International law professors speak to Al-Shorouk regarding the pollution of Wadi Al-Muwaileh:
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UN agreements, scientific evidence, and demands to stop pollution and compensate for damages
The issue of pollution of Wadi Al-Muwaileh places Morocco before international legal accountability regarding cross-border environmental damage, and opens a number of legal and diplomatic paths for Algeria to demand stopping the sources of pollution, repairing the damage, and compensating those affected.
Specialists in international law, whom Al-Shorouk spoke to, confirm that the rules of international liability and environmental agreements provide legal foundations for action, with the necessity of documenting sources of pollution and proving the causal relationship between polluting activities and recorded damages.
International agreements establish accountability
In this regard, international law expert, Hamza Ben Allaq, said in a statement to Echorouk that Algeria is based on the principle of not causing serious environmental harm to another country, as it is a well-established principle in customary international law, supported by Article Three of the 1992 Convention on Biological Diversity, which obliges states to take into account the environmental impacts of their activities outside their borders, and Article 14 related to environmental impact assessment, notification and consultation when transboundary damage is possible, as well as the second principle of the Declaration. Rio on environment and development.
For his part, Dr. Bilal Bouakira, a professor at the Faculty of Law at the University of Tipaza, places the United Nations Convention on the Law on the Use of International Watercourses for Non-Navigational Purposes of 1997 among the most prominent legal supports, based on Article 7, which prohibits causing significant harm to other countries when using international watercourses, and Articles 20 and 21, which relate to protecting environmental systems and preventing and combating pollution.
In a statement to Echorouk, Bouakira points out that Morocco has been a party to this agreement since April 13, 2011, and it is also based on the draft articles of the International Law Commission on the responsibility of states for internationally wrongful acts of 2001, which decide to stop the wrongful act and make full reparation for the damage, including restoring the situation to what it was, compensation and satisfaction.
Scientific evidence to determine the source of pollution
Experts Hamza Ben Allaq and Bilal Bouakira stress the importance of scientific evidence in determining the source of pollution and proving the causal relationship between it and the damage caused to the Algerian side.
Ben Allaq calls for preparing a hydrological and geochemical study that determines the path of transport of pollutants, and comparing the results of samples before and after potential industrial areas, while documenting the impact of pollution on the Hammam Bougrara Dam, fish wealth, agricultural activities, and the health of the population, and based on laboratory analyses, expert reports, photographs, time data, and records of fish deaths.
He stresses that the presence of industrial facilities near a watercourse alone is not sufficient to prove the state’s responsibility, but must prove its actual contribution to pollution, the extent of its authorities’ breach of prevention and control obligations, as well as the causal relationship between the polluting activity and the damage that befell Algerian lands and water resources.
As for Bouakira, he suggests relying on chemical and physical analyzes of the water, and confirming the presence of pollutants, including nitrates, ammonia, and heavy metals, in addition to using satellite images to monitor the changes that occurred in the water before and after it crossed the Algerian border.
It also raises the need to require Morocco to submit the results of analyzes of stream water before it reaches the border, allowing the source of pollution to be identified, based on documents that may prove that the Moroccan authorities were aware of it before the damage occurred, and prove their breach of the duty of care and prevention.
UN and African mechanisms to pursue damages
At the level of international action, Hamza Ben Allaq proposes to benefit from the United Nations Environment Program to conduct independent scientific assessments and document the sources of pollution and its effects, in addition to raising the issue within the mechanisms of the Barcelona Convention and the Land Sources Protocol, and to benefit from the MED POL program, in addition to raising the issue before the political and environmental frameworks of the African Union.
It also indicates the possibility of seeking assistance from a third country or a neutral international body to facilitate the exchange of information and legal notification or request mediation and good offices, without this constituting a retreat from the Algerian position.
In the same context, Bouakira explains that resorting to the African Union and the United Nations Environment Program can provide technical and scientific support and an independent assessment of pollution, but he stresses that these bodies do not have the authority to issue binding judicial rulings for compensation.
The International Court of Justice is another mechanism
Regarding the possibility of suing Morocco, Bouakeira explains that the International Court of Justice provides several grounds for jurisdiction, including the special agreement between the two countries to refer the dispute, accepting the compulsory jurisdiction of the court in accordance with Article 36, or the existence of a jurisdictional clause in a previous agreement between the two parties. However, he practically excludes the availability of these conditions in the current circumstances, and he also confirms that resorting to international arbitration, including the Permanent Court of Arbitration in The Hague, requires a prior agreement between the two countries.
As for Hamza Ben Allaq, he calls for studying the possibility of resorting to the International Court of Justice whenever there is a legal basis for its jurisdiction, based on Article 36 of its statute, while emphasizing that severing diplomatic relations does not negate Algeria’s right to claim international responsibility and does not prevent it from resorting to multilateral judicial and environmental institutions.
In a position that is more unlikely for this path, Professor of International Law at the Faculty of Law, Said Hamid Boubacar Abdelkader, says: “Resorting to the International Court of Justice is out of the question,” based on what he sees as the need for the two countries to agree on the jurisdiction of the court and accept what it issues, considering that the interruption of diplomatic relations between the two countries since 2021 makes this path unlikely.
In his interview with Echorouk, Boubacar suggests filing complaints before international bodies, including the United Nations Environment Program and the human rights committees concerned with the right to a healthy environment, but he warns that these bodies do not generally issue binding decisions, even if international investigation committees prove Morocco’s responsibility.
Stop pollution, repair damages and compensate
Regarding the legal consequences resulting from the establishment of responsibility, Ben Allaq confirms that the rules of state responsibility allow for the demand to stop the wrongful act and ensure that it is not repeated, based on Article 30 of the draft articles of the International Law Commission, and full reparation for the damage in accordance with Article 31, while Articles 34, 35, 36 and 37 specify forms of reparation, including restoration of the previous status quo, financial compensation and satisfaction.
He points out that Algeria can demand the cessation of pollution sources proven responsible, the rehabilitation of the ecosystem and fishery resources, and compensation for proven economic, environmental and health losses, as well as the establishment of control mechanisms and technical guarantees that prevent the recurrence of damages, citing the ruling of the International Court of Justice in the 2018 Costa Rica v. Nicaragua case regarding compensation for environmental damage.
In turn, Bouakira specifies the obligations that may result from proving responsibility for stopping pollution, treating industrial and domestic water before discharging it, reparating environmental damages and financial compensation for those affected, as well as providing legal and practical guarantees that the violation will not be repeated.
The Moroccan regime wants to ignite crises to escape from its internal problems
In his reading of the political dimensions of the issue, Professor Said Hamid Boubacar Abdelkader raises a warning against the Moroccan regime’s exploitation of the pollution file to achieve political goals, saying literally: “The Moroccan regime wants to ignite wars and crises by escaping from its internal crises to distract the Moroccan people from what they are suffering internally, as well as trying to abort the popular uprising of the Moroccan people against normalization with the Israeli entity and trying to use it in the Western Sahara issue.”
In determining how to deal with this issue, Boubacar adds: “The issue of pollution and the crime committed by the Moroccan regime must be addressed in a way that does not achieve what it wants in achieving gains inside Morocco, as they result from a popular conflict between Morocco and Algeria, and this is not true.”
The professor stresses that treatment must block the path to exploiting the issue in the Moroccan regime’s calculations, explaining that “the issue is not solved only by international institutions, but rather by blocking the road and thwarting the goals for which this environmental crime was created and committed against the Algerian people, which was committed by the Moroccan regime.”
Diplomatic and judicial action to protect water security
Bouakira stresses that international law does not prevent combining the political and diplomatic path with judicial action, based on Article 33 of the United Nations Charter regarding means of peaceful settlement of disputes. However, the interruption of diplomatic relations between Algeria and Morocco since 2021 reduces the chances of direct negotiation, which makes mediation by a third country or the intervention of the African Union among the options offered.
