Makane Moïse Mbengue
The concept of precedent challenges some of the legal foundations of international adjudication. In particular, it questions the dogma according to which there is no stare decisis within the system of international courts and tribunals. From the birth of third party adjudication to the present day, international courts and tribunals have shaped, progressively and discontinuously, a doctrine of precedent. In that process, precedent has appeared sometimes as a legal necessity, sometimes as a tool for consistency and coherence (that is, as an ‘antifragmentation’ device) and, often, as an ideology. However, the contours of the concept of precedent vary depending on the international courts and tribunals. While some of them are cautious about the use of judicial precedents, others engage in judicial activism and, to a certain extent, judicial legislation in order to legitimize the systematic use of precedents in the peaceful settlement of international disputes. There is no doubt that the concept of precedent is a child of the century – a century marked by the ‘judicialization’ of international law.
Makane Moïse Mbengue and Nwamaka Odili
In West African, transboundary water governance has been progressive spanning from the colonial instruments to the post-colonial regimes adopted before 1990 and the post-1990 instruments following adoption of the UNECE Water Convention and the UN Watercourses Convention. Shared watercourse agreement in the region began in the 19th century with the 1885 General Act of Berlin applicable inter alia to River Niger. Since then, more agreements and treaties have been contracted for the management of some of the region’s shared watercourses particularly in the post-colonial era. Although only six of the region’s 25 shared watercourses are governed by legal instruments, West Africa has contributed to the world regime on regulation of shared watercourses. The initial instruments were primarily for access to the river for navigation and commerce; later treaties addressed the need for co-operation and building of institutions but very recent ones codify the universal principles of customary international water. Some of the instruments also reflect emerging substantive principles like common works, public participation, requirement of minimum stream flow and human right to water. The quality of transboundary water regimes in the region has improved over time particularly with influence of the UN Watercourses Convention and the UNECE Water Convention. However for sustainability of transboundary water management in West Africa, the need to address problem of non-regulation of its 19 shared watercourses cannot be overemphasised.
Makane Moïse Mbengue and Nwamaka Odili
Early treaties and instruments relating to fresh water emphasised navigation and economic uses of water, without attention to environmental considerations. For example, the Act of Vienna sustained the principle of free navigation of rivers and canals in Europe without providing for the protection of the river basins involved. Fresh water was considered only as a major means of commercial activities and navigation. However, rapid urbanisation and population growth produce adverse impacts on the environment and river basins, and also increase the burdens necessary to protect fragile ecosystems of shared watercourses. In this manner, pollution became the first important focus in the protection of fresh water, as seen in regimes established both before and after the adoption of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers. Yet the concept of the protection of the marine environment is broader than the obligation to avoid pollution, and more recent treaties have realised a correlation between land-based activities and the status of freshwater ecosystems.
Makane Moïse Mbengue and Susanna Waltman
Health and the environment are inextricably linked and giving effect to this link is a key aspect of sustainable development in the twenty-first century, particularly as climate changes forces intensify their effects globally. This chapter seeks to highlight that concern for human health and well-being has been a driving force behind the development of international environmental law, and the ways that the principles that have emerged in international environmental law may be utilized to pursue public health objectives in the context of environmental measures. It accordingly outlines the way that the environment impacts human health and well-being and the evolution of international environmental law with concern for human health and well-being at the heart of its development. It further sets out the way the fundamental link between health and the environment is given effect in international environmental agreements by highlighting the specific provisions that protect human health and the environment, which demonstrate the express role of human health in international environmental agreements.