Challenges in the Senegal
The scope of the IRBO has expanded over time, and through various agreements, to address issues and to encapsulate more interests and values. Despite some questions regarding the efficacy of the Senegal IRBO,45 it remains a “unique case of basin cooperation based on the concept of benefit sharing”46 representing a “pioneered progressive and articulated legal regime.”47
The challenges facing the Senegal going forward are not dissimilar to those faced by Columbia. They relate to, but are not limited to, public participation, successfully dealing with the negative social and environmental impacts of dams, equitably sharing benefits within countries, and improving the OMVS’ effectiveness.48 The OMVS, however, provides a suitable forum for these various interests and issues to be heard and hopefully resolved.
The Senegal can be considered a classic case of “resource capture” where a “fall in the quality and quantity of renewable resources can combine with population growth to encourage powerful groups within a society to shift resource distribution in their favour.”49 According to Thomas Homer-Dixon, the plan “to seek international financing for the Manantali Dam on the Bating River tributary in Mali, and the Diama salt-intrusion barrage near the mouth of the Senegal River between Senegal and Mauritania” was:
designed to regulate the river’s flow to produce hydropower, expand irrigated agriculture, and provide river transport from the Atlantic Ocean to landlocked Mali, which lies to the east of Senegal and Mauritania.
But the plan had unfortunate and unforeseen consequences. Anticipation of the new dams sharply increased land values along the river in areas where high-intensity agriculture would become feasible. The elite in Mauritania, which consists mainly of white Moors, then rewrote legislation governing land ownership, effectively abrogating the rights of black Africans to continue farming, herding, and fishing along the Mauritanian riverbank.
...In the spring of 1989, the killing of Senegalese farmers by Mauritanians in the river basin triggered explosions of ethnic violence in the two countries. In Senegal, almost all of the 17,000 shops owned by Moors were destroyed, and their owners were deported to Mauritania. In both countries several hundred people were killed and the two nations nearly came to war. The Mauritanian regime used this occasion to activate the new land legislation, declaring the Mauritanians who lived alongside the river to be ‘Senegalese,’ thereby stripping them of their citizenship; their property was seized. Some 70,000 of the black Mauritanians were forcibly expelled to Senegal, from where some launched raids to retrieve expropriated cattle.50
The Senegal River Basin is now governed by a relatively progressive legal regime with a broad scope. As it stands today, the regime encompasses many diverse interests and issues and also represents the progressive development of the law of international watercourses, as is shown in the improvements reflected in the 2002 Water Charter over the older 1972 convention relating to the Statute of the Senegal River.51
The 2002 Water Charter, in Article 4, incorporates the fundamental human right to clean water,52 which “is particularly significant, as it is
Benefit-sharing arrangements 117 the first such reference...in a freshwater treaty.”53 By recognizing the basic human right to clean water, the charter reinforces the position of local communities.54
The Senegal shows an evolution in whose rights and interests are represented. In addition to principles such as equitable and reasonable utilization, notification, and polluter-pays, the 2002 Water Charter provides for rules relating to the preservation and protection of the environment55 and for public participation (an early leader in this respect in West Africa).56 The charter also took “into account the Guinean part of the basin in the development of the policies and the programs of development of the basin of the Senegal River”57 prior to Guinea ultimately joining the OMVS; thus, supporting the evolution of the OMVS from the “contracting State-based approach” to a “riparian State-based perspective.”58
Any dispute between the member states regarding the interpretation or application of the relevant conventions is to be resolved by conciliation and mediation. If the member states cannot reach an agreement, the dispute is to be submitted to the African Union.59 As a last resort, contracting states can refer their dispute to the International Court of Justice. For the duration of the dispute, the charter continues to apply and the OMVS Council of Ministers is able to adopt provisional measures.60 The OMVS is not a dispute settlement mechanism in itself but has provided a useful forum for riparian countries to address and solve disputes.61
Adaptation of the institutional framework in the Senegal appears to have also allowed the riparians to overcome various challenges and tensions in the basin. The Organization of the Senegal Riparian States (OERS) was created in 1968 with a view to replacing the initial 1963 Inter-State Committee and broaden the scope of the regional cooperation.62 In 1972, the OMVS was established to surmount existing difficulties and replaced the OERS. The probable lesson learned from this experience is that institutions need to adapt to changing circumstances or they will become redundant or die.
The sophisticated character of the Senegal legal regime allowed the development and implementation of a genuine ‘water diplomacy.’ For example, when, at the beginning of the 1990s, Mauritania and Senegal ceased all diplomatic relations because of a conflict over the frontier between the two countries on the Senegal River and over grazing rights, the only forum within which the two States were still cooperating was the OMVS.63
This resonates with an observation by the United Nations Department of Political and Peacekeeping Affairs that:
Importantly, natural resource conflicts are often more amenable to mediation than disputes where ideology or ethnicity are the main driving factors. Finding consensus and building alliances over natural resources is often easier because natural resources shape economic incentives that transcend other divides. Mediation over natural resources can effectively help parties identify ways to maximize and share benefits, and ultimately unlock entrenched or zero-sum positions, allowing parties to develop cooperative and constructive relationships that can be carried over to other areas.64
The Senegal agreements have evolved over time to cover a wide scope of issues including irrigation, salt-water intrusion, navigation, and environmental protection, as well as topics such as hydropower generation and flood control, as in the Columbia. Most legal instruments throughout the world concerning joint infrastructure are usually concluded on a bilateral basis, making the Senegal a relatively rare, but very interesting and important, exception.65