Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
Transposing International (Legal) Commitments              at the National Level     Musa Mohammed Abseno-LLB, LLM , PhD S...
International Law and National Law   Interaction b/n Int’ law & national law (municipal    or domestic law) can be taken ...
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO   Slide | 3
Theories  Schools of thought  1. dualist-domestic law determines whether treaties have      domestic legal force-implement...
Imperatives for Int’l- Nat’l- Context  Global  • Water scarcity – Physical and economic scarcity  • More tan 260 rivers & ...
International-National Water law interface - Why the need?  Int’l-Nat’l Interface  • The challenges over international wat...
Int’l-Nat’l interface  • conceptual disconnection and jurisdictional fragmentation ( int’l-    Nat’l) - Korhonen  • The Q....
Domestic implementation of Multilateral Agreements (MAs)  MAs  • MA provisions obligating states to undertake legislative ...
The Case of Nile CFA  Back ground- Normative Development  • One of the functions of international law - is its normative r...
Core elements-substantive-procedural rules  •   equitable and reasonable utilization  •   no significant harm  •   concept...
Equitable and Reasonable Utilization (ERU) - the Right to Water                          Allocation  • the concept of ‘equ...
Substantive and Procedural Rules - CFA  Article 4 (1) of NRBCFA     ‘Nile Basin States shall in their respective territori...
NRBCFA-Substantive...  Water allocation - Article 4 - CFA - Criteria for water sharing  Art. 5 - No-Significant Harm - Con...
Ecosystem Protection  Art. 6 - CFA - enunciates a general obligation to protect, conserve, and     rehabilitate the Nile R...
Procedural Rules –Implementation of CFARegular Exchange of InformationArticle 7 - a minimum requirement for data and infor...
Public participation  NRBCFA provides public participation within the context of the concept of    subsidiarity. According...
Dispute Resolution  Article 43 NRBCFA  ‘In the event of a dispute between two or more Nile Basin States concerning the    ...
Joint institution for the management of the Nile under the NRBCFA                                              Conference ...
Domestic Synthesis of core principles under Ethiopian & Ugandan Legal Systems  An overview of Ethiopian and Ugandan Nation...
Ethiopian & Ugandan Legal Systems  •   1987 Constitution- land, minerals, waters and forests – State property  •   1960 Ci...
Ethiopian & Ugandan Legal Systems  The Ethiopian Water Sector Strategy (EWSS) – the overall goal of EWSS, which      was a...
Ethiopian & Ugandan Legal Systems  •   Inter-sectoral laws and institutions  •   The implementation of international agree...
Issues for consideration  • There are a complex and pluralistic principles, rules,    originating institutions within the ...
‘Any body who can solve the problems of water    will be worthy of two Noble Prizes; on for    Peace and one for Science’....
Upcoming SlideShare
Loading in …5
×

Transposing international (legal) commitments at the national level

1,684 views

Published on

Published in: Education
  • Be the first to comment

Transposing international (legal) commitments at the national level

  1. 1. 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 DundeePresentation at national workshop, 31 May 2011, Addis Ababa, Ethiopia
  2. 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) meansIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 2
  3. 3. IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
  4. 4. 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 approachIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4
  5. 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 • Issues surrounding CFA-water security, planned measures (dam) National • National sovereignty –doctrinal positions • Proper implementationIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
  6. 6. International-National Water law interface - Why the need? 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.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
  7. 7. 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 commitmentsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7
  8. 8. 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 MAsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 8
  9. 9. 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)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9
  10. 10. Core elements-substantive-procedural rules • equitable and reasonable utilization • no significant harm • concept of benefit sharing • prior notification • Dispute settlement • Public participation • Institutions • *water securityIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10
  11. 11. 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)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
  12. 12. 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 developmentIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
  13. 13. 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’.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
  14. 14. 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.’IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 14
  15. 15. Procedural Rules –Implementation of CFARegular Exchange of InformationArticle 7 - a minimum requirement for data and information exchange• Regular exchange data and information on existing measures• readily available and relevant• Data exchange protocolPrior notification on planned measuresControversial Upstream and down stream- NRBCPublic 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 ConventionIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
  16. 16. 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 AgreementIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
  17. 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 solutionsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 17
  18. 18. Joint institution for the management of the Nile under the NRBCFA Conference of the Heads of State and Government Technical The Council of Advisory Ministers Committee (TAC) Advisory sub-basin Committee Secretariat organizations (SAC)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
  19. 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)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
  20. 20. 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 agreementIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 20
  21. 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 - MoWEIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21
  22. 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 issuesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 22
  23. 23. 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 | 23
  24. 24. ‘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!IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24

×