The Environmental Management of Water Resources: Which Impact on the Qualifiation of Freshwater Resources in International Law?

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(1)Book Chapter. The Environmental Management of Water Resources: Which Impact on the Qualifiation of Freshwater Resources in International Law?. MBENGUE, Makane Moïse, ODILI, Nwamaka Chigozie. Reference MBENGUE, Makane Moïse, ODILI, Nwamaka Chigozie. The Environmental Management of Water Resources: Which Impact on the Qualifiation of Freshwater Resources in International Law? In: Mara Tignino and Christian Bréthaut. Research Handbook on Freshwater Law and International Relations. Cheltenham : E. Elgar, 2018. p. 68-95. Available at: http://archive-ouverte.unige.ch/unige:137391 Disclaimer: layout of this document may differ from the published version..

(2) 3.. The environmental management of water resources: what impact on the characterization of fresh water in international law? Makane Moïse Mbengue and Nwamaka Odili. I. INTRODUCTION: NAVIGATION AND ECONOMIC USES OF WATER Apart from general household uses of fresh water, its earliest common uses were for navigation and the promotion of economic activities. In Europe, the need for freedom of navigation and security in waterways and canals within and across nations was reflected in the Final Act of the Congress of Vienna, adopted at the close of the Congress of Vienna in 1815.1 Its purpose was not only to allow freedom of movement in the waterways but also for territorial protection and to sustain economic activities in the region.2 In 1885, the Preamble to the General Act of Berlin made applicable in West and Central Africa the principles of the Final Act of Congress of Vienna.3 At this time ‘the principle of freedom of navigation was of a paramount importance to the European powers in their colonial expansion and the development of their colonial activities.’4 Hence, 1 The Congress of Vienna was convened from 18 September 1814 to 9 June 1815 by representatives the then major European powers: Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden. The Final Act of the Congress of Vienna, which is a collection of different treaties, was signed on 9 June 1815. 2 Art 14 of the Final Act of Vienna ‘established for the free navigation of rivers and canals, in the whole extent of ancient Poland, as well as for the trade to the ports, for the circulation of articles the growth and produce of the different Polish provinces, and tor the commerce, relative to goods in transit’ while art 109 provides that the ‘the navigation of the rivers, along their whole course, referred to in the preceding Article, from the point where each of them becomes navigable, to its mouth, shall be entirely free, and shall not, in respect to commerce, be prohibited to any one’ <https://en.wikisource.org/wiki/ Final_Act_of_the_Congress_of_Vienna/General_Treaty> accessed 1 December 2017. 3 The General Act of Berlin (26 February 1885) <http://waado.org/colonial_rule/ general_documents/berlin_act_1885.html> accessed 30 November 2016; the Preamble to the Act extends to the Rivers Niger and Congo ‘and its affluents the same principles as set forth in arts 58 and 66 of the Final Act of the Congress of Vienna’. 4 Laurence Boisson de Chazournes, ‘Freshwater and International Law: the Interplay. 68. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(3) The environmental management of water resources. 69. the great rivers of Africa offered the colonial powers highway access into the African continent. In the General Act of Berlin, the principle of freedom of navigation for riparian Europeans in the Act of Vienna was extended to non-riparian Europeans over the Niger River in West Africa and the Congo River in East Africa.5 Its primary aim was to allow Europeans easy access into Africa through these rivers and their tributaries in order to colonize the region, freely move within the area they had acquired and further their economic activities.6 To buttress this emphasis on navigation, the Act of Berlin established the International Commission of Navigation of the Congo solely ‘to supervise the application of the principles proclaimed and established by this Declaration.’7 Neither the Final Act of the Congress of Vienna nor the General Act of Berlin recognized protection of fresh water ecosystems or other substantive principles of shared watercourse management. Similar treaties during this period also expounded on navigation and economic growth at the expense of any environmental considerations.8 The Preamble to the Convention Revising the General Act of Berlin and the General Act and Declaration of Brussels states that the General Act of Berlin was ‘primarily intended to demonstrate the agreement of the Powers with regard to the general principles which should guide their commercial and civilizing action […]’. The Nile River Basin was the focus of the earliest basin-specific instruments in Africa, with two important regimes adopted in the early twentieth century. Neither instrument made reference to the environment of the Nile River or the protection of its ecosystems.9 Apart from these Nile River Basin regimes, no between Universal, Regional and Basin Perspectives’ (UNESCO 2009) <http://archiveouverte.unige.ch:5080> accessed 30 January 2017. 5 MA Salman, ‘River Niger’ (nd) Max Planck Encyclopedia of Public International Law <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e1325?prd=EPIL> accessed 26 July 2017. 6 Art 26 of the General Act of Berlin provides that the ‘the navigation of the Niger without excepting any of its branches and outlets is and shall remain entirely free for all merchant ships of all nations […] for transportation of goods and passengers’. 7 General Act of Berlin (n 3) art 8. 8 The treaties are the Convention Revising the General Act of Berlin and General Act and Declaration of Brussels, Saint-Germain-en-Laye (10 September 1919) <www.loc. gov/law/help/us-treaties/bevans/m-ust000002-0261.pdf> accessed 30 November 2016, and the Convention and Statute on Freedom of Transit, Barcelona Convention (20 April 1921) <http://treaties.fco.gov.uk/docs/fullnames/pdf/1923/TS0027%20(1923)%20CMD1992%201921%2020%20APR,%20BARCELONA%3B%20CONVENTION%20&%20 STATUTE%20ON%20FREEDOM%20OF%20TRANSIT.pdf> accessed 18 January 2017. While the 1919 Convention replaced the General Act of Berlin, the Barcelona Convention extended the principle of freedom of navigation and free access into Africa through every river, not just the Niger and Congo Rivers. 9 According to Abseno, there were various instruments on the Nile Basin, most of which. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(4) 70. Research handbook on freshwater law and international relations. treaties governed African basins for much of the twentieth century.10 Over time, however, the need to protect fresh water courses (particularly in a transboundary context) evolved due to the impacts of industrialization, urbanization, and overpopulation on fresh water. Pollution became the initial focus of this evolution, as seen in some fresh water regimes established before the adoption of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers (the Helsinki Rules).11 The Helsinki Rules were instrumental in developing and popularizing the principle of protection from pollution. As a result, fresh water regimes providing exclusively for freedom of navigation gradually decreased, progressively incorporating provisions to guard against the pollution of fresh water. According to the United Nations Department of Economic and Social Affairs (UNDESA), ‘the focus of negotiation and treaty-making in the last century has shifted away from navigation towards the use, development, protection and conservation of water resources.’12. II. EMERGENCE OF ENVIRONMENTAL CONSIDERATIONS: POLLUTION The obligation to prevent pollution was reflected to some extent in shared watercourse regimes adopted in the early 1960s, but the Helsinki Rules expounded upon the principle and gave it prominence. The Agreement Concerning the International Commission for the Protection of the Rhine against Pollution (the Rhine Agreement) was one of the first instruments prior to the Helsinki were territorial boundary treaties between colonial powers which affected the River Nile, but the two most notable ones were the Treaty between Great Britain and Ethiopia (15 May 1902) (Nile Treaty, 1902) and the Exchange of Notes between the United Kingdom and Egypt in Regard to the Use of the Waters of the River Nile for Irrigation Purposes (7 May 1929) (Nile Treaty, 1929). According to McKenzie, ‘the purpose of these agreements was to ensure no project upstream would disrupt the supply of water to Egypt, which was then under Britain’s control’ (Scott O McKenzie, ‘Egypt’s Choice: From the Nile Basin Treaty to the Cooperative Framework Agreement, an International Legal Analysis’ (2012) 21 Transnatl L & Contemp Probs 571). 10 In Africa, the early Nile River Basin regimes were followed by the Convention Relating to the General Development of the Senegal River (adopted 1963) (Bamako Convention). 11 ‘Helsinki Rules on the Uses of the Waters of International Rivers’ in International Law Association Report of the 52nd Conference (adopted in Helsinki 1966) (ILA 1967) (Helsinki Rules) <www.unece.org/fileadmin/DAM/env/water/meetings/legal_board/2010/ annexes_groundwater_paper/Annex_II_Helsinki_Rules_ILA.pdf accessed 6 December 2017>. 12 UNDESA, ‘Transboundary Waters’ <www.un.org/waterforlifedecade/transboundary_ waters.shtml> accessed 30 March 2017.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(5) The environmental management of water resources. 71. Rules to deal with the principle of pollution prevention.13 The Preamble of the treaty defines the intention of parties as ‘to assure the quality of the waters of the Rhine by attempting to prevent further pollution and to improve the present state’. An International Commission was created and mandated to research and propose measures for protecting the Rhine River against the menace of pollution.14 A much more recent treaty, the Convention on the Protection of the Rhine, includes mandatory provisions to this effect.15 Article 5 of the Convention codifies the obligation of the parties to prevent the pollution of the Rhine River.16 Prior to the Rhine Agreement, pollution had been considered in the 1938 Trail Smelter case, but not in a transboundary water context.17 The 1957 Lake Lanoux arbitration between France and Spain, which concerned the use of the waters of Lake Lanoux in the Pyrenees, did not consider that water diversion could result in pollution and negatively impact the environment of the basin, and the arbitral tribunal regretted that Spain had failed to raise this point.18 It has been observed that the tribunal found that ‘France has maintained to the end the solution which consists in diverting the waters […] with full restitution. By making this choice, France is only making use of a right; the development works of Lake Lanoux are on French territory, the financing of and responsibility for the enterprise fall upon France, and France alone is the judge of works of public utility which are to be executed on her own territory, save for the provisions of articles 9 and 10 of the Additional Act, which, however, the French scheme. 13 Agreement Concerning the International Commission for the Protection of the Rhine against Pollution (Berne, 29 April 1963, entered into force 1 May 1965) (The Rhine Agreement) <http://www2.ecolex.org/server2neu.php/libcat/docs/TRE/Full/En/TRE000484.txt> accessed 13 December 2017. 14 The Rhine Agreement (n 13) art 2. 15 Convention on the Protection of the Rhine (Rotterdam, 22 January 1998) <http:// extwprlegs1.fao.org/docs/pdf/mul17477.pdf> accessed 13 December 2017. 16 Further provisions regarding pollution are reflected in art 3(1)(a) elimination of pollution from both point and diffuse sources and art 4(d) polluter-pays principle. 17 The Trail Smelter case, which originated from instances of pollution, established the ‘no harm rule’ doctrine in environmental law. The tribunal considered the impact of sulfur generated by Trail Smelter (operated by a Canadian in British Columbia and affecting the US state of Washington) and decided that ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another’. Information is available online at <http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf> accessed 18 December 2017. 18 Lake Lanoux Arbitration (France v Spain) (1957) 12 RIAA 281; 24 ILR 101 <www. ecolex.org/server2.php/libcat/docs/COU/Full/En/COU-143747E.pdf> accessed 26 January 2017. The French Government proposed to carry out certain works for the utilization of the waters of the lake and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne (26 May 1866) between France and Spain.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(6) 72. Research handbook on freshwater law and international relations. does not infringe.’19 The tribunal further noted that ‘States are today perfectly conscious of the importance of the conflicting interests brought into play by the industrial use of international rivers, and of the necessity to reconcile them by mutual concessions.’20 It concluded that the works envisaged by France did not infringe upon Spanish rights under the Treaty of Bayonne and its Additional Act of 1866, because France had taken adequate measures to prevent damage to Spain. According to Shandilya, this case implied an obligation upon States to enter into consultation and negotiation ‘not only as a mere formality, but as an attempt to conclude an agreement for the prevention of conflicts. There is also a norm about friendly neighborliness […] which requires that states tolerate minor inconveniences which result from legitimate uses of neighboring states’ territories.’21 In Africa, the obligation to prevent pollution was reflected in the Niger River Basin treaties adopted before the Helsinki Rules. Article 12 of the Agreement Concerning the Niger River Commission (1964 Niger River Commission Agreement) provides that the riparian States ‘undertake to […] abstain from carrying out on the portion of the River, its tributaries and sub-tributaries subject to their jurisdiction any works likely to pollute the water […] without adequate notice to, or prior consultation with the Commission.’22 This regime was the first to guard against the pollution of a river basin in West Africa prior to the adoption of the Helsinki Rules. It followed from article 4 of an earlier treaty concerning the same basin, the Act Regarding Navigation and Economic Cooperation between the States of the Niger Basin (the Act of Niamey), which obliges riparian States to ‘establish close co-operation with regard to the study and the execution of any project likely to have an appreciable effect on certain features of the regime of the River, its tributaries and subtributaries, their conditions of navigability, agricultural and industrial exploitation, the sanitary conditions of their waters, and the biological characteristics of their fauna and flora.’23 These regimes adopted before the Helsinki Rules briefly ‘touched’ on pollution without fully addressing it. Article 9 of the Helsinki Rules defines water pollution as ‘any detrimental change resulting from human conduct in the natural composition, content, 19 Prashant Shandilya, ‘Lac Lanoux Arbitration an Appraisal’ (Forest and Environmental Law Review, nd) <https://forestreview.wordpress.com/2013/07/06/lac-lanoux-arbitrationan-apprasial/> accessed 29 January 2018. 20 Lake Lanoux Arbitration (n 18). 21 Shandilya (n 19). 22 The 1964 Niger River Commission Agreement (adopted in Niamey, 25 November 1964) <http://iea.uoregon.edu/treaty-text/1964-nigerrivercommissionnavigationtransport rivernigerentxt> accessed 1 December 2017. 23 The Act of Niamey (adopted in Niamey, 26 October 1963) <http://gis.nacse.org/tfdd/ tfdddocs/264ENG.pdf> accessed 1 December 2017.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(7) The environmental management of water resources. 73. or quality of the waters of an international drainage basin’. This conception of pollution is reflected in article 21 of the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses (UN Watercourses Convention),24 which defines the pollution of an international watercourse as ‘any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.’ This definition is somewhat similar to the meaning of ‘transboundary impact’ within the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention).25 The Helsinki Rules provisions on water pollution are found in articles 9 to 11 thereof and include water pollution originating from ‘within a territory of the State, or outside the territory of the State, if it is caused by the States conduct.’26 The Helsinki Rules further require riparian States to prevent new forms of water pollution or increases in the degree of existing water pollution in an international drainage basin in order to prevent substantial injury to a co-basin State, and obliges these States to take steps to abate existing water pollution so as to prevent substantial harm to a co-basin State.27 Hence, the rules permit pollution that does not substantially harm a co-riparian. According to Fahmi, the text of article 10 of the Helsinki Rules does not absolutely prohibit pollution but rather lays down an allowable limit of water pollution, defined as a degree which would not cause substantial injury to a co-basin State.28 She further argues that this provision implies that the waters of an international drainage basin may be polluted to an undetermined margin, degree, or limit without incurring any responsibility. The implication is that unless riparian States agree on the degree of pollution allowed in transboundary waters, the only solutions available to them are cooperation, goodwill, and understanding.29 Article 10(1) of the Helsinki Rules stipulates that this conception of pollution prevention is consistent with the principle of equitable utilization of shared water sources. Article 5 of. 24 Convention on the Non-Navigational Uses of International Watercourses (adopted in New York on 21 May 1997, entered into force 17 August 2014) UNGA Res 51/229 UN Doc A/51/49; 36 ILM 700. 25 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992, entered into force 6 October 1996) UNTS 1936; ILM 1312. Art 1 of the UNECE Water Convention defines transboundary impact as ‘any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity’. 26 Helsinki Rules (n 11) art 10(2). 27 ibid art 10 (1) (a) & (b). 28 AM Fahmi, ‘Notes on International Water Systems with Special Reference to the Helsinki Rules’ (1974) 25 Österreichische Zeitschrift für öffentliches Recht (Wien) 333–38. 29 ibid.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(8) 74. Research handbook on freshwater law and international relations. the Rules also lists factors for the equitable and reasonable utilization of an international drainage basin.30 The Helsinki Rules are the first international water law instrument to include the principle of polluter-pays. Article 11 of the Rules not only requires the State responsible for pollution to desist from it, but also to compensate the injured co-basin State for any injury caused. Where the State fails to take reasonable steps against pollution, it should promptly enter into negotiation with the injured State for amicable settlement. This provision on the consequences of pollution could be criticized as soft, loose, and lacking in mandatory character. Its failure to define the allowable limit of water pollution also leaves a vacuum. However, the Helsinki Rules is a soft law instrument rather than an international treaty, and so lacks the capacity to create binding obligations. Its main contribution to international water law most likely relates to the codification of principles of customary international water law (such as the principle of reasonable and equitable utilization of international drainage basins), on which future water treaties like the 1997 UN Watercourses Convention are built.31 Its elaborate provisions regarding pollution in an era of emphasis on navigation and economic uses of fresh water are particularly worthy of recognition. The Statute of the River Uruguay is one of the early treaties to reflect principles for the protection of aquatic ecosystems beyond pollution control and prevention. Consistent with the Helsinki Rules, it also includes the polluterpays principle.32 Article 42 of the Statute of the River Uruguay provides that ‘each Party shall be liable to the other for damage inflicted as a result of pollution caused by its own activities or by those carried out in its territory by individuals or legal entities.’ Further to this provision and the aim to achieve 30 Art 5 of the Helsinki Rules defines factors for equitable and reasonable utilization of the international drainage basin. These are: 1. The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State; 2. The hydrology of the basin, including in particular the contribution of water by each basin State; 3. The climate affecting the basin; 4. The past utilization of the waters of the basin, including in particular existing utilization; 5. The economic and social needs of each basin State; 6. The population dependent on the waters of the basin in each basin State; 7. The comparative costs of alternative means of satisfying the economic and social needs of each basin State; 8. The availability of other resources; 9. The avoidance of unnecessary waste in the utilization of waters of the basin; 10. The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and 11. The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State. 31 The principle of reasonable and equitable utilization of international drainage basins and the relevant factors provided in Articles 4 and 5 of the Helsinki Rules are reflected in arts 5 and 6 of the UN Watercourses Convention. 32 Statute of the River Uruguay <www.internationalwaterlaw.org/documents/ regionaldocs/Uruguay_River_Statute_1975.pdf> accessed 10 December 2017.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(9) The environmental management of water resources. 75. effective ecosystem protection, the Statute’s regime obliges parties to adopt ‘measures to ensure that the management of the soil and woodland and the use of groundwater and the waters of the tributaries of the river do not cause changes which may significantly impair the regime of the river or quality of its waters.’33 Article 36 of the treaty also provides that ‘the Parties shall coordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it.’ The Statute fails to recommend any measure, but the Administrative Commission of the River Uruguay (CARU) adopted some rules for the protection of the aquatic ecosystems pursuant to article 56.34 The instrument titled ‘Digest on the uses of the waters of the River Uruguay’ confirms the obligations ‘to protect and preserve the water and its ecological balance; to ensure any legitimate use of the water considering long-term needs and particularly human consumption needs; to prevent all new forms of pollution and to achieve its reduction in case the standard values adopted for the different legitimate uses of the River’s water are exceeded; to promote scientific research on pollution.’35 In the Pulp Mills case, the International Court Justice (ICJ) considered the procedural and substantive obligations of the parties under the Statute of River Uruguay. As parties’ obligations under the Statute include respect for principles concerning the protection of the environment, Argentina alleged that by constructing the two pulp mills, Uruguay breached its procedural and substantive obligations under the Statute in relation to the environment of the river. Argentina alleged the breach of several substantive obligations: the duty to contribute to the optimum and rational utilization of the river (article 1); the obligation to ensure that the management of the soil and woodland does not impair the regime of the river or the quality of its waters (article 35); the need to coordinate measures to avoid changes in the river’s ecological balance (article 36); and the duty to prevent pollution and preserve the aquatic environment (article 41). The procedural obligation that Uruguay was alleged to have breached relates to notifying the basin commission, CARU, of its intention to construct a project that will ‘substantially modify or alter existing ones.’36 In summary, Argentina contended ‘that the mills would have an environmental ibid art 35. ibid art 56 empowers the River Uruguay Executive Commission (CARU) to draw up rules governing the conservation and preservation of living resources and the prevention of pollution. 35 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (2010) ICJ Rep 14. This instrument is mentioned in the judgment. 36 Statute of River Uruguay (n 32) art 7. 33 34. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(10) 76. Research handbook on freshwater law and international relations. impact on the river and surrounding areas, in particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river, by failing to protect biodiversity and fisheries.’37 Although the ICJ found Uruguay liable for breach of the procedural obligation, it did not uphold the claimed breach of any of the substantive obligations regarding the protection of ecosystems.38 According to the ICJ, ‘there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the […] mill have had deleterious effect or caused harm to living resources or to the quality of the water or ecological balance of the river since it started its operations in November 2007.’39 According to Handl, the Pulp Mills judgment clearly confirms that the State’s obligation of environmental protection is one of due diligence.40 The ICJ also decided that in a transboundary context, the obligation to protect aquatic ecosystems by conducting an environmental impact assessment when a project could cause adverse impact is a rule of customary international law.41 On this requirement, Herbert Smith Freehills (Arbitration Notes) has observed that ‘although assessing obligations under a specific Statute, the judgment (in the Pulp Mills case) provides guidance to any entity whose business potentially has a cross-boundary environmental impact, as to the requirement for impact assessments and the way in which environmental standards are assessed in the event of a dispute.’42 The broader context of the Statute of the River Uruguay is the evolution of pollution control as one of the means to protect ecosystems. For example, article 13 of the Niger Basin Water Charter includes ‘the progressive reduction of transboundary pollution and prevent[ion of] the aggravation of pollution’. 37 Herbert Smith Hills, ‘ICJ Makes Ruling on Environmental Protection – Pulp Mills on the River Uruguay (Argentina v Uruguay)’ Arbitration Note <https://hsfnotes.com/ arbitration/2010/05/07/icj-makes-ruling-on-environmental-protection-pulp-mills-on-theriver-uruguay-argentina-v-uruguay/> accessed 7 January 2018. 38 The ICJ found that the obligation of consultation and notification through CARU under the Statute of the River Uruguay is a mandatory one, with which Uruguay had failed to comply. The ICJ held that Uruguay ‘disregarded the whole of the co-operation mechanisms provided for in Article 7 to 12 of the […] Statute’. 39 Pulp Mills (n 35). 40 Günther Handl, ‘Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972 and the Rio Declaration on Environment and Development, 1992’ (Introductory Note, United Nations Audiovisual Library of International Law 2012) 1 <http://legal.un.org/avl/pdf/ha/dunche/dunche_e.pdf> accessed 30 January 2018. 41 Herbert Smith Hills (n 37). 42 ibid.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(11) The environmental management of water resources. 77. as one of the means to protect the aquatic environment.43 Similarly, the UN Watercourses Convention includes the prevention, reduction, and control of pollution as one of the means to protect and manage shared watercourses.44 Regimes established long after adoption of the Statute of the River Uruguay have demonstrated that the principle of the protection of the ecosystems of an international watercourse is fundamental to the management of transboundary watercourses. Accordingly, such protection of the aquatic environment and corresponding duty to control and prevent pollution require mandatory obligations beyond the obligation of due diligence.. III. THE ‘ENVIRONMENTALIZATION’ OF WATER RESOURCES MANAGEMENT Although the thrust of the Lake Lanoux case relates to the environment, neither the parties nor the arbitral award emphasized environmental considerations.45 Hence the environmental effect of diverting the waters of Lake Lanoux on the ecosystems of the basin was neither considered nor resolved. Similarly, the 1966 Helsinki Rules addressed the need to protect transboundary watercourses from pollution but failed to include the fundamental need to protect the ecosystems of shared watercourses. Years after the Lake Lanoux decision, several regimes based on soft laws, treaties, and case law have addressed the need to link fresh water with its ecosystems, giving rise to the principle of the protection of aquatic ecosystems. According to Rieu-Clarke and Kinna, the principle of the protection. 43 Niger Basin Water Charter (adopted in Niamey, 30 April 2008) <www.abn.ne/ images/documents/textes/water_charter.pdf> accessed 10 December 2017. Other means for ecosystem protection listed in art 13 of the Charter include: preserve and improve the state of aquatic and terrestrial ecosystems, and their needs for water, together with the wetlands which depend on the Niger Basin; promote the sustainable use of water, based on the longterm protection of available water resources; mitigate harmful situations such as floods, droughts, siltation, and climate change; use environmental assessments; control invasive aquatic species; prioritize the preservation of aquatic ecosystems; consolidate and improve knowledge on the state of the catchment area water and other natural resources through reinforcement of available databases; develop and manage catchment areas; preserve the biological diversity of the Niger hydrographic catchment area; implement the master plan concerning the fight against siltation; reverse the trends towards the deterioration of land and water in the Niger Basin; promote sustainable agro-sylvo-pastoral and fishing practices; determine the standards for drinkability and discharges into the Niger Basin; and prevent and manage emergency situations. 44 UN Watercourses Convention (n 24) art 21. 45 France proposed diversion of the waters of Lake Lanoux, which Spain perceived as adverse to its interests.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(12) 78. Research handbook on freshwater law and international relations. of aquatic ecosystems suggests a link between the right of a riparian State to utilize the water of an international watercourse and the obligation to protect it.46 i. Soft Laws and Declarations Stockholm Declaration The 1972 Stockholm Declaration was the first document to recognize the need to keep the human environment healthy, and therefore heralded the birth of international environmental law (a field closely related to international water law).47 Though the principles of the Declaration are non-binding and reference to water appears in Principle 2 only, it brought about increased consideration of all respects of the environment, including water resources.48 Principle 21 of the Declaration – which is not just relevant to the protection of environment, but also applies directly to water resources management – provides that: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.49. Principle 21 (which is similar to Principle 2 of the Rio Declaration) also recognized a ‘no harm rule’ in international water law, as was later discussed in the Pulp Mills case between Argentina and Uruguay. In that case, the ICJ expressly endorsed the principle as a rule of customary international law. Dublin Principles The Dublin Statement on Water and Sustainable Development, which evolved from the International Conference on Water and Environment (Dublin, Ireland, 26–31 January 1992), addressed links between the environment and. 46 Alistair Rieu-Clarke and Rémy Kinna, ‘Can Two Global UN Water Conventions Effectively Co-exist? Making the Case for a “Package Approach” to Support Institutional Coordination’ (2014) 23 RECIEL 15. 47 Stockholm Declaration of the United Nations Conference on the Human Environment (1972) <www.un-documents.net/unchedec.htm> accessed 29 January 2018. 48 Principle 2 of the 1972 Stockholm Declaration states that ‘the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate’. 49 Principle 22 of the Declaration initiates an important principle of compensation of victims of pollution and environmental damage, which later became the ‘polluter-pays principle’.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(13) The environmental management of water resources. 79. water.50 The Statement establishes four principles on water: fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment (Principle 1); water development and management should be based on a participatory approach, involving users, planners, and policy-makers at all levels (Principle 2); women play a central part in the provision, management, and safeguarding of water (Principle 3); and water has an economic value in all of its competing uses, and should be recognized as an economic good (Principle 4). According to the Global Water Partnership, Principle 1 of the Dublin Statement ‘recognizes all the characteristics of the hydrological cycle and its interaction with other natural resources and ecosystems.’51 It clearly highlights the emergence of the principle of integrated water resources management (IWRM) in the use of such resources.52 Another very important development from the Dublin Conference is that participants formulated an action agenda, which was based on these principles and which related to water and the environment: ‘Protection against natural disasters’ (to address floods and drought); ‘Sustainable urban development’ (to deal with water scarcity and pollution due to urban wastes); ‘Protecting aquatic ecosystems’ (stating that water is part of the environment, and that disruption of water flows generates pollution and reduces ecosystem productivity); and an enabling environment action plan, stating that ‘implementation of action programmes for water and sustainable development will require a substantial investment, not only in the capital projects concerned, but, crucially, in building the capacity of people and institutions to plan and implement those projects’. Though both the Stockholm Declaration and the Dublin Principles are nonbinding statements, the latter is more direct than the brief water-related provisions of the Stockholm Declaration. The Dublin Principles also informed a more comprehensive approach towards the environmentalization of water resources, as reflected in Agenda 21 and the Rio Declaration.53. 50 Dublin Statement on Water and Sustainable Development (31 January 1992) <www. un-documents.net/h2o-dub.htm> accessed 30 January 2018. 51 Global Water Partnership, ‘Dublin-Rio Principles’ (nd) <www.gwp.org/contentasse ts/05190d0c938f47d1b254d6606ec6bb04/dublin-rio-principles.pdf> assessed 30 January 2018. 52 ibid. The Global Water Partnership defines IWRM as ‘a process which promotes the coordinated development and management of water, land and related resources in order to maximise economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems and the environment’. 53 Agenda 21 and the Rio Declaration (adopted at the United Nations Conference on Environment and Development, also known as the Earth Summit, held in Rio de Janeiro, Brazil 3 to 14 June 1992).. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(14) 80. Research handbook on freshwater law and international relations. Agenda 21 and the Rio Declaration Agenda 21 is a non-binding action plan on sustainable development, whereas the Rio Declaration comprises 27 principles on the environment and development. Unlike the Stockholm Declaration (which had little to do with the integration of water resources and the environment) and the Dublin Principles (which merely initiated the process), Agenda 21 extensively refers to the relationship between fresh water and its aquatic ecosystems and the Rio Declaration significantly expounds upon the Stockholm Declaration. Chapter 18 of Agenda 21 defines the principle of IWRM and enunciates a link between water resources and its ecosystems. Accordingly, ‘integrated water resources management is based on the perception of water as an integral part of the ecosystem, a natural resource and a social and economic good, whose quantity and quality determine the nature of its utilization. To this end, water resources have to be protected, taking into account the functioning of aquatic ecosystems and the perenniality of the resource, in order to satisfy and reconcile needs for water in human activities. In developing and using water resources, priority has to be given to the satisfaction of basic needs and the safeguarding of ecosystems […]’.54 Principle 2 of the Rio Declaration is a restatement of Principle 21 of the Stockholm Declaration.55 However, the Rio Declaration also codifies other principles of sustainable environment that are applicable to the management of transboundary watercourse, and which were absent from the Stockholm Declaration.56 These are Principle 15 (the precautionary principle), Principle 16 (the polluter-pays principle), Principle 17 (environmental impact assessment), and Principles 18 and 19 (the principle of prior and timely notification of transboundary harm). ii. Environment Consideration in Some United Nations Conventions The Rio Earth Summit not only produced soft laws but also influenced the adoption of treaties under the auspices of the United Nations. These conventions refer to the need to protect the environment of shared watercourses. Notable among these regimes are the Convention on Biological Diversity,57 the UN Watercourses Convention, and the UNECE Water Convention. Agenda 21 (n 53) para 18.8. Preamble to the Rio Declaration (n 53) includes ‘Reaffirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, and seeking to build upon it’. 56 Principle 7 of the Stockholm Declaration is applicable to the pollution of the sea, rather than freshwater. 57 The Convention on Biological Diversity (adopted at the United Nations Conference 54 55. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(15) The environmental management of water resources. 81. 1992 Convention on Biological Diversity The Convention on Biological Diversity (CBD) is not a water regime but its main objective to achieve sustainable environmental impacts on water resources, particularly in a transboundary context. Activities in fresh water affect not only the environment of the State where they originate but also that of other riparian States. According to the United Nations Environment Programme (UNEP), the CBD ‘was conceived as a practical tool for translating the principles of Agenda 21’.58 It further opined that ‘each ecosystem, living creatures, including humans, form a community interacting with one another and with the air, water, and soil around them’.59 Article 2 of the CBD defines biological diversity as ‘the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.’ Article 2 of the Convention defines an ecosystem as ‘a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.’ Article 3 echoes the ‘no harm rule’ recognized in international environmental law provisions such as Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, stipulating that ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ The CBD codifies provisions that affect fresh water ecosystems and therefore impact on international water law. Article 8(d) encourages State parties to ‘promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings.’ Article 8(g) requires them to ‘establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.’ Consistent with article 22 of the UN Watercourses Convention, article 8(h) of the CBD forbids the introduction of alien species into ecosystems, and mandates the control or eradication of already-introduced alien species that threaten ecosystems, habitats, or species. on Environment and Development, also known as the Earth Summit, held in Rio de Janeiro, Brazil 3 to 14 June 1992). 58 UNEP, How the Convention on Biological Diversity Promotes Nature and Human Wellbeing (Secretariat of Convention on Biological Diversity 2000) 2. 59 ibid.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(16) 82. Research handbook on freshwater law and international relations. The regime also advocates the sustainable use of the environment as applicable to water resources management. Accordingly, article 2 of the Convention defines sustainable use as ‘the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.’60 The importance of the CBD on water regimes is further emphasized by the inclusion of provisions relating to biological diversity and sustainable development in some water treaties adopted since the Convention entered into force.61 1992 UNECE Water Convention The UNECE Water Convention was adopted as a regional treaty ‘to strengthen national measures and international cooperation for the ecologically sound management and protection of transboundary surface waters and ground waters.’62 Though the UNECE Water Convention was adopted before the Rio Earth Summit, it reflects several principles enunciated in the Summit.63 Article 2(6) of the UNECE Water Convention creates an obligation on States to ‘cooperate to develop […] policies, programmes and strategies covering the relevant catchment areas,…aimed at the protection of the environment of transboundary waters or the environment influenced by such waters, including the marine environment.’ Furthermore, article 3 of the Convention creates binding obligations on parties to prevent, control, and reduce any form of ‘transboundary impact’, defined as: any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures. 60 The principle of sustainable development is also reflected in Principles 3 and 4 of the Rio Declaration. 61 Ch 5 of the Protocol on Protection of Environment of the Niger River Basin provides for the conservation and sustainable use of biological diversity. Similarly, s 2 of the Lake Chad Water Charter, titled ‘Conservation of Biological Diversity’, provides measures for the sustenance of biodiversity in the Lake Chad Basin. 62 UNECE, Guide to Implementing the Water Convention (United Nations 2013) preface. Articles 25 and 26 of the UNECE Water Convention were amended to allow non-UNECE States who are members of the United Nations to become contracting parties to the Convention. According to the UNECE, ‘the amendment entered into force on 6 February 2013, turning the Water Convention into a legal framework for transboundary water cooperation worldwide.’ 63 The UNECE Water Convention was adopted on 17 March 1992, while the Rio Summit was held from 3 to 14 June 1992.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(17) The environmental management of water resources. 83. or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors.64. In the UNECE Water Convention, pollution includes both point source and diffuse source pollution.65 To control pollution, the Convention mandates State parties to apply low- and non-waste technology, license waste water discharges, apply best available technology for discharges of hazardous substances, and use of appropriate best environmental practices such as EIAs and contingency measures. To further achieve the obligation to prevent and control transboundary impact, the UNECE Water Convention recognizes useful environmental principles for protecting the aquatic environment that are not included in the UN Watercourses Convention. These are the precautionary principle, the polluterpays principle, and the principle of sustainable development (as also reflected in the Rio Declaration).66 Very importantly, article 2(5)(c) of the UNECE Water Convention states the principle that ‘water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.’ 1997 UN Watercourses Convention According to McCaffrey, the adoption of the UN Watercourses Convention by the UN General Assembly on May 21, 1997 ‘marked an historic moment in the evolution of international water law.’67 Apart from core substantive principles recognized in international water law such as the principle of equitable and reasonable utilization and the obligation not to cause significant harm (the no harm rule), the Convention clearly reflects the principle of the protection of aquatic ecosystems more clearly than the UNECE Water Convention.68 Article UNECE Water Convention (n 25) art 1. ibid art 3(2). Art 21 of the UN Watercourses Convention (n 24) encourages parties to set up joint water quality objectives, establish a list of substances to be limited or banned, and develop techniques for addressing point and non-point pollution. 66 UNECE Water Convention (n 25) art 2(5). Similar principles for the protection of the environment recognized in the Rio Declaration are Principle 15 (the precautionary principle), Principle 16 (the polluter-pays principle) and Principles 3 and 4 (the principle of sustainable development). 67 Stephen C McCaffrey, ‘Convention on the Law of Non-navigational Uses of International Watercourses’ (nd) United Nations Audiovisual Library of International Law <http://legal.un.org/avl/ha/clnuiw/clnuiw.html> accessed 15 January 2017. 68 International water law recognizes two types of substantive rules. The first comprises rules of customary international water law such as the principle of equitable and reasonable utilization and the obligation not to cause significant harm (popularly known as the ‘no harm rule’). The second are emerging substantive rules such as the protection of aquatic ecosystems and the human right to water. 64 65. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(18) 84. Research handbook on freshwater law and international relations. 5(1) of the UN Watercourses Convention provides that utilization of international watercourses must be with regard to the interests of watercourse States, consistent with ‘adequate protection of the watercourse’. Part 4 of the regime (‘Protection, Preservation and Management’) comprises seven provisions substantially dedicated to protection of the environment of a shared watercourse.69 Article 22 of the Convention, which falls within this part, bans the introduction of alien or new species. Article 21(1) defines pollution of an international watercourse as ‘any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.’ Articles 21(1) and (2) oblige State parties to ‘jointly, prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment […]’ and to consult and agree on measures for preventing, reducing, and controlling the pollution of an international watercourse. By including the obligation to prevent and control pollution as part of measures for protection, management, and preservation of the environment of shared watercourses, the Convention takes a position which regards pollution prevention as one of the only relevant environmental principles. To achieve adequate ecosystems protection, article 23 of the UN Watercourses Convention states that parties ‘shall take all measures with respect to an international watercourse […] necessary to protect and preserve the marine environment including estuaries, taking into account generally accepted international rules and standards.’ Under article 23, this obligation is not an absolute one, but rather is similar to that of duty of diligence under article 2(6) of the 1992 UNECE Convention and article 192 of the Convention on the Law of the Sea.70 According to Rieu-Clarke, the obligation also covers land-based pollution.71 He also observes that ‘Article 23 seeks to address bridge between. 69 The seven articles in ch 4 of the UN Watercourses Convention (n 24) are: art 20 (Protection and preservation of ecosystems); art 21 (Prevention, reduction and control of pollution); art 22 (Introduction of alien or new species); art 23 (Protection and preservation of the marine environment); art 24 (Management); art 25 (Regulation); and art 26 (Installations). 70 Art 23 of the UN Watercourses Convention (ibid) is similar to art 192 of the United Nations Convention on the Law of the Sea, which provides that ‘States have the obligation to protect and preserve the marine environment.’ United Nations Convention on the Law of the Sea (10 December 1982) <www.un.org/depts/los/convention_agreements/texts/unclos/ unclos_e.pdf> (accessed 12 January 2017); A similar provision is found in ch 17.22 of Agenda 21 (n 53). 71 Alistair Rieu-Clarke and others (eds), UN Watercourses Convention (Users’ Guide) (IHP-HELP, Centre for Water Law, Policy and Science, University of Dundee 2012) 185.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(19) The environmental management of water resources. 85. two legal regimes, the law of international watercourse and the law of the sea’, further establishing links between fresh water and marine ecosystems.72 The principle of reasonable and equitable utilization within articles 5 and 6 of the UN Watercourses Convention is also consistent with the principle of the protection of aquatic ecosystems. According to McCaffrey, ‘the doctrine of equitable utilization does not exist in isolation. It is part of a normative structure that includes procedural requirements necessary for its implementation: the substantive and procedural principles form an integrated whole.’73 McIntyre is of the opinion that most of the factors for equitable and reasonable utilization are consistent with sound environmental considerations.74 Examples of environmental criteria for the reasonable and equitable utilization of shared watercourses are enunciated in article 6 of the Convention: geographic, hydrographic, hydrological, climatic, ecological, and other factors of a natural character; the population dependent on the watercourse in each watercourse State; the effects of the use or uses of the watercourses in one watercourse State on other watercourse States; and the conservation, protection, development, and economy of use of the resources of the watercourse and the costs of measures taken to that effect. Rieu-Clarke is of the opinion that article 20 of the UN Watercourses Convention suggests that ‘States are obliged to protect and preserve the ecosystem of international watercourse as an extension of the general principle of equitable and reasonable utilization and participation.’75 Article 6(1) of the UN Watercourses Convention provides that the application of the principle of reasonable and equitable utilization must take into consideration ‘all relevant factors and circumstances’, suggesting factors and circumstances both listed and not listed by the article. Hence, new environmental factors could evolve as further criteria. iii. Protection of the Environment in Some Regional and Basin-Specific Water Treaties Following the adoption of the UNECE Water Convention and the UN Watercourses Convention as framework treaties, specific water regimes were adopted to reflect provisions found in the conventions, including the principle of the protection of aquatic ecosystems. There are several such regimes but the present study will consider the South African Development Community Water Protocol 72 Alistair Rieu-Clarke quoting S Vinogradov, in UN Watercourses Convention (Users’ Guide) (ibid). 73 Stephen C McCaffrey, The Law of International Watercourses (2nd edn, OUP 2007) 406. 74 Owen McIntyre, ‘The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Freshwater Resources’ (2006) 46 Nat Res J 157–210. 75 Alistair Rieu-Clarke and others 2012 (n 71) 164.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(20) 86. Research handbook on freshwater law and international relations. (SADC Water Protocol),76 the Agreement on the Cooperation for the Sustainable Development of Mekong River Basin (Mekong River Basin Agreement), the Niger Basin Water Charter, the Water Charter for the Lake Chad Basin (Lake Chad Basin Water Charter),77 and the Charter of Waters of the Senegal River (Senegal River Water Charter).78 Of these, the SADC Water Protocol is a regional regime while the others are basin-specific treaties. SADC Water Protocol The SADC Water Protocol was adopted as a regional water treaty and one of its objectives is to ‘promote co-ordinated and integrated environmentally sound development and management of shared watercourse.’79 Article 3(8) of the Protocol enunciates seven factors for reasonable and equitable utilization of shared waters, which includes ‘the social, economic and environmental needs of the Watercourse States concerned’.80 Further to these provisions, article 4(2) (‘Environmental Protection and Preservation’) reflects four means to sustain the healthy environment of shared watercourses in the region, and each of these means follow the pattern used in the UN Watercourses Convention.81 Like the UN Watercourses Convention, the SADC Water Protocol provisions regarding the protection of the environment progress beyond pollution prevention and control to include other means to fully protect ecosystems.82 The means include: the prevention of pollution from point and non-point (diffuse) sources (recognized in both article 21 of the UN Watercourses Convention and article 3 of the UNECE Water Convention); the setting of joint water quality objectives and criteria; and the establishment of a list of prohibited substances (also reflected in article 21 of the UN Watercourses Convention). However, while Annex 1 of the UNECE Water Convention provides the relevant guidance for water quality objectives and criteria, the SADC water regime includes no such guidance. Article 4(4)(a) of the SADC Water Protocol considers the need for 76 SADC Water Protocol (adopted in Windhoek, 7 August 2000 and entered in force on 22 September 2003) <www.internationalwaterlaw.org/documents/regionaldocs/RevisedSADC-SharedWatercourse-Protocol-2000.pdf> accessed 15 January 2017. 77 The Water Charter for the Lake Chad Basin (adopted 13 April 2012) <www. africanwaterfacility.org/fileadmin/uploads/awf/Projects/MULTIN-LAKECHAD-WaterCharter.pdf> accessed 7 September 2017. 78 The Charter of Waters of the Senegal River (adopted May 2002) <http://iea.uoregon. edu/pages/view_treaty.php?t=2002-senegalriverwatercharter.en.txt&par=view_treaty_ html> accessed 16 January 2017. 79 SADC Water Protocol (n 76) art 2(c). 80 ibid art 3(8)(a)(ii). 81 The means listed in art 4(8) of the Protocol for the protection of the environment are: protection and preservation of ecosystems; prevention, reduction, and control of pollution; prevention of alien or new species; and protection and preservation of aquatic ecosystems. 82 SADC Water Protocol (n 76) art 4(2).. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(21) The environmental management of water resources. 87. preventing and mitigating harmful conditions resulting from natural and environmental hazards such as floods, water-borne diseases, siltation, erosion, salt water intrusion, and desertification, as also enunciated in article 27 of the UN Watercourses Convention. Both the UN Watercourses Convention and the SADC Water Protocol fail to state the measures for the prevention and mitigation of such environmental hazards, but the UNECE Water Convention provides measures for avoiding transboundary impact which are also applicable in this context.83 The Mekong River Basin Agreement The Mekong River Basin Agreement recognizes that the Mekong River and its natural resources and environment ‘are natural assets of immense value to all the riparian countries for the economic and social well-being and living standards of their peoples’84 and hence defines environment as ‘the conditions of water and land resources, air, flora, and fauna that exists in a particular region’.85 Article 3 of the regime provides one basis of parties’ cooperation as the need ‘to protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin.’ Other environmental provisions under this regime include the articles relating to State responsibility for damages, which oblige States to accept responsibility for substantial damage done to the environment of other State parties due to the use of the Mekong River,86 and the provision regarding minimum stream flow. Accordingly, except in cases of severe droughts or flood, States should maintain the acceptable minimum flow of the river in both dry and flood seasons.87 The Agreement further provides that the Joint Committee of the Mekong River ‘shall adopt guidelines for the locations and level of flow.’88 Although the Mekong River Basin Agreement provisions on the protection of aquatic ecosystems are not as detailed as that of the UN Watercourses Convention and the UNECE Water Convention, its provision regarding minimum stream flow (which is absent in the aforementioned conventions) is innovative. Minimum stream is defined as ‘a minimum flow or lake level necessary to protect fish and wildlife habitat, aquatic life, water quality, navigation, transportation, recreation, and/or aesthetic beauty.’89 Stream flow protection has Art 2(5) of the UNECE Water Convention states the precautionary principle, polluterpays principle, and principle of sustainable development as means for prevention and mitigation. 84 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (adopted at Chai Rai, Thailand on 5 April 1995) ch 1 <www.mrcmekong.org/assets/ Publications/policies/agreement-Apr95.pdf> accessed 1 February 2018. 85 ibid ch 2. 86 ibid art 8. 87 ibid art 6. 88 ibid. 89 Defined Term, ‘Minimum Stream Flow’ (nd) <https://definedterm.com/ 83. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(22) 88. Research handbook on freshwater law and international relations. been described as ‘a critical aspect of managing our waters in a sustainable manner’.90 Articles 21 and 23 of the UN Watercourses Convention, which provide for the protection of aquatic ecosystems, could be argued as soft recognition of the minimum stream flow of transboundary waters, but these are not a direct recognition and so do not constitute a settled position. Senegal River Water Charter Article 2 of the Senegal River Water Charter defines the aim of the Charter as including the determination of rules relating to safeguarding the environmental protection of the Senegal River Basin, particularly with regard to fauna, the flora, the ecosystems, and the wetlands. Article 4 of the regime also provides that distribution of water between uses shall be founded on some principles which include the ‘obligation to preserve the environment.’ Furthermore, integrated management of water resources of the river should consider the ‘availability and continuity of the resource’, which could be considered a soft recognition of minimum stream flow.91 It should also consider ‘the integration of the dimension of the environment in the management of water and the durable maintenance of the favourable ecological conditions’.92 The implication of these provisions is that the Senegal River Water Charter considers the protection of the environment as an integral part of the river basin management. Hence, the Senegal Basin Water Charters promotes integrated river basin management in West Africa. Integrated river basin management (IRBM) is defined as ‘the process of coordinating conservation, management and development of water, land and related resources across sectors within a given river basin, in order to maximize the economic and social benefits derived from water resources in an equitable manner while preserving and, where necessary, restoring fresh water ecosystems’.93 The Senegal River Water Charter directly codifies principles for the protection of ecosystems in detail. According to the regime, ecosystems of the minimum_stream_flow> accessed 1 February 2018; The Niger Basin Water Charter (adopted on 30 April 2008) <https://iea.uoregon.edu/treaty-text/2008-nigerbasinwatercharterfrtxt> accessed 17 January 2017. Art 10 provides that ‘State Parties […] shall take all measures to preserve essential minimum stream flows’ of Niger River Basin water. Art 6 Mekong Agreement (n 84) provides for need to sustain minimum stream of the Mekong River. 90 State of Vermont, ‘Streamflow Protection’ (nd) Department of Environmental Conservation, Watershed Management Division <http://dec.vermont.gov/watershed/rivers/ streamflow-protection> accessed 11 September 2017. 91 Charters of Waters of the Senegal River (2002) art 5(2) <https://iea.uoregon.edu/ treaty-text/2002-senegalriverwatercharterentxt> accessed 1 February 2018. 92 ibid. 93 WWF, ‘Integrated River Basin Management (IRBM): A Holistic Approach’ <http:// wwf.panda.org/about_our_earth/about_freshwater/rivers/irbm/> accessed 25 January 2017.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(23) The environmental management of water resources. 89. Senegal River Basin should be protected separately through the national legislation of State parties and jointly through the Organisation for Development of the Senegal River (OMVS).94 To further achieve sound ecosystem protection, contracting States must: control any modification of the waters of the river, its fauna, its flora, its water level, and its environment; prevent, reduce, or control the events or conditions resulting from natural causes or human activities which are likely to damage environment of the river; prevent introduction of foreign plants or animals likely to cause the ecosystems to deteriorate; jointly draw up a list of substances which must be prohibited in the river; achieve common criteria concerning water quality; control pollution; and harmonize national legislation relating to the environment of catchment areas.95 Although most of these provisions require national legislation or an additional framework for implementation, they place the Senegal River Basin on solid ground regarding the ecosystem management of this shared watercourse. According to Mbengue, the dynamics of the water charter ensure ‘that cooperation over the Senegal River would be based on an “inclusive framework” – that is, all riparian States must be involved in the development of the river.’96 He further opined that ‘by including general and specific provisions on environmental protection and the right of users and different stakeholders to participate in the decision-making process relating to the management of the Senegal River, the Water Charter has thoroughly reflected the “contemporary concerns of the community of nations” as expressed since the 1992 United Nations Conference on Environment and Development.’97 The Senegal River Water Charter was adopted in 2002, a few years after the adoption of the UN Watercourses Convention, and the regime became the first in West Africa to reflect both principles of customary international water law and the principle of ecosystem protection as enunciated in that Convention. Subsequent treaties such as the Niger Basin Water Charter have possibly built on the Senegal River Water Charter’s provisions and expanded means for protecting the environment of shared watercourses. Niger Basin Water Charter The Niger Basin Water Charter is the only water regime in West Africa to have a protocol dedicated solely to the protection of the environment of a river basin.98 Senegal River Charter (n 91) art 16. ibid. Art 18 of the Charter reflects the polluter-pays principle. 96 Makane Mbengue, ‘A Model for African Shared Water Resources: The Senegal River Legal System’ (2014) 23 RECIEL 59. 97 ibid. 98 The Protocol Relating to Protection of Environment of the Niger River Basin is formerly Appendix No 1 to the Niger Basin Water Charter and is available at the Niger Basin Secretariat in Niamey, Niger. 94 95. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

(24) 90. Research handbook on freshwater law and international relations. This builds upon several principles of ecosystem protection within the main text of the Charter. One of the key purposes of the Niger Basin Water Charter is to ‘promote integrated management of the Niger Basin water resources, which is also cardinal in the Basin’s “Shared Vision’ policy”’.99 Like the principle of IRBM already discussed, IWRM is ecosystem-driven. As in the UN Watercourse Convention, the criteria for determining reasonable and equitable use of the water resources of the Niger Basin are predominantly environmental but also include ‘the existence of minimum stream environmental flow to be preserved so as to maintain the services of the River Niger Basin and the wetlands.’100 Following article 6 of the Mekong River Basin Agreement, article 10(1) of the Niger Basin Water Charter recognizes the principle of minimum stream flow as a means to maintain quality and quantity of water resources in the Niger River Basin. Other means of sustaining the basin’s water quality and quantity are the prevention of pollution and the prevention of excessive withdrawals of these resources.101 Article 12 of the Niger Basin Water Charter emphasizes preservation and protection of the Niger River Basin’s environment through fifteen obligations listed in the article. The Protocol relating to Protection of Environment of the Niger River Basin is very innovative and the first of its kind in Africa. It is built on the major principles for protection of the environment, some of which are already stated in the Niger Basin Water Charter but further addressed in very minute detail. Its provisions regarding protection of the environment covers both land-based and marine-based ecosystem problems. According to Rieu-Clarke et al., ‘various land based sources may cause pollution including municipal, industrial and agricultural practices.’102 Sangbana observes that protection of the Niger River Basin’s aquatic environment ‘takes into account the fight against the impact of the land uses activities.’103 To achieve this, the Protocol holistically applies to 99 Niger Basin Water Charter (n 89) art 2. The Shared Vision was adopted by the Niger Basin Authority Ministers in May 2005, consisting of making the Basin ‘a common area of sustainable development by the integrated management of the water resources and associated ecosystems for the improvement of living conditions and prosperity of the populations.’ See also art 1. 100 ibid art 4. Other environmental factors within art 4 are: the relevant geographical, hydrological, and climatic data in the territory of each basin State; the planned development to meet needs; the sharing of water resources between all users, aquatic systems, and associated ecosystems; the population dependent on the watercourse in each basin State; the harm that could be caused by a new or broader use; and the effects on the Niger Basin by one basin State vis-à-vis another basin State. 101 Niger Basin Water Charter (n 89) art 10(2) and (3). 102 Alistair Rieu-Clarke and others 2012 (n 71) 185. 103 Komlan Sangbana, ‘International Land Investments or the Environment Put up for Auction: The Case of the Niger Basin’ in F Romanin Jacur and others (eds), Natural Resources Grabbing: An International Law Perspective 181–98 (Brill Nijhoff 2016) 185.. Makane Moïse Mbengue and Nwamaka Odili - 9781785360695 Downloaded from Elgar Online at 06/19/2020 09:51:46AM via Geneva University UNIGE.

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