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Home , Abidjan, Nairobi, Nairobi Convention

Coastal and Ocean Planning and Management

Marine Environmental Protection under the and Regimes: Working toward Functional Revitalization? David M. Dzidzornu* Schulich School of Law, Dalhousie University, Halifax,

INTRODUCTION

Eastern and western African coastal states have a number of treaties in place to govern living resources exploitation and marine environmental protection. However, thus far, performance under the treaties suggests that parties place higher priority on economic returns from exploiting living resources. There is much less commitment to long-term protection and preservation of the ecologi- cal and environmental conditions on which sustainable exploitation of living resources depends and on which the chances of benefi t from other amenities within the regional seas rests.1 This failure is directly refl ected in the poor perfor- mance of the Nairobi and Abidjan Conventions regimes for marine environ- mental protection in eastern and western respectively. Initiated by the Environment Programme (UNEP), their coming into force was hardly accompanied by any functional implementation of their provisions by their coastal African states parties until the recent efforts to revitalize them.2

* Thanks to Catarina Grilo of the Instituto de Ciência Aplicada e Tecnologia, Faculdade de Ciências da Universidade de Lisboa, Portugal, and Anja Pfurtscheller of Rechtswissenschaftliche Fakultät, Leopold-Franzens-Universität Innsbruck, Austria, for their insightful queries and suggestions that contributed much to improving the quality of the manuscript. I am also thankful for the anonymous reviewer’s comments that helped me redraft a few points more realistically. All weaknesses remain mine. 1. For details, see D.M. Dzidzornu, “Ocean Policy in Africa and Treaty Aspects of Marine Fisheries Exploitation, Management, and Environmental Protection,” Ocean Yearbook 25, eds., A. Chircop, S. Coffen-Smout and M. McConnell (Leiden: Martinus Nijhoff, 2011): 27–100 at 80–97. 2. The Nairobi regime was initiated under the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, Nairobi, 21 June 1985, in force 30 May 1996, with Protocols on Protected Areas and Wild Fauna and Flora, and on Combating Emergency Pollution, reprinted in UNEP, Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region and Related Protocols (New York: United Nations, 1985). The Abidjan regime was instituted under the Convention for

Ocean Yearbook 26: 381–415 381 382 Coastal and Ocean Planning and Management

The failures arose from the fact that a large number of the coastal states did not sign the Conventions in the years before their ongoing revitalizations. As well, the states that signed and ratifi ed them to bring them into force did not implement, in their domestic laws and administrative processes, the obligations they had assumed under the respective Conventions to protect the waters within their national jurisdictions, and by extension, their regional seas. This fi rst fail- ure was accentuated by the perennial inability of the parties to materially sup- the activities of the two regimes.3 Until the recent impetus to revitalize them, the driver and the main source of material support for the early efforts to protect national and regional marine environments in both regions was funding and related assistance primarily raised and channelled through UNEP, which continues to play a major role in the Secretariat needs of the two Regional Seas Programmes.4 The fi rst aspect of the current effort to revitalize the regimes consists of amending and renaming their framework Conventions.5 The functional intent of this exercise is to oblige parties to implement current and evolving principles of international environmental law in their ocean exploitation and protection

Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, with a Protocol Concerning Co-operation in Combating Pollution in Cases of Emergency, both done at Abidjan, 23 March 1981, in force 5 August 1984, in International Legal Materials 20 (1981): 746–756 and 756–761 respectively, and an Action Plan. 3. These failures are discussed in detail below under section titled “The ‘New’ Nairobi and Abidjan Regimes: Continuing Dependence on UNEP Leadership and Support?” 4. The Abidjan Convention parties, potentially the Atlantic African coastal states from to , are taking steps to assume Secretariat responsi- bilities for their regime. The parties – , (Réunion), , , , , , , South Africa and – retain UNEP for their Secretariat. See section noted in n. 3 above. 5. Renaming has been necessitated by the accession of South Africa to both treaty regimes. The Nairobi Convention is now the Amended Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, fi nal text adopted in Nairobi, Kenya, 31 March 2010, not in force, UNEP(DEPI)/EAF/CPP.6/8a/Suppl. [Amended Nairobi Convention 2010]. Amendment of the Abidjan Convention is ongoing; it will become the Convention for Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West, Central and Southern Africa Region and Protocol Concerning Cooperation in Combating Pollution in Cases of Emergency. See Report of the First Extraordinary Meeting of the Contracting Parties to the Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, , South Africa, 9–10 June 2008, UNEP(DEPI)/WAF/SS.1/2, 23 April 2009, Annex VI at p. 20; and Ninth Meeting of Contracting Parties to the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, , , 28 March–1 April 2011: Report of the Executive Director, UNEP(DEPI)/WACAF/COP.9/3, 28 March 2011, at paras. 50–52.