This document discusses the interaction between international and national water law, using the Nile River Basin Cooperative Framework Agreement (NRBCFA) as a case study. It outlines some of the key substantive and procedural rules contained in the NRBCFA, including equitable utilization, no significant harm, ecosystem protection, information exchange, and dispute resolution. It also examines how Ethiopia and Uganda have incorporated principles of international water law into their domestic legal systems through constitutional provisions, legislation, and policies regarding water resource management and transboundary agreements. The document emphasizes the importance of harmonizing international commitments with national laws and institutions for effective implementation of agreements like the NRBCFA.

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

2. International Law and National Law
 Interaction b/n Int’ law & national law (municipal
or domestic law) can be taken as a contest b/n
state sovereignty and int’l order
 Int’l legal order-seeks to organize int’l society in
accordance with the general interest of int’l
community
 State sovereignty – seeks to protect a state against
the intervention of int’l law in to its national legal
systems
 The expansion of int’l law in to the areas of
domestic law (HRts-Env’t) means
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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 approach
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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 implementation
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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.
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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 commitments
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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 MAs
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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)
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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 security
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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)
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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 development
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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’.
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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.’
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15. Procedural Rules –Implementation of CFA
Regular Exchange of Information
Article 7 - a minimum requirement for data and information exchange
• Regular exchange data and information on existing measures
• readily available and relevant
• Data exchange protocol
Prior notification on planned measures
Controversial Upstream and down stream- NRBC
Public participation
 The Universal Declaration of Human Rights
 International Covenant on Civil and Political Rights
 American Convention on Human Rights
 African Charter on Human and People’s Rights
 Principle 10 of Rio Declaration
 1992 UN ECE Helsinki Convention
 2000 EU Water Framework Directive
 1991 Espoo Convention
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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 Agreement
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17. Dispute Resolution
Article 43 NRBCFA
‘In the event of a dispute between two or more Nile Basin States concerning the
interpretation or application of the present Framework, the States concerned
shall, in the absence of an applicable agreement between them, seek a
settlement of dispute by peaceful means...’
The dispute settlement mechanisms adopted by the ANRBCF include negotiation,
good offices, mediation, conciliation by the NRBC or other third party
arbitration, or submission to the ICJ
A Fact Finding Commission can also be used by the parties or one of the parties as a
last resort, although its decision remains non- binding
The ANRBCF makes no reference to private remedies in dispute resolutions as is the
case in UNWCC, which expects national legal system of a watercourse State
allow private remedies through access to judicial or other procedures for
compensation claims or other solutions
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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)
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19. Domestic Synthesis of core principles under Ethiopian & Ugandan Legal Systems
An overview of Ethiopian and Ugandan National Laws
The Ethiopian Legal System – historical record
 slow legal and institutional development -resistance to modern change (Feudal
system) and lacked of stability (Habte-Sellasie, Fasil Nahum)
 The Fetha Negest (1240)-(spiritual and temporal matters) laid down principles for
water resources management - no-harm rule to downstream users - right of
compensation - the right to using water
Constitutions - 1931, 1955, 1987, 1995
1955 Constitution
 natural resources and the sub-soil of the Empire including those beneath its waters
as State Domain
 The natural resources of the country, water, forests, land, air, lakes, rivers and ports-
sacred trust for the benefit of the present and succeeding generations of the
Ethiopian people( principle of sustainable development)
 their conservation of the said resources is essential for the preservation of the
Empire - (ecosystem approach)
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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 agreement
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21. Ethiopian & Ugandan Legal Systems
The Ethiopian Water Sector Strategy (EWSS) – the overall goal of EWSS, which
was adopted in 2001, is ‘to enhance and promote all national efforts towards
the efficient, equitable and optimum utilization of the available water
resources of Ethiopia for significant socio-economic development on a
sustainable basis
The Water Sector Development Program (WSDP) – The WSDP was adopted in 2002
to interpret the principles of the water policy and the goal of the water strategy
in to action
Ethiopian Water Resources Management Proclamation (EWRMP) (2002)
 utilized for the highest social and economic benefits
 Permit system
 fundamental principles, defines the power of supervising body, and settlement
of disputes
Ethiopian Water Resources Management Regulation (EWRMR) (2005) - detailed
rules and procedures for the implementation of provisions of the
proclamations
Integrated Master Plan
Institutional Framework - 1959 the Ministry of Public Works - MoWE
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22. Ethiopian & Ugandan Legal Systems
• Inter-sectoral laws and institutions
• The implementation of international agreements
The Ugandan Legal System
1962, 1967 Constitutions
 the 1995 Constitution - water state domain
 protection of natural resources
 right to clean and healthy environment
 protection of natural resources
The Water Sector
 the 1995 Water Statute and the 1997 Water Act are considered core legislations
in the management of Ugandan water resources
 The National Water Policy (1999) -transboundary water resource policy is
based on ‘equitable access and use of the Nile waters through effective
involvement of the Government in the Nile water issues
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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?
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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!
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