1. The limits of integrating public health in the sustainable management of shared freshwaters in international environmental law: Lessons from Africa IUCN Academy of Environmental Law, 2011 Colloquium: South Africa 3-7 July 2011 Mpekweni Beach Resort, Eastern Cape WATER AND THE LAW: TOWARDS SUSTAINABILITY William Onzivu Lecturer in Law Bradford University Law School University of Bradford

2. PRESENTATION OUTLINE The problematic The rationale: centrality of health in environmental regulation; public health threats of water, global, regional and domestic Water and sustainability legal regime: international water law, regional water and sustainability regimes Case studies of regional sustainability legal regimes for water: Lake Victoria and Senegal River Basins: scope, substantive, procedural, institutional and implementation mechanisms. Common challenges in the regional and domestic contexts Conclusions: options for reform:

3. I. Centrality of health and public health challenges relating to water Definition and necessity of public health in the context of water. Expansive definition of health to include environmental health. No scholarly unanimity, but a “state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”(WHO Constitution). Human capability and flourishing(Ruger,2009), linked to quality of life. Public health as natural capital in water management. Public health as a bridge in the eco-centric and anthropocentric divide. Convergence of human and environmental rights: African human rights jurisprudence. UNGA Resolution on the human right to water and sanitation(2010): linkage to right to health

4. Public health threats related to water Lack of access to water globally especially developing countries. Water pollution diseases eg diarrhoea, 1.87 million deaths(Boschi Pinto et al, 2008) 1.1 billion lack access to clean water and 2.4 billion lack sanitation facilities(UN Water Development Report, 2009) In Africa, 22% and in Asia 23% of under fives caused by diarrhoea.

5. HIV AIDS, malaria, cholera and water borne disease prevalence rates are higher than the national average in Uganda for example. Urban pollution –major cities and industrialization around the lake, untreated water Eutrophication-effluent, sedimentation, large scale farming around Lake Victoria Evolving regional public health challenges relating to shared fresh water: Lake Victoria

6. The Basin is home to 3.5 million people and 85% of them live along the river. The Basin covers Guinea, Mali, Mauritania and Senegal. After the creation of the L’Organization Pour la Mise en Valeur du Fleuve Senegal(OMVS) in 1972 and the 1978 Works Convention, a number of dams were planned and built. These include the Manantali and Diamma dams. However, the building of dams increased water borne diseases of bilharzia, malaria and cholera. A study showed that by 1994, 90% of people around the dam were infected. Malaria and cholera became endemic. Studies showed the human health costs far outweighed the economic gains.(Sow et al, 96 Annals of Trop. Med. & Parasitology 575(2002) Water borne parasites also infested animals. Evolving regional public health challenges relating to shared fresh water: The Senegal River Basin

7. The three pillars: Is health squeezed out in the social pillar? The Rio Declaration.. Humans at the centre of SD and the role of Agenda 21- emphasis of primary healthcare – public health Human health reinvigorated in Johannesburg? Limited concrete measures SD achieved normative character with several instruments at global and regional levels. However, its legal status remains unsustainable. Public health and international sustainable development law

8. The four legal principles that underpin management of shared water resources, absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty and integrity as well as community of interests(Order and Gabcikovo-Nagymaros cases) are biased towards water allocation and less on quality or health issues. A balancing act by Helsinki rules on the obligation to prevent pollution but no clear mechanisms for follow up. The water and health linkage recognized in regional treaties: Protocol on Water and Health to the Convention on the protection and use of Transboundary Watercourses and international Lakes. Public health and international sustainable development law

9. New regionalism Trade liberalization: environmental and public health standards Environmental awareness Public health threats: Double burden of disease and human security issue Regionalism, sustainability of public health: Several Drivers

10. Treaty for the Establishment of the East African Community: cooperation on natural resource, social issues and health issues; attainment of sustainable development(Article 5(3); harmonized management of transboundary natural resources(Art.114). Protocol on Environment and Natural Resources Management. Protocol on sustainable Management of Lake Victoria Institutional mechanisms and EAC development strategy(2010) provided for common water vision that contained the importance of tackling HIV AIDS in the Basin: limited scope of public health threats. Regionalism, sustainability and public health: East African sustainability instruments

11. Convention on the Statute of the River Senegal of March 11, 1972, declared Senegal River an international river, affirmed cooperation in the development of river resources, freedom of navigation and creation of an organization for Development of the River Senegal. Convention Creating the Organization for the Development of the River Senegal(March 11 1972): to carry out the purposes of the Statute, promote and complete technical and economic studies and create a legal capacity to carry out these purposes. Innovative international water instruments, creates OMVS institutions and focused on economic development. Sustainability was not included in these early legal instruments. However, the innovative 2002 Water Charter provides for sustainable development and human right to water. Regionalism, sustainability and public health: Senegal River Basin sustainability instruments

12. Absence of public health and general quality standards and indicators. Predominance of the economic pillar Weak environmental health governance Regional and domestic sectoral and policy fragmentation Weak enforcement and compliance regimes (including for public health) Limited capacity and stakeholder participation Sustainability critiques of regional freshwater governance for public health: Senegal River and Lake Victoria Basins

13. IMPLICATIONS FOR POLICY AND CONCLUSIONS Adaptive governance, collaborative governance as well as regular evaluation form important basis for concrete reforms to integrate public health into sustainable governance of freshwater resources. These reforms include: Further normative development: Protocol on Water and Health, the European example Reinforce riparian wide water and public health law harmonization Enhance multi-stakeholder participation; civil society and communities.