transposing international (legal) commitments at the national level

Musa Mohammed Abseno-LLB, LLM , PhD Scholar

UNESCO Centre for Water Law, Policy and Science

University of Dundee

Presentation at national workshop, 31 May 2011, Addis Ababa,

Ethiopia

Transposing International (Legal) Commitments

at the National Level

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 2

International Law and National Law

Interaction b/n Int’ law & national law (municipal or domestic law) can be taken as a contest b/n state sovereignty and int’l order

Int’l legal order-seeks to organize int’l society in accordance with the general interest of int’l community

State sovereignty – seeks to protect a state against the intervention of int’l law in to its national legal systems

The expansion of int’l law in to the areas of domestic law (HRts-Env’t) means


Theories

Schools of thought

1. dualist-domestic law determines whether treaties have

domestic legal force-implementing legislation

2. Monist-int’l treaties become domestic law without

implementing legislation (self-executing treaties)

• lack of clarity surrounding R/ship b/n the two

• rigid dichotomy (inherently absolve of each other in

unwillingness to admit a principle of coordination)

(Ginsburg et al, Borchard)

Mixed approach


Imperatives for Int’l- Nat’l- Context

Global

• Water scarcity – Physical and economic scarcity

• More tan 260 rivers & 300 ground water basins& aquifers are shared by two or more countries - endangered rivers has increased dramatically-drying river beds, dwindling reservoirs - The Nile-Lake Victoria among the ten (WWF-2010)

Basin-wide-Nile Challanges

• Hydropolitics- Revolution s, S. Sudan, Existing treaties, Environment, demographic

• A shifting pattern - Asymmetric relationships – (hegemonic& counter-hegemonic)

• Lack of comprehensive legal and institutional framework –overdue

• Issues surrounding CFA-water security, planned measures (dam)

National

• National sovereignty –doctrinal positions

• Proper implementation


Int’l-Nat’l Interface

• The challenges over international water disputes cannot be

solved only by rules of international law orienting States on

general guidelines

• the general principles impact or shape the actions and

interactions within the domestic laws, regulations, and

institutions. (Hayward K.)

• National Implementation (NI) constitutes an important part

of international and national law interface and compliance

of int’l treaties.

• NI provides access to a judicial review, the right to standing,

and remedies to non-sate actors in challenging decisions of

national implementations.

International-National Water law interface - Why the need?


Int’l-Nat’l interface

• conceptual disconnection and jurisdictional fragmentation ( int’l-

Nat’l) - Korhonen

• The Q. of interface overlooked by policy makers, technicians,

international water law experts, int’l organizations involved in TB

water negotiations.

• Interface as part of a holistic approach to IWRM-Avoid the Tragedy

of the Common (Garrett Hardin)-A collective action problem-each

getting more at minimum cost (Benvenisti)

• Legal research and discussions on transboundary water resources

seldom corroborate the issue of national laws and regulations ----

implementation deficit - absence of synergy—discursive

implementation of commitments


Domestic implementation of Multilateral Agreements (MAs)

MAs

• MA provisions obligating states to undertake legislative measures-E.g.

CFA

• Mechanisms for follow up of implementation of the EAs (e.g.. Kyoto,

UNFCCC, Ramsar etc.)

• Institutional and financial support - E.g. specialized UN agencies &

subsidiaries (UNEP, WMO, UN Habitat, etc.)

• River Basin Commissions (supra-national power/what influence over

national laws and policies?)

Domestic Context

• Constitutional provisions, laws, and institutions

e.g. in national implementation of MAs- consistency laws, lack of

coordination, capacity, judicial & administrative remedies in MAs


The Case of Nile CFA

Back ground- Normative Development

• One of the functions of international law - is its normative role that

shapes the values and goals of cross border interactions

• source of the principles-----the process of the formulation of the rules---

the criteria for legal obligations----the binding character and the

hierarchy of rules

• international law framework - advances existing ‘discourse and

participation’ to provide conceptual clarity in developing legal

obligations and gaining their acceptance. (Diehl, P., et al)

• Legal norms have been influential and have both hindered and

promoted cooperation in the Nile. (Brunée & Tupee)


Core elements-substantive-procedural rules

• equitable and reasonable utilization

• no significant harm

• concept of benefit sharing

• prior notification

• Dispute settlement

• Public participation

• Institutions

• *water security


Equitable and Reasonable Utilization (ERU) - the Right to Water

Allocation

• the concept of ‘equity’ - fairness (a composition of legitimacy and

justice)

• the most restrained justice-based claims may be advanced in the

form of equity (Thomas Franck)

• intra-generational equity/ inter-generational equity-impose

limitations on rights - needs of present and future generations

• Equity serves two functions mandated by efficiency-

(1) discretion to decision makers where existing norms are too crude

to be applied

(2) Equity creates incentives for users of transboundary resources to

act efficiently by cooperating with their neighbours

(Benvenisti)


Substantive and Procedural Rules - CFA

Article 4 (1) of NRBCFA

‘Nile Basin States shall in their respective territories utilize the water resources of

the Nile River Basin in an equitable and reasonable manner. In particular, those

water resources shall be used and developed by Nile Basin States with a view to

attaining optimal and sustainable utilization thereof and benefits therefrom,

taking into account the interests of the Basin States concerned, consistent with

adequate protection of those water resources. Each Basin State is entitled to an

equitable and reasonable share in the beneficial uses of the water resources of

the Nile River Basin’.

• obligatory provision-correlative entitlement-UNWCC

ERU Ethiopian and Ugandan- constitutional provisions- economic, social and

cultural rights; the right to development; clean and healthy environment require

equity in their access and allocation. Both constitutions acknowledge the concept

of balanced and equitable development or equitable distribution of wealth. For

instance the Ethiopian Constitution requires ‘all international agreements and

relations concluded, established or conducted by the State shall protect and

ensure Ethiopia’s right to sustainable development


NRBCFA-Substantive...

Water allocation - Article 4 - CFA - Criteria for water sharing

Art. 5 - No-Significant Harm - Controversial-Operates upstream-downstream

‘Nile Basin States shall, in utilizing Nile River Basin water resources in their

territories, take all appropriate measures to prevent the causing of

significant harm to other Basin States’.


Ecosystem Protection

Art. 6 - CFA - enunciates a general obligation to protect, conserve, and

rehabilitate the Nile River and its ‘ecosystem’

• Nile Basin States shall take all appropriate measures, individually and,

where appropriate, jointly, to protect, conserve and, where necessary,

rehabilitate the Nile River Basin and its ecosystems

Implementation - multi-dimensional involving domestic laws, treaty laws-

general international law

Article 6(2) of ANRBCF stipulates:

‘Nile Basin States shall, through the Nile River Basin Commission, take

steps to harmonize their policies in relation to the provisions of this

article.’


Procedural Rules –Implementation of CFA

Regular Exchange of Information

Article 7 - a minimum requirement for data and information exchange

• Regular exchange data and information on existing measures

• readily available and relevant

• Data exchange protocol

Prior notification on planned measures

Controversial Upstream and down stream- NRBC

Public participation

The Universal Declaration of Human Rights

International Covenant on Civil and Political Rights

American Convention on Human Rights

African Charter on Human and People’s Rights

Principle 10 of Rio Declaration

1992 UN ECE Helsinki Convention

2000 EU Water Framework Directive

1991 Espoo Convention


Public participation

NRBCFA provides public participation within the context of the concept of

subsidiarity. According to Article 10:

In planning and implementing a project pursuant to the principle of subsidiarity

set forth in Article 3(3), Nile Basin States shall:

1. allow all those within a State who will or may be affected by the project in that

State to participate in appropriate way in the planning and implementation

process

2. make every effort to ensure that the project and any related agreement is

consistent with the basin-wide framework

• Nile Basin Discourse (NBD). Ethiopian and Ugandan country programs are

represented by National Desk Forums (NDF)

To what degree the national laws institutions accommodate public participation can be assessed within concept of subsidiarity in Framework Agreement


Dispute Resolution

Article 43 NRBCFA

‘In the event of a dispute between two or more Nile Basin States concerning the interpretation or application of the present Framework, the States concerned shall, in the absence of an applicable agreement between them, seek a settlement of dispute by peaceful means...’

The dispute settlement mechanisms adopted by the ANRBCF include negotiation, good offices, mediation, conciliation by the NRBC or other third party arbitration, or submission to the ICJ

A Fact Finding Commission can also be used by the parties or one of the parties as a last resort, although its decision remains non- binding

The ANRBCF makes no reference to private remedies in dispute resolutions as is the case in UNWCC, which expects national legal system of a watercourse State allow private remedies through access to judicial or other procedures for compensation claims or other solutions


Joint institution for the management of the Nile under the NRBCFA

Conference of the Heads of State and

Government

The Council of Ministers

Advisory Committee

(SAC)Secretariat

Technical Advisory

Committee (TAC)

sub-basin organizations


Domestic Synthesis of core principles under Ethiopian & Ugandan Legal Systems

An overview of Ethiopian and Ugandan National Laws

The Ethiopian Legal System – historical record

slow legal and institutional development -resistance to modern change (Feudal

system) and lacked of stability (Habte-Sellasie, Fasil Nahum)

The Fetha Negest (1240)-(spiritual and temporal matters) laid down principles for

water resources management - no-harm rule to downstream users - right of

compensation - the right to using water

Constitutions - 1931, 1955, 1987, 1995

1955 Constitution

natural resources and the sub-soil of the Empire including those beneath its waters

as State Domain

The natural resources of the country, water, forests, land, air, lakes, rivers and ports-

sacred trust for the benefit of the present and succeeding generations of the

Ethiopian people( principle of sustainable development)

their conservation of the said resources is essential for the preservation of the

Empire - (ecosystem approach)


Ethiopian & Ugandan Legal Systems

• 1987 Constitution- land, minerals, waters and forests – State property

• 1960 Civil Code – the first set of comprehensive rules on water resources management

• clauses on the ownership, use of water, priority of use (communities)

• jurisdiction over water disputes, the question of compensation, priority of domestic use

The Current Constitution (1995) – Federal system

Federal Govt- power to determine and administer the utilization of the waters or

rivers and lakes-interstate and transboundary

The right to justice - According to the 1995 constitution every person has the right

to bring justiciable disputes to, and acquire a decision or judgement by a court of

law or any other competent body with judicial power

The Water Resources Management Policy - On transboundary waters, the policy

principles provide for the promotion of the establishment of an integrated

framework for joint utilization, equitable cooperation and agreement



The Ethiopian Water Sector Strategy (EWSS) – the overall goal of EWSS, which was adopted in 2001, is ‘to enhance and promote all national efforts towards the efficient, equitable and optimum utilization of the available water resources of Ethiopia for significant socio-economic development on a sustainable basis

The Water Sector Development Program (WSDP) – The WSDP was adopted in 2002 to interpret the principles of the water policy and the goal of the water strategy in to action

Ethiopian Water Resources Management Proclamation (EWRMP) (2002)

utilized for the highest social and economic benefits

Permit system

fundamental principles, defines the power of supervising body, and settlement of disputes

Ethiopian Water Resources Management Regulation (EWRMR) (2005) - detailed rules and procedures for the implementation of provisions of the proclamations

Integrated Master Plan

Institutional Framework - 1959 the Ministry of Public Works - MoWE



• Inter-sectoral laws and institutions

• The implementation of international agreements

The Ugandan Legal System

1962, 1967 Constitutions

the 1995 Constitution - water state domain

protection of natural resources

right to clean and healthy environment

protection of natural resources

The Water Sector

the 1995 Water Statute and the 1997 Water Act are considered core legislations

in the management of Ugandan water resources

The National Water Policy (1999) -transboundary water resource policy is

based on ‘equitable access and use of the Nile waters through effective

involvement of the Government in the Nile water issues


Issues for consideration

• There are a complex and pluralistic principles, rules,

originating institutions within the field of water law

• Application complex-support/hinder

Q for Brainstorming

Think of a framework that can be designed in

transposing rights and obligations under the CFA to

national implementation?


‘Any body who can solve the problems of water will be worthy of two Noble Prizes; on for Peace and one for Science’.

John F. Kennedy

Thank You!

transposing international (legal) commitments at the national level

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