 (London: Macmillan, 1982).CrossRefGoogle Scholar In 1994, a multiracial South Africa was readmitted to the association.
29 In 1987, two coups by the largely ethnic Fijian security forces overthrew the democratically elected government of Dr. Timoci Bavadra, an ethnic Fijian who enjoyed widespread Indian support. Lt.–Col. Sitiveni Rabuka, the new head of government, declared Fiji to be a republic and undertook measures designed to promote the interests of ethnic Fijians, largely at the expense of the Indian majority. Rabuka’s posture caused a wave of migration by ethnic Indians fearing discrimination and intercommunal violence. The Commonwealth heads of government meeting in Vancouver strongly condemned the regime and, mindful of Rabuka’s declaration, held Fiji’s membership to have lapsed for failure to submit the usual application.
30 Fawcett, supra note g at 86, explains that the origin of this practice was allegiance to the British monarch, which was the central criterion for Common–wealth membership before 1949. At that time, a territory such as Burma, that became a republic, terminated its allegiance and ended membership. After India was accommodated as a republic within the association and the British monarch became the symbol of the Commonwealth’s “free association,” strict need for the practice fell away.
31 For a review of activity at the UN, see Simma, B. (ed.), The Charter of the United Nations: A Commentary 185–92 (Oxford: Oxford University Press, 1994)Google Scholar; more generally, see Kirgis, F. L., International Organizations in their Legal Setting: Documents, Comments and Questions 585 et seq. (St. Paul: West Publishing, 1993).Google Scholar
32 See Schermers, supra note 3 at 72–86.
33 Several articles in the Vienna Convention apply to expulsion, but space constraints do not permit elaboration here. The interpretive provisions (Arts. 31–32), amendment and modification provisions (Part IV) and the invalidity, termination and suspension provisions (Part V) might apply, depending on which side raised them.
34 Two cases that were before the ICJ before the convention came into force involved the interpretation of Art. 60. In those cases, the court treated Art. 60 as evidence of custom: see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Counál Resolution (1976) 276, ICJ 16 and Appeal Relating to the Jurisdiction of the ICAO Counál (India v. Pakistan) 1972 ICJ 46.
35 Sinclair, I., The Vienna Convention on the Law of Treaties 189 (2nd ed., Manchester: Manchester University Press, 1984).Google Scholar
36 Art. 33 reads:
(1) The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies as arrangements, or other peaceful means of their own choice.
(2) The Security Council shall, when it deems necessary, call upon the parties to setde their disputes by such means.
37 Simma, B. (ed.), The Charter of the United Nations: A Commentary 509 (Oxford: Oxford University Press, 1994)Google Scholar. See also Kirgis, F. L., “Some Lingering Questions about Article 60 of the Vienna Convention on the Law of Treaties” (1989) 22 Cornell Int’l L.J. 549 at 566–67.Google Scholar
38 In 1957, Rosenne observed that “both [the PCIJ and the ICJ] have displayed the greatest reticence in using such writings as a source of direct inspiration for a decision”: Rosenne, S., The International Court of Justice: An Essay on Political and Legal Theory 427 (Leyden: Sijthoff, 1957).Google Scholar
39 Singh, N., Termination of Membership of International Organizations 79 (London: Stevens & Sons, 1958).Google Scholar
40 There is authority for the proposition that “unanimity” in international law does not extend to obtaining the agreement of the target state: see Art. 3, para. 2 of the Treaty of Lausanne (Iraq v. Turkey), 1925 PCIJ (ser. Β) No. 12 at 28–32. On that occasion, the Permanent Court observed: “The well–known rule that no one can be judge in his own suit holds good.”
41 Wheare, K. C., The Constitutional Structure of the Commonwealth 127 (Oxford: Clarendon Press, 1960).Google Scholar
42 Fawcett, supra note 9 at 87.
43 Schermers, supra note 3 at 61.
44 Chayes, A. and Chayes, A. H., The New Sovereignty: Compliance with International Regulatory Agreements 85 (Cambridge: Harvard University Press, 1995).CrossRefGoogle Scholar
45 See supra note 22.
46 Ibid.
47 Ibid., 87.