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
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Transposing international (legal) commitments at the national level
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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
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
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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
• rigid dichotomy (inherently absolve of each other in
unwillingness to admit a principle of coordination)
(Ginsburg et al, Borchard)
Mixed approach
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
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
‘Nile Basin States shall, through the Nile River Basin Commission, take
steps to harmonize their policies in relation to the provisions of this
article.’
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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
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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
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 17
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
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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
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
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)
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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
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21
Ethiopian & Ugandan Legal Systems
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
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 22
Ethiopian & Ugandan Legal Systems
• 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
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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?
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24
‘Any body who can solve the problems of water will be worthy of two Noble Prizes; on for Peace and one for Science’.