Projects for the utilization of transboundary waters can result in displacement of people and the destruction of various cultural heritage sites. While some of these problems are inevitable, a state cannot in the pretext of economic development cause rights violations of its people nor be privy to the rights violation in another state. The States are to ensure that there is minimal loss and adequate compensation provided for in the event of any violation. In the absence of this, legal claims may arise against the violating state.
Several efforts have been undertaken by the international community to develop guidelines to prevent and mitigate the effect on displaced communities such as the UN guiding principle of Internal Displacement, World Bank Policy on Involuntary Resettlement, World Commission on Dams Guidelines for good practice.
However of particular importance at this juncture would be the African Charter on Human Rights also known as the Banjul Charter which is a regional instrument signed and ratified by fifty-three African nations and all the Nile basin countries except South Sudan. The Charter inter alia enumerates that the states shall guarantee the right to property to every citizen. A deviation from this principle would only be permitted if it is for public interest and done in accordance with the procedure established under law. Adequate compensation to ‘dispossessed’ people is also to be provided. The Charter guarantees the right to equality, right to development-economic, social and cultural for all as well as the ”right to a general satisfactory environment favourable to their development”. Commission on Human and Peoples’ Rights is a body set up under Article 30 of the Banjul Charter and was established in the year 1987. The Commission monitors the implementation of the Charter in the African nations. It meets twice a year and looks into individual communications, as well as inter-state communications.
In instances when a state party alleges violation of the Charter by another state, it can refer the matter to the Chairman of the Commission as well as the Secretary General of the AU. The accused state has three months to provide an explanation. If a settlement is not reached, then the matter can be referred to the Commission. This is referred to as inter-state communication. This process has been used sparingly such as in the case of Democratic Republic of Congo versus. Burundi, Rwanda, and Uganda.
It is to be noted that the commission is a quasi-judicial body and its decisions are not binding upon parties.
The inter-state communications procedure has only been used once.
Also of interest is the African Union Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa (Kampala Convention) which has provisions that obligate the states to protect, assist and provide for effective remedies to people who are displaced due to amongst other things development projects. This Convention although not in force currently will certainly have a bearing in the future on displacement caused by hydropower projects once it enters into force. It is also interesting to note that amongst the Nile basin countries Burundi, DRC, Ethiopia, Eritrea, Rwanda and Tanzania are signatories to the Convention while Uganda has signed and ratified the same.
When the question arises with respect to the protection of a world cultural heritage in a state, so
88 Blue Peace for the Nile
designated by the UNESCO under the Convention Concerning the Protection of the World Cultural and Natural Heritage, states have an obligation to ensure its protection. An intergovernmental committee under this convention called the World Heritage Committee can take a decision and direct parties to follow the principles laid down under the convention: It is to be noted that this convention has been ratified by all the Nile basin countries except South Sudan. Hence they are under the obligation to follow the same.
Part 2
Recommendations
The debate about Article 14(b) of the Comprehensive Framework Agreement (CFA) of the Nile Basin countries has resulted in relative neglect of other important Articles over which there is no dispute but which might prove to be very challenging to implement. Article 6 of the CFA discusses “protection and conservation of the Nile River Basin and its ecosystems” which includes improving the quality of water, protecting wetlands, saving biodiversity, as well as restoration of depleted resources. The Article also advocates harmonizing regional policies across the basin to achieve this end. It appears that all countries in the Basin have no problem with this Article. It is therefore recommended that practical measures should be envisaged to implement ideas embodied in Article 6 in letter and spirit, irrespective of the future of the CFA itself. These include:
Co-ordination of Policies related to Managing Eco-systems: Harmonization of policies needs to be undertaken at two levels. At the national level, individual countries need to streamline interaction between various departments responsible for water quality issues. At the regional level, countries in the basin need to adjust their policies together as they are all dependent on the same water sources and their choices are bound to have impact on the entire basin.
Setting Analogous Targets: The Nile Basin countries need to identify similar
‘base line targets’ to achieve, in the context of water quality as well as protection of biodiversity. This will help the basin thrive in an equitable manner and lessons learned from the more successful experiments can be replicated elsewhere.
Sustainable Policies: The Nile riparian countries face challenges of over-extraction, and ever increasing demand over finite resources, in their drive for growth and poverty alleviation. In such a scenario, the policies that are