GEF Third Biennial International Waters Conference

Salvador, Bahia Brazil June 20-25, 2005

Legal Frameworks and Opportunities

Tuesday, June 21, 2005

GEF Experiences in Fostering the Development of Regional and Global

Legal AgreementsSteps Taken to Ensure Compliance;

Monitoring Mechanisms &Public Participation

Case of The “Convention on the Sustainable Management of Lake

Tanganyika” By

Benoit Bihamiriza

I. Development

II. Challenges

III. Monitoring of Compliance With & Enforcement

IV. Public Participation

V. Lessons

I. Development

The convention was developed under the Lake Tanganyika Biodiversity Project (LTBP, 1995-2000) through an in-depth stakeholder involvement of senior legal experts from the four riparian countries;

Development (Continued 1)

The Convention was finalized under the Lake Tanganyika Management Planning Project (LTMPP, 2002-2004) through a broad stakeholder participation process of legal experts and other policy makers within the four countries and at regional level.

Development (Continued 2)

The consultations were carried out through the organization of national and regional workshops.

The first regional workshop regrouping delegates from the four riparian countries took place in Lusaka, Zambia in February 1998.

Development (Continued 3)

The workshop mandated a drafting team to prepare a draft agreement to be discussed by delegates at their next meeting.

The workshop gave the following recommendations to guide the drafting team:

Development (Continued 4)

Name of the convention:The name should indicate that the

agreement is concerned with ensuring that the Lake is managed on a sustainable basis and is not only concerned with preventing pollution and protecting the biological diversity of the Lake.

Development (Continued 5)

The name should indicate that the agreement is concerned with ensuring that the Lake is managed on a sustainable basis and is not only concerned with preventing pollution and protecting the biological diversity of the Lake.

Development (Continued 6)

The name that enjoyed the most support was “the Convention for the sustainable management of the Lake Tanganyika Basin”.

Some delegates expressed concern over the inclusion of the word “basin” owing to a number of regional issues that were unresolved at that time.

Development (Continued 7)

Objectives of the convention

The overall objective is:To promote regional co-operation to

manage Lake Tanganyika sustainably, and this includes managing activities within the Lake basin which affect, or have the potential to affect, the Lake.

Development (Continued 8)

Definitions.The drafting team was mandated to

draft the definitions. 

Scope/applicationThe agreement will apply to the Lake

and to those activities within the Lake basin which have, or may have, a significant impact on the aquatic environment of the Lake.

Development (Continued 9)

Guiding principlesThe overall principle is the

conservation and sustainable use (sustainable development) of the Lake and its resources.

Fundamental Rules and ObligationsThe draft Agreement should include

rules to give effect to all the principles contained in the agreement.

Development (Continued 10)

Pollution There should be an obligation on

States not to cause transboundary pollution or environmental harm (Rio Principle 2). But it was noted that the duty not to pollute could not be absolute as some pollution was inevitable.

Development (Continued 11)

Environmental impact assessment .Contracting states should be obliged to

ensure that activities in the Lake and within the basin which may have an impact on the Lake should be subject to an environmental impact assessment (which should consider all the environmental impacts of the proposed project and not only the impacts on the Lake).

Development (Continued 12)Prior notification of planned measuresThis obligation should be included, as it

is necessary for the co-operative management of the Lake.

Conservation and management Contracting states have the obligation to

prepare a strategic action plan dealing with the conservation and sustainable use of the Lake to give effect to the convention, to implement it and to revise it as necessary.

Development (Continued 13)

Exchange of informationAn obligation to exchange relevant

information. Notification should be to the institution established under the agreement which would convey the information to all the parties.

Development (Continued 14)

Procedural rulesProcedural rules should include the

duty to promote public participation in the management of the lake and to allow public access to information as these obligations gave effect to the principles already agreed upon.

Development (Continued 15)Institutions The institutional structure for the

management of the Lake should be lean and inexpensive to run.

It should be as follows: The Conference of Ministers

The Steering committee/expert committee (now the Management Committee)

Permanent secretariat (the Secretariat)

Development (Continued 16)

The procedure for drafting the agreement.

Each country to nominate two lawyers and a technical expert to participate in the drafting process;

The lead institution in each country to take responsibility for the drafting process in each country;

The project responsible for producing an initial draft in English and in French.

Development (Continued 17)The draft to be discussed at two separate

workshops, one for the Francophone countries, and one for the Anglophone countries, both attended by the international legal consultants.

This to be followed by a joint meeting of the delegates from all the countries to produce harmonized texts in English and French.

Development (Continued 18)The harmonized texts would then be

discussed informally within each country and another draft would be produced taking into account the comments from each country.

Meeting of all the drafting team.Once the draft agreement is

satisfactorily, presentation to the Project steering committee for approval.

Development (Continued 19)

After approval by the steering committee, the draft convention would be submitted to each government for further negotiation and signature.

Development (Continued 20)Finalization Under LTMPP

Consultations through the organization of national workshops within each riparian state;

Participation of all involved and interested stakeholders;

Review of the draft convention;

Development (Continued 21)Finalization Under LTMPP

Formulation of comments to the draft convention;

During these consultations, the reference to ‘basin’ in the convention was accepted;

Transmission of the comments to the project’s office for consolidation and preparation of a new draft including the comments.

Development (Continued 22)Finalization Under LTMPP

Project Regional Steering Committee meeting to review the new draft convention highlighting the comments from member countries, to work out a harmonized draft text; adopt it and recommend it to the Ministers;

Meeting of Ministers to consider the draft convention and eventually sign it.

Development (Continued 23)Finalization Under LTMPP

The Convention was signed on June 12, 2003 by four Ministers from the four riparian States.

All the four Ministers made declaration expressing full commitment of their Government to the ratification and implementation of the Convention.

Development (Continued 24)

Record of workshops & Meetings conducted:

• National consultations, special legal studies 1997;

• Regional Legal Workshop, Lusaka, Zambia, February 1998;

• Anglophone legal workshop, Dar es Salaam, Tanzania, August 1999;

• Francophone legal workshop, Arusha, Tanzania, September 1999;

Development (Continued 25)

• Regional workshop, Arusha, November 1999

• Regional Steering Committee, Lusaka, May 2000;

• National consultations for Tanzania, Dar es Salaam, April 2003;

• National consultations for Burundi, Bujumbura, April 2003;

Development (Continued 26)

• National consultations for D.R.C., Kinshasa, April 2003;

• National consultations for Zambia, Lusaka, May 2003;

• Regional Steering Committee, Dar es Salaam, June 10-11, 2003;

• Ministerial Meeting, Dar es Salaam, June 12, 2003;

• The Convention was signed by four riparian Ministers at this meeting.

II. Challenges

• Negotiations of the Convention took place under tense political atmosphere marked by recurring armed conflicts and insecurity within the region;

• Extreme poverty and other calamities such as HIV/AIDS, droughts, etc. aggravating levels of poverty;

Challenges (Continued 1)

• Remoteness of capitals;

• Combined with lack of reliable or inexistent communication facilities;

• Unavailability of direct flight connections between capitals, meant two to three days of flight from one capital to another;

Challenges (Continued 2)

• The Lake itself has more than 675 Km long;

• Inaccessibility by roads in most places around the Lake and the communities living on its borders;

• Language and legal systems differences posed enormous challenges;

Challenges (Continued 3)

• Anglophone speaking countries have common law legal system and traditions while French speaking countries have Civil law legal system and traditions;

• Needed to have notions of comparative law to be able to understand differences between the two legal systems;

• Differences also in the administrative structures setup and functioning;

Challenges (Continued 4)

• Long gaps between projects phases threatened the momentum and loss of human resources as well as the results hardly gained during previous negotiations;

• Human resources mobility is high in the region, in search of better salaries;

Challenges (Continued 5)

• As a negative consequence of long gaps, negotiating team members left and new delegates tended to reopen negotiations on sensitive issues on which agreement was already reached;

• Scarcity of funds with regard to all these challenges;

III. Monitoring of Compliance With & Enforcement

• Articles of the Convention impose obligation on each Contracting State to develop, adopt, implement and enforce appropriate legal, administrative and technical measures to implement the Convention and to ensure the attainment of its objectives.

Monitoring (Continued 1)

• The Contracting States have prepared a Strategic Action Program (SAP) and a Fisheries Framework Management Plan (FFMP) and projects to give effect to the measures set out in the Convention.

• The SAP include specific strategies directed at achieving the objectives of the Convention;

Monitoring (Continued 2)

• The SAP and the FFMP contain specific measures to be taken by each Contracting State separately or jointly as well as details of the means to be used to monitor progress toward the achievement of these objectives;

• Monitoring standards must be Harmonized through protocols to the Convention.

Monitoring (Continued 3)

• The Contracting States have engaged to integrate measures contained in the SAP and the FFMP into relevant national policies, strategies, programs and plans and to monitor the effectiveness of the SAP and the FFMP and to revise them as necessary.

Monitoring (Continued 4)

• Regional monitoring organs:–Lake Tanganyika Management

Committee (LTMC) will monitor the implementation of the Convention, the SAP and the FFMP;

–LTMC reports to the Conference of Ministers, the supreme organ of the Lake Tanganyika Management Authority (LTA);

Monitoring (Continued 5)

• Lake Tanganyika Management Secretariat (LTMS), is the executive organ of the LTA, (cf. its work plan).

• During the implementation of LTBP and LTMPP, a Regional Project Steering Committee composed of high ranking government representatives, IAs, EAs and Donors representatives monitored and evaluated the progress and results of the projects;

Monitoring (Continued 6)

• Various evaluation and review mechanisms of projects: Work plan, (UNDP PPER, TPR), external Evaluation, Final Reports, PIR, etc. are provided in the projects;

• At national level, Interministerial Committees will monitor the compliance and enforcement of the Convention and the integration of the SAP and the FFMP into national policies, plans and strategies;

Monitoring (Continued 7)

• National Technical committees comprising: Socio-economic, Fisheries Management, Biological Diversity and Water quality/Pollution control committees will assist the LakeTanganyika Management Committee in the performance of its functions.

Monitoring (Continued 8)

• Public, and in particular those individuals and communities living in the Lake Basin and depending on the Lake’s resources are the end users;

• They actively participated in the development process of the Convention, the SAP and the FFMP.

• They will ultimately make sure they are achieving the expected results, which are definitely in their immediate interest.

Monitoring (Continued 9)

• The Convention gives them right to:– participate in co-management, in

decision-making processes that affect the Lake Basin or their livelihoods;

– participate in the procedure for assessing the environmental impacts of projects or activities that are likely to result in adverse impacts;

– make appeal against any decision.

IV. Public Participation

• The formulation and development of the SAP, the FFMP and the Convention fully involved from the very beginning all groups of stakeholders including national senior legal experts;

• Building consensus among stakeholders as to an appropriate action plan and regulatory framework was strategically a central objective of ensuring ownership.

Public Participation (Continued 1)

• Members of Parliament and Political authorities were also involved to back the process at every stage of development;

• Participative approaches (ex.:co-management) giving responsibility in the management of natural resources to the local population/ associations or groups of production, have been included in the Convention (Article 17);

Public Participation (Continued 2)

• The SAP, the FFMP and the projects prepared to implement the SAP have also included public participation as one of the strategies to combat poverty, to use sustainably, to protect the Lake Basin natural resources and to prevent conflicts over the exploitation of these resources.

V. Lessons• Establishment of a sustainable

institutional framework for cooperation on shared water resources is crucial to the integrated water resources management;

• Convinced of this and owing to their strong ownership of the convention, riparian States to Lake Tanganyika have committed to continue negotiations despite ongoing armed conflicts between some of the participating countries;

Lessons (Continued 1)

• These IW frameworks have important incremental benefits for regional and global security as they contribute positively to preventing conflict, to building and maintaining peace by bringing people together and by facilitating a permanent constructive dialogue.

Lessons (Continued 2)

• These additional benefits have generated greater ownership by the riparian countries and have catalyzed an important countries-Donor and regional organizations partnership for the Lake Tanganyika by attracting additional donors;

• Such frameworks certainly contribute to the U.N. MDGs and the Johannesburg Declaration of the (WSSD).

Lessons (Continued 3)

• Ownership of the SAP,Convention and projects is a national and regional realty, essentially because of the participation of all the partners in the SAP, convention and projects development processes from conception to implementation;

• Full public participation and introduction of public participation strategies into IW projects should be a central target as this is conditional to the success and sustainability.

Lessons (Continued 4)

• Negotiation of the Convention has proved to be time, patience; financial resources consuming; and imaginative;

• Capacity building and Poverty alleviation are intrinsically linked to sustainable development and should be given relevant consideration.

Lessons (Continued 5)

• GEF assistance in developing the TDA, SAP and Convention has catalyzed countries to positively co-operate over the Lake’s resources management;

• GEF assistance has in addition catalyzed additional donors;

• Without it, not much results could have been achieved;

• GEF assistance is crucially important and should be further stressed in support to such legal and institutional frameworks.

Lessons (Continued 6)

• Developing and implementing legal and institutional frameworks are equally important;

• Successful implementation can only take place if thoroughly monitored;

• Monitoring of compliance with and enforcement programs and mechanisms should be given a central role in these frameworks.

Lessons (Continued 7)

• It is very sensitive that participating countries be treated the same from the very beginning through the whole process;

• Long gaps between projects phases will occasion the loss of political momentum, information resources and human capacity;

• Adaptive management approach has helped getting out of challenging situations endured during the Convention’s development process;

Lessons (Continued 8)

• Human dimension is key element in the process of developing and implementing legal frameworks.

• Ability to convince and mobilize around an objective, build confidence among stakeholders etc., is tactically essential;

• Diplomacy and good understanding of national and regional politics is determinant as well as establishing good relations between key officials and stakeholders in general;

Lessons (Continued 9)

• Regulation of the Lake can not be separated from the management of the entire vast drainage basin;

• Given the interdependence between the population and the natural resources on which they depend for their subsistence, poverty alleviation/ eradication measures have to be integrated into management strategies to ensure adherence of basin wide stakeholders and political buying in.

Lessons (Continued 10)

• Communication is a major limitation around the Lake. Appropriate communication links facilities and subsequent budgets should be allocated to any regional initiative.

• Given the use of two official languages, subsequent budgets should be allocated for translation and interpretation;

Lessons (Continued 11)

• Bilingual personnel should be used to meet the needs of all participating countries;

• Programs should be implemented as quickly as possible while local experts are still in place; Long-term projects should be flexible;

• Local populations should be empowered; as end users, they are the ones to ensure the long-term viability of interventions.

Lake Tanganyika Map