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Justification and impact of international environmental agreements on West African sub-region: the ECOWAS’ experience

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Abstract

This paper sets out to investigate the impact of International Environmental Agreements on the Economic Community of West African States (hereafter ECOWAS). It also examines the challenges hindering effective implementation of Community Environmental Law (CEL) within the Community Member States. This paper posits that despite the policies, programmes and plans adopted by ECOWAS, some challenges still remain. Effective CEL application faces challenges related to the economy, relevant institutions, the exclusion of indigenous people, and the over-proliferation of International Environmental Agreements. Findings from this paper reveal that institutional challenges have changed since the early 1990s from an institutional vacuum to the emergence of scattered and uncoordinated institutions. Moreover, ECOWAS countries still struggle to balance environmental protection and economic growth. To overcome the aforementioned challenges, it is recommended that ECOWAS learn from existing communities such as the European Union (EU); that modern lawmakers work side by side with indigenous people for effective environmental protection (allying the customary dimension to the legal aspect); that traditional knowledge be considered in drafting “modern” legislation; and that economic incentives like providing low-emission credits to enterprises be created for environmental protection.

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Notes

  1. The Conference of Berlin lasted several months (15 November 1884 to 26 February 1885). Gathering 14 European countries, its main purpose was to discuss the division of the African continent amongst them. Another purpose was to end the slave trade. However, even though the conference was about Africa, no “native” of the continent attended. Moreover, the European appropriation of African lands directly involved the appropriation of the continent's natural resources. Therefore, the Conference of Berlin could be seen as being held only for economic reasons and it arguably contributed to the pillaging of Africa’s natural resources.

  2. In the USA, for instance, the first measure to introduce natural protection reserves and national parks was motivated mainly by “aesthetic” concerns.

  3. During the Paris Conference of 1923 and the Convention on the Conservation of Fauna and Flora in their Natural State, the concepts of “endangered species”, “strict nature reserves”, and “national parks” were first introduced.

  4. In his study focusing on the Tanganyika region, Baldus observes that “[…] Detailed trade statistics, which were kept from 1903 onwards showed that between 1903 and 1911 a total of 256 tons of ivory were exported, which represents approximately 1200 to 1500 elephants killed per year […] At the same time an amazing 53 tons of rhino horns were exported representing perhaps 2000 to 2300 rhinos shot per year. This 8-year period also saw a good thousand live animals taken to the motherland, as well as 50 tons of antelope horns and 2.7 tons of valuable bird feathers”.

  5. See Principle 21 of the Stockholm Declaration. This Principle is reiterated in Principle 2 of the Rio Declaration.

  6. The United Nations Conference on the Environment, well known as the “Stockholm Conference”, was held from 5 to 16 June 1972 in Sweden. The conference and its aftermath made known the international nature of the environment and discussed the relationship between development and the environment.

  7. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989 to address increasing concerns in Africa and other parts of the developing world about deposits of toxic wastes imported from abroad. For more information, see the website of Basel convention: http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx.

  8. According to Amokaye, this conference was successful because it resulted in the Convention on Climate Change and the Convention on Biological Diversity being opened for signature. At the Rio conference, three basic documents were adopted: The Rio Declaration on Environment and Development, the Forest Declaration (Declaration of Principles for Protecting Forests), and the Action Plan for the 21st Century, known as Agenda 21.

  9. See Principle 4 of the Rio Declaration, 1992.

  10. At the international level, the Stockholm Declaration of 1972 provided that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being[…]”. See Principle 1 of the Stockholm Declaration for more information.

  11. It must be emphasised that whilst the African Ministerial Conference on the Environment was held from 06 to 18 December 1985 in Cairo, a meeting of the Group of Experts was simultaneously taking place from 12 to 15 December 1985.

  12. This convention was signed on 08 November 1933 in London by nine States to secure wildlife protection.

  13. The Organisation of African Unity is an intergovernmental organisation with representation from 55 African countries. Since 30 January 2017, Morocco has once again been part of the African Union.

  14. The African Convention is an example of an integrated approach to environmental protection: it concerns soil, water, animals and plants conservation. In other words, it covers practically the whole of nature.

  15. The Maputo Convention is the successor of the Algiers Convention. The revision of the Convention was necessary due to scientific developments about environmental issues.

  16. The four programmes of NEPAD have been set up in 2016 and are: (1) human capital development; (2) industrialization, science, technology and innovation; (3) integration, infrastructure; (4) Natural resource management and food security.

  17. It concerns the conservation of soil, water, animals and plants, in other words, most of the biodiversity. Unfortunately, this convention (which came into force in 1936) will not really be used because of the event of the Second World War in 1945.

  18. Article XIII of Maputo convention, 2003.

  19. Article XVI of Maputo convention, 2003.

  20. During his speech at the opening of the Conference, the OAU Chairman in Office stated that: “We can only sign this convention if we are convinced that our interests will be taken into account […] It is difficult for Africa to be part at a convention whilst not being enough well equipped to ensure that the other parties honour their moral and legal commitments to this Convention”. Confer message from the Chairman-in-Office of the OAU at the Basel Conference, March 1989, Doc Dactyl, p. 4.

  21. The Bamako Convention is an answer to Basel Convention article 11, which encourages States to engage in bilateral, regional and multilateral cooperation.

  22. The Bamako Convention prohibits the import of wastes into Africa (Article 4 of Bamako Convention), whilst the Basel convention allows the transboundary movement of wastes (article 4 of Basel Convention).

  23. Article 10 and 11 of Bamako Convention, 1991.

  24. See Article 3 (l) of the African Union Constitutive Act, 2000.

  25. For example, ECOWAS reaffirms in its preamble the provisions of the Treaty of the African Economic Community.

  26. See Article 4(4) of the 2008 MoU.

  27. See Art. 16 (1a) of the Protocol creating the African Union Peace and Security Council, July 2002.

  28. We have, for instance, the Supplementary Act A/SA. 8/01/07 adopting the ECOWAS Policy on Disaster Reduction, 2007.

  29. Article 16 of the 2008 MoU.

  30. The three principles here refer to the principles of subsidiarity, comparative advantage and complementarity.

  31. See the ECOWAS Environmental Policy, 2008, p. 18.

  32. See the ECOWAS Report of Convergence, 2016, p. 146.

  33. See Protocol A/P.4/1/03 on Energy, ECOWAS Official Journal Volume 42, 2003.

  34. Article 2 of ECOWAS Protocol on Energy.

  35. Article 9 of ECOWAS Revised Treaty.

  36. See Article 9 of ECOWAS Council of Ministers Rule of Procedure (2010), ECOWAS Official Journal Volume 57 (French Version), p. 108.

  37. The final provisions of the Supplementary Acts mention this annexation. In fact, from the Preamble of the Supplementary Act amending Article 9 of the ECOWAS Treaty, it is mentioned that “the Conference adopts Supplementary Acts which supplement and are annexed to the Treaty”.

  38. Ibid.

  39. See, Supplementary Act A/SA 1/01/07 on the Harmonization of Policies and of the Regulation Framework for the ICT Sector, ECOWAS Official Journal vol. 50, 2007. Available at: http://ugspace.ug.edu.gh/bitstream/handle/123456789/7604/OJ-50.pdf?sequence=1&isAllowed=y, accessed 02 June 2020; International Telecommunication Union, “ICT Regulatory Harmonization: A comparative study of Regional Initiatives” (2009) HIPSSA Project, p.42. Available online at: https://www.itu.int/ITU-D/projects/ITU_EC_ACP/hipssa/docs/D_REG_HIPSSA_2010_PDF_E.pdf, accessed 01 June 2020.

  40. There is, for instance, the Supplementary Act adopting the ECOWAS Policy on Disaster; Supplementary Act A/SP.16/02/12 adopting the ECOWAS Mineral Development Policy (EMDP) and its implementation matrix, ECOWAS Official Journal vol.60, 2012; Supplementary Act A/SA.12/02/12 adopting the Revised Master Plan for the Generation and Transmission of the Electrical Energy of the ECOWAS Member States, ECOWAS Official Journal Volume 60, 2012.

  41. The Directive of the Council of Ministers on the Restructuring of the ECOWAS/UNESCO New and Renewable Energy Information Pilot, ECOWAS Official Journal vol. 19, 1991; Directive C/DIR. 3/05/09 on the Harmonization of Guiding Principles and Policies in the Mining Sector, ECOWAS Official Journal vol. 55, 2009; Directive C/DIR.1/06/13 on the Organization of the Regional Electricity Market, ECOWAS Official Journal vol. 63, 2013.

  42. See Law No. 034-2008/AN authorizing Burkina Faso to be part of the International Convention for the Regulation of Whaling of 1946 and its supplementary protocol.

  43. See Article VII of the International Convention for the Regulation of Whaling of 02 December 1946.

  44. According to Maurice Kamto, “Most international Financial institutions have developed global procedures that borrowers must comply with […]”.

  45. According to J. O. Lokulo-Sodipe and A. J. Osuntogun, “States monetary contributions do not flow in as regularly as scheduled […]. There was even a time when the executive secretariat of ECOWAS was finding it increasingly difficult to pay most of its staff because of the default in the payment of contributions by member states. Most members failed to honour their financial obligations for not just a year but for years”.

  46. The author points out the abundance of regional communities as one of the greatest problems facing ECOWAS.

  47. See, International Environmental Agreements (IEA) Database Project website. https://iea.uoregon.edu/base-agreement-list?combine=&field_inclusion_value=MEA&sig_year%5Bmin%5D=&sig_year%5Bmax%5D=2100-01-01&mitch_id=&field_lineage_value=.

  48. See the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) website for more details. https://www.impel.eu/, accessed 02 November 2020.

  49. According to Kareem Salami et al., “there is often a disparaging environmental transformation emanating from the business and industrialization particularly in crude-oil. Oil spill and gas flares have destroyed the natural resources base, crucial to sustaining independent indigenous livelihood. In most parts of rivers and Delta states for instance, the hitherto very fertile lands are no longer productive”.

  50. The authors cite articles such as the “EPI 2018 Environmental Performance Index” and “UNCTAD, World Investment Report 2010.”

  51. There is, for instance, the “ECOWAS Energy Resources Development Fund” created in 1982 through ECOWAS Heads of States decision A/DEC. 1/5/82; the “Fund for Co-operation and Development” established by Article 21 of ECOWAS Revised Treaty and that became the “ECOWAS Bank for Investment and Development”; “ECOWAS Regional Fund for Agriculture and Food” created in 2009.

  52. See the Programme for Germany’s Presidency of the Council of the European Union, from 1 July to 30 December 2020, Auswärtiges Amt, Werderscher Markt 1, Berlin, 2020, p.10. Available online at: https://www.eu2020.de/blob/2360248/e0312c50f910931819ab67f630d15b2f/06-30-pdf-programm-en-data.pdf, accessed 27 November 2020.

  53. Ibid. at p. 15.

  54. Ibid.

  55. ECOWAS countries part of the Commonwealth are Gambia, Ghana, Nigeria and Sierra Leone. According to Dale, “a great majority of the Commonwealth countries […] have in common the same basic law”.

  56. [2000] F W L R pt 4 p. 533 at 587.

  57. See article 151 of the Constitution of Burkina Faso (it determines the place of international agreements within the country’s legal system).

  58. See Suit N° ECW/CCJ/APP/11/07 between Musa Saidykhan v the Republic of the Gambia; Judgment N° ECW/CCJ/JUD/08/10 between Musa Saidykhan v the Republic of the Gambia.

  59. As said Christof Hartmann, ECOWAS “remains weak in terms of administration and lacks capacities to develop strategies and policies to actually implement and enforce standards in its member states”.

  60. Taking an example of “ECOWAS policy for disaster risk reduction” adopted in 2006, part III-7(1) focuses on financial mechanisms. The setting up of a “Peace Fund to provide core financial resources for implementing its programmes and activities is mentioned”. However, the policy is vague about how the Fund is financed. See “ECOWAS Policy for disaster risk reduction” for more detail.

  61. For example, there is ECOWAS Environmental Policy. Part 6(3) stipulates that “the implementation of the policy will be subject to continuous monitoring and periodic assessment by ECOWAS”. However, it did not stress or expand on the meaning of the word “periodic”. This is left to free interpretation.

  62. According to Christian Knox, “international legal sovereignty remains imperative in order for a state to become an active and thriving participant in the world community.”

  63. These kinds of control oblige Member States to provide periodic reports on their activities. This obligation may be strengthened. For instance, questionnaires, templates, and guidelines might be used to ensure certain content appears in the reports. However, one should note that this kind of system still face shortcomings. In fact, states might be stubborn and still provide a small amount of true information.

  64. As far as ECOWAS is concerned, this mission might be coupled to National Offices’ missions instead of setting up a new body. Having new institutions will only be cumbersome and less efficient.

  65. EMEP was set up by the Protocol of 28 September 1984 to the Geneva Convention of 1979 on “Long-range transboundary air pollution”.

  66. It is the suit between Nosa Ehanire Osaghae and others v. Republic of Nigeria.

  67. See Suit N° ECW/CCJ/APP/01/13 between Mr Chude Mba v. the Republic of Ghana.

  68. Ibid.

  69. See the Suit No. HRCM/376/15, Mr Chude Mba v the Republic of Ghana, High Court of Ghana 2016, (Unreported).

  70. The plaintiff asked the ECJ to declare that the 14 other ECOWAS Member States have an obligation to take the needful measures to make the defendant comply with the ECJ Judgment No. ECW/CCJ/JUD/10/13, etc. Since they all are members of ECOWAS, they have a duty of solidarity.

  71. The plaintiff asked the ECJ to order the ECOWAS Commission and the President of ECOWAS Heads of State and Government to take the sanctions mentioned by Article 77 of the ECOWAS Revised Treaty against the Republic of Ghana if there is a persistence of non-observance of the Court decisions.

  72. See Suit N° ECW/CCJ/APP/22/16, Chude Mba v Republic of Ghana & 16 Ors, p. 20.

  73. Ibid.

  74. See the African Development Bank Group, “West Africa Economic Outlook 2018” (2018), p. 1.

  75. See ECOWAS website for more details: https://www.ecowas.int/documentation/we ndu-report-28-10-2019/.

  76. Private profit-oriented businesses represent a specific group increasingly engaged with environmental matters due to their reliance on natural resources and their contribution to pollution.

  77. West African citizens are more concerned with their standard of living (need for wood, food, water and pastures) than their level of development (for instance, taking care of the ozone layer and respecting the principles guiding environmental protection whilst knowing every day is a struggle to live). To solve this issue, environmental education has to show the critical link between today's practices and tomorrow's problems.

  78. “ECOWAS move from an ECOWAS of States to an ECOWAS of people”, see ECOWAS website: https://www.ecowas.int/about-ecowas/basic-information/.

  79. Environmental protection has been, for instance, coupled to energy access within ECOWAS (see ECOWAS Renewable Energy Policy (EREP) or ECOWAS Energy Efficiency Policy (EEEP)).

  80. Article 11 of the Supplementary Act A/SA.4/12/08 relating to the ECOWAS Environmental Policy stipulates that member states have “to systematically carry out or cause to carry out environmental studies and assessments for any investment or any action with a potential impact on the environment”. Regarding this, all ECOWAS states adopted legislations regulating the Environmental Impact Assessment (EIA) within their territory. For instance, Burkina Faso adopted in 2015 the decree “n°2015­1187/PRES/TRANS/PM/MERH/MATD/MME/MS/MARHA/MRA/MICA/MHU/ MIDT/ MCT” relating to the Conditions, Procedures and Validation of the Environmental and Social Impact Assessment, “JO N°53 DU 31 DECEMBRE 2015 (decree on conditions and procedures to carry out Environmental Impact Assessment).”

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    Sidnoma Nita Belemsobgo

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Belemsobgo, S.N. Justification and impact of international environmental agreements on West African sub-region: the ECOWAS’ experience. Environ Syst Decis 42, 85–102 (2022). https://doi.org/10.1007/s10669-021-09837-9

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  • DOI: https://doi.org/10.1007/s10669-021-09837-9

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