MANAGEMENT OF TRANS-BOUNDARY RESOURCES IN EAST

AFRICA.

INTRODUCTION
This study was formatted to identify the type of the resource involved, the principles associated
with the conservation and management of such resources in the past. Further the research also
focuses on the laws the principles influenced and any recent case laws that utilized the case law
and the rationale.

Lake Victoria Basin.

Partner states in the East African Community treaty undertake to ratify or accede to International
Environmental conventions designed to improve environmental policies and management. 1 This
brings us to the Principle of not causing trans-boundary harm recognized in the Rio Declaration.2
In the Trail Smelter arbitration case it was averred that Canada was in violation of their duties to
prevent activities within its territory from causing injury to the territory of another state. 3 This
decision in the management of the Lake Victoria Basin is further given effect by article 112(1)(c)
which provides that the East African Community shall take measures to control trans-boundary
air, land and water pollution.4 In the Pulp mills case, the role of institutions for example the
Administrative Commission of River Uruguay was also recognized in the protection of trans-
boundary resources.5 The Lake Victoria Basin Commission is established under Section 114(2)
(b) (VI) purposefully for the management of Lake Victoria.6

1
Article (113)(3) Treaty for the Establishment of The East African Community (As Amended on
14th December, 2006 and on 20th August, 2007)
2
Principle 21 of the Declaration of the United Nations Conference on the Human
Environment,1972 (Stockholm Declaration)
3
Trail smelter case (United States, Canada), 3 UNRIAA, p. 1905, 1952
4
East African Community treaty of 1999
5
Pulp Mills on the River Uruguay (Arg. V. Uru.), 2010 I.C.J.
6
(n 3)
The establishment of a regional body to oversee brings the question of sovereignty of States,
which is the next principle in this case. The Gabcikovo- Nagymaros project case offered an
insight to the equality of riparian states.7 The ability of a State to self-government and to pursue
an economic objective of its choice in this sense is an example of a perspective in the Principle
of Sovereignty of States. This position is affirmed by the ICJ case of East Timor where it was
held that sovereignty over economic resources is an important component of totality over a
States sovereignty.8 This decision was also admitted in the case of Lake Turkana Trust v
Attorney General and 2 others where it was also submitted that the principle of permanent
sovereignty requires that a State in developing its resources have due regard for the environment
of neighboring States to be taken into account since the River Omo was a trans-boundary river. 9
It was subsequently held that the government was to take the necessary steps and measures to
ensure the sustainable management of the resources of Lake Turkana.10

This brings up the Principle of Sustainable Management. Sustainable management is the Nexus
between economic development and environmental conservation and management. The purpose
of sustainable management is to pursue the greatest economic growth possible with regard to
environmental conservation for present and future generations. The EAC treaty purposes to
contribute to the sustainability of the environment.11

The principle of cooperation based on information and prior consultation is next on the list with
the agreement on the Lac Lanoux Arbitration being a landmark decision in this area. 12 It was
averred that under the treaty of Bayonne works couldn't continue without previous agreement of
both the parties.13 Under the EAC treaty parties endeavor to foster cooperation, co-ordinate
policies and actions and provide prior and timely information and notification for any activities

7
Gabcikovo- Nagumaros Project (Hung v. Slovk.), 1997 I.C.J. 3
8
East Timor (Port. V. Austl.), 1995 I.C.J. 91
9
[2014] eKLR
10
ibid
11
Article 111(2)
12
Lac Lanoux Arbitration, (1957), 24 Int. L.R. 101
13
ibid
2
in the trans-boundary ecosystems.14 One of the organs facilitating such activities is the Lake
Victoria Fisheries Organization empowered by article 9.15

Nile River Basin

States sharing trans-boundary resources with other states are under an obligation to consult with
other states before making changes or development that could affect the shared resource. 16 This
is a manifestation of the Principle of Sustainable Development which is further echoed by Article
111(2).17 The EAC treaty further provides for the integration of environmental management and
conservation measures in all developmental activities.18 Partner states in the East African
Community treaty, purport to adopt regulations for the protection of shared aquatic and terrestrial
resources in line with the adoption of common regulations for conservation and management of
all catchment areas.19

The Serengeti Mara ecosystem.

Sustainable development can be set as the standard of balancing between the environmental
protection and the economic development.20 In African Network for Animal Welfare (ANAW) v
The Attorney General of the United Republic of Tanzania, the applicant argued that the actions of
the Respondent were a violation of Article 114 (1) (a) of the Treaty which enjoins all Partner
States to conserve, protect and manage the environment and natural resources and Articles 5 (3)
(c), 8 (1) (c) and 111 (2) of the Treaty which obligates partner States to co-operate in the
management and utilization of natural resources within the Community and to abstain from any

14
Article 111(1) of the East African Community treaty, 1999
15
East African Community Treaty, 1999
16
Lac Lanoux Arbitration, (1957), 24 Int. L.R. 101
17
(n 13)
18
Article 112(e)
Article 114, Treaty for the Establishment of The East African Community treaty, 1999 (As
19

Amended on 14th December, 2006 and on 20th August, 2007)

20
Aggarin Viriyo, 'Principle of Sustainable Development in International Environmental Law'
Sustainable development in International Environmental Law.

3
measures that would jeopardize the attainment of the objectives of the Treaty in that regard. 21
The Court in this regard took cognizance of the fact that the construction of the road had
potentially negative effects on the Serengeti-Mara ecosystem, which is a trans-boundary natural
resource and hence it was imperative for the court to take some measures towards its protection
in line with the Treaty.22

The Precautionary Principle states that the measures such as regulatory actions must be taken to
protect the environment prior to implementation of the development projects, even though there
is scientific uncertainty about environmental harm.23 This perspective was also witnessed in the
ruling of the ANAW v Attorney General of the Republic of Tanzania case.24

Under international law, the right of peoples and nations to permanent sovereignty over their
natural wealth and resources must be exercised in the interest of their national development and
of the well-being of the people of the State concerned.25 The free and beneficial exercise of the
sovereignty of peoples and nations over their natural resources must be furthered by the mutual
respect of States based on their sovereign equality.26

21
No. 9 of 2010
22
Kariuki Muigua, 'Managing trans-boundary Natural Resources in Kenya' (PhD, 2018).
23
Principle 15 of the Rio Declaration. Kenya and Tanzania are both signatories to this
convention
24
(n 19)
25
1962 General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources
(GAR 1803), GA Res. 1803 (XVII) / 17 UN GAOR Supp. (No.17) at 15 / UN Doc. A/5217
(1962), Part 1.1
26
ibid part 1.5
4