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The Revised African Convention on the Conservation of Nature and Natural Resources: Prospects for a Comprehensive Treaty for the Management of Africa's Natural Resources

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/ajicl.2013.0069
Pages378-397
Date01 October 2013
AuthorBolanle T. Erinosho
Published date01 October 2013
INTRODUCTION

The history of environmental protection in Africa dates as far back as the colonial period in African history, and international collaboration to protect the African environment can be traced back to more than one hundred years ago.1

S. Lyster, International Wildlife Law: An Analysis of International Treaties Concerned with the Conservation of Wildlife, Cambridge University Press (1993).

The first international legal instrument for the management of the African environment was signed by the colonial powers on 19 May 1900 in London: the Convention for the Preservation of Wild Animals, Birds, and Fish in Africa.2

Ibid.

 Its principal objective was ‘to prevent the uncontrolled massacre, and ensure the conservation of useful or inoffensive’ wild animal species in African colonies.3

Ibid.; M. Van der Linde, ‘Review of the African Convention on Nature and Natural Resources’, 2(1) African Human Rights Law Journal (2002): 33–59, at 35.

 The 1900 Convention had a narrow approach to the notion of conservation and a substantially restrictive interpretation of the African ecosystem premised on the need to regulate and maintain the viability of commercial exploitation of the African wild flora and fauna.4

Animals which were considered pests or dangerous were actively encouraged to be eradicated; for example, eggs of crocodiles, poisonous snakes, lions, leopards, owls, vultures. 1900 Convention, paras 13 & 15; F. Situma, ‘Africa's Potential Contribution to the Implementation of International Environmental Law’, 10(2) Transnational Law and Contemporary Problems (2000): 385–421; Lyster, International Wildlife Law, supra note 1; P. Van-Heijinsbergen, International Legal Protection of Wild Fauna and Flora, IOS Press (1997).

 Significantly, enduring conservation techniques such as the use of annexes or appendices to list protected species and the establishment of reserves and special areas were first adopted under this Convention.5

Van-Heijinsbergen, ibid.

Subsequent to the adoption of this treaty, African states have been involved as both subjects and independent parties in the expanding and developing subject area of international environmental law. In addition to the significant number of international environmental treaties to which African states are parties, at the global level, as well as their contribution to the development of environmental principles and practice,6

Environmental principles including the concept of sustainable development and common but differentiated responsibility amongst many others.

African countries have at the regional level also adopted a number of treaties and agreements governing the environment. Significant are: the 1933 London Convention Relative to the Preservation of Fauna and Flora in their Natural State, which was adopted as a successor to the 1900 Convention;7

172 LNTS 241.

 the 1968 African Convention on the Conservation of Nature and Natural Resources;8

1001 UNTS 4.

 the 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa;9

30 ILM 775 (1991).

 the 1994 Lusaka Agreement on Cooperative Enforcement Operations on Illegal Trade in Wild Fauna and Flora; and the 1985 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region under UNEP's Regional Seas Programme amongst others. The multiplicity of treaties and agreements creates difficulties for many African countries. In particular, problems arise in coordinating the various agreements and treaties as well as attendant duplication and overlap of areas covered by many treaties and agreements.10

K. Gray, ‘Multilateral Environmental Agreements in Africa: Efforts and Problems in Implementation’, 3(2) International Environmental Agreements Politics, Law and Economics (2003): 97–135.

 Poverty and shortage of resources in many African countries hamper the capacity to effectively monitor and implement these large numbers of treaties.11

This includes financial and technical incapacity. Inadequate technical capacity stems both from the inadequacy of technical know-how but also includes the failure to develop a home-grown epistemic community. A large proportion of African experts were trained in the West with the attendant shaping of their views by Western ideals of environmental management. See E. Howard-Clinton, ‘The Emerging Concepts of Environmental Issues in Africa’, 8(3) Environmental Management (1984): 187–90.

The problem of multiplicity of treaties and agreements is not restricted to African environmental law. International environmental law by its very nature is composed of disparate number of treaties and agreements estimated at well over three hundred, as well as principles developed in an ad hoc manner and a variety of institutions governing small sections of environmental policy thus resulting in duplication as well as conflicting agendas and a waste of resources.12

J. Ayling, ‘Serving Many Voices: Progressing Calls for an International Environmental Organisation’, 9(2) Journal of Environmental Law (1997): 243–69; D. French, ‘Finding Autonomy in International Environmental Law and Governance’, 21(2) Journal of Environmental Law (2009): 255–89.

The challenges posed by the status of international environmental law and policy have resulted in work being undertaken in the area of ‘international environmental governance’, including calls for the establishment of a world environment organisation, the creation of the UN Global Ministerial Environmental Forum as well as the Environmental Management Group to promote coordination at both the political and interagency levels. For example, the 2005 UN World Summit concluded that:

Recognizing the need for more efficient environmental activities in the United Nations system, with enhanced coordination, improved policy advice and guidance, strengthened scientific knowledge, assessment and cooperation, better treaty compliance, while respecting the legal autonomy of the treaties, and better integration of environmental activities in the broader sustainable development framework at the operational level, including through capacity-building, we agree to explore the possibility of a more coherent institutional framework to address this need, including a more integrated structure, building on existing institutions and internationally agreed instruments, as well as the treaty bodies and the specialized agencies.13

N. Meyer-Ohlendorf, ‘Would a United Nations Environment Organization Help to Achieve the Millennium Development Goals?’, 15(1) Review of European Community and International Environmental Law (2006): 23–9.

With regard to institutional reform of international environmental law and policy making, debate is centred around the creation of a world environment organisation in place of the United Nations Environment Programme (UNEP). The creation of a world environment organisation in particular arguably has the potential to increase coordination and coherence in international environmental decision making, thus promoting both greater efficiency and, at a substantive level, improved environmental conditions, and greater political attention to environmental problems.14

S. Obethur and T. Gehring, ‘Reforming International Environmental Governance: An Institutionalist Critique of the Proposal for a World Environment Organisation’, 4 International Environmental Agreements: Politics, Law and Economics (2004): 359–81.

The advantage of a new organisation includes that it could enable the development of a common reporting system and a common dispute settlement system for all multilateral environmental agreements. It could also strengthen international environmental law making and improve the overall efficiency of the whole system.15

French, ‘Finding Autonomy in International Environmental Law and Governance’, supra note 12.

 In practice, however, details such as the structure and the increased bureaucracy make the probability of a world environment organisation less than likely, with consensus on the need for such a new agency or the best model for its design yet to be reached. This is not unconnected with the diversity of interests represented in international environmental affairs. The refusal of states to yield sovereignty leads to difficulties in achieving any progress in this regard

At the African region level, the need to create a structured, coherent and comprehensive treaty regime on the environment is both necessary and attainable. The difficulty which arises in coordinating implementation of multiple instruments raises the question of the need for a single coherent strategy on the environment, an African strategy on environmental law – a sample law or policy containing fundamental principles which African states subscribe to as well as measures and obligations agreed upon as necessary to tackle the region's environmental problems.

The advantage of a common strategy is twofold: at the global level, it could serve as a template for negotiations on environmental issues. Furthermore, while African countries have participated in the development of global environmental law, the international environmental discourse has been largely dominated by Western scholars.16

A. Najam, ‘Developing Countries and Global Environmental Governance from Contestation to Participation to Engagement’, 5(3) International Environmental Agreements (2005): 303–21.

The result is that the role of developing countries in international environmental law is less well documented, even less so the contributions of African countries. Thus, further development of the regional laws on the environment would have the benefit of contributing to the environmental discourse. Developments in environmental law at the global level have influenced Africa's approach to environmental law; at the same time, African countries have in certain situations been able to influence...

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