The Niger Basin has been governed by a series of agreements in the post-colonial era, including:
- Act Regarding Navigation and Economic Co-operation between the States of the Niger Basin, done at Niamey, Niger, 26 October 1963, entered into force 1 February 1966 (“1963 Act”);
- Agreement Concerning the Niger River Commission and the Navigation and Transport on the River Niger, done at Niamey, Niger, 25 November 1964, entered into force 12 April 1966;
- Agreement Revising the Agreement Concerning the Niger River Commission and the Navigation and Transport on the River Niger of 25 November 1964, adopted at Niamey, Niger, 15 June 1973, entered into force 15 December 1973 (“Niamey Agreement”);
- Convention Creating the Niger Basin Authority, concluded at Faranah, Guinea, 21 November 1980, entered into force 3 December 1982 (the “1980 Convention”);
- Protocol relating to the Development Fund of the Niger Basin, done in Faranah, Guinea, 21 November 1980, entered into force 3 December 1982 (the “Protocol”); and
- Niger Basin Water Charter, signed in Niamey, Niger, 30 April 2008 (“Water Charter”).
The 1980 Convention significantly revised, but did not replace, the Niamey Agreement. While the 1980 Convention established the Niger Basin Authority in lieu of the Niger River Commission, it did not displace provisions of the Niamey Agreement relating to navigation in particular. Additional revisions and supplementary provisions relating to aspects of the 1980 Convention include:
- Revised Financial Rules of the Niger Basin Authority, concluded at Nndjamena. Chad, 27 October 1987; and
- Revised Convention Creating The Niger Basin Authority, concluded at Nndjamena, Chad, 27 October 1987 (“Convention”).
Additionally, the Heads of State and Government of the Niger Basin Authority Member States signed the Paris Declaration on 27 April 2004, which set out certain “principles of management and good governance for the sustainable and shared development of the Niger Basin.”
The Niger Basin Authority (“NBA”) Member States include the following riparian states of the Niger River: Niger, Benin, Chad, Guinea, Côte d’Ivoire, Mali, Nigeria, Cameroon and Burkina Faso.
The Niger River is the third longest river in Africa, running 4,200 km with an average annual flow of 180 km3. The basin itself covers an area of 2.2 million km2. The Niger River’s two main branches constitute its hydrological system, reinforced by tributaries from Guinea, Côte d’Ivoire, Burkina Faso and Benin. More than 100 million people currently reside in the Niger Basin.
The NBA is an intergovernmental organization created by the 1980 Convention to replace the earlier Niger River Commission (1964), and is headquartered in Niamey, Niger. The NBA inherited all of the assets and assumed all of the obligations of the Niger River Commission. The NBA enjoys legal personality, with the legal capacity to contract, acquire, enjoy and dispose of movable and immovable property, and the right to institute legal proceedings. The NBA exercises its legal authority through the Executive Secretary, who, along with NBA functionaries, is accorded certain privileges and immunities in the Member States.
As provided in the Convention, the NBA’s purpose is to promote cooperation among the Member States and to ensure an integrated development of the Niger Basin in the fields of energy, water resources, agriculture, animal husbandry, fishing and fisheries, forestry, transport, communications and industry. More specifically, the Convention provides that the NBA is responsible for harmonizing and coordinating national development policies; assisting in the development of an integrated development plan for the Basin; promoting projects of common interest; assuring the regulation of navigation consistent with the 1963 Act; and requesting assistance and mobilizing financing for studies and research on Basin resources. The NBA is also tasked with maintaining contact with the Member States and keeping them informed of its work. Reciprocally, Member States have pledged to inform the Executive Secretary of the NBA of projects they propose to carry out in the Basin.
In the past, the NBA has implemented its objectives and responsibilities through the Development Fund of the Niger Basin, which was established by the Protocol accompanying the 1980 Convention. All NBA Member States are also members of the Fund, which is tasked with collecting the necessary financial resources to implement NBA objectives and to guarantee loans for NBA projects. Resources are derived, inter alia, from Member State contributions, external sources and income from the Development Fund’s operations.
In 2002, the Member States tasked the Executive Secretary of the NBA with developing a “Shared Vision” process and Sustainable Development Action Program (“SDAP”) for the development of the Basin, principles of which have since become enshrined in the Paris Declaration and a “NBA Partners Cooperation Framework” starting in 2004.
In 2008, at the Eight Heads of State and Government Summit, West African Heads of State of the Niger Basin riparian countries adopted a twenty year, 5.5 billion euro program to reforest, rehabilitate and remove silt from the Niger River. Some eighty percent of the funding is to be earmarked for developing social and economic infrastructure, with a smaller amount to protect natural resources and ecosystems. The plan is to be implemented in four five-year phases. The 2008 Summit also resulted in the adoption of a “Water Charter” designed to ensure that NBA Member States share the river’s resources fairly and responsibly. The Charter lays out a series of general principles for equitable and reasonable participation and use of Niger River water. The Water Charter obligates parties: i) not to cause harm to other states in accordance with the Convention; ii) to take certain precautionary, preventive and corrective measures; iii) to take into account a polluter-payer principle, such that costs of pollution are borne by the polluters (whether legal persons or individuals); and iv) to take into account an off-taker-pays principle to include the setting of water tariffs depending on use.
The Water Charter also contains several general obligations, including for parties to manage the Niger Basin water to preserve the quality and quality of water resources, to preserve and protect the environment, and to institute policing measures. Member States must exchange information and consult each other on planned measures, and notify other states in the event measures may have “significant adverse effects” on other Basin States.
The NBA is divided into several permanent institutions or organs, including the Summit of Heads of State and Government (the “Summit”), the Council of Ministers (the “Council”), the Technical Committee of Experts and the Executive Secretariat.
The Summit is the supreme decision-making organ, comprised of the Heads of State of the Member States or their duly accredited representatives. The Summit’s decisions are binding on the NBA. The Summit defines the NBA’s development policy and ensures control of its executive functions with a view to realizing its objectives. It meets once every two years in ordinary session in the Member State holding the chairmanship, with a simple majority quorum. The Summit elects its chairman every two years, rotating among its Member States. The chairman represents the Summit between sessions and may make decisions on its behalf.
The Council is the controlling organ of the NBA, comprised of Ministers or their representatives, with one vote on the Council for each Member State. The Council monitors the activities of the Executive Secretariat and reports to, as well as prepares the meetings of, the Summit. The Council meets once a year in ordinary session, also with a simple majority quorum. Recommendations and resolutions are adopted by consensus. Council chairmen, elected every two years on a rotating basis, are empowered to make decisions in between sessions according to the directives of the Summit, within the limits of their authority.
The Technical Committee of Experts is comprised of representatives of the Member States and is tasked with preparing Council sessions and presenting reports and recommendations to the Council. The Technical Committee of Experts may meet as requested by the Executive Secretary, according to a schedule approved by the Council.
The Executive Secretariat, in turn, is run by an Executive Secretary appointed on the recommendation of the Council to the Summit for a four-year term, renewable once. Each Member State may present a candidate for Executive Secretary. The Executive Secretary may be removed by the Summit on the recommendation of the Council. The Executive Secretary is responsible for day-to-day administration and also undertakes studies and formulates proposals with a view to realizing the NBA’s objectives.
The Convention also provides for a Commission and Financial Controller relating to the Executive Secretariat’s finances. The functions of the Commission and Financial Controller, as well as auditors and additional provisions concerning the Secretariat’s budget, are detailed in the Financial Rules established by the Council.
In addition, the Water Charter created a Permanent Technical Committee to pursue and implement the Water Charter’s aims. As an advisory body of the NBA Executive Secretariat, the Permanent Technical Committee is designed to be in charge of, among other things: ensuring rational and equitable use of the Basin’s water as agreed by the Member States; developing information tools to enable the organization of project/program consultations; issuing advisory opinions for the Council on projects or programs affecting the Niger Basin; giving opinions on the technical aspects of projects and their consistency with the SDAP and the Water Charter; and facilitating dialogue, consultation, negotiation and mediation in the event of controversies or disputes.
The Water Charter envisions the creation of several other entities that will support the mission of the Permanent Technical Committee, including the Niger Basin Observatory, National Focal Structures, Sub-basin Commissions, a Regional Advisory Unit and a Panel of Experts.
The NBA has secured a number of external partners and donors. The Bank of African Development has become a major NBA partner, providing 37 million euros to finance the NBA’s plans in connection with silt removal. In 2007, the Islamic Development Bank approved funding for NBA’s plans to build two dams, one in Niger and another in Mali.
Other NBA donors and partners include the World Bank, the European Union, Germany’s Development Ministry (which funds NBA capacity-building in particular), Canada and France. In 2003, the NBA partnered with the World Bank, the United Nations Development Programme and the Global Environment Facility (“GEF”) to fund a project to reverse land and water degradation trends in the Niger River Basin. This joint project, set to be completed in 2009, involves several components, including institution and capacity building, data and knowledge management, regional fora, demonstration pilots and microgrant programs, and the preparation of a transboundary diagnostic analysis and strategic action plan. The NBA also signed, in 2002, a Memorandum of Cooperation with the Bureau of the Convention on Wetlands (Ramsar) concerning joint efforts on the sustainable use and management of basin wetlands.
Recommendations and resolutions of the Council are adopted by consensus. See Organizational Structure.
The Convention provides that any dispute among the Member States as to the interpretation or implementation of the Convention is to be settled amicably through direct negotiation. If such negotiations fail to settle the dispute, the matter will be referred to the Summit, whose decision is final.
The Water Charter provides for amicable settlement with respect to a dispute between two or several parties concerning the interpretation or application of the Water Charter, and submission to the Permanent Technical Committee should such efforts fail. The Permanent Technical Committee will then propose a settlement to the Council and the Summit. If no satisfactory settlement at that level is achieved, the dispute may be referred to the Conciliation Commission of the African Union, prior to referral to the International Court of Justice. The Water Charter explicitly states that non-disputed provisions continue to apply while a dispute is being settled.
The Convention charges the NBA with harmonizing and coordinating national policies to develop the resources of the Niger Basin, and requires it to maintain permanent contact with the Member States to inform them of development plans in the Basin. In turn, the Member States undertake to inform the Executive Secretary of proposed projects in the Basin and agree not to undertake projects on portions of the Niger River in their jurisdiction that are likely to pollute the waters or adversely affect the biological characteristics of the flora or fauna.
Outside the Convention framework, the NBA has established “national focal structures,” or teams in each country, including a point of contact and various experts, to liaise and ensure proper communication between the Executive Secretariat and national governments.
Projects such as the one funded by World Bank and GEF also involve data sharing and regional cooperation. See Functions, Organizational Structure and Relationships.
The Water Charter provides for the exchange of information and obligates parties to consult and negotiate (if necessary) on the possible effects of planned measures. Member States are obligated to notify other Basin States (through the Executive Secretariat) prior to implementing measures that may have “significant adverse effects” on such states. The Executive Secretariat then refers the notification to the Permanent Technical Committee for an opinion. Notifying States must allow the Executive Secretariat a three month period to review and evaluate the planned measures (such period may be extended), and during this period must provide requested data and information and refrain from implementing the planned measures. In the event a Notified State or the Executive Secretariat considers that the proposed measures are likely to have a significant harmful impact, the parties are to enter into consultations and negotiations.
See Data Information Sharing, Exchange, and Harmonization.
The Convention establishes an annual budget for the NBA, with the operating budget being financed by equal contributions from each Member State. The NBA’s expenses, including those of the Executive Secretariat, are approved by the Council and provided for in the budget according to the modalities established in the Financial Rules.
According to the Protocol, the Development Fund has been funded by Member State contributions, external resources, gifts and grants, trusts and income from the Development Fund’s operations. Components of the NBA’s recent Shared Vision and its twenty-year development plan for the Basin are funded by a variety of international partners and foreign governments. See Relationships and Functions.
Among the purposes of the Water Charter is to “provide a framework to the principles and procedures for the allocation of water resources between various use sectors and the associated benefits.” Additionally, the Water Charter provides for the right of Basin populations to water, and calls for the just and equitable use of water – with particular attention paid to “essential human needs.”
The Water Charter also establishes new provisions for the recognition of “common facilities” and “facilities of common interest.” “Common facilities” are defined in the Water Charter as facilities that NBA Member States have decided by legal instrument to be of common and indivisible ownership. “Facilities of common interest” are facilities in which two or more NBA Member States have an interest and have decided, by mutual agreement of NBA Member States, to coordinate management. With respect to such facilities, the Water Charter envisions future agreements to determine their status, as well as conditions for funding, management and the sharing of benefits.
The NBA institutional organs are responsible in reporting to their superior organs and making recommendations. See Organizational Structure.
The NBA structure allows for participation at various levels from representatives from the Member States. Additionally, the NBA has recently supported the formation of “national coordinating bodies,” comprised of representatives of civil society, including farmer unions, fishermen and women’s groups. These coordinating bodies are invited to attend all important NBA meetings as advisers. See Organizational Structure.
Additionally, projects, such as the one funded by the World Bank and GEF, also involve participation by multiple stakeholders at the local, national and regional levels. See Relationships.
The Water Charter includes provisions requiring parties to ensure that users of the resource have the right to information on water quality and to participate in the development of the Basin. More specifically, the Water Charter provides for the public communication of information on decision-making and for reasonable time to allow for public participation, and requires Member States and the NBA to take public participation into account in any decision-making.
There is no termination provision in the Convention. The Convention may be amended or revised on the proposal of any Member State, which is then referred to the Council Chair and considered by the other Members. Any revision or amendment enters into force in the same manner as the Convention itself. Any Member State may denounce the Convention before ten years have expired from the date of its entry into force.
The Niamey Agreement may be amended upon the written request of one third of the Member States, with any proposal requiring the approval of two thirds of all the Member States.
There is no termination provision in the Water Charter either. Member States may withdraw five years after entry into force of the Water Charter on written notification to take effect one year after the date of its receipt. Member States may also propose amendments to the Water Charter and, although consensus is preferred, amendments may take effect in the same manner as entry into force of the Water Charter – i.e., sixty days after the ratification by two thirds of the NBA Member States.
Portions of the Niamey Agreement not replaced by the Convention provide for freedom of navigation. Specifically, the Niamey Agreement established non-discriminatory treatment in the payment of taxes or duties, and provided that infrastructure for traversing non-navigable portions of the Niger River or improving sections of waterways, as integral parts of the Niger River, should be open to international traffic, with equal treatment for nationals of all states regarding tolls. The Niger River Commission was also tasked with ensuring the safety and control of navigation and facilitating the movement of vessels.
- Niger Basin Authority, available at http://www.abn.ne.
- International Environmental Agreements (IEA) Database Project – Niger Basin, available at http://iea.uoregon.edu/page.php?query=treaties_lineage&lineage=Niger%20Basin.
- Peter Pieck, West Africa Sets an Example, Development and Cooperation, 2009, available at www.inwent.org/ez/articles/152306/index.en.shtml.
- IW: Learn – Reversing Land and Water Degradation Trends in the Niger River Basin, available at available at http://www.iwlearn.net/iw-projects/Fsp_112799468181.
- World Bank Report No. 26675, Project Appraisal Document on a Proposed Grant from the Global Environment Facility Trust Fund in the Amount of US $6.0 Million to the Niger Basin Authority (NBA) for the Reversing Land and Water Degradation Trends in the Niger River Basin, 23 Apr. 2004, available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2004/05/04/000160016_20040504115754/Rendered/PDF/266750NR.pdf.
- Valentina Okaru-Bisant, Institutional and Legal Frameworks for Preventing and Resolving Disputes Concerning the Development and Management of Africa’s Shared River Basins, 9 COLO. J. INT’L ENVTL. L. & POL’Y 331 (1998).
- Jonathan Lautze and Mark Giordano, Transboundary Water Law in Africa: Development, Nature, and Geography, 45 NAT. RESOURCES J. 1053 (2005).
- Tiyanjana Maluwa, Legal Aspects of the Niger River Under the Niamey Treaties, 28 NAT. RESOURCES J. 671 (1988).
- Inger Andersen, et al., The Niger River Basin: A Vision for Sustainable Management, World Bank, Directions in Development 34518 (Katherin George Golitzen, ed., 2005), available athttp://siteresources.worldbank.org/INTWAT/Resources/4602114-1206643460526/Niger_River_Basin_Vision_Sustainable_Management.pdf.
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Depending on the project scope the treaty may not be applicable to all projects
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