Nile Water Rights: An International Law Perspective [1st ed.] 9783662607954, 9783662607961

Table of contents :
Front Matter ....Pages i-xvi
Introduction (Philine Wehling)....Pages 1-13
Front Matter ....Pages 15-16
Development of International Water Law (Philine Wehling)....Pages 17-30
Customary Principles of International Water Law (Philine Wehling)....Pages 31-54
International Agreements on Transboundary Freshwater Resources (Philine Wehling)....Pages 55-91
Front Matter ....Pages 93-94
The Nile and Its Catchment Area (Philine Wehling)....Pages 95-103
The Treaty Regime for the Nile (Philine Wehling)....Pages 105-165
Regional Cooperation Initiatives (Philine Wehling)....Pages 167-180
Agreement on the Nile River Basin Cooperative Framework (Philine Wehling)....Pages 181-217
Implementing the Principle of Equitable and Reasonable Utilization in the Nile Basin (Philine Wehling)....Pages 219-263
Front Matter ....Pages 265-265
Toward a Legal and Institutional Framework for Cooperation Along the Nile (Philine Wehling)....Pages 267-277
Back Matter ....Pages 279-319

Citation preview

Philine Wehling

Nile Water Rights An International Law Perspective

Nile Water Rights

Philine Wehling

Nile Water Rights An International Law Perspective

Philine Wehling International Institute for the Unification of Private Law (UNIDROIT) Rome, Italy

ISBN 978-3-662-60795-4 ISBN 978-3-662-60796-1 https://doi.org/10.1007/978-3-662-60796-1

(eBook)

Expanded text, based on the translation from the German language edition: Wasserrechte am Nil by Philine Wehling, © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2018. Published by Springer Berlin Heidelberg. All Rights Reserved. © Springer-Verlag GmbH Germany, part of Springer Nature 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Preface

Countries worldwide are placing ever-increasing demands on finite freshwater resources. The 11 states of the Nile Basin are no exception to this, and the high population growth throughout the basin will continuously increase their demand for the use of Nile water. In order to accommodate their competing usage interests while protecting the river and its ecosystem, effective cooperation between the Nile Basin states on the use and sustainable management of the river’s water is indispensable, and will become even more so in the future. International experience has shown that effective cooperation between states sharing a watercourse requires a sound legal and institutional framework. Establishing such a framework with the participation of all the Nile’s riparian states is a major hydro-political challenge—as is the case for riparian states of many other transboundary watercourses around the globe. International water law, and especially the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, provides guidance for establishing cooperative frameworks for individual transboundary watercourses by laying down substantive and procedural principles on the joint management and use of such watercourses. The challenge for riparian states today is to specify and complement those principles and adapt them to the circumstances of their particular context. This book examines how this guidance at the international level can contribute to establishing a legal and institutional framework for cooperation for the Nile. Accordingly, the book provides a comprehensive legal assessment of the treaty law governing the utilization and management of the Nile, against the backdrop of the current international legal framework for designing watercourse-specific agreements. On this basis, it assesses the 2010 Agreement on the Nile River Basin Cooperative Framework, which has not yet entered into force, and recommends amendments to reconcile the interests of all the riparian states and align the Agreement with the principles of international water law. Building on these recommendations, the book addresses the implementation of the core principle of customary international water law, namely equitable and reasonable utilization, and shows how

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Preface

it could be used as guidance by the riparian states of the Nile for regulating the use of Nile water. The second aim of the book is to take a broader view of the topic from an international law perspective. Using the example of the Nile, it illustrates how international water law, and most notably the 1997 United Nations Watercourses Convention, can significantly impact and guide the negotiation and development of a treaty regime for the use and management of a given transboundary watercourse. Most significantly, the book examines in what manner and to what extent the principle of equitable and reasonable utilization can provide a conceptual framework for regulating water use. The focus thereby lies on the process of implementing the principle in practice, along with the factors to consider when determining what constitutes equitable and reasonable use of water in each riparian state. This book builds upon previous research I conducted on the subject published in German under the title Wasserrechte am Nil – Der Einfluss des internationalen Wasserrechts auf die Entwicklung eines Vertragsregimes zur Nutzungsverteilung und gemeinsamen Wasserwirtschaft am Beispiel des Nils (Nile Water Rights – The impact of international water law on the development of a treaty regime for allocating water use and joint water management using the example of the Nile) for the Max-Planck-Institute for Comparative Public Law and International Law Series in 2017. That book was awarded the Margot-und-Friedrich-Becke Prize for outstanding research in 2018, which generous support has facilitated work toward this further publication. My research in this field greatly benefitted from my experience as a Legal Specialist with the Development Law Service of the Food and Agriculture Organization of the United Nations, which has frequently taken me to the Middle East, North Africa, and beyond. Participation in water governance consultations as well as my work in advising governments in legislative assistance projects related to freshwater resources have contributed particularly valuable experience of the multifaceted practical aspects and complexities of the topic. Many people contributed in various ways to the genesis of this book, and I am deeply grateful to them. First of all, I am particularly thankful to Professor Emeritus Rüdiger Wolfrum, University of Heidelberg, for giving his time, steadfast support and precious advice, from which this work has benefitted immensely. Numerous colleagues have further enriched my understanding of this topic by sharing their own knowledge and experience; here I owe special thanks to Professor Patricia Wouters, Professor Alistair Rieu-Clarke, Mohamed Bazza, and Pasquale Steduto. Invaluable input and thoughtful comments on the manuscript were provided by Professor Ute Mager, Michael Marx, Bill Garthwaite, Michael van der Valk, and Graham Hamley, and are greatly appreciated. I also wish to send a heartfelt thank you to Andreas Knobelsdorf for his exceptional library support as this book reached fruition.

Preface

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Last but not least, I wish to express my deepest gratitude to my parents Uta and Gerd for their loving support throughout my entire academic journey, to my little sunshine Lilia for bringing so much joy and tenderness to our lives, and to my love Mamoun for his warm support, humor, and inspiration. Rome, Italy January 2020

Philine Wehling

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Water Scarcity and Global Water Resources . . . . . . . . . . . . . . . 1.2 Responses from Within International Water Law . . . . . . . . . . . . 1.3 Water Scarcity in the Nile Basin . . . . . . . . . . . . . . . . . . . . . . . 1.4 The Legal Regime for Utilization of the Nile’s Waters . . . . . . . 1.5 Objectives and Structure of the Book . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part I

. . . . . . .

1 1 3 4 6 10 11

International Water Law

2

Development of International Water Law . . . . . . . . . . . . . . . . . . . 2.1 Beginnings and Development . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Theoretical Bases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Absolute Territorial Sovereignty . . . . . . . . . . . . . . . . . 2.2.2 Absolute Territorial Integrity . . . . . . . . . . . . . . . . . . . . 2.2.3 Limited Territorial Sovereignty . . . . . . . . . . . . . . . . . . 2.2.4 Community of Interest . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

17 17 21 21 23 25 27 28 29

3

Customary Principles of International Water Law . . . . . . . . . . . . . 3.1 Substantive Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Principle of Equitable and Reasonable Utilization . . . . . . 3.1.2 Obligation Not to Cause Significant Harm . . . . . . . . . . . 3.1.3 Obligation to Protect International Watercourses and Their Ecosystems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Procedural Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 General Obligation to Cooperate . . . . . . . . . . . . . . . . . . 3.2.2 Obligation of Notification and Related Obligations . . . . . 3.2.3 Obligation to Consult . . . . . . . . . . . . . . . . . . . . . . . . . .

31 32 32 37 42 45 45 46 48

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3.2.4 Obligation to Exchange Data and Information . . . . . . . . 3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

International Agreements on Transboundary Freshwater Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Global Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Convention on the Law of the Non-Navigational Uses of International Watercourses of 1997 . . . . . . . . . . . . . 4.1.2 Draft Articles on the Law of Transboundary Aquifers . . 4.2 Regional Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Watercourse Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Regulatory Content . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Alignment of Watercourse-Specific Agreements with Global and Regional Water Agreements . . . . . . . . 4.4 International River Commissions . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II

50 51 52

. .

55 57

. . . . .

57 74 75 80 80

. . . .

81 83 88 88

The Nile

5

The Nile and Its Catchment Area . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Sources, Catchment Area, and River Course . . . . . . . . . . . . . . . 5.2 Climate and Water Scarcity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Population Structures and Economies in the Nile Basin . . . . . . . 5.4 Development and Uses of the Nile . . . . . . . . . . . . . . . . . . . . . . 5.5 Political Relations Between the Nile Riparian States . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 95 . 95 . 98 . 98 . 99 . 100 . 102

6

The Treaty Regime for the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Agreements on the Use of the Nile . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Anglo-Italian Protocol of 1891 . . . . . . . . . . . . . . . . . . 6.2.2 Anglo-Ethiopian Treaty of 1902 . . . . . . . . . . . . . . . . . 6.2.3 Agreement Between the United Kingdom and the Congo Free State of 1906 . . . . . . . . . . . . . . . . . . . 6.2.4 Anglo-Italian Exchange of Notes of 1925 . . . . . . . . . . 6.2.5 Anglo-Egyptian Nile Waters Agreement of 1929 . . . . . 6.2.6 Anglo-Belgian Agreement of 1934 . . . . . . . . . . . . . . . 6.2.7 Anglo-Egyptian Exchange of Notes from 1949 to 1953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.8 Egyptian-Sudanese Nile Waters Agreement of 1959 . . . 6.2.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

105 105 107 108 115

. . . .

128 130 132 145

. . . .

146 148 159 160

Contents

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Regional Cooperation Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Hydromet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Kagera Basin Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Undugu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 TECCONILE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Nile 2002 Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Lake Victoria Basin Commission . . . . . . . . . . . . . . . . . . . . . . . 7.7 Nile Basin Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.1 Institutional Structure and Financing . . . . . . . . . . . . . . 7.7.2 Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . .

167 167 169 169 170 171 172 173 174 176 178 179

8

Agreement on the Nile River Basin Cooperative Framework . . . . 8.1 Drafting and Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Treaty Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 Community of Interest . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Principle of Equitable and Reasonable Utilization and No-Harm Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.5 Benefit Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.6 Environmental Protection . . . . . . . . . . . . . . . . . . . . . . 8.2.7 Planned Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.8 Water Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.9 Existing Treaties and Current Uses . . . . . . . . . . . . . . . 8.2.10 Institutional Structure . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.11 Rights, Obligations, and Assets of the Nile Basin Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.12 Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.13 Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . .

181 182 187 187 188 189

. . . . . . .

189 193 195 197 200 202 204

. . . . .

208 209 210 210 215

9

Implementing the Principle of Equitable and Reasonable Utilization in the Nile Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Consideration of Relevant Factors and Circumstances Along the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.1 Factors of a Natural Character . . . . . . . . . . . . . . . . . . . 9.1.2 Social and Economic Needs . . . . . . . . . . . . . . . . . . . . 9.1.3 Population Dependent on the Watercourse . . . . . . . . . . 9.1.4 Effects of Uses on Other Watercourse States . . . . . . . . 9.1.5 Existing and Potential Uses . . . . . . . . . . . . . . . . . . . . . 9.1.6 Conservation, Protection, Development, Economy, Costs of Measures . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 219 . . . . . .

221 221 225 228 231 233

. 245

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Contents

9.1.7 Availability of Alternatives . . . . . . . . . . . . . . . . . . . . . . 250 9.2 Overall Assessment and Conclusion . . . . . . . . . . . . . . . . . . . . . . 256 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Part III 10

Summary and Outlook

Toward a Legal and Institutional Framework for Cooperation Along the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Annex 1: Agreement Between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters. Signed at Cairo, on 8 November 1959 . . . . . . . . . . . . . . . . . . . . 279 Annex 2: Agreement on the Nile River Basin Cooperative Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 2.1 Signature and Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 2.2 Text of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

About the Author

Philine Wehling is a Legal Officer at the International Institute for the Unification of Private Law (UNIDROIT) in Rome. Previously, she worked as a Legal Specialist at the Legal Office of the United Nations Food and Agriculture Organization (FAO) in Rome, providing legal advice and legislative assistance to governments on freshwater resources and agriculture. She further served as a Legal Advisor at the German Federal Ministry of Justice and Consumer Protection in Berlin. Wehling received her doctoral degree in law from the University of Heidelberg. Her doctoral dissertation on international water law was published in the Max-Planck-Institute for Comparative Public Law and International Law Series and received the Margot-und-Friedrich-Becke Prize in 2018.

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Abbreviations and Acronyms

AJIL ASEAN BFSP BVerfGE CFA CIA CPA

CTS EAC FAO GAOR ICC ICJ ILA ILC ILM ILR IPCC ITLOS IUCN LNTS MENA NBI OECD OJ L PCIJ PJTC

American Journal of International Law Association of Southeast Asian Nations British and Foreign State Papers Entscheidungen des Bundesverfassungsgerichts (Decisions of the German Federal Constitutional Court) Agreement on the Nile River Basin Cooperative Framework Central Intelligence Agency Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army Consolidated Treaty Series East African Community Food and Agriculture Organization of the United Nations General Assembly Official Records International Criminal Court International Court of Justice International Law Association International Law Commission International Legal Materials International Law Reports Intergovernmental Panel on Climate Change International Tribunal for the Law of the Sea International Union for Conservation of Nature League of Nations Treaty Series Middle East and North Africa Nile Basin Initiative Organisation for Economic Co-operation and Development Official Journal of the European Union, Legislation Permanent Court of International Justice Permanent Joint Technical Commission xv

xvi

RECIEL RGZ RIAA SPLA TECCONILE UN UN Doc. UNECE UN GA UNDP UNEP UNESCO UNLS UNTS YBILC

Abbreviations and Acronyms

Review of European, Comparative and International Environmental Law Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the German Imperial Court of Justice in civil cases) Reports of International Arbitral Awards Sudan People’s Liberation Army Technical Cooperation Committee for the Promotion of the Development and Environmental Protection of the Nile United Nations United Nations Document United Nations Economic Commission for Europe United Nations General Assembly United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Legislative Series United Nations Treaty Series Yearbook of the International Law Commission

Chapter 1

Introduction

1.1

Water Scarcity and Global Water Resources

Around 1.2 billion people, that is almost one in six worldwide, are living in areas affected by water scarcity, where there is insufficient fresh water to satisfy demand.1 Looking ahead, the 2019 United Nations World Water Development Report warns of a sharp increase in water scarcity, generated by ever-increasing demands for freshwater resources, profligate use, and growing pollution.2 If current levels of population growth are sustained, an estimated 3.9 billion people—that is, more than 40% of the global population—will live under water-scarcity conditions by the year 2050, with the Middle East, North Africa, South Asia, and China forecast to be particularly impacted.3 In the face of increasing scarcity of water, the protection and sustainable management of freshwater resources is becoming one of the greatest challenges confronting the international community in the twenty-first century.4 Of all the Earth’s water, 97.5% is salt water and only 2.5% is fresh water. Some 68.6% of this fresh water is frozen in glaciers and the ice caps, 30.1% is groundwater, and only

1 The measure for the water availability of a given country is the amount of renewable freshwater resources, which consist of precipitation and water inflows, measured per capita per year. When this per capita figure is between 1000 and 1700 cubic meters, it indicates “water stress”, and if the per capita figure drops below 1000 cubic meters, the population faces “water scarcity”. UN-Water (2015), p. 12, Fig. 1.1. On the different dimensions of water scarcity, see UN-Water and FAO (2007), p. 4. 2 UN-Water (2019), pp. 1 and 13–15; as did UN-Water (2015), pp. 10–13. 3 UN-Water (2014), p. 24; see also UN-Water (2019), p. 21. 4 See Brown Weiss (2007), p. 177; McCaffrey (2007), p. 65; Boisson de Chazournes (2005), pp. 4–5.

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_1

1

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1 Introduction

1.3% is surface and other fresh water, including lake and river water.5 Meanwhile, demand for these freshwater resources is growing as a consequence of population growth, urbanization, industrialization, and increases in production and consumption.6 The largest user of freshwater resources is the agricultural sector. Globally, 70% of water is abstracted for agriculture, 19% for industrial purposes, and 11% for private households.7 Other water uses such as energy production, navigation, fisheries, mining, and recreation have relatively low levels of net water consumption.8 However, the picture is more complex at the country and local levels: Many countries experiencing water stress are especially reliant on irrigated agriculture to provide livelihoods and employment for their citizens, and that sector is especially vulnerable to the impacts of water scarcity.9 Nevertheless, the global water crisis is one of governance, more than of the actual availability of the resource.10 Thus, while growing demand is a major cause of increasing water scarcity, the situation is frequently made significantly worse by the inefficient utilization of available water resources. This inefficiency is often exacerbated by inadequate legal and institutional frameworks for water management, an area that faces additional challenges when it comes to transboundary basins. Transboundary basins encompass over 60% of all freshwater flows, cover almost half of the Earth’s land surface, and approximately 40% of the global population lives in these transboundary basins.11 Against this backdrop of increasing water scarcity, it is thus becoming ever more important to establish effective rules for the sustainable utilization and protection of international watercourses. Indeed, ensuring good neighborly relations between states that share freshwater resources presents one of the most significant challenges for international law in the present era.12 Thus, the 2030 Agenda for Sustainable Development stresses the importance of transboundary cooperation in the management of water resources to ensure broad access to water and sanitation. Accordingly, by 2030 the stated target is “to implement integrated water resources management at

5

FAO Aquastat (2019b). This other fresh water further includes ice and snow, soil moisture, swamps and marshes, atmospheric water, and biological water. For comprehensive information on international freshwater resources, see UNEP (2002). 6 UN-Water (2015), pp. 10–11. 7 FAO Aquastat (2019c). 8 These non-consumptive uses of water are therefore not included in the calculation of water abstraction, FAO (2005), p. 24. However, energy production is one of the most important economic uses of water resources and some 19% of global energy production is based on hydropower, see Boisson de Chazournes (2013), p. 115. 9 FAO (2012), p. IX. 10 See UN-Water (2015), p. 7. 11 UNEP (2012), p. 125. 12 McCaffrey (2007), p. 65.

1.2 Responses from Within International Water Law

3

all levels, including through transboundary cooperation as appropriate”.13 And a prerequisite for achieving this efficient and sustainable management of transboundary watercourses is a sound legal and institutional framework for cooperation between the riparian states of a given watercourse.

1.2

Responses from Within International Water Law

Recent developments in international water law reflect the growing need for rules governing cooperation in the management and use of transboundary bodies of fresh water. At the international level, the Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention)14 entered into force on 17 August 2014 as the first global convention for the protection of international watercourses.15 It was adopted by the United Nations General Assembly in 1997 after more than 20 years of groundwork by the United Nations International Law Commission (ILC).16 The UN Watercourses Convention codifies several customary principles which already existed in international water law, such as the principle of equitable and reasonable utilization, the no-harm rule, and the obligation to notify planned measures. The Convention’s entry into force strengthens the customary norms of international water law and reflects the countries’ belief that the management of shared freshwater resources requires the cooperation of all riparian states.17 Supplementing the UN Watercourses Convention, the General Assembly of the United Nations adopted a resolution in 2008 taking note of the Draft Articles on the Law of Transboundary Aquifers which had been compiled by the ILC.18 The draft articles are intended to complement the Watercourses Convention by making recommendations for designing treaties on transboundary groundwater resources; however, the draft articles have not yet been given a legally binding form.19

13

Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015, UN Doc. A/RES/70/1, p. 18/35, Goal 6.5. 14 UN Doc. A/RES/51/869, 21 May 1997, ILM 36 (1997), p. 700. 15 For the current status of ratification see https://treaties.un.org/pages/ViewDetails.aspx? src¼TREATY&mtdsg_no¼XXVII-12&chapter¼27&clang¼_en (accessed 28 June 2019). Pursuant to Art. 36, para. 1 of the UN Watercourses Convention, 35 ratifications were required for the entry into force of the Convention. 16 See ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 89. 17 See Wolfrum and Kirschner (2013), p. 18. 18 UN GA, A/RES/63/124, 11 December 2008. 19 See UN GA, A/RES/68/118, 19 December 2013. See also UN GA, Sixth Committee (Legal), 71st session, The law of transboundary aquifers (Agenda item 86), 2016, https://www.un.org/en/ga/ sixth/71/transboundary_aquifers.shtml (accessed 25 June 2019).

4

1 Introduction

The UN Watercourses Convention, the Draft Articles on the Law of Transboundary Aquifers, and the customary rules of international water law, together provide a general background framework for basin-specific agreements. However, these provisions do not go so far as to cover issues such as settling water allocation between riparian states for purposes of consumption in individual cases. The framework they provide must therefore be specified and complemented by treaties and institutional mechanisms for particular watercourses in order to meet the requirements of the prevailing conditions in each specific river basin.20 While international norms may serve as a basis upon which to construct a water-use regime for a given watercourse, ultimately the onus is on the parties involved to reach a solution appropriate for the local situation. Across the world, riparian states have already signed a large number of watercourse agreements with each other.21 Nevertheless, more than half of the world’s 263 transboundary water basins are still not covered by a framework between their riparian states that regulates cooperation in water management.22 In the Middle East,23 despite the limited nature of the region’s freshwater resources, none of the important transboundary watercourses, namely the Nile, the Jordan, the Tigris or the Euphrates, is covered by a basin-wide treaty.

1.3

Water Scarcity in the Nile Basin

One important area affected by water scarcity is the Nile Basin.24 As the longest river in the world, the Nile flows through 11 riparian states from its most distant sources, in Burundi and Rwanda, until it reaches the Mediterranean Sea.25 Its catchment area encompasses roughly one-tenth of the African continent.26 The Nile Basin is experiencing pressure from limited water availability and high levels of population

20 See also Boisson de Chazournes (2005), pp. 23–24; Bulto (2009), p. 292. For an understanding of the UN Watercourses Convention in this sense, see for example among Egyptian commentators ‘Abd al-‘Āl (2010), p. 111; and among Sudanese commentators ‘Alī Ṭāhā (2005), pp. 192–193. 21 The FAO Index of International Water Resources Treaties, Declarations, Acts and Cases contains over 2000 water agreements between states. See FAO (1978, 1984). Recent agreements are included in the International Freshwater Treaties Database of the Oregon State University at https://transboundarywaters.science.oregonstate.edu/content/international-freshwater-treaties-data base (accessed 23 June 2019). 22 UN-Water (2015), p. 11. 23 The term “Middle East” covers the following countries: Bahrain, Cyprus, Egypt, Iraq, Iran, Israel, Jordan, Kuwait, Lebanon, Oman, Palestinian Territories, Qatar, Saudi Arabia, Syria, Turkey, United Arab Emirates, and Yemen. 24 See Fig. 1.1 at UN-Water (2015), p. 12. 25 Burundi, DR Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda. 26 FAO (2005), p. 21, Table 5.

1.3 Water Scarcity in the Nile Basin

5

growth.27 Currently, it is home to more than 257 million people—or approximately 20% of Africa’s entire population; estimates suggest that this population figure will nearly double by the year 2030.28 Such steep population growth will entail a correspondingly steep rise in demand for water for agriculture, industry, and domestic uses. Egypt will be particularly seriously affected as it possesses no other sources of water.29 Egypt estimates that demand for water in the country will exceed available supply within the next few years.30 The fast-growing population in the Nile Basin will significantly increase competition for access to the Nile’s limited freshwater supply. This competition can ultimately only be accommodated by comprehensive, integrated water management of the entire basin.31 However, the Nile riparian states have thus far been unable to agree on any permanent form of cooperative water management. While international water law stresses the obligation of the riparian states to cooperate with each other over shared watercourses, the water politics of the countries sharing the Nile themselves have been characterized by unilateral measures and the one-sided pursuit of interests.32 To date, the downstream states Egypt and Sudan have been almost the sole users of the Nile’s water.33 However, the upstream states are increasingly seeking utilization of this water, and as the source of 85–90% of the Nile’s total annual flow of 84 billion cubic meters, Ethiopia has been leading the way.34 Despite strong protests from Egypt, Ethiopia in 2011 began constructing the Grand Ethiopian Renaissance Dam on the upper reaches of the Blue Nile, one of the two major tributaries to the Nile, where it is seeking to construct Africa’s largest hydroelectric power station. Egypt is concerned that the Ethiopian dam project will lead to a significant reduction in the volume of water reaching its territory.35

27

See the data on population growth in the Nile riparian states in CIA (2019). NBI (2016), pp. 171 and 198. 29 FAO Aquastat (2019a). 30 The Egyptian Cabinet Information and Decision Support Center (2009), p. 3. 31 Swain (2008), pp. 202 and 207; Abseno (2009), p. 87; ‘Abd al-‘Āl (2010), p. 80. 32 Conflicts over water distribution have often been at the fore of simmering tensions. As late as the 1970s, Egypt and Ethiopia exchanged threats over the use of Nile water. The then Egyptian President, Anwar as-Sadat, stated in 1979: “The only matter that could take Egypt to war again is water.” Quoted at Swain (1997), p. 687. In 1988, the then Egyptian Foreign Minister, Boutros Boutros-Ghali, declared that the next war in the Middle East would be about the waters of the Nile, see Brunnée and Toope (2002), p. 106. 33 Arsano (2006), p. 324; Ward and Roach (2012), p. 53. 34 NBI (2012), p. 36. 35 State Information Service (2019c). For Egypt, an annual reduction in this volume of around 20 billion cubic meters is expected, as well as, during the planned 6-year filling of the reservoir, a reduction in hydropower production, a significant reduction in the water level of Lake Nasser, temporary water shortages, and a deterioration in water quality. 28

6

1.4

1 Introduction

The Legal Regime for Utilization of the Nile’s Waters

The way the water utilization regime for the Nile has been constructed serves as a pertinent example for both the success and failure of efforts to achieve the effective management of a shared watercourse.36 Arguably, no other treaty regime for a comparably large international watercourse stands in such stark contrast to the principles of international water law as that for the Nile.37 To date, there has never been a Nile treaty that includes all of the Nile riparian states. The legal structures covering the Nile consist for the most part of two treaties: the 1929 Exchange of Notes Between his Majesty’s Government in the United Kingdom and the Egyptian Government in regard to the Use of the Waters of the River Nile for Irrigation Purposes;38 and the 1959 Agreement between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters.39 These treaties are supported by Egypt and Sudan,40 but are rejected by the other nine riparian states.41 Egypt and Sudan take the view that they have “acquired and historical rights” (Arabic: ḥuqūq mukassaba wa-tārīḫīya)42 to given shares of Nile water, based on existing use and confirmed in the Nile water treaties.43 The upstream states contest this viewpoint and are demanding that a new, basin-wide agreement be concluded.44 The perspectives of the Nile riparian states have been significantly influenced by developments in international water law, especially the adoption of the UN Watercourses Convention.45 These developments have both hindered and fostered cooperation between the states. On the one hand, the open and partially contradictory theories and principles of international water law have in the past contributed to a 36

See Dellapenna (2006), p. 296. See also Mekonnen (2010), p. 431. Birnie et al. (2009), p. 582, state: “some rivers, most notably the Nile, are still managed on the basis of outdated regimes”. But see among Egyptian commentators for example Maḥfūẓ Muḥammad, who views the core principles of international water law, namely the principle of equitable and reasonable utilization (Arabic: mabda’ al-intifā‘ al-munṣif wa-l-ma‘qūl), the obligation not to cause significant harm (al-iltizām bi-‘adam at-tasabbub fī ḍarrar ḏī ša’n), and the general obligation to cooperate (al-iltizām al-‘ām bi-t-ta‘āwun), as laid down in the existing Nile treaties, Maḥfūẓ Muḥammad (2009), pp. 328 and 478. 38 LNTS XCIII (1929–1930), p. 44. 39 UNTS, Vol. 453, p. 51. 40 See e.g. State Information Service (2010). The validity and binding effect of the Nile treaties for the Nile riparian states is also predominantly affirmed by Egyptian commentators, see Maḥfūẓ Muḥammad (2009), p. 389, citing further references, pp. 478–479 and 487. 41 See also Kaška (2006), pp. 25–26; ‘Abd al-Wahhāb (2004), p. 179; Maḥfūẓ Muḥammad (2009), p. 378. 42 The transliteration of Arabic legal terms and bibliographical references in this book follows the transliteration system developed by the German Oriental Society and adopted by the International Convention of Orientalist Scholars in Rome in 1936. 43 See for example Maḥfūẓ Muḥammad (2009), p. 389, citing further references, and pp. 478–479. 44 Ibid., p. 378. 45 To the same effect see Brunnée and Toope (2002), p. 109; Dellapenna (1996), p. 219. Likewise among Egyptian commentators for example Kaška (2006), p. 92; ‘Abd al-‘Āl (2010), p. 102. 37

1.4 The Legal Regime for Utilization of the Nile’s Waters

7

hardening of the competitive positions of the Nile riparian states. For a long time, the opaque relationship between its two apparently irreconcilable core principles— namely equitable and reasonable use and the no-harm rule—actually made it easier for states to base their positions on one-sided arguments. However, recent developments in international water law also seem to be driving a new cooperative spirit in relations between the Nile riparian states, after helping to redefine their interests.46 Water politics in the Nile Basin, long characterized by unilateral measures, has therefore undergone considerable change since the 1990s. Now the Nile riparian states are trying to cooperate across the entire Nile Basin on the basis of a new and more balanced utilization regime that is more closely aligned with international water law. In 1999 they founded the Nile Basin Initiative (NBI), opening a new chapter in their relations, described by some commentators as a breakthrough from competition to cooperation.47 Although the NBI was only established as a temporary institution without a founding treaty, it was nevertheless an important step forward for the Nile riparian states.48 Indeed, this was the first time that all Nile riparian states had exhibited willingness to work together.49 Also for the first time, they emphasized in their shared vision for the NBI the principle of equitable utilization of the Nile.50 In addition to this progress, the Nile riparian states also began to negotiate a framework agreement for the Nile. This took place at the same time as the General Assembly of the United Nations adopted the UN Watercourses Convention in 1997. Egyptian commentators have described the adoption of the UN Watercourses Convention as a major driving force behind the Nile riparian states starting productive negotiations with each other.51 Those states’ efforts led to the adoption in 2010 of the Agreement on the Nile River Basin Cooperative Framework (Cooperative Framework Agreement, CFA),52 initially by five of the 11 riparian states, and six by the time of writing. Ethiopia was the first country to ratify the CFA in 2013, followed by Rwanda and Tanzania,53 while Egypt and Sudan have refused to sign. The Nile riparian states have thus far failed to reach agreement due to differences over the existing Nile treaties and the protection of current uses, as well as over the proposed establishment of a compulsory notification procedure for planned measures. 46

See also Brunnée and Toope (2002), p. 110. Ibid., p. 137. To the same effect see ‘Alī Ṭāhā, who considers the NBI as the first serious cooperation attempt by the Nile riparian states, ‘Alī Ṭāhā (2005), p. 161. 48 In Egypt, for example, the mere participation in the Initiative was criticized by some as constituting Egypt’s agreement, for the first time, to a redistribution of the Nile water between the riparian states. See ‘Alī Ṭāhā (2005), p. 181. 49 Swain (2002), p. 155; Brunnée and Toope (2002), p. 137. 50 Shared vision of the NBI, http://www.nilebasin.org (accessed 23 June 2019). 51 See e.g. ‘Abd al-‘Āl (2010), p. 102. 52 Agreement on the Nile River Basin Cooperative Framework, http://www.nilebasin.org/index. php/documents-publications/30-cooperative-framework-agreement/file (accessed 23 June 2019). 53 NBI, Cooperative Framework Agreement, http://www.nilebasin.org/index.php/nbi/cooperativeframework-agreement (accessed 12 January 2020). 47

8

1 Introduction

Despite these ongoing points of contention, the process of drafting the CFA nevertheless represents the first common attempt by all Nile riparian states to conclude a treaty governing the use of the Nile. The Agreement is meant to create an entirely new framework for the allocation and utilization of the Nile’s water. It is noteworthy that many of the provisions in the Agreement are taken almost verbatim from the UN Watercourses Convention, notably those relating to core principles of international water law: equitable and reasonable utilization and the no-harm rule. The UN Watercourses Convention, when adopted in 1997, however, was criticized and rejected by the Nile riparian states,54 and as yet none of them have ratified or signed the Convention. Nevertheless, it has significantly influenced the drafting of the agreement for the Nile. Since the CFA was opened for signature in May 2010, the political situation along the Nile has changed significantly. In February 2011, Egyptian President Hosni Mubarak, who had rejected the Agreement, was forced to resign due to the unrest during what became known as the Arab Spring.55 Shortly afterwards, Ethiopia began construction work on the Grand Ethiopian Renaissance Dam on the Blue Nile, approximately 40 km from its border with Sudan. Then, in July 2011, South Sudan seceded from Sudan, becoming a further riparian state on the Nile. The independence of South Sudan has created a new dynamic as it raises the issue of how water is to be shared between South Sudan on the one side and Sudan and Egypt on the other, and whether the Nile water treaties previously concluded by Sudan continue in force in respect of South Sudan. In 2013, South Sudan’s Minister for Irrigation and Water Resources, Paul Mayom Akech, repudiated any obligations under the 1959 Nile Waters Agreement and declared that his country was preparing to sign the CFA.56 In so doing, South Sudan was signaling its intention to position itself on the side of the upstream riparian states with respect to the Nile issue. The construction of the Renaissance Dam in Ethiopia caused significant political tensions with Egypt and Sudan. In 2011, the three countries agreed to the establishment of an international panel of experts tasked with examining the effects of the dam on the downstream flow of the Blue Nile, and in 2013 the panel published its report.57 While Egypt considered the report’s findings on the expected effects of the dam insufficient and requested further studies, Ethiopia continued construction work. In the context of these developments, Egypt spoke of a “Nile water crisis”

54

Burundi voted against the Convention. Egypt, Ethiopia, Rwanda, and Tanzania abstained. The DR Congo, Eritrea, and Uganda were absent. Only Sudan and Kenya voted in favor of the Convention. See Press Release GA/9248, General Assembly adopts Convention on Law of Non-Navigational Uses of International Watercourses, 21 May 1997, Annex. For a detailed discussion of the standpoints of the individual Nile riparian states, in particular Egypt, regarding the UN Watercourses Convention, see Maḥfūẓ Muḥammad (2009), pp. 327–339. 55 Mangu (2011), p. 37. 56 Statement reproduced at Amos (2013) and Tigrai Online (2013). 57 The panel consisted of two experts from each of the three countries and four independent international experts, see Salman (2013), p. 24.

1.4 The Legal Regime for Utilization of the Nile’s Waters

9

presenting the country with one of its most serious challenges.58 Egypt reproached Ethiopia of breaching its contractual obligations enshrined in a treaty dating back to 1902.59 President Abdel Fattah el-Sisi, in office since 2014, has been pursuing a policy of rapprochement with the other Nile riparian states, and has stressed the importance of close cooperation based on mutual trust, especially with Ethiopia.60 He has initiated talks with Ethiopia, which, in March 2015, resulted in an agreement between Egypt, Sudan and Ethiopia determining general principles for the construction and operation of the Renaissance Dam.61 The agreement, in a marked break from previous Nile water treaties, is based on the principles of cooperation, equitable and reasonable utilization, and the no-harm rule, in provisions adopted verbatim from the CFA.62 It is notable that this agreement no longer contains any provisions covering an absolute protection of existing uses and rights—in contrast to Egypt’s previous insistence. As a result of this 2015 trilateral agreement, an impact assessment was commissioned for the Renaissance Dam. Following the release of the assessment report, the three countries met for a series of deliberations but were unable to agree on the report’s results or amendments to it, and in 2017 Egypt declared the negotiations a failure.63 With the mediation of the United States and the World Bank, the three countries entered into negotiations again in November 2019 to reach an agreement on the requirements for the filling and operation of the Renaissance Dam, which does not, however, address the use and management of the Nile in general.64 Meanwhile, construction work on the dam, initially to be completed by 2017, has fallen behind schedule and completion is now expected in 2022. Despite this apparent stalling, these negotiations between Egypt, Sudan and Ethiopia do provide grounds for hope that negotiations between all of the Nile riparian states on the CFA will be resumed. The current challenge facing Nile riparian states is the creation of a long-term legal and institutional framework for

58

See State Information Service (2019c). The Treaty between Great Britain and Ethiopia relative to the Frontiers between the AngloEgyptian Sudan, Ethiopia, and Erythroea, 15 May 1902, BFSP 95 (1901–1902), p. 467. See e.g. State Information Service (2014). 60 See State Information Service (2019b). 61 Declaration of Principles on the Grand Ethiopian Renaissance Dam, signed 23 March 2015, available at https://www.sis.gov.eg/Story/148329/‫ﻧﺺ‬-‫ﺇﻋﻼﻥ‬-‫ﺍﻟﻤﺒﺎﺩﺉ‬-‫ﺣﻮﻝ‬-‫ﻣﺸﺮﻭﻉ‬-‫ﺳﺪ‬-‫?ﺍﻟﻨﻬﻀﺔ‬lang=ar (Arabic); English version of the Declaration available at http://www.sis.gov.eg/Story/121609? lang¼en-us (both accessed 23 June 2019). See also Asharq Al-Awsat (2015). 62 See the Parts I, III, IV and IX of the 2015 Declaration of Principles on the Grand Ethiopian Renaissance Dam. 63 Al-Monitor (2017) and The Reporter (2018). For details on the rounds of negotiation 2014–2017, see the Egyptian State Information Service (2019a). 64 See the Joint Statement of Egypt, Ethiopia, Sudan, the United States and the World Bank, 15 January 2020, available at https://home.treasury.gov/news/press-releases/sm875 (accessed 18 February 2020). 59

10

1 Introduction

the utilization and management of the Nile that all of them can agree to. Indeed, there is a broad consensus among them on this point. On the basis of such a framework, they could then convert the guiding principle of equitable and reasonable utilization into a fair allocation of water uses and joint management decisions.65

1.5

Objectives and Structure of the Book

The purpose of this book is twofold. The first objective is to help concretize the guidance provided in international water law for establishing cooperative frameworks for individual watercourses into a functional legal and institutional framework for cooperation along the Nile. This includes a review of the relevant norms of international water law as well as an assessment of both the existing legal framework for the use and management of the Nile and the CFA. The second objective of this book is to take a more encompassing perspective, using the Nile as an example, and analyze the role that international water law, and especially the UN Watercourses Convention, can play in developing a water-use regime for a transboundary watercourse. Keeping the focus on the example of the Nile, this book also seeks to show the degree to which the principle of equitable and reasonable utilization can be of practical help in regulating the utilization of a particular watercourse. Accordingly, the first part of this book defines the broader international legal context for designing watercourse agreements for transboundary watercourses. After a brief introduction to the history of international water law and its theoretical bases, it sets out the current state of customary international water law. It then discusses the contents of the UN Watercourses Convention in detail and briefly examines selected regional water agreements, watercourse-specific agreements, and river commissions. Throughout this first part, special attention is paid to the different legal standpoints of the Nile riparian states as well as to their interventions during the drafting and negotiation of the UN Watercourses Convention. The second part of the book is devoted to the Nile itself. It begins with a short introduction to the Nile River and its catchment area as well as the hydrological, climatic, socio-economic and political conditions prevailing in the riparian states, before moving on to an examination of the existing Nile water treaties and their compatibility with international law. At this juncture, the text pays particular consideration to whether the colonial-era Nile treaties are still binding for the riparian states. Special focus is also placed on the legal consequences of South Sudan’s secession from Sudan in 2011. Subsequently, an overview of the initiatives for cooperation between the riparian states is presented, with a particular focus on the NBI, which is the current institutional framework for basin-wide cooperation. Following this, the book retraces the negotiations conducted by the Nile riparian

65

See also Dellapenna (2006), p. 301; Carroll (2000), pp. 288–289 and 303.

References

11

states over the CFA and discusses its main provisions. The degree to which this agreement accords with the principles of international water law and how far it was influenced by the UN Watercourses Convention are also analyzed at this point. On the basis of this analysis, recommendations are provided for amendments that would reconcile the interests of all the riparian states and align the Agreement with the principles of current international water law. The book also examines the legal consequences of a possible entry into force of the Agreement for only some of the Nile riparian states. Finally, building on the recommendations, it addresses the implementation of the principle of equitable and reasonable utilization along the Nile. In particular, it discusses how that principle can be used as guidance in the process of determining equitable use of Nile water in the riparian states, and it illustrates the extent to which the principle can provide a conceptual framework for regulating water use. To this end, the book considers the individual factors and circumstances that are relevant for an equitable and reasonable utilization of the Nile in each riparian state, surveys the respective country data, and highlights the legal issues that arise with respect to the principle’s application.

References ‘Abd al-‘Āl MS (2010) Al-intifā‘ al-munṣif bi-miyāh al-anhār ad-dawlīya ma‘ īšāra ḫāṣa li-ḥāla nahr an-Nīl (The equitable utilization of the water of international rivers with particular reference to the case of the Nile). Cairo (Arabic) ‘Abd al-Wahhāb ĀaS (2004) Miyāh an-Nīl fī s-siyāsa al-miṣrīya (Nile water in Egyptian politics). Markaz ad-Dirāsāt as-Siyāsīya wa-’l-Istrātīǧīya, Cairo (Arabic) ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Abseno MM (2009) The concepts of equitable utilization, no significant harm and benefit sharing under the Nile River Basin Cooperative Framework Agreement: some highlights on theory and practice. J Water Law 20:86–95 Al-Monitor (2017) Egypt unable to find agreement in Renaissance Dam talks. https://www.almonitor.com/pulse/originals/2017/11/egypt-fail-renaissance-dam-negotiations-studies.html. Accessed 23 June 2019 Amos M (2013) Juba rebuffs Cairo on Nile waters agreements, Africa review. http://www. africareview.com/News/Juba-rebuffs-Cairo-on-Nile-waters-agreements/-/979180/1725630/-/ 40dvaw/-/index.html. Accessed 23 June 2019 Arsano Y (2006) Nile Basin co-operation: prospects for the twenty-first century. In: Coopey R, Tvedt T (eds) A history of water: the political economy of water, vol II. I.B. Tauris, London, pp 324–351 Asharq Al-Awsat (2015) Miṣr wa-Iṯīūbīā wa-s-Sūdān tuwaqqi‘ i‘lān mabādi’ li-mašrū‘ “Sadd an-Nahḍa” li-ta’mīn maṣāliḥiha fī miyāh an-Nīl (Egypt, Ethiopia and Sudan sign declaration of principles for the “Renaissance Dam” to safeguard their interests in the Nile water) (Arabic) Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford University Press, Oxford Boisson de Chazournes L (2005) Eaux internationales et droit international: vers l’idée de gestion commune. In: Boisson de Chazournes L, Salman S (eds) Les ressources en eau et le droit international. Martinus Nijhoff Publishers, Leiden, pp 3–43 Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford

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Brown Weiss E (2007) The evolution of international water law. Recueil des Cours 331. The Hague Academy of International Law, The Hague Brunnée J, Toope SJ (2002) The changing Nile Basin regime: does law matter? Harv Int Law J 43:105–159 Bulto TS (2009) Between ambivalence and necessity: occlusions on the path towards a basin-wide treaty in the Nile Basin. Colorado J Int Environ Law Policy 20:291–320 Carroll CM (2000) Past and future legal framework of the Nile River Basin. Georgetown Int Environ Law Rev 12:269–304 CIA (2019) The World Factbook, Africa. https://www.cia.gov/library/publications/the-worldfactbook/wfbExt/region_afr.html. Accessed 23 June 2019 Dellapenna JW (1996) Rivers as legal structures: the examples of the Jordan and the Nile. Nat Resour J 36:217–250 Dellapenna JW (2006) The Nile as a legal and political structure. In: Coopey R, Tvedt T (eds) A history of water: the political economy of water, vol 2. I.B. Tauris, London, pp 295–323 FAO (1978) Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, vol 1. Legislative Study 15. Rome FAO (1984) Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, vol 2. Legislative Study 34. Rome FAO (2005) Irrigation in Africa in figures. Water Report 29. Rome FAO (2012) Coping with water scarcity – an action framework for agriculture and food security. Water Report 38. Rome FAO Aquastat (2019a) Egypt, water resources. http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/index.stm. Accessed 23 June 2019 FAO Aquastat (2019b) Precipitation and renewable freshwater resources. http://www.fao.org/nr/ water/aquastat/didyouknow/index.stm. Accessed 23 June 2019 FAO Aquastat (2019c) Water uses. http://www.fao.org/nr/water/aquastat/water_use/index.stm. Accessed 23 June 2019 Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic) Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) Mangu AM (2011) The Democratic Republic of Congo and the Nile Cooperative Framework Agreement. In: Adar K, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 23–38 McCaffrey SC (2007) The law of international watercourses. Oxford University Press, Oxford Mekonnen DZ (2010) The Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘water security’ paradigm: flight into obscurity or a logical cul-de-sac? Eur J Int Law 21:421–440 NBI (2012) State of the River Nile Basin NBI (2016) Nile Basin Water Resources Atlas. http://www.nilebasin.org/index.php/informationhub/technical-documents. Accessed 23 June 2019 Salman SMA (2013) The Nile Basin Cooperative Framework Agreement: a peacefully unfolding African spring? Water Int 38:17–29 State Information Service (2010) Final Communiqué of the Nile Basin Ministerial Meetings in Sharm el-Sheikh, 13–15 April 2010. http://www.sis.gov.eg/En/Templates/Articles/tmpArticles. aspx?ArtID¼68012. Accessed 23 June 2019 State Information Service (2014) Egypt’s perspective towards the Ethiopian Grand Renaissance Dam Project (GERDP). http://www.sis.gov.eg/En/Templates/Articles/tmpArticles.aspx? CatID¼2787#.VoFJ_FZN3wI. Accessed 23 June 2019 State Information Service (2019a) Egypt and water issue, Egyptian-Ethiopian negotiations on Renaissance Dam. https://www.sis.gov.eg/Story/121622/Egyptian-Ethiopian-negotiations-onRenaissance-Dam?lang=en-us. Accessed 23 June 2019

References

13

State Information Service (2019b) Miṣr wa-qadīya al-miyāh – Ahamm īǧābiyāt ittifāq i‘lān al-mabādi’ al-ḫāṣ bi-Sadd an-Nahḍa (Egypt and the water issue – the main benefits of agreeing on the Declaration of Principles for the Renaissance Dam). https://www.sis.gov.eg/section/0/ 14597?lang=ar. Accessed 23 June 2019 (Arabic) State Information Service (2019c) Miṣr wa-qadīya al-miyāh – At-taḥadiyāt al-mā’īya allatītūwāǧihuhā Miṣr (Egypt and the water issue – the water challenges Egypt faces). https:// www.sis.gov.eg/Story/545/‫ﻣﺼﺮ‬-‫ﻭﻗﻀﻴﺔ‬-‫?ﺍﻟﻤﻴﺎﻩ‬lang=ar. Accessed 23 June 2019 (Arabic) Swain A (1997) Ethiopia, the Sudan and Egypt: the Nile River dispute. J Modern Afr Stud 35:675–694 Swain A (2002) Managing the Nile River: the role of sub-basin co-operation. In: Chatterji M, Arlosoroff S, Guha G (eds) Conflict management of water resources. Ashgate Publishing, Hampshire, pp 145–161 Swain A (2008) Mission not yet accomplished: managing water resources in the Nile River Basin. J Int Aff 61(2):201–214 The Egyptian Cabinet Information and Decision Support Center (2009) Hal daḫalat Miṣr ‘aṣr al-faqr al-mā’ī? (Has Egypt entered the era of water scarcity?). Monthly Report No. 30. June 2009. Cairo (Arabic) The Reporter (2018) Ethiopia, Egypt reigniting talks on dam cooperation. https://www. thereporterethiopia.com/article/ethiopia-egypt-reigniting-talks-dam-cooperation. Accessed 23 June 2019 Tigrai Online (2013) South Sudan rejects Egypt’s monopoly on Nile waters. http://www. tigraionline.com/articles/article130273.html. Accessed 23 June 2019 UNEP (2002) Atlas of International Freshwater Agreements. http://wedocs.unep.org/handle/20. 500.11822/8182. Accessed 23 June 2019 UNEP (2012) Global Environment Outlook 5 – environment for the future we want. Valletta UN-Water (2014) The United Nations World Water Development Report 2014: water and energy, vol 1. Paris UN-Water (2015) The United Nations World Water Development Report 2015: water for a sustainable world. Paris UN-Water (2019) The United Nations World Water Development Report 2019: leaving no one behind. Paris UN-Water, FAO (2007) Coping with water scarcity – challenges of the twenty-first century. Rome Ward TE, Roach HL (2012) Hydropolitics and water security in the Nile and Jordan River Basins. In: Vajpeyi D (ed) Water resource conflicts and international security. Lexington Books, Plymouth, pp 51–101 Wolfrum R, Kirschner A (2013) A survey of challenges and trends in the context of international water law. In: Kibaroglu A, Kirschner A, Mehring S, Wolfrum R (eds) Water law and cooperation in the Euphrates-Tigris region: a comparative and interdisciplinary approach. Martinus Nijhoff Publishers, Leiden, pp 3–19

Part I

International Water Law

The term “international water law” refers to the norms governing the relations between states, or between states and international organizations, in relation to water resources.1 The regulatory realm of international water law includes both the use of international freshwater resources, for example for energy generation, irrigated agriculture, industrial use, or drinking water supply, as well as the protection of these waters.2 With the entry into force of the UN Watercourses Convention there is now a global treaty in place governing the non-navigational uses of international watercourses. Nonetheless, the norms of customary international law continue to be of particular importance in international water law, in particular for the large majority of states that so far have not acceded to the Convention. Today, international water law forms a particular and increasingly important part of the broader field of international environmental law. The latter encompasses those rules of international law whose primary objective is the protection of the environment.3 As a comparatively young legal field, international environmental law has thus far not evolved to a comprehensive state, but rather contains partial rules for specific environmental media, such as the sea, freshwater resources, air or climate, as well as for biodiversity conservation.4 It is based on a multitude of bilateral, regional and global agreements, as well as a few customary international law principles. With regard to the protection and management of freshwater resources, the instruments

1

Caponera (2007), p. 186. Boisson de Chazournes (2013), p. 7. 3 Sands et al. (2013), p. 13. For detail on the purposes and principles of international environmental law, see Wolfrum (1990), pp. 308–330. 4 On the notion of international environmental law, see Birnie et al. (2009), pp. 2–4. For an overview of the sector-specific instruments of international environmental law, see ibid., passim and Bodansky et al. (2007), pp. 315–422. 2

16

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International Water Law

and principles of international water law are mutually complementary with those of wider international environmental law.5 A fundamental challenge for international water law—as for international environmental law in general—is to reconcile the sovereignty of one state with regard to the use of natural resources within its territory on the one hand, with the territorial integrity of neighboring states on the other.6 Several theories for reconciling these interests of riparian states sharing a transboundary watercourse have emerged over time. The theories form the basis for the current customary international principles for the joint management and use of international watercourses that were developed over the course of the twentieth century. These customary principles were codified in the UN Watercourses Convention and have been incorporated into agreements at both regional and watercourse level.

References Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford University Press, Oxford Bodansky D, Brunnée J, Hey E (2007) The Oxford Handbook of International Law. Oxford University Press, Oxford Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford Caponera DA (2007) Principles of water law and administration: national and international, 2nd edn. Taylor & Francis, London Matz-Lück N (2009) The benefits of positivism: the ILC’s contribution to the peaceful sharing of transboundary groundwater. In: Nolte J (ed) Peace through international law. Springer, Heidelberg, pp 125–150 Sands P, Peel J, Fabra A, MacKenzie R (2013) Principles of international environmental law, 3rd edn. Cambridge University Press, Cambridge Wolfrum R (1990) Purposes and principles of international environmental law. German Yearb Int Law 33:308–330

5 Boisson de Chazournes (2013), p. 109. There are manifold interrelations between fresh water and its environment. For example, major changes to rivers, such as the construction of dams and irrigation channels for agriculture, may affect biodiversity in the entire river system, see ibid., pp. 107–108. 6 See Matz-Lück (2009), p. 131.

Chapter 2

Development of International Water Law

2.1

Beginnings and Development

International water law is one of the oldest areas of international law. For millennia, agreements have been concluded on the use of transboundary rivers. The oldest recorded agreement dates back to approximately 3100 BC between the two Mesopotamian city states of Umma and Lagash concerning the use of the Euphrates for irrigation.1 However, it was not until the eighteenth century that the number of such agreements increased significantly.2 The regulatory contents of water agreements have developed in step with economic, technical and social developments.3 Until the early twentieth century, the main concern of most states regarding rivers was their use for trade and transport, along with their demarcation of national boundaries, especially in regions of ample rainfall such as Europe and parts of North America.4 Exceptions were some watercourses such as the Nile, Indus, Euphrates and Tigris, where the use of river water for irrigation of agricultural land has traditionally been of vital importance.5 These

1

Nussbaum (1950), pp. 7–8; Bruhács (1993), p. 9. McCaffrey (2007), p. 61. The FAO Index of International Water Resources Treaties, Declarations, Acts and Cases contains over 2000 water agreements between states, see FAO (1978, 1984). More recent treaties are contained in the International Freshwater Treaties Database of the Oregon State University, https://transboundarywaters.science.oregonstate.edu/content/international-freshwatertreaties-database (accessed 25 June 2019). The overwhelming majority of these agreements concern surface water; only in recent decades has groundwater become more prominently taken into account in treaty practice and international law, see McCaffrey (2007), p. 484; Brown Weiss (2007), pp. 210–211. 3 See Caponera (2007), p. 215. On the historical development of international water agreements and their regulatory contents, see Brown Weiss (2007), pp. 235–257. 4 McCaffrey (2007), p. 59. 5 See Caflisch (1989), p. 135; Brown Weiss (2007), pp. 235–236. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_2

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variances in usage interests were reflected in the treaty practice for shared watercourses.6 Only since the mid-twentieth century have non-navigational uses increased significantly along with considerable global population growth, urbanization, and increasing industrialization. The demand for water for irrigated agriculture, industry, water supply, and energy production began to rise rapidly.7 The competing usage interests of the concerned states have often been mutually exclusive and could thus not be accommodated by simply granting the greatest possible freedom, as had been the case with the regulation of navigational uses.8 Under these new circumstances, several questions arose, such as whether there should be a ranking of uses, that is, whether a particular use, such as irrigation, should generally be given priority over other uses. Another question that was discussed intensively was whether priority should be given to certain users of a watercourse above other users, for example to the first user or the one more heavily dependent on the water.9 The increasing demands on transboundary watercourses gave rise to interstate conflicts and these have, in turn, led to a large number of international treaties as well as court and arbitral decisions on the allocation of water uses.10 This development, along with concerns about the limited availability of water resources, led to the adoption of the non-binding Helsinki Rules on the Uses of the Waters of International Rivers (Helsinki Rules) of the International Law Association (ILA) in 1966.11 As the largest non-governmental organization dealing with international law, the ILA has made a considerable contribution to the development of this field.12 Its Helsinki Rules apply to both navigational and non-navigational uses of rivers and were the first authoritative transcript of the customary norms of

6 For example, the Treaty of Amity, Commerce and Navigation between Great Britain and the United States (signed 19 November 1794), CTS 52 (1793–1795), p. 243; Part VII (Navigation des rivières traversant différens Ètats) Acte du Congrès de Vienne, 9 June 1815, http://gallica.bnf.fr/ ark:/12148/bpt6k91227n/f1.image (accessed 25 June 2019); Convention relative to the Free Navigation of the Elbe, 23 June 1821, BFSP 8 (1820–1821), p. 953; Revised Rhine Navigation Act, 17 October 1868, http://www.ccr-zkr.org/13020300-de.html (accessed 25 June 2019); Part XII (Ports, Voies d’eau et Voies ferrées) Traité de Versailles, 28 June 1919, reproduced in Librairie Militaire Berger-Levrault, 1919. For an overview of treaty practice, see Boisson de Chazournes (2005), pp. 14–22. 7 McCaffrey (2007), pp. 63–64; Boisson de Chazournes (2013), p. 25. 8 Caflisch (1989), p. 135. 9 Caflisch (1998), p. 7. 10 Since 1948, almost 300 watercourse agreements have been concluded worldwide, see UNEP (2012), p. 126. Overview of the treaties at Beyerlin and Marauhn (2011), pp. 99–112 and overview of case law ibid., pp. 92–94. 11 ILA, Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference held at Helsinki 1966, 1967, p. 477. 12 In addition to the Helsinki Rules of 1966, its work includes numerous other rules, resolutions, and articles, such as the 2004 Berlin Rules on Water Resources. For an overview of the work of the ILA, see Caponera (2007), p. 200.

2.1 Beginnings and Development

19

international water law. Furthermore, they summarized the principles of international water law derived from state practice in order to establish the rules applicable to the sharing and management of international watercourses. For the first time, the principle of equitable and reasonable utilization of transboundary water resources in international water law was laid down in writing.13 The Helsinki Rules have played an important role in shaping subsequent treaty practice, especially in Africa.14 In 2004, the ILA adopted the Berlin Rules on Water Resources, which were designed to replace the Helsinki Rules.15 While in some respects they point the way forward for international water law,16 they are also controversial—even within the ILA itself. Several of its members disagreed with many of the provisions, which were conceived and presented as progressive developments of international law.17 To date, the Berlin Rules have not reached a level of influence on state practice comparable to the Helsinki Rules.18 In addition to the Helsinki Rules, which remain prominent, several other legally non-binding soft-law instruments19 have contributed significantly to the further development of current international water law.20

13

In Art. V, para. 1 of the Helsinki Rules. See Caponera (2007), p. 201; Nanda and Pring (2013), p. 302. 14 Rieu-Clarke (2013), p. 248; Salman (2007), pp. 630–631. 15 See ILA, Report of the Seventy-First Conference held in Berlin 2004, p. 334. 16 Mager (2015), p. 14. 17 For dissenting opinions within the ILA, see ILA Berlin Conference 2004 – Water Resources Committee Report: Dissenting Opinion, https://www.internationalwaterlaw.org/documents/ intldocs/ILA/ILABerlinRulesDissent2004.pdf (accessed 15 June 2019). 18 See also Nanda and Pring (2013), p. 305; Caponera (2007), p. 201. 19 So-called soft law, such as declarations of international organizations and conferences, is not a legal source of international law. It is, however, no less complied with than binding agreements and it may serve as an indicator of legal conviction or point to trends in the development of international law. It can also often be used to interpret traditional legal sources. Nowadays, non-binding instruments are almost as important as the traditional rules of positive law. See Brown Weiss (1999), pp. 1566–1570. 20 Nanda and Pring (2013), p. 300. These soft-law instruments include the Resolution on the Use of International Non-maritime Waters of the Institute of International Law, 11 September 1961, Annuaire de l’Institut de Droit International 49-II (1961), p. 381; Declaration of the United Nations Conference on the Human Environment, in: Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, UN Doc. A/CONF.48/14/Rev. 1, p. 3; Mar del Plata Action Plan, in: Report of the United Nations Water Conference, Mar del Plata, 14–25 March 1977, UN Doc. E/CONF.70/29, p. 3; Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 19 May 1978, UN Doc. UNEP/IG12/2; ILA Rules on Water Pollution in an International Drainage Basin, Report of the Sixtieth Conference held at Montreal 1982, p. 535; ILA Seoul Rules on International Groundwaters, Report of the SixtySecond Conference held at Seoul in 1986; United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Chap. 18 “Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources”, UN Doc. A/CONF.151/26, Vol. I, 1992. For an overview of soft-law instruments that contributed significantly to the development of international water law, see Nanda and Pring (2013), pp. 300–305.

20

2 Development of International Water Law

With the increase in non-navigational uses of international watercourses, the protection of those water resources from pollution has also become a major concern of the international community.21 Particularly since the United Nations Conference on the Human Environment in Stockholm in 1972, the first environmental conference of the United Nations, many of the principles of environmental law have been incorporated into treaties on the protection and management of fresh water.22 This was the result of growing concerns about threats to the natural foundations necessary for life that have proved seminal for rapid development of modern international environmental law as a whole.23 At the subsequent United Nations Conference on Environment and Development in Rio de Janeiro in 1992, Agenda 21 was adopted as an environmental and development policy action plan for the implementation of the principle of sustainable development. An area of specific focus set out in Agenda 21 concerns the protection, management, and use of freshwater resources,24 and a series of subsequent agreements on transboundary water resources currently in place primarily serve to protect freshwater resources from pollution.25 Furthermore, as a sign of growing development in this area, groundwater, which had hitherto received little attention in treaty practice and international law, has been increasingly included in the regulatory scope.26 In 1970, the United Nations General Assembly recommended that the ILC “should, as a first step, take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification”.27 After more than 20 years of preliminary work, the Commission presented a series of draft articles28 which were then adopted by the General Assembly in 1997 as the first global convention on the non-navigational uses of international watercourses.29 Thus, international water law has evolved considerably over time to take into account the changes in both the use of international watercourses and the

21

Boisson de Chazournes (2005), p. 17. See also Beyerlin and Marauhn on treaties between states on shared water resources that focus on environmental problems, Beyerlin and Marauhn (2011), p. 89. 22 Boisson de Chazournes (2013), p. 117. 23 Ibid., p. 120. 24 This is Chap. 18 “Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources”, United Nations Conference on Environment and Development, Agenda 21, June 1992, UN Doc. A/CONF.151/26, Vol. I, 1992. 25 Caponera (2007), p. 186. 26 See McCaffrey (2007), p. 484; Brown Weiss (2007), pp. 210–211. Generally on the state practice in addressing groundwater, see McCaffrey (1991), pp. 55–57. 27 UN GA Res. 2669 (XXV), 8 December 1970. 28 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 89. 29 UN Doc. A/RES/51/869, 21 May 1997, ILM 36 (1997), p. 700.

2.2 Theoretical Bases

21

understanding of hydrological systems. Yet, it still does not adequately address several important challenges that have increasingly come to the fore as its development continues. For example, the principles of water law do not yet reflect a completely integrated ecosystem approach, nor do they adequately take into account the interests of future generations. They also have thus far neglected measures to reduce water demand.30 In addition, transboundary aquifers, in view of their importance and particular vulnerability, urgently require a more comprehensive international legal framework for their protection.31

2.2

Theoretical Bases

Several approaches were developed for reconciling the sovereignty of one state with regard to the use of a transboundary watercourse within its territory, and the territorial integrity of other states sharing the same watercourse. Finding an equilibrium between the state sovereignty on the one hand, and the territorial integrity on the other, is a prerequisite to establishing a fair balance between the often conflicting usage interests of riparian states.

2.2.1

Absolute Territorial Sovereignty

The theory of absolute territorial sovereignty posits that any riparian state of an international watercourse may freely dispose of and take any action with the water passing through its territory, even if this affects the river flow.32 As such, this theory clearly favors upstream riparian states. The theory of absolute territorial sovereignty is largely associated with the so-called Harmon Doctrine, named after US Attorney General Judson Harmon, who was asked by the United States Secretary of State in 1895 for an opinion in a dispute with Mexico over the diversion of water from the Rio Grande. Attorney General Harmon argued that state sovereignty allowed the United States to use the river on its territory at its discretion, even if the use had adverse effects in other riparian states.33 This legal opinion, however, must be

30

Brown Weiss (2007), p. 184. For a critical discussion of these weaknesses, see ibid., pp. 220–230. On new development trends and challenges in the context of international water law, see Wolfrum and Kirschner (2013), pp. 7–17. 31 See Beyerlin and Marauhn (2011), p. 88. 32 On the theory of absolute territorial sovereignty, see generally McCaffrey (1996), pp. 965–1007; Caflisch (1989), pp. 48–50; Berber (1955), pp. 14–19; ‘Abd al-Wahhāb (2004), pp. 166–167. 33 Harmon stated: “The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States. [. . .] The

22

2 Development of International Water Law

considered in context. It represented an initial negotiating position, but ultimately the United States and Mexico settled their dispute by concluding a treaty in which they agreed upon a balanced and mutually acceptable arrangement for water allocation.34 Apart from this initial stance taken by the United States, only a few other states have ever claimed absolute sovereignty over the parts of international watercourses in their territory.35 These states have also generally settled their disputes in the course of negotiations through agreements that recognized the rights of the co-riparian states to share the waters.36 Among the riparian states of the Nile, the upstream riparian Ethiopia repeatedly invoked absolute territorial sovereignty over the use of the Blue Nile flowing through its territory during the second half of the twentieth century.37 In an aidemémoire addressed to the diplomatic community in Cairo on 23 September 1957, the Ethiopian government stated that Ethiopia had “the right and obligation to exploit the water resources of the Empire” and therefore must “reassert and reserve for now and for the future, the right to take all such measures in respect of its water resources [. . .] whatever may be the measure of utilisation of such waters sought by recipient states situated along the course of that river”.38 Two decades later, Ethiopia reaffirmed its position at the United Nations Water Conference in Mar del Plata in 1977, where it stated that it was “the sovereign right of any riparian state, in the absence of an international agreement, to proceed unilaterally with the development of water resources within its territory”.39 As was the case with the similar earlier claim made by the United States, these statements must be considered in context. Ethiopia’s stance came about in response to the claims of Egypt and Sudan to the entirety of the Nile waters, in particular when the latter two states concluded the 1959 Nile Waters Agreement “for the full utilization of the Nile waters”, in which both states sought to allocate the entire Nile flow between themselves.40 Changes in political relations along the Nile since the end of the twentieth century have also been reflected in the changed nature of political statements by concerned riparian

fundamental principle of international law is the absolute sovereignty of every nation, as against all others within its own territory.” Digest of Official Opinions of the Attorneys-General of the United States, Vol. 17–25 (1881–1906), 21 Op. Atty. Gen. 1908, p. 274, 281. 34 Convention concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 21 May 1906, U.S. Department of State, U.S. Treaty Series, No. 455, 1919, p. 3. On this dispute, see McCaffrey (2007), pp. 113–114. 35 For example, with regard to the use of the Euphrates and Tigris, Turkey invoked its absolute sovereignty over those parts of the river in its territory, see Wick (2013), p. 123. 36 For a survey of state practice in this regard, see McCaffrey (2007), pp. 115–121. See also Hafner (1993), p. 116. 37 See Bulto (2009), pp. 303–304; Arsano (2007), pp. 90–91; Caflisch (1989), p. 49. 38 Aide-Mémoire of the Ethiopian Government of 23 September 1957, reproduced in Whiteman (1964), pp. 1011–1012. See ‘Abd al-‘Āl (2010), p. 88. 39 Reproduced in Bulto (2009), p. 304; Azarva (2011), p. 481. 40 See the preamble of the Agreement between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters, 8 November 1959, UNTS, Vol. 453, p. 51.

2.2 Theoretical Bases

23

states. The participation of Ethiopia in the NBI, and in the shared vision of all Nile Basin countries “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources”,41 point to a marked departure from its initial position.42 The Harmon Doctrine has been overwhelmingly rejected by the international community, in the judgments of international and domestic courts, and in the writings of legal commentators.43 In the late nineteenth and early twentieth centuries some commentators occasionally supported the theory of absolute territorial sovereignty; however, on closer examination even they prove to be rather restrained.44 Moving forward to the present, there are no supporters of this doctrine among legal commentators45 and no state has advocated this theory in negotiations on the UN Watercourses Convention.46 One of the limitations of this theory is that it considers the sovereignty of states as absolute, while the sovereignty is always limited by international norms and the sovereignty of other states. The principle of sovereign equality of all states as the guiding principle of the international legal order47 means that all states have equal rights. This principle of equality necessarily, then, prohibits any understanding of sovereignty as absolute that would ignore the rights of downstream riparian states.48 As such, the theory of absolute territorial sovereignty does not provide a suitable approach for reconciling the interests of upstream and downstream countries.

2.2.2

Absolute Territorial Integrity

The counterbalance to the theory of absolute territorial sovereignty is the theory of absolute territorial integrity. According to this theory, an upstream state may not undertake any measures that would substantially affect the natural flow of a

41

NBI, http://www.nilebasin.org (accessed 15 June 2019). See also Bulto (2009), p. 304. 43 The most widely known decision is probably the arbitration award in the Lake Lanoux case, Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281, in the original French. For English translations, see ILR 24 (1957), p. 101 and AJIL 53 (1959), p. 156. English summary of the award in YBILC 1974, Vol. 2, Pt. 2, p. 194. See also Caflisch (1989), pp. 49–50; Caponera (2007), p. 216; Boisson de Chazournes (2005), p. 18; Maḥfūẓ Muḥammad (2009), p. 477. 44 See the historical survey of the views of publicists at McCaffrey (2007), pp. 122–125. 45 Brown Weiss (2007), p. 187; Fitzmaurice (2001), pp. 432–433; Lipper (1967), pp. 22–23; Beyerlin (2000), pp. 54–55; Salman (2007), p. 627; Bulto (2009), p. 304; in the writings of Sudanese commentators for example ‘Alī Ṭāhā (2005), p. 192; in the writings of Egyptian commentators for example Maḥfūẓ Muḥammad (2009), p. 477. 46 McCaffrey (2007), p. 398. 47 See Art. 2, para. 1 Charter of the United Nations. 48 Caponera (2007), p. 216. 42

24

2 Development of International Water Law

watercourse to downstream states without their consent.49 Thus, this theory favors downstream states of a watercourse, in particular any state located at the mouth of a river, by limiting impacts to the flow of water along a river’s course and providing downstream states with something akin to veto power over water usage by states upstream.50 This theory, like the previous one, found no broad support in state practice, in judgments of international or domestic courts, or among legal commentators.51 Some downstream states have invoked this theory in disputes over the non-navigational uses of shared watercourses,52 including the United States in the first half of the twentieth century.53 However, the theory has in practice been mostly used as an argumentation aid, and it has contributed little to solving conflicts of use. Notably among the Nile riparian states, Egypt, as a downstream state, has repeatedly invoked the theory of absolute territorial integrity with regard to the use of the Nile.54 For example, at the Dakar meeting of international river commissions in 1981, the Egyptian delegation argued that the headwaters of a river should not be used in a manner that would affect its water flow downstream: “[A] river’s upper reaches should not be touched lest this should affect the flow of quantity of its water”.55 However, Egypt has not consistently advanced this position, and since the end of the twentieth century it has softened its stance—as was the case with Ethiopia, as detailed above. Egypt’s participation in the NBI and its approval of the shared vision objective seem to indicate a departure from its earlier position. Nevertheless, Egypt does seem to have softened rather than completely abandoned its approach of absolute territorial integrity with regard to the Nile Basin. In the negotiations on the framework agreement for the Nile, both Egypt and Sudan insisted on including provisions guaranteeing the status quo of their existing uses of the Nile water.56 The writings of commentators show that the theory of absolute territorial integrity was supported by some of them in the first half of the twentieth century, if only occasionally.57 Today, however, it is generally rejected as an absolutist approach, of

49 On the theory of absolute territorial integrity, see generally Caflisch (1989), pp. 51–54; McCaffrey (2007), pp. 126–135; Berber (1955), pp. 14 and 19–20; ‘Abd al-Wahhāb (2004), p. 167. 50 See also Caflisch (1989), p. 54; Caponera (2007), p. 216. 51 Caflisch (1989), pp. 52–54; Bulto (2009), p. 306. See also Caponera (2007), p. 216; Godana (1985), p. 39. 52 For a survey of state practice, see McCaffrey (2007), pp. 127–131. 53 Trail Smelter Arbitration (United States v. Canada), 16 April 1938 and 11 March 1941, RIAA III 1949, p. 1905. 54 See also Bulto (2009), p. 306; McCaffrey (2007), p. 129. 55 Country Report Egypt, Interregional Meeting of International River Organizations, Dakar, 5–14 May 1981, para. 3, quoted in McIntyre (2007), p. 21. See also Maḥfūẓ Muḥammad (2009), p. 390. 56 For a detailed discussion see Chap. 8. 57 On the views of publicists, see McCaffrey (2007), pp. 131–133; Godana (1985), pp. 38–39.

2.2 Theoretical Bases

25

limited usefulness.58 Principal objections to this theory are that it disadvantages upstream riparian states, especially if they begin to use their water resources more slowly or at a later date than riparian states downstream.59 Upstream states could even be prevented from developing water usage within their own territory further than an established baseline.

2.2.3

Limited Territorial Sovereignty

Settling in the middle ground between the previous two extreme positions, the theory of limited territorial sovereignty60 is now generally recognized as the most reasonable and practical starting point for determining the rights and obligations of riparian states with regard to an international watercourse.61 According to this theory, each riparian state may freely use the water of a shared river in its territory, provided that the rights and interests of the other riparian states are taken into account.62 The sovereignty of a state over its territory is limited by the obligation not to use it in a manner that would significantly negatively impact on the rights of the co-riparian states.63 The theory of limited territorial sovereignty finds broad support in state practice,64 the decisions of international courts,65 and the views of legal commentators.66 As early as 1957, the arbitral tribunal in the Lake Lanoux dispute based its decision

58

See Caponera (2007), p. 216; Salman (2007), p. 627; Boisson de Chazournes (2005), p. 18; Caflisch (1989), p. 54; Godana (1985), p. 39. 59 McCaffrey (2007), p. 126; Bulto (2009), p. 305. 60 On the theory of limited territorial sovereignty, see generally Caflisch (1989), pp. 55–59; Lipper (1967), pp. 23–38; McCaffrey (2007), pp. 135–147; Berber (1955), pp. 14 and 23–33. 61 McCaffrey (2007), p. 147; Caflisch (1989), p. 55; Lipper (1967), pp. 24–25; Türk (2012), p. 1046; among Egyptian commentators e.g. Maḥfūẓ Muḥammad (2009), p. 477. 62 Caponera (2007), p. 216; ‘Abd al-Wahhāb (2004), p. 167. 63 See Caflisch (1989), p. 55; Berber (1955), pp. 14–15. 64 For an overview of state practice, see McCaffrey (1986), pp. 103–105 and 110–113. 65 The most important decisions include: PCIJ, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.No. 23, p. 27; ICJ, The Corfu Channel Case (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, p. 4; Trail Smelter Arbitration (United States v. Canada), 16 April 1938 and 11 March 1941, RIAA III 1949, p. 1905; Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281; ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 7. A detailed discussion of the decisions can be found at McCaffrey (1986), pp. 113–122; Lipper (1967), pp. 28–30. 66 For an overview of the views of publicists, see McCaffrey (1986), pp. 127–129. See also Lipper (1967), pp. 35–36; Maḥfūẓ Muḥammad (2009), p. 477.

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on this theory.67 This arbitration concerned the diversion of the Spanish-French river Carol by France, which is the upstream state. The tribunal found that “there is a principle which prohibits the upstream State from altering the waters of a river in such a fashion as seriously to prejudice the downstream State”.68 It went on to state that countries must reconcile their conflicting interests through mutual concessions.69 Likewise, expert panels that dealt with the matter supported the theory of limited territorial sovereignty or related approaches and consistently rejected extreme approaches to the law on non-navigational uses of international watercourses. Both the Helsinki Rules of the ILA and the draft articles of the ILC for the UN Watercourses Convention adopted approaches that emphasize the equitable balancing of the competing interests of all riparian states. Legal commentators cite different reasons for this approach. It is often assumed that the principle of sovereignty is inherently limited by the rules of international law, that is, the territorial sovereignty of one state is delimited by the sovereignty of other states. Other commentators explain the theory in terms of the rules of good neighborliness, and derive the rights and obligations of riparian states from the physical unit of a watercourse.70 Another supporting argument for this theory is that it promotes the considering and balancing of divergent interests in the protection and use of both the upstream and downstream states. In doing so, it reflects the interdependence of downstream and upstream riparian states of a watercourse, and also takes into account the international legal integration of states into the international community, which today is much stronger than it was in the nineteenth and early twentieth centuries. As such, the theory of limited territorial sovereignty today forms the basis for the substantive and procedural rights and obligations in international water law.71

67

Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281, in the original French. For English translations, see ILR 24 (1957) p. 101 and AJIL 53 (1959), p. 156. See also McCaffrey (2007), p. 144. 68 English translation in ILR 24 (1957) p. 129, of the original Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 308, para. 13: “il existe un principe interdisant à l’Etat d’amont d’altérer les eaux d’un fleuve dans des conditions de nature à nuire gravement à l’Etat d’aval”. 69 Ibid. 70 For a survey of the different views, see Lammers (1984), pp. 563–569; McCaffrey (2007), pp. 145–146; Berber (1955), pp. 27–32. 71 Brown Weiss (2007), p. 194.

2.2 Theoretical Bases

2.2.4

27

Community of Interest

In addition to the theory of limited territorial sovereignty, the theory of the community of interest serves as a second pillar supporting modern international water law.72 It is considered by legal commentators to be indicative of the development of law and practice with regard to the use of international watercourses.73 The theory is based on the assumption that the natural physical unit of a watercourse establishes a community of interest between its riparian states.74 Accordingly, a river basin needs to be considered as a single economic and geographical unit whose water belongs to the community of the basin states as a whole. The theory is based on the understanding that the optimal use of waters often requires the development of an integrated management concept for the entire basin.75 The community of interest as such does not establish concrete rights and obligations, but rather describes a framework for relations between the riparian states of a shared watercourse.76 The theory of the community of interest has also long been supported by state practice, decisions of international tribunals, and legal commentators.77 Numerous agreements on navigational uses dating back to the eighteenth and nineteenth centuries were based on the idea that the waters of international rivers belong in common to their riparian states.78 Several more recent agreements on international watercourses concluded in the twentieth century also reflect this approach. Explicitly, the 1995 Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) region referred to the community of interest between all riparian states as a “general principle” for water use.79 Likewise, the Nile riparian states have included the community-of-interest theory in the 2010 CFA as one of the “general principles” for the management of the Nile.80 Some commentators even consider the 1959 Nile Waters Agreement between Sudan and Egypt to be an example of a watercourse agreement that incorporates this approach, in the light of its provisions on joint project planning and implementation, with cost sharing.81

72

See Brown Weiss (2013), p. 12. On the theory of the community of interest, see generally Lipper (1967), pp. 38–40. 73 See principally McCaffrey (2007), p. 147. 74 Andrassy (1952), p. 104; see also ‘Abd al-Wahhāb (2004), p. 167. 75 Lipper (1967), p. 38. 76 McCaffrey (2007), pp. 166–168. 77 See for example the survey of views of publicists since Grotius ibid., pp. 156–160. 78 See the survey of state practice ibid., pp. 151–156. 79 See Art. 2, para. 2 Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region (signed 28 August 1995, entered into force 29 December 1998), reproduced in FAO, 1997, p. 146. 80 See Art. 3, para. 9 of the CFA. 81 For example Lipper (1967), pp. 39–40. The Egyptian-Sudanese Nile Waters Agreement of 1959 is discussed in Chap. 6, Sect. 6.2.8.

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As early as 1929, the Permanent Court of International Justice (PCIJ) in its decision in the River Oder case82 concerning rights of navigation on the Oder, which flows through modern-day Czech Republic, Poland, and along the GermanPolish border, drew upon the notion of a community of interest. The Court found that the “community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river”.83 This decision was quoted in a more recent decision of the International Court of Justice (ICJ), in the Gabčíkovo-Nagymaros Project case of 1997 concerning the construction of a barrage system on the Danube. That court stated: “Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly.”84

2.3

Conclusion

Although agreements on the use of transboundary rivers have been concluded for millennia, at the beginning of the twentieth century the rules governing the non-navigational use of transboundary waters were still unclear and highly controversial. The conflict concerned essentially the extent to which riparian states of a shared watercourse are subject to restrictions in its utilization under international law. More specifically, this conflict raised the opposition between the theory of absolute territorial sovereignty and that of absolute territorial integrity. Traditionally, upstream states have often supported an absolute territorial sovereignty in the use of water resources. In contrast, mainly downstream countries have advanced the theory of absolute territorial integrity. A balance between these opposing views has eventually been found in the theory of limited territorial sovereignty. Although the theories of absolute territorial sovereignty and absolute territorial integrity are no longer openly advanced today, many conflicts over water rights involving international watercourses still reflect these viewpoints that downstream and upstream countries traditionally held. Especially along the Nile, these two theories were vigorously adhered to for a long time. Modern international water law is based on the theories of limited territorial sovereignty and the community of interest, assuming a watercourse’s riparians 82

PCIJ, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.-No. 23, p. 27. See the discussion of this judgment at McCaffrey (2007), pp. 148–150. 83 PCIJ, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.-No. 23, p. 27. 84 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 56, para. 85.

References

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constitute a community of interest. From these theories are derived the key principles of international water law.

References ‘Abd al-‘Āl MS (2010) Al-intifā‘ al-munṣif bi-miyāh al-anhār ad-dawlīya ma‘ īšāra ḫāṣa li-ḥāla nahr an-Nīl (The equitable utilization of the water of international rivers with particular reference to the case of the Nile). Cairo (Arabic) ‘Abd al-Wahhāb ĀaS (2004) Miyāh an-Nīl fī s-siyāsa al-miṣrīya (Nile water in Egyptian politics). Markaz ad-Dirāsāt as-Siyāsīya wa-’l-Istrātīǧīya, Cairo (Arabic) ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Andrassy J (1952) Les relations internationales de voisinage. Recueil des Cours 1951. The Hague Academy of International Law, The Hague Arsano Y (2007) Ethiopia and the Nile: dilemmas of national and regional hydropolitics. ETH, Zurich Azarva JD (2011) Conflict on the Nile: international watercourse law and the elusive effort to create a transboundary water regime in the Nile Basin. Temple Int Comp Law J 25:457–498 Berber FJ (1955) Die Rechtsquellen des internationalen Wassernutzungsrechts. R. Oldenbourg Verlag, Munich Beyerlin U (2000) Umweltvölkerrecht. C.H. Beck Verlag, Munich Beyerlin U, Marauhn T (2011) International environmental law. Hart, Oxford Boisson de Chazournes L (2005) Eaux internationales et droit international: vers l’idée de gestion commune. In: Boisson de Chazournes L, Salman S (eds) Les ressources en eau et le droit international. Martinus Nijhoff Publishers, Leiden, pp 3–43 Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford Brown Weiss E (1999) Understanding compliance with international environmental agreements: the Baker’s Dozen Myths. Univ Richmond Law Rev 32:1555–1589 Brown Weiss E (2007) The evolution of international water law. Recueil des Cours 331. The Hague Academy of International Law, The Hague Brown Weiss E (2013) International law for a water-scarce world. The Hague Academy of International Law Monographs, vol 7. The Hague Academy of International Law, Leiden Bruhács J (1993) The law of non-navigational uses of international watercourses. Martinus Nijhoff Publishers, Dordrecht Bulto TS (2009) Between ambivalence and necessity: occlusions on the path towards a basin-wide treaty in the Nile Basin. Colorado J Int Environ Law Policy 20:291–320 Caflisch L (1989) Règles générales du droit des cours d’eau internationaux. Recueil des Cours 219. The Hague Academy of International Law, The Hague Caflisch L (1998) Regulation of the uses of international watercourses. In: Salman S, Boisson de Chazournes L (eds) International watercourses: enhancing cooperation and managing conflict. Proceedings of a World Bank Seminar. World Bank Technical Paper No. 414. Washington D.C. 1998, pp 3–16 Caponera DA (2007) Principles of water law and administration: national and international, 2nd edn. Taylor & Francis, London FAO (1978) Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, vol 1. Legislative Study 15. Rome FAO (1984) Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, vol 2. Legislative Study 34. Rome Fitzmaurice MA (2001) International protection of the environment. Recueil des Cours 293. The Hague Academy of International Law, The Hague

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Godana BA (1985) Africa’s shared water resources: legal and institutional aspects of the Nile, Niger and Senegal River Systems. F Pinter, London Hafner G (1993) The optimum utilization principle and the non-navigational uses of drainage basins. Austrian J Public Int Law 45:113–146 Lammers JG (1984) Pollution of international watercourses: a search for substantive rules and principles of law. Martinus Nijhoff Publishers, The Hague Lipper J (1967) Equitable utilization. In: Garretson AH, Hayton RD, Olmstead CJ (eds) The law of international drainage basins. Oceana Publications, New York, pp 15–88 Mager U (2015) International water law – global developments and regional examples. Miscellanea Juridica Heidelbergensia. Jedermann Verlag, Heidelberg Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) McCaffrey SC (1986) Second report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/399 McCaffrey SC (1991) Seventh report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/436 McCaffrey SC (1996) The Harmon Doctrine one hundred years later: buried, not praised. Nat Resour J 36:949–590 McCaffrey SC (2007) The law of international watercourses. Oxford University Press, Oxford McIntyre O (2007) Environmental protection of international watercourses under international law. Routledge, London Nanda VP, Pring G (2013) International environmental law and policy for the 21st century, 2nd edn. Martinus Nijhoff Publishers, Leiden Nussbaum A (1950) A concise history of the law of nations. Macmillan, New York Rieu-Clarke A (2013) International freshwater law. In: Alam S, Bhuiyan J, Chowdhury T, Techera E (eds) Routledge Handbook of International Environmental Law. Routledge, London, pp 243–257 Salman SMA (2007) The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: perspectives on international water law. Water Resour Dev 23:625–640 Türk H (2012) Water in the contemporary world. In: Hestermeyer H, König D, Matz-Lück N, Röben V, Seibert-Fohr A, Stoll P, Vöneky S (eds) Coexistence, cooperation and solidarity: Liber Amicorum Rüdiger Wolfrum. Martinus Nijhoff Publishers, Leiden, pp 1037–1064 UNEP (2012) Global Environment Outlook 5 – environment for the future we want. Valletta Whiteman M (1964) Digest of International Law, vol 3. U.S. Department of State, Washington Wick E (2013) Advantages of marketable water rights in the Euphrates and Tigris Basin. In: Kibaroglu A, Kirschner A, Mehring S, Wolfrum R (eds) Water law and cooperation in the Euphrates-Tigris region: a comparative and interdisciplinary approach. Martinus Nijhoff Publishers, Leiden, pp 119–143 Wolfrum R, Kirschner A (2013) A survey of challenges and trends in the context of international water law. In: Kibaroglu A, Kirschner A, Mehring S, Wolfrum R (eds) Water law and cooperation in the Euphrates-Tigris region: a comparative and interdisciplinary approach. Martinus Nijhoff Publishers, Leiden, pp 3–19

Chapter 3

Customary Principles of International Water Law

The principles of customary international law continue to be of particular importance in international water law, in particular for the large majority of states—including the Nile riparian states—that have not yet acceded to the UN Watercourses Convention. International custom is one source of international law, with the others being international conventions and the general principles of law.1 Customary international law consists of the agglomerated rules that are derived from general and consistent state practice accepted as law.2 Subsidiary means for the determination of rules of law are judicial decisions and the teachings of the most highly qualified publicists.3 In international water law, both substantive and procedural customary rights and obligations have evolved based on the principles of international environmental law. At the core of international water law lie the principle of equitable and reasonable utilization, the no-harm rule, and the obligation to notify planned measures.4 Additional key principles take the form of four general obligations: to protect international watercourses and their ecosystems, to cooperate, to consult, and to regularly exchange data and information. The following sections discuss the principles of international water law and their binding nature.

1

Art. 38, para. 1 of the Statute of the International Court of Justice. On the formation of customary international law, see generally Mendelson (1998), pp. 155–410. 3 Such judicial decisions include those of the ICJ, ICC, and ITLOS as well as judgments of international arbitral tribunals and international law-related decisions of national courts. The views of the most highly qualified publicists include, inter alia, the reports of international codification bodies, in particular the ILC, the Institute of International Law, and the ILA, see Birnie et al. (2009), pp. 28–29. 4 See McCaffrey (2007a), p. 415; Baker Röben (2000), pp. 293–294. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_3

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3.1

3 Customary Principles of International Water Law

Substantive Principles

Since every riparian state has the right to use a shared watercourse based on the theory of limited territorial sovereignty, each one’s respective share of the uses needs to be determined.5 First and foremost, this determination is guided by the principle of equitable and reasonable utilization, complemented by the no-harm rule.6 In case of a conflict of uses, these are the primary guides for the parties to find a mutually agreed solution.7 In this regard, the obligation of the riparian states to protect the watercourse and its ecosystems are also to be taken into account.

3.1.1

Principle of Equitable and Reasonable Utilization

The principle of equitable and reasonable utilization of a transboundary watercourse is part of customary international law, and is generally considered the core principle of international water law.8 It aims to balance the uses and protect the interests of all riparian states of a transboundary watercourse. Each riparian state must behave in such a manner that allows equitable and reasonable use for all the others. Traditionally, this principle has been understood as a primarily resource-based approach regulating the quantitative allocation of water resources between riparian states.9 However, the principle does not just focus on how much of a watercourse’s resources will be used, but also encompasses the manner of that use. Hence, it needs to be understood as a more holistic concept that incorporates aspects of both allocation and protection of the waters.10 In the Pulp Mills case in 2010, the ICJ confirmed that environmental protection of the river must be taken into account alongside the interests of the co-riparian states in order to achieve an equitable and reasonable utilization of a watercourse.11 Judgments of national courts, the work of international codification bodies, and treaty practice contributed to the evolution of this basic principle. Its early development draws from court judgments concerning use conflicts in federal states such as 5

Lipper (1967), p. 41. Boisson de Chazournes (2013), p. 30; Caflisch (1998), p. 13. 7 See Art. 10 UN Watercourses Convention. 8 See e.g. Caponera (2007), p. 193; McCaffrey (2007a), pp. 384–385; Caflisch (1998), p. 13; RieuClarke (2013), p. 251; Benvenisti (1997), pp. 270–271; Nanda and Pring (2013), p. 329; Le Floch (2010), p. 488; Godana (1985), p. 50. Among Egyptian publicists, see for example ‘Abd al-‘Āl (2010), p. 125; Kaška (2006), p. 93. 9 Nanda and Pring (2013), p. 35. 10 McCaffrey (2007a), p. 385. See for example Art. 5, para. 1 UN Watercourses Convention, according to which riparian states are to use and develop an international watercourse in an equitable and reasonable manner “consistent with adequate protection of the watercourse”. 11 See ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 75, para. 177. This case concerned the construction of pulp mills on the Uruguay River. 6

3.1 Substantive Principles

33

Switzerland,12 the United States,13 and Germany.14 The ILA, in drafting the Helsinki Rules15 in 1966, was the first to adopt the principle of equitable and reasonable utilization at the international level as the fundamental principle for the use of international watercourses. This played a significant role in shaping the general formulation of the concept.16 The principle has subsequently been codified in the UN Watercourses Convention17 and recently confirmed by the ICJ in both the Gabčíkovo-Nagymaros Project case18 and the Pulp Mills case19 as the fundamental norm of international water law.20 It has also since been included in numerous bilateral and multilateral watercourse agreements.21

3.1.1.1

Derivation

The principle of equitable and reasonable utilization of transboundary watercourses can be derived from the theory of limited territorial sovereignty.22 The right of use resulting from the territorial sovereignty of a state can be limited by the rights of other riparian states where inequitable use by the former adversely affects the

12

For a discussion of two judgments of the Swiss Federal Tribunal involving disputes between cantons over their sovereignty of shared rivers on 12 January 1878 (Zürich v. Aargau) and 9 December 1892 (Aargau v. Solothurn), see Schindler (1921), pp. 169–172. 13 U.S. Supreme Court, Kansas v. Colorado, 206 U.S. 46 (1907). 14 Donauversinkung case (Württemberg and Prussia v. Baden), Judgment of the German Constitutional Court (Staatsgerichtshof) of 18 June 1927, RGZ 116, Annex p. 18, in the original German. For the English translation, see Ann. Digest of Pub. Int’l L. Cases, 1927–1928, Vol. 4, p. 128. 15 ILA, Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference held at Helsinki 1966, 1967, p. 477. 16 Caponera (2007), p. 201. 17 See Art. 5, para. 1 UN Watercourses Convention. 18 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 56, para. 85 and p. 80, para. 147. Detailed discussion of the judgment at McCaffrey (2002), pp. 1059–1068. 19 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 75, para. 177. 20 The first implicit judicial recognition of the principle at the international level is often seen in the decision of the PCIJ in the Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.-No. 23, p. 27. On the implicit recognition of the principle in this judgment, see Brown Weiss (2007), p. 198. 21 See for example Art. 2, para. 2(c) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, UNTS, Vol. 1936, p. 269; Art. 5 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Art. 3, paras. 7 and 8 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. Detailed survey of the treaties at Schwebel (1981), pp. 65, 78–82, paras. 58–72. 22 McCaffrey (2007a), p. 144.

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territorial integrity of the latter. The principle of equitable and reasonable utilization is based on the idea that transboundary watercourses must be used in such a manner that an equitable and reasonable use is equally possible for all riparian states. The starting point is the notion of the equality of rights, that is, all riparian states of a shared watercourse have generally equal rights with regard to its use within their territory.23 This does not mean that every state has a right to an equal share of the water; rather, every state has an equal right to an equitable share of the uses of a watercourse and the benefits derived from it, including not only the actual water but also, for example, the possibility to generate electricity using hydropower.24

3.1.1.2

Legal Scope

Although the principle of equitable and reasonable utilization is generally accepted today, the precise definition of its normative content in detail, and thus its application, remain difficult in practice. The principle is intended to provide a flexible framework that allows for a more concrete determination of the use allocation for a particular watercourse.25 The broadly conceived principle is necessarily open to interpretation and allows the balancing of specific circumstances for any particular case to which it is applied.26 The undefined legal concepts “equitable” and “reasonable” need to be further specified for each application. To date these terms have not been specified by state practice. Whether the use by a riparian state is equitable and reasonable is to be determined through a comprehensive consideration of all relevant factors and circumstances of the particular case. For this purpose, it is necessary first of all to identify the relevant factors and circumstances to be taken into consideration in the specific case. Exemplary enumerations of the generally recognized relevant factors and circumstances are contained in Article 6 of the UN Watercourses Convention and Article V of the Helsinki Rules. These factors include geographic, hydrological and other factors of a natural character, the population dependent on the watercourse along with its social and economic needs, conservation and development measures, the economy of use of the water resources, existing and potential uses and their impact on other riparian states, as well as the availability of equivalent alternatives to a particular use.27 However, this list of contributing factors is not exhaustive, nor are all factors always 23 See Lipper (1967), p. 44. The principle of the equality of rights was recognized by the PCIJ in its 1929 decision in the River Oder case, and it has recently been confirmed for non-navigational uses by the ICJ in the Gabčíkovo-Nagymaros Project case. See PCIJ, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.-No. 23, p. 27; and ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 56, para. 85. 24 McCaffrey (2007a), p. 391. 25 Godana (1985), p. 66. 26 Matz-Lück (2009), p. 134. 27 See Art. 6, para. 1 of the UN Watercourses Convention.

3.1 Substantive Principles

35

relevant to the specific case being considered.28 The relevant factors and their significance can vary considerably from case to case.29 This not only applies between different watercourses, but can occur for a single watercourse with the passage of time. When balancing the factors, all kinds of uses of a watercourse are to be considered as in principle having abstractly equal ranking; no use enjoys inherent priority over another. Nonetheless, it has long been controversial whether particular uses should be exceptions and granted particular weight. One such possible exception, namely existing uses, continues to be a source of controversial discussion. In particular with the Nile, the extent of such uses’ protection constitutes one of the main points of contention among the riparian states.30 Egypt and Sudan claim “acquired and historical rights” to the Nile water, based on their millennia-long regular use of the Nile. They demand that existing uses not be affected,31 in effect insisting that they be given absolute protection. Such an absolute protection of existing uses would be guaranteed under the doctrine of prior appropriation. According to this doctrine, the first user of a shared watercourse who makes beneficial use of the water has a priority right to the amount of water used. The doctrine of prior appropriation has a long tradition in national water legislation in some countries, especially in the western United States.32 However, this approach raises particular problems in that it could provoke a race among riparian states to use a shared watercourse, aiming to secure use rights rather than to achieve an overall optimal use of the river by all riparian states. The prior appropriation doctrine clearly rewards the first user while riparian states who want to begin or intensify their water uses at a later stage would be disadvantaged. This could lead to a country being permanently prevented from further using a watercourse, with all the economic and developmental consequences that entails. In short, the doctrine of prior appropriation does not take into account the optimal use of the river basin as a whole.33 Claims such as these have little support in state practice, with the notable exception of Egypt.34 Within the customary principle of equitable and reasonable utilization, existing uses are only one of several abstractly equal factors that must be

28 Fuentes and McIntyre discuss additional factors that may be relevant in a particular case, for instance traditional practices of native peoples using the land and water in a river basin, see Fuentes (1996), pp. 373–374; McIntyre (2007), pp. 186–88. 29 McCaffrey (2007a), p. 401. 30 For details on the question of special protection for existing uses, see Caflisch (1989), pp. 158–160; Fuentes (1996), pp. 356–357. 31 See for example Maḥfūẓ Muḥammad (2009), p. 389, citing further references, and pp. 478–479. 32 For details on the doctrine of prior appropriation, see Brown Weiss (2013), pp. 16–21; Brown Weiss (2007), pp. 189–194. 33 Caflisch (1989), p. 159; McCaffrey (2007a), p. 397. 34 McCaffrey (2007a), p. 398. For detailed analysis of treaty practice with regard to the preferential protection of existing uses, see Reinicke (1991), pp. 161–162.

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taken into account when assessing what is an equitable use.35 As previously noted, over the course of time the optimal use of a watercourse may change. For example, the benefits of existing uses may become less important compared with new kinds of use as a state moves from an agriculture-based economy to a more industrialized one. The principle of equitable utilization readily adapts to take into account changing circumstances and apply the use regime accordingly. Consequently, existing uses enjoy neither absolute protection under international law nor inherent priority over new uses and other factors. The extent to which they are protected must be determined within the context of balancing all the case-specific relevant factors and circumstances.

3.1.1.3

Equitable and Reasonable Utilization as a Continuous Process

Establishing an equitable and reasonable utilization regime will not result in a static condition. Rather, such an outcome is determined by the continuous comparison of the respective uses by the states concerned and is therefore to be best understood as an ongoing process. From this it follows that, to maintain this equitable and reasonable utilization, the continuous, active cooperation of the states concerned is required.36 This is not least because many of the factors to be taken into account for an equitable utilization relate to data and information that needs to be gathered, provided, and regularly updated by co-riparian states. The principle of equitable and reasonable utilization, in conjunction with the obligation to prevent harm and acting in good faith, also implies that a state is not free to unilaterally increase its use of the watercourse simply by virtue of the absence of any protest by another riparian state, even until such protest is made. Rather, each state must exercise due diligence to prevent depriving other co-riparian states of their equitable shares.37 Any new use in the territory of one of the riparian states can influence the balance of the use allocations among all riparian states and should therefore be subject to notification, consultation, and, if necessary, negotiation. This applies equally to uses by both upstream and downstream states. Uses by upstream states can frequently have physical effects on uses downstream; this rarely occurs the other way around, except for dams, but uses downstream can have notable legal impacts on uses upstream by influencing the use allocation.38 In this respect, the procedural obligations to notify, consult and negotiate, which are discussed below, complement the principle of equitable and reasonable utilization.

35

See also the codification of this principle in Art. 6 of the UN Watercourses Convention. The Convention thereby subordinates the doctrine of prior appropriation to the broader concept of equitable use, Brown Weiss (2007), p. 193; Azarva (2011), p. 485. 36 McCaffrey (2007a), p. 403. 37 Ibid., pp. 402–403. 38 See also ibid., p. 405.

3.1 Substantive Principles

3.1.2

37

Obligation Not to Cause Significant Harm

The obligation of one state to not cause significant harm to another, the no-harm rule, is one of the most fundamental principles in international law.39 It is generally recognized internationally that no state may use or permit uses on its territory that cause significant harm in the territory of another state.40 A ground-breaking moment for the formulation of the no-harm rule was the Trail Smelter award on transboundary smoke from a Canadian smelter impacting US territory, in which the arbitral tribunal emphasized the following: [U]nder the principles of international law [. . .] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.41

Within the law of international watercourses, this principle contains implications for both the allocation of the uses of shared watercourses, and for their environmental protection.42 The no-harm rule has unrestricted applicability for environmental protection; however, for use allocation, it has largely lost its significance in this absolute form.43 Many watercourses’ resources are being used to the maximum of their capacity, or even beyond; thus any new or increased use would per se affect existing uses and for this reason alone would be prohibited. For the allocation of uses between competing uses and users, therefore, the no-harm rule has had to be tempered by combining it with a new positive allocation rule, namely the principle of equitable and reasonable utilization discussed above.44 The applicability of the no-harm principle for international water law has been confirmed by international and national courts, treaties, and state practice. Important decisions confirming its applicability were given in both the Lake Lanoux arbitration45 and the Gut Dam case.46 Additional support has also been forthcoming from

39

Nanda and Pring (2013), p. 23. Wolfrum (2000), p. 7; Caponera (2007), p. 193; Caflisch (1998), p. 16; Nanda and Pring (2013), p. 329; Le Floch (2010), p. 488; among Egyptian commentators for example Maḥfūẓ Muḥammad (2009), p. 487. 41 Trail Smelter Arbitration (United States v. Canada), 16 April 1938 and 11 March 1941, RIAA III 1949, p. 1905, 1965. See also Wolfrum (1990), pp. 309–400. Discussion of the Trail Smelter case at Madders (1981), pp. 276–280. 42 Caflisch (1998), p. 13; Bulto (2009), p. 314. 43 Caflisch (1989), p. 161. 44 See also Caflisch (1998), p. 13. 45 Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281, in the original French. For English translations, see ILR 24 (1957) p. 101 and AJIL 53 (1959), p. 156. 46 Settlement of Gut Dam Claims (United States v. Canada), ILM 8 (1969) (Lake Ontario Claims Tribunal), p. 118. This case concerned claims of the United States for erosion damage on the banks of the Great Lakes after the disruption of a dam in Canada. 40

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judgments of national courts47 issued in disputes over the uses of shared rivers, where the no-harm rule has figured prominently in rulings.48 Subsequent treaty practice has confirmed this principle; the no-harm rule has been enshrined in numerous agreements on international watercourses and codified for international water law in the UN Watercourses Convention.49

3.1.2.1

Derivation

The theoretical basis of the no-harm rule for the use of transboundary watercourses, like that of the principle of equitable and reasonable utilization, is the theory of limited territorial sovereignty.50 The sovereignty of a state to use water within its own territory is curtailed by the duty not to cause serious injury to the other riparian states. Additionally, the principle of good neighborliness, the doctrine of abuse of rights, and the maxim sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another) are also considered as underpinning the no-harm rule.51

3.1.2.2

Concept of the No-Harm Rule in International Water Law

The no-harm rule establishes an obligation of due diligence in the use of transboundary waters. Riparian states are required to take all appropriate measures to prevent causing significant harm to other riparian states.52 This is based on what can reasonably be expected from the state concerned in the given circumstances according to recognized international or regional standards.53 However, the exact criteria and by extension the scope of the no-harm rule are still unclear in many respects. 47

See e.g. the judgment of the German Constitutional Court (Staatsgerichtshof) in the Donauversinkung case of 18 June 1927, Württemberg and Prussia v. Baden, RGZ 116, Annex p. 31, transl. in Ann. Digest of Pub. Int’l L. Cases, 1927–1928, Vol. 4, p. 128. Having affirmed the applicability of the generally accepted rules of international law to the relationship between the states of Germany, the court stated regarding the general principles of international law concerning international watercourses: “Each State is limited in the exploitation of a shared river on its territory by the principle of international law that it may not violate any other member of the international community. [. . .] No state may significantly affect the other in the exploitation of a watercourse that nature has made possible. This view has been increasingly followed in international relations.” 48 For a survey of relevant judicial decisions, see McCaffrey (2007a), pp. 419–423. 49 Art. 7, para. 1 UN Watercourses Convention. 50 For example, Brown Weiss (2007), p. 194; McCaffrey (2007a), pp. 143–144. 51 On the different underlying principles of the no-harm rule for the use of transboundary watercourses, see Caflisch (1989), pp. 135–136; Schwebel (1981), pp. 92–98; Bruhács (1993), p. 122; Nanda and Pring (2013), p. 23; Andrassy (1952), pp. 104–105. 52 See also the codification of the no-harm rule in Art. 7 of the UN Watercourses Convention. 53 McCaffrey (2007a), pp. 444–445.

3.1 Substantive Principles

39

First of all, there must be some transboundary harm or a risk that such harm will occur.54 Such harm can be of either a factual or legal nature. It can be caused by a variety of impacts upon the natural environment, such as pollution, interventions in the flow regime, or increased sedimentation due to deforestation upstream. However, the no-harm rule covers not only factual harm to a downstream state caused by measures upstream, but also cases where new uses in one riparian state change the balance of the use allocation. The rule’s applicability here stems from new uses restricting the potential uses of other riparian states under the principle of equitable and reasonable utilization.55 Hence, even an upstream country can suffer harm in that its existing or future uses can be restricted by a co-riparian state downstream. The harm in this sense then has to be viewed as being that legal restriction. Furthermore, not every harm is considered as impinging upon the rule, but only harm classed as significant.56 The significance of harm seems to be generally recognized today as the threshold for when the causing of harm constitutes a contravention of public international law.57 Determining when harm is to be considered as significant depends on the circumstances of the particular case58 and the significance is to be assessed from the point of view of the affected state. The potential level of damage must be taken into account as the more severe it is estimated to be, the lower the requirements regarding its probability.59 Some Egyptian commentators reject this significance threshold, arguing that, contrary to the codification of the principle in the UN Watercourses Convention, there should be no threshold for the severity of harm but rather the causing of any harm should be prevented.60 This view also underlies Egypt’s proposal in the negotiations on the framework agreement for the Nile to protect current uses.61 In essence, advocating this position reverts to the approach of absolute territorial integrity. 54

Wolfrum (2000), pp. 28–29. For detail on the notion of harm, see McCaffrey (2007b), pp. 785–791. For a discussion of harm in the form of a foreclosure of future uses by downstream riparian states initiating new uses, see Salman (2010). 56 See also Art. 7 UN Watercourses Convention. The Drafting Committee of the General Assembly for the UN Watercourses Convention stated, on the question of when a “significant adverse effect” is to be assumed: “While such an effect must be capable of being established by objective evidence and not be trivial in nature, it need not rise to the level of being substantial.” Report of the Sixth Committee convening as the Working Group of the Whole, UN Doc. A/51/869, GAOR, 51st Sess., 11 April 1997, Agenda item 144, para. 8 “Statements of understanding: As regards Article 3(b)”. 57 Handl (2007), pp. 535–536; Nanda and Pring (2013), pp. 314–315. In the following, it is assumed that the question of the threshold is not governed by an applicable treaty. 58 Nollkaemper (1993), p. 63. 59 See also Handl (2007), p. 539. 60 See Maḥfūẓ Muḥammad (2009), p. 480, citing further references. 61 See the formulation proposed by Egypt for Art. 14(b) of the CFA, according to which the Nile riparian states would agree “not to adversely affect the water security and current uses and rights of any other Nile Basin State”. For a detailed analysis of the proposed clause, see Chap. 8, Sects. 8.2.4 and 8.2.9. 55

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Lastly, there must be a causal link between the state conduct in question and the occurrence of harm in another riparian state. The question of causation is not limited to the direct use of the watercourse. Measures that are not directly related to the watercourse, such as deforestation, can, via the watercourse, cause harmful effects in another state, for example increased flooding. Therefore, it is argued that it would be too restrictive to limit the definition of a potential harmful event to conduct directly related to water uses.62

3.1.2.3

Relationship Between the No-Harm Rule and the Principle of Equitable and Reasonable Utilization

The relationship between these two core principles has long been the most controversial issue in international water law. Generally, upstream states favor the principle of equitable and reasonable utilization, allowing more flexibility for new uses of a watercourse, especially where the watercourse is already being used extensively by downstream states. Conversely, downstream states, by and large, subscribe to the no-harm rule because they believe that it gives them and their existing uses greater protection.63 The relationship between the two principles has also been highly controversial among the Nile riparian states. In particular Egypt and Ethiopia have represented opposed positions on this issue. Egypt has considered that the prohibition to cause significant harm precedes the principle of equitable and reasonable utilization.64 Ethiopia, on the other hand, has held the view that the principle of equitable and reasonable utilization should be seen as the fundamental principle which takes precedence over the no-harm rule.65 The relationship between these two principles was controversial during the deliberations within the ILC on the draft articles for the UN Watercourses Convention. The text finally adopted for the draft articles—as well as the UN Watercourses Convention itself—gives priority to the principle of equitable and reasonable utilization over the no-harm rule.66 This priority of the principle of equitable and 62

McCaffrey (2007a), pp. 409–500. McCaffrey also points out that the wording of the no-harm rule in Art. 7, para. 1 of the UN Watercourses Convention seems to be too narrow, since it merely obliges states to take all appropriate measures “in utilizing an international watercourse” to prevent the causing of significant harm to other watercourse states. 63 Freestone and Salman (2007), p. 351. 64 See for example the Egyptian delegation during the negotiation and vote on the UN Watercourses Convention, UN GAOR, Sixth Committee, 51st Sess., 62nd meeting, UN Doc. A/C.6/51/SR.62/ Add. 1 (1997), pp. 3–4, paras. 9–10. Among Egyptian commentators, see Maḥfūẓ Muḥammad (2009), pp. 335 and 480, citing further references. On the Egyptian position regarding the relationship between the two principles, see Kaška (2006), p. 98. 65 See especially the Ethiopian statement in the vote on the UN Watercourses Convention in the United Nations General Assembly, UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/ PV.99 (1997), pp. 10–11. 66 This is the majority view of the commentators on the UN Watercourses Convention, see e.g. Bourne (1997), pp. 224–225; McCaffrey (2007a), p. 366; Rieu-Clarke and Loures (2009),

3.1 Substantive Principles

41

reasonable use appears to also be supported by the ICJ. Shortly after the adoption of the UN Watercourses Convention in 1997, the Court confirmed this principle in both the Gabčíkovo-Nagymaros Project case67 and the Pulp Mills case68 as the fundamental norm of international water law. This position is similarly reflected in the writings of most publicists today.69 The principle of equitable and reasonable utilization is considered to be the guiding principle, within which harm represents one of the possible factors to be considered within the balancing process70; although in this regard it is noted that equitable and reasonable use does not take into account factual harm per se, but rather legal injury, namely the withholding of a state’s equitable share in the use of the watercourse.71 It follows that, with regard to international watercourses, it is not the causing of significant harm per se but rather the inequitable causing of significant harm that is prohibited. The conduct of a state which causes even significant harm may, under certain circumstances, actually be equitable and therefore must be accepted by the affected state.72 Hence, instead of a blanket prohibition on the causing of harm as such, the particular circumstances are to be taken into account in a comprehensive manner. An upstream state may thus commence new uses in accordance with the principle of equitable and reasonable utilization, even if they cause harm to a downstream state, as long as such harm is not so substantial that the new uses become inequitable. However, in the case of an existing intensive use of the watercourse by a downstream country, any consideration of all relevant factors and circumstances for equitable utilization will usually lead to restrictions on upstream co-riparian states in new uses and development of the watercourse.73

p. 190; Rieu-Clarke (2013), p. 253. But see Fitzmaurice (2001), pp. 439–440. For a detailed discussion of the codification of both principles in the UN Watercourses Convention, see Chap. 4, Sect. 4.1.1.2 under “General principles”. 67 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, for example p. 56, para. 85 and p. 80, para. 147. 68 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 75, para. 177. However, the ICJ did not use the opportunity in this case to develop on the relationship between the procedural and substantive obligations. For a critical assessment on the relativization of the procedural requirements by the ICJ, see Al-Khasawneh and Simma, who also criticize the handling by the ICJ of complex technical facts, Al-Khasawneh and Simma, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, ICJ Reports 2010, p. 108. 69 For example, Wouters (2000), p. 502; McCaffrey (2007a), pp. 406–407; Caflisch (1997), p. 798; Nollkaemper (1996), pp. 55–56; Rieu-Clarke (2013), pp. 251–252; Abseno (2009), p. 91. Some commentators deny any competition between the two principles and consider the no-harm rule as an integral part of the principle of equitable utilization, see among Sudanese publicists for example ‘Alī Ṭāhā (2005), pp. 120–121. 70 Baker Röben (2000), p. 301; McCaffrey (2007a), pp. 406–407. 71 McCaffrey (2007a), p. 388. See also Baker Röben (2000), p. 301. 72 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 103, para. 2. 73 McCaffrey (2007a), p. 412.

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Prioritizing the no-harm rule, on the other hand, can lead to permanently denying some riparian states any new use of the watercourse. If a downstream state uses a shared watercourse, for example for irrigated agriculture or for hydroelectric power generation, any new use upstream could significantly affect these existing uses and thus be prohibited under this principle.74 As a result, any upstream states that have not yet developed their water-use potential could be permanently hindered from new or expanded uses of a transboundary watercourse in their territory. The situation in the Nile Basin provides an illustration of this situation. The Nile Basin is a closed basin, since its water is already entirely used by Egypt and Sudan. Therefore, any further reduction in the river flow reaching these countries would cause harm to them. If the no-harm rule were to take precedence, this would imply that virtually any new upstream use that reduces the Nile’s flow would be prohibited. The riparian states upstream that are developing later in economic terms—especially Ethiopia, which has thus far barely used the Blue Nile but now strives to do so—would be hindered in their economic development. In summary, it can be noted that for the allocation of water uses along a transboundary watercourse, the no-harm rule is to be included as one relevant factor to be taken into account in the comprehensive consideration of the relevant factors and circumstances within the framework of the principle of equitable and reasonable utilization. Indeed, the no-harm rule would only be violated if one state were to incur significant harm through an activity in another state where the latter could have prevented the harm, and the conduct or use causing the harm is inequitable under the given circumstances.75

3.1.3

Obligation to Protect International Watercourses and Their Ecosystems

There is also an emerging customary obligation in international water law to protect international watercourses and their ecosystems as a whole.76 Although this obligation has been described as new or emerging, its essential elements are already a part of international environmental law. From international environmental law flow the obligations to prevent new or potential sources of significant pollution and to control the existing pollution of an international watercourse.77

74

See also Nollkaemper (1996), pp. 56–57. If a riparian state has suffered or is likely to suffer significant harm as a result of the conduct of another riparian state, procedurally, the latter must produce exonerating evidence. It would have to prove that it has fulfilled its duty of care to prevent the harm and that its use is equitable and reasonable. McCaffrey (2007a), p. 399. 76 Nanda and Pring (2013), p. 330. 77 Ibid. 75

3.1 Substantive Principles

43

In addition to this general obligation of environmental protection, the precautionary principle as recognized in international environmental law has meanwhile been recognized in international water law as well.78 This principle requires states to take preventive measures to avert potential transboundary effects of dangerous substances, even if a causal relationship between these substances and the potential transboundary effects has not yet been scientifically demonstrated.79 The obligation to protect international watercourses and their ecosystems reflects progress in the scientific knowledge concerning the multi-faceted interrelationships within environmental systems.80 Today, it is generally considered that the entire ecosystem of a watercourse is to be included in the efforts to protect and conserve it.81 In the face of increasing environmental problems, there is an urgent need to integrate aspects of environmental sustainability more closely into international water law and its allocation principles.82 Consequently, international water law is developing toward providing a framework for both river basin development and environmental management. Even though the focus of international water law is still principally on the development and use of transboundary river basins, it has gradually begun to also incorporate the idea of ecosystem protection.83 In the Gabčíkovo-Nagymaros Project case, the ICJ made it clear that it measures state behavior against new norms and standards of environmental law and requires that these new norms are also observed with regard to already existing projects.84 In addition, in its decision in the Pulp Mills case in 2010, the Court confirmed that the principle of prevention is part of customary international law relating to the environment.85

78

Nollkaemper (1993), p. 70; McIntyre (2007), pp. 265–266. Hey (1992), pp. 305–306; Nollkaemper (1993), pp. 71–72; Bodansky (1991), pp. 413–414. See also the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the United Nations Economic Commission for Europe (UNECE Water Convention), which anchors the precautionary principle for transboundary water pollution in Art. 2, para. 5(a) in conjunction with Art. 2, paras. 1 and 2. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, ILM 31 (1992), p. 1312. 80 McCaffrey (2007a), p. 461. 81 See chiefly Agenda 21, Chap. 18, paras. 18.35–18.36; and UN GAOR A/RES/S-19/2, 28 June 1997, Programme for the Further Implementation of Agenda 21, Annex, p. 19, para. 34(a). On ecosystem integrity in international water law, see Tarlock (1996), pp. 199–208; Abramovitz (1996), p. 77. 82 Tarlock (1996), p. 186. 83 Ibid., pp. 182 and 196. However, these new rules essentially deal with the prevention of water pollution and thus remain incomplete, see ibid., p. 197. 84 See ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 78, para. 140. 85 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, pp. 55–56, para. 101. The Court again confirmed this finding in ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, p. 706, para. 104. 79

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The UN Watercourses Convention, as well as a number of recent bilateral and multilateral agreements concerning international watercourses,86 contain provisions on environmental protection affirming an obligation to protect international watercourses and their ecosystems.87 The adoption of this by the UN Watercourses Convention in particular has strengthened the role of environmental aspects in the management of transboundary water resources.88 While the Convention recognizes the protection of a watercourse as an element of its equitable and reasonable utilization,89 environmental considerations are also included in a number of other provisions.90 In its commentaries to the draft Article 20 on the protection and preservation of ecosystems, and Article 21 (paragraph 2) on the prevention, reduction and control of pollution, the ILC stated that the precautionary principle is applicable,91 even though those articles do not explicitly mention the principle. Overall, the provisions of the UN Watercourses Convention on the prevention of water pollution reflect the current efforts within the international community to develop the law in the field of the protection of international watercourses and their ecosystems.92

86 For example, the Additional Protocol to the Convention on the Protection of the Rhine against Pollution with Chlorides, concluded on 25 September 1991, UNTS, Vol. 1840, p. 372; Arts. 2 and 3 of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, UNTS, Vol. 1936, p. 269; Arts. 2, 6 and 7 of the Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Arts. 3, 4 and 18 of the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Art. 2, paras. 3, 11 and 12 and Art. 5(d) of the Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region (signed 28 August 1995, entered into force 29 December 1998), reproduced in FAO, 1997, p. 146. For a comprehensive survey of agreements concerning the environmental protection of international watercourses, see McCaffrey (1988), pp. 219–223. 87 For regional agreements, this depends on the regional priorities. For example, in the United Nations Economic Commission for Europe (UNECE) region, environmental protection and pollution control are of central importance, which is the reason why the focus of the 1992 UNECE Water Convention is on preventing, controlling, and reducing transboundary impacts, in particular by monitoring water quality. See Boisson de Chazournes (2013), pp. 123–124. 88 Boisson de Chazournes (2013), p. 119; Birnie et al. (2009), pp. 562–563. 89 Arts. 5 and 6(a) and (f) UN Watercourses Convention. 90 See in particular Arts. 20–23 UN Watercourses Convention. 91 See ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 122, para. 4. 92 McCaffrey (2007a), p. 449.

3.2 Procedural Obligations

3.2

45

Procedural Obligations

Given the breadth and generality of the substantive rules for the allocation of water resources and their uses, the procedural rules in international water law are of particular importance.93 The principle of equitable and reasonable utilization and the no-harm rule must be normatively operationalized and implemented through procedural rules.94 Procedural obligations are an integral part of virtually any watercourse agreement,95 with the main procedural rules being the obligations to cooperate, to notify, to consult, and to exchange data and information.96 The most general of these procedural rules, which provides the essential basis for all others, is the general obligation to cooperate.97

3.2.1

General Obligation to Cooperate

It is generally recognized today that riparian states of a shared watercourse have a customary obligation to cooperate with each other.98 Their cooperation is essential for the optimal use and development of the watercourse as well as for its protection and preservation. It is the indispensable basis required for the effective fulfillment of the more specific procedural obligations of notification, consultation, and information, as well as required for the ongoing maintenance of an equitable use allocation.99 In its judgment in the Gabčíkovo-Nagymaros Project case, the ICJ emphasized the interdependence of the riparian states of the Danube and their need for cooperation. The Court deemed that cooperation is needed to alleviate problems of navigation, flood control, and environmental protection.100 A number of international agreements on watercourses also establish cooperative obligations of the respective contracting states.101 The UN Watercourses Convention enshrines the “general obligation to cooperate” in its Article 8, paragraph 1, and, in paragraph 2, recognizes

93

McCaffrey (1987), p. 23, paras. 34–35; McIntyre and Tignino (2013), p. 290. McIntyre and Tignino (2013), p. 290. 95 Vinogradov et al. (2003), p. 54. 96 See Baker Röben (2000), pp. 303–304. See also Nollkaemper (1993), p. 152. 97 Nollkaemper (1993), p. 152; Garane (2005), p. 242; ‘Abd al-‘Āl (2010), p. 125. 98 Caponera (2007), p. 193; McCaffrey (2007a), pp. 470–471; Nollkaemper (1993), pp. 152–153 and 220; Mager (2015), p. 12; Garane (2005), p. 242; Sands et al. (2013), pp. 203–204; Egyptian publicists ‘Abd al-‘Āl (2010), p. 125; Maḥfūẓ Muḥammad (2009), p. 478. 99 McCaffrey (2007a), pp. 465–466. To the same effect see Vinogradov et al. (2003), pp. 54–55. 100 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp. 18 and 20, para. 17. 101 For a survey of the treaties, see McCaffrey (1987), paras. 43–46, with a list of international watercourse agreements containing provisions on cooperation in Annex I, pp. 45–46. 94

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the importance of joint river commissions in enhancing the prospects of achieving meaningful cooperation.102 What exactly is required to comply with the obligation to cooperate depends on the specific context. For example, cooperation with co-riparian states may be required to achieve an equitable use allocation or to control pollution of river water. An example of failure to cooperate would be a systematic refusal to take into account the proposals or interests of co-riparian states. The failure to cooperate may constitute a wrongful act of the non-cooperating state and engage its international responsibility.103 Both the necessity and the exemplary successes of institutionalized interstate cooperation have prompted riparian states around the world to establish numerous river commissions and other joint organizations for their cooperation in the management of shared water resources.104 However, there is no recognized international legal obligation of riparian states to establish such institutions or to participate in them.105

3.2.2

Obligation of Notification and Related Obligations

Under customary international water law, a state planning to change its uses or to initiate new uses that could have significant adverse effects in any other riparian states must notify the latter in advance.106 The obligation to notify is intended to prevent causing significant harm and to protect the interests of potentially affected co-riparian states. To achieve this, the notification must be made in a timely manner and accompanied by the technical data and information to enable the notified state to accurately assess to what extent, or if at all, the planned measures will affect its interests.107 102

Art. 8 of the UN Watercourses Convention is based on the draft Art. 8 prepared by the ILC. In accordance with its usual practice, the Commission did not indicate whether or to what extent it considers this provision as a codification of customary international law or as the progressive development of international law. See ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 105–107, paras. 1–6. 103 McCaffrey (2007a), p. 470. 104 For a comprehensive overview of state practice and the work of joint institutions in the management of transboundary watercourses, see Caponera (2007), pp. 235 and 319–396; and McCaffrey (1990), paras. 2–19. 105 Caponera (2007), p. 235. 106 Boisson de Chazournes (2013), pp. 68–69; McCaffrey (2007a), p. 473; Baker Röben (2000), pp. 305–306; Rieu-Clarke and Loures (2009), p. 194; Vinogradov et al. (2003), p. 55; Rieu-Clarke (2013), p. 254; Nanda and Pring (2013), pp. 329–330; among Egyptian publicists e.g. Maḥfūẓ Muḥammad (2009), p. 487; ‘Abd al-‘Āl (2010), p. 125. For a detailed discussion of the obligation of notification, see Garane (2005), pp. 241–280. See also Nollkaemper (1993), p. 165. 107 Boisson de Chazournes (2013), p. 70.

3.2 Procedural Obligations

47

The emergence of this customary obligation of prior notification can be seen in court decisions,108 treaty practice,109 the work of expert panels,110 and in the writings of commentators.111 By way of example, the award in the 1957 Lake Lanoux case, concerning a planned hydroelectric power generation and diversion project in France that had potential effects on Spain, confirmed this obligation.112 Several more recent treaties contain a similar obligation,113 foremost among them the UN Watercourses Convention, which codifies and substantiates it.114 On the whole, during the negotiation and deliberations of the Convention, the provisions on prior notification were not controversial for the vast majority of states; a significant exception was the upstream state Ethiopia, which rejected the notification requirements altogether.115 This widespread acceptance by states and inclusion in treaty texts shows that an obligation to notify planned measures has found its way into customary law.116 The obligation to notify contains further procedural obligations, namely to carry out an environmental impact assessment where there is a risk of significant adverse 108

Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281; ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, p. 707, para. 104. 109 For an overview of the treaties, see McCaffrey (1987), paras. 60–72, with a list of international agreements containing provisions on notification and consultation in Annex II, p. 46. 110 For example, Art. 5 of the Resolution adopted by the Institute of International Law on the Utilization of Non-maritime International Waters, 11 September 1961, Annuaire de l’Institut de Droit International, Vol. 49 II, Session de Salzbourg, September 1961, pp. 381–384; Part III of the ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, pp. 111–118. 111 Bourne (1972), pp. 212–213; Caflisch (1989), p. 195; McCaffrey (2007a), p. 473; Plakokefalos (2012), pp. 5–6; see also the Egyptian publicists Maḥfūẓ Muḥammad (2009), p. 487; ‘Abd al-‘Āl (2010), p. 125. 112 Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 281. English translations in ILR 24 (1957) p. 101 and AJIL 53 (1959), p. 156. The Lake Lanoux award is the fundamental decision in international water law concerning the obligations of notification, consultation, and negotiations. 113 For example, Art. 6 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, UNTS, Vol. 1936, p. 269; Art. 5 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Art. 4, para. 1 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. 114 Part III of the UN Watercourses Convention contains eight articles setting out the minimum requirements for the notification procedure, including the respective obligations of riparian states. 115 Ethiopia argued that Part III on the notification of planned measures poses a major burden on upstream riparian states; see the rationale of Ethiopia for its voting behavior in the United Nations General Assembly, Verbatim record, 99th plenary meeting, 21 May 1997, UN Doc. A/51/ PV.99, p. 9. 116 McCaffrey (2007a), p. 473.

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impacts and to consult with potentially affected states.117 It follows from this obligation that any state in which a project is planned must assess whether that project could have adverse effects on other states. This requires an environmental impact assessment examining the potential local and transboundary implications of the planned project, involving the public and other potentially affected parties.118 In 2010, the ICJ confirmed in its Pulp Mills case decision that there is a customary international obligation to carry out a prior environmental impact assessment if a planned industrial activity may have a significant adverse impact on shared water resources.119 In 2015, in its judgment concerning the construction of a road in Costa Rica along the San Juan River, the ICJ referred to this decision and clarified that the principle applies generally to planned activities, not limited to industrial activities.120 However, the Court also stated that customary international law does not impose requirements as to the scope and content of the required environmental impact assessment, but that those are governed by the national law of the state that implements or permits the implementation of planned measures.121

3.2.3

Obligation to Consult

International practice as a whole suggests that a customary obligation to consult potentially affected riparian states exists in any case when planned measures may have significant adverse effects upon those.122 In such cases, the planning state is required to obtain a statement from the potentially impacted state in order to be able

117

Boisson de Chazournes (2013), pp. 70–73; McCaffrey (2007a), pp. 474–476. See also Nollkaemper (1993), pp. 165–166. 118 Environmental impact assessments are, for example, provided for in Art. 3, para. 1(h) of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, UNTS, Vol. 1936, p. 269; and in Art. 2, para. 3 of the Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991, UNTS, Vol. 1989, p. 309. 119 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, pp. 82–83, paras. 204–205. See Sands et al. (2013), p. 307; Nanda and Pring (2013), p. 299; Plakokefalos (2012), pp. 10–11. 120 ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, p. 706, para. 104. 121 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 83, para. 205; ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, p. 707, para. 104. 122 Sands et al. (2013), p. 306; Caponera (2007), p. 193; Nanda and Pring (2013), p. 329; among Egyptian publicists for example Maḥfūẓ Muḥammad (2009), p. 487.

3.2 Procedural Obligations

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to include it in the decision-making and project-planning process.123 If the potentially affected state expresses concern, both states must enter into consultations and negotiations with a view to reaching an agreement.124 Moreover, the obligation to consult is also important beyond the procedure for planned measures.125 Regular consultations between states sharing freshwater resources are virtually indispensable to ensure that an equitable balance is maintained between their respective uses. Regular consultations should therefore also be indirectly required by the obligation of equitable and reasonable utilization. As previously mentioned, this is required if only for the fact that what constitutes equitable utilization among any group of riparian states may frequently change and can only be ensured through regular consultations.126 The obligation of consultation was confirmed in particular by the Lake Lanoux award, in which the arbitral tribunal stated that “there does exist a duty of consultation and of bringing into harmony the respective actions of the two States when general interests are involved in matters concerning waters”.127 Accordingly, a number of watercourse agreements as well as the UN Watercourses Convention provide for an obligation to consult.128 However, there is no obligation to find an agreed solution for planned projects. Such an obligation could constitute a significant restriction on the state planning a project and would ultimately establish a veto right for the other states potentially affected by a project’s implementation. In state practice, there are no indications of a willingness to establish such a veto right.129 In fact, doing so would be contrary to the principles of both sovereignty and the equality of rights as well as the notion of a community of interest.130 Thus, the arbitral tribunal in the Lake Lanoux case also

123 For a detailed discussion of the obligation of consultation, see Garane (2005), pp. 241–280. See also Nollkaemper (1993), p. 165. 124 Boisson de Chazournes (2013), p. 74. 125 For example, the UN Watercourses Convention provides for consultations in a variety of provisions with different regulatory objectives, such as for the determination of an equitable and reasonable utilization according to Art. 6, para. 2; to eliminate or mitigate significant harm according to Art. 7, para. 2; to prevent and control the pollution of a watercourse according to Art. 21, para. 3; and in several articles on the procedure concerning planned measures in Part III. See also McCaffrey (2007a), pp. 476–477. 126 Garane (2005), p. 244; McCaffrey (2007a), pp. 477–478. 127 English translation in ILR 24 (1957) p. 133, of the original Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 310, para. 17: “il existe une obligation de consultation et d’harmonisation des actions respectives des deux Etats, lorsque des intérêts généraux sont engagés en matière d’eaux”. For a discussion of the Lake Lanoux case, see Rauschning (1981), pp. 166–168. 128 For example, Art. 3, para. 5; Art. 6, para. 2; Art. 7, para. 2; and Art. 21, para. 3 UN Watercourses Convention. 129 See also Caponera (2007), p. 221. 130 Ibid., p. 221.

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found that, in principle, there was no obligation to reach an agreement.131 In its decision, the tribunal observed that: the rule that States may utilize the hydraulic power of international watercourses only on condition of a prior agreement between the interested States cannot be established as a custom, even less as a general principle of law.132

However, the tribunal stated that the principle of good faith requires that the planning state takes into account the interests and objections expressed by the potentially impacted state, satisfies them as far as possible, and tries to reconcile them with its own interests.133

3.2.4

Obligation to Exchange Data and Information

There is also an obligation under international law for riparian states to regularly exchange data and information about their shared watercourse.134 This regular exchange of data and information is a necessary complement to, if not an integral part of, the principle of equitable and reasonable utilization as well as the no-harm rule.135 Only an ongoing exchange of data and information enables informed decisions regarding an equitable use allocation and, if necessary, timely protection measures against impending harm.136 Without such exchange, it becomes extremely difficult, if not impossible, for riparian states to ensure that the uses of a shared watercourse remain equitable.137 As with other previously mentioned obligations, the requirement to regularly exchange data and information about an international watercourse has been included in a large number of international treaties.138 Most notable in this regard is the

131

Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 306, para. 11; ILR 24 (1957) pp. 127–128. 132 English translation in ILR 24 (1957) p. 130, of the original Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 308, para. 13: “la règle suivant laquelle les Etats ne peuvent utiliser la force hydraulique des cours d’eau internationaux qu’à la condition d’un accord préalable entre les Etats intéressés ne peut être établie ni à titre de coutume, ni encore moins à titre de principe général du droit” (emphasis in original). 133 Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 315, para. 22; ILR 24 (1957) p. 139. 134 Caponera (2007), p. 219; McCaffrey (2007a), p. 479; Baker Röben (2000), pp. 310–311; among Egyptian publicists, see Maḥfūẓ Muḥammad (2009), p. 477; ‘Abd al-‘Āl (2010), p. 125. 135 The exchange of data and information can be considered either as an essential part of these two principles or as a separate, supporting obligation, McCaffrey (2007a), pp. 478–479. 136 Caponera (2007), p. 219. 137 McCaffrey (2007a), p. 478. See also Kaška (2006), p. 94. 138 For example, in Art. VI Indus Waters Treaty, Karachi, 19 September 1960, UNTS, Vol. 419, p. 126; Art. XXIX, para. 1 Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference held at Helsinki 1966, 1967, p. 477;

3.3 Conclusion

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codification of this requirement in the UN Watercourses Convention which, moreover, contains provisions on the minimum content of the information to be exchanged.139

3.3

Conclusion

Over the course of the twentieth century, customary principles of international law emerged for the use and management of transboundary watercourses. The substantive principles include that of equitable and reasonable utilization, the obligation not to cause significant harm, and the obligation to protect international watercourses and their ecosystems as a whole. Today, the generally recognized core principle for use allocation is that of equitable and reasonable utilization, which is inseparably complemented by the no-harm rule. Even so, the relationship between the principle of equitable and reasonable utilization and the no-harm rule remained for a long time highly controversial, and still is to some degree. Notably, among the Nile riparian states, Ethiopia has endorsed the principle of equitable utilization, while Egypt and Sudan have thrown their weight behind the no-harm rule as the guiding principle for water uses. International water law has recently been developing to take greater account of environmental protection aspects in the management of water resources and to incorporate them in the allocation principles. It can be assumed that the customary obligation to protect international watercourses and their ecosystems also encompasses the precautionary principle. The procedural obligations of cooperation, notification, consultation, and data and information exchange are of particular importance for implementing the broad substantive principles in practice. Notably, the obligation to notify of planned measures includes, among other things, the duty to conduct an environmental impact assessment.

Art. 6 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, UNTS, Vol. 1936, p. 269; Art. 12 Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Art. 5(b) Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Art. 5 Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aquas de las cuencas hidrográficas hispano-portuguesas (Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the LusoSpanish River Basins) (opened for signature 20 November 1998, entered into force 31 January 2000), available at http://www.fao.org/faolex/en/ (accessed 10 June 2019); Art. 3, para. 6 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. 139 Art. 9 UN Watercourses Convention.

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References ‘Abd al-‘Āl MS (2010) Al-intifā‘ al-munṣif bi-miyāh al-anhār ad-dawlīya ma‘ īšāra ḫāṣa li-ḥāla nahr an-Nīl (The equitable utilization of the water of international rivers with particular reference to the case of the Nile). Cairo (Arabic) Abramovitz JN (1996) Sustaining freshwater ecosystems. In: State of the World 1996. A Worldwatch Institute Report on progress toward a sustainable society, Norton, pp 60–77 Abseno MM (2009) The concepts of equitable utilization, no significant harm and benefit sharing under the Nile River Basin Cooperative Framework Agreement: some highlights on theory and practice. J Water Law 20:86–95 ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Andrassy J (1952) Les relations internationales de voisinage. Recueil des Cours 1951. The Hague Academy of International Law, The Hague Azarva JD (2011) Conflict on the Nile: international watercourse law and the elusive effort to create a transboundary water regime in the Nile Basin. Temple Int Comp Law J 25:457–498 Baker Röben B (2000) International freshwaters. In: Morrison FL, Wolfrum R (eds) International, regional and national environmental law. Kluwer Law International, The Hague, pp 285–328 Benvenisti E (1997) The role of equity in international law: equity and the apportionment of shared water resources. In: Rabello AM (ed) Aequitas and equity: equity in civil law and mixed jurisdictions. The Hebrew University of Jerusalem, Jerusalem, pp 267–292 Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford University Press, Oxford Bodansky D (1991) Remarks in panel “New developments in international environmental law”. In: Am. Soc’y Int. L., Proceedings of the 85th Annual Meeting. Washington D.C., pp 413–417 Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford Bourne CB (1972) Procedure in the development of international drainage basins: the duty to consult and to negotiate. Can Yearb Int Law 10:212–234 Bourne CB (1997) The primacy of the principle of equitable utilization in the 1997 Watercourses Convention. Can Yearb Int Law 35:215–232 Brown Weiss E (2007) The evolution of international water law. Recueil des Cours 331. The Hague Academy of International Law, The Hague Brown Weiss E (2013) International law for a water-scarce world. The Hague Academy of International Law Monographs, vol 7. The Hague Academy of International Law, Leiden Bruhács J (1993) The law of non-navigational uses of international watercourses. Martinus Nijhoff Publishers, Dordrecht Bulto TS (2009) Between ambivalence and necessity: occlusions on the path towards a basin-wide treaty in the Nile Basin. Colorado J Int Environ Law Policy 20:291–320 Caflisch L (1989) Règles générales du droit des cours d’eau internationaux. Recueil des Cours 219. The Hague Academy of International Law, The Hague Caflisch L (1997) La Convention du 21 mai 1997 sur l’utilisation des cours d’eau internationaux à des fins autres que la navigation. Annuaire Français de Droit International 43:751–798 Caflisch L (1998) Regulation of the uses of international watercourses. In: Salman S, Boisson de Chazournes L (eds) International watercourses: enhancing cooperation and managing conflict. Proceedings of a World Bank Seminar. World Bank Technical Paper No. 414. Washington D.C. 1998, pp 3–16 Caponera DA (2007) Principles of water law and administration: national and international, 2nd edn. Taylor & Francis, London Fitzmaurice MA (2001) International protection of the environment. Recueil des Cours 293. The Hague Academy of International Law, The Hague Freestone D, Salman SMA (2007) Ocean and freshwater resources. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Law. Oxford University Press, Oxford, pp 337–361

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Fuentes X (1996) The criteria for the equitable utilization of international rivers. Br Yearb Int Law 67:337–412 Garane A (2005) Notification et consultation en droit des cours d’eaux internationaux. In: Boisson de Chazourne L, Salman SMA (eds) Les ressources en eau et le droit international. Martinus Nijhoff Publishers, Leiden, pp 241–280 Godana BA (1985) Africa’s shared water resources: legal and institutional aspects of the Nile, Niger and Senegal River systems. F Pinter, London Handl G (2007) Transboundary impacts. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Law. Oxford University Press, Oxford, pp 531–549 Hey E (1992) The precautionary concept in environmental policy and law: institutionalizing caution. Georgetown Int Environ Law Rev 4:303–318 Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic) Le Floch G (2010) Le difficile partage des eaux du Nil. Annuaire Français de Droit International 56:471–496 Lipper J (1967) Equitable utilization. In: Garretson AH, Hayton RD, Olmstead CJ (eds) The law of international drainage basins. Oceana Publications, New York, pp 15–88 Madders KJ (1981) Trail Smelter Arbitration. Encyclopedia of Public International Law 2:276–280 Mager U (2015) International water law – global developments and regional examples. Miscellanea Juridica Heidelbergensia. Jedermann Verlag, Heidelberg Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) Matz-Lück N (2009) The benefits of positivism: the ILC’s contribution to the peaceful sharing of transboundary groundwater. In: Nolte J (ed) Peace through international law. Springer-Verlag, Berlin, pp 125–150 McCaffrey SC (1987) Third report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/406 McCaffrey SC (1988) Fourth report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/412 McCaffrey SC (1990) Sixth report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/427 McCaffrey SC (2002) International watercourses in the jurisprudence of the World Court. In: Ando N, McWhinney E, Wolfrum R (eds) Liber Amicorum Judge Shigeru Oda, vol 2. Kluwer Law International, The Hague, pp 1055–1068 McCaffrey SC (2007a) The law of international watercourses. Oxford University Press, Oxford McCaffrey SC (2007b) Some developments in the law of international watercourses. In: Kohen MG (ed) Promoting justice, human rights and conflict resolution through international law. Liber Amicorum Lucius Caflisch. Brill, Leiden, pp 781–798 McIntyre O (2007) Environmental protection of international watercourses under international law. Routledge, London McIntyre O, Tignino M (2013) Reconciling the UN Watercourses Convention with recent developments in customary international law. In: Loures FR, Rieu-Clarke A (eds) UN Watercourses Convention in force: strengthening international law for transboundary water management. Routledge, Abingdon, pp 286–302 Mendelson MH (1998) The formation of customary international law. Recueil des Cours 272. The Hague Academy of International Law, The Hague Nanda VP, Pring G (2013) International environmental law and policy for the 21st century, 2nd edn. Martinus Nijhoff Publishers, Leiden Nollkaemper A (1993) The legal regime for transboundary water pollution: between discretion and constraint. Martinus Nijhoff Publishers, Dordrecht Nollkaemper A (1996) The contribution of the International Law Commission to international water law: does it reverse the flight from substance? Neth Yearb Int Law 27:39–73

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Plakokefalos I (2012) Prevention obligations in international environmental law. Yearb Int Environ Law 23:3–43 Rauschning D (1981) Lac Lanoux Arbitration. Encyclopedia of Public International Law 2:166–168 Reinicke A (1991) Die angemessene Nutzung gemeinsamer Naturgüter. Eine Studie zum Umweltvölkerrecht. Peter Lang, Frankfurt/M Rieu-Clarke A (2013) International freshwater law. In: Alam S, Bhuiyan J, Chowdhury T, Techera E (eds) Routledge Handbook of International Environmental Law. Routledge, London, pp 243–257 Rieu-Clarke A, Loures FR (2009) Still not in force: should states support the 1997 UN Watercourses Convention? RECIEL 18(2):185–197 Salman SMA (2010) Downstream riparians can also harm upstream riparians: the concept of foreclosure of future uses. Water Int 35:350–364 Sands P, Peel J, Fabra A, MacKenzie R (2013) Principles of international environmental law, 3rd edn. Cambridge University Press, Cambridge Schindler D (1921) The administration of justice in the Swiss Federal Court in intercantonal disputes. Am J Int Law 15:149–188 Schwebel SM (1981) Third report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/348 Tarlock D (1996) International water law and the protection of river system ecosystem integrity. Brigham Young Univ J Public Law 10:181–211 Vinogradov S, Wouters P, Jones P (2003) Transforming potential conflict into cooperation potential: the role of international water law. UNESCO/IHP/WWAP, Technical Documents in Hydrology, PCCP Series No. 2, Dundee Wolfrum R (1990) Purposes and principles of international environmental law. German Yearb Int Law 33:308–330 Wolfrum R (2000) International environmental law: purposes, principles and means of ensuring compliance. In: Morrison FL, Wolfrum R (eds) International, regional and national environmental law. Kluwer Law International, The Hague, pp 3–70 Wouters P (2000) National and international water law: achieving equitable and sustainable use of water resources. Water Int 25:499–512

Chapter 4

International Agreements on Transboundary Freshwater Resources

In addition to the universally applicable norms of customary international law, numerous bilateral and multilateral water agreements establish rights and obligations for contracting parties. Treaties on international watercourses have been concluded at the global, regional, and basin-specific levels. The Index of International Water Resources Treaties, Declarations, Acts and Cases of the Food and Agriculture Organization of the United Nations lists over 2000 international treaties, the majority of which are bilateral agreements relating to surface water.1 Between European countries alone, there are more than 40 treaties on the use and protection of freshwater resources.2

1 FAO (1978, 1984). Recent treaties are included in the International Freshwater Treaties Database of the Oregon State University at https://transboundarywaters.science.oregonstate.edu/content/inter national-freshwater-treaties-database (accessed 27 June 2019). So far, groundwater has received relatively little attention in treaty practice. McCaffrey (2007), pp. 484–485, assumes that one of the main reasons for this is that, unlike surface water, groundwater is not visible, and only recently have states become sufficiently aware of the physical interaction between groundwater and surface water. On state practice concerning groundwater, see generally McCaffrey (1991), pp. 55–57. 2 These include for example the Accord concernant la protection de la Meuse (signed 26 April 1994, entered into force 1 January 1998), replaced by the Accord international sur la Meuse (signed 3 December 2002, entered into force 1 December 2006), at http://www.meuse-maas.be/CIM/media/ ACCORDS/accord-gand_f.pdf (accessed 26 June 2019); Agreement on the Protection of the River Scheldt (signed 26 April 1994, entered into force 1 January 1998), ILM 34 (1995), p. 859; Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Convention on the International Commission for the Protection of the River Oder against Pollution (signed 11 April 1996, entered into force 28 April 1999), OJ L 100, 15 April 1999, p. 21; Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aquas de las cuencas hidrográficas hispano-portuguesas (Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins) (opened for signature 20 November 1998, entered into force 31 January 2000), available at http://www.fao.org/faolex/en/ (accessed 26 June 2019); Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. See also Sands et al. (2013), p. 319.

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The UN Watercourses Convention is the only universally applicable framework on the non-navigational uses of international watercourses. Since watercourses differ from each other in their geographical, climatic, hydrological, and socio-economic particularities, the UN Watercourses Convention includes only highly abstract rules which can be adapted to the particular situation of any watercourse.3 It was therefore conceived as a framework convention, “[e]xpressing the conviction that a framework convention will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations.”4 During the negotiations on the draft Convention, the Working Group of the Whole stated that “[t]he present convention will serve as a guideline for future watercourse agreements”.5 The watercourse agreements define the content of the applicable principles more precisely and, moreover, allow adjustments to the specific conditions of the particular watercourse and the respective interests of the riparian states.6 The universal, regional, and basin-specific rules in the field of freshwater resources influence each other. Efforts at the universal and regional levels promote the negotiation and adoption of basin-specific agreements. Recent regional and basin-specific agreements often closely follow the UN Watercourses Convention or the draft articles of the ILC for this convention by incorporating its principles. In turn, these regional and basin-specific instruments further contribute to the progressive development of universal principles.7 In the relationship between the universal, regional, and basin-specific rules, the principle of lex specialis also applies in the area of international water law in cases where there is a conflict of norms. In other words, in the case of a conflict of norms, a basin-specific rule—as a special rule—takes precedence over the general rules of international water law.8 Otherwise, even where watercourse agreements have been concluded, the universal rules remain applicable.

Boisson de Chazournes (2013), p. 27; ‘Abd al-‘Āl (2010), p. 111. See para. 5 of the preamble of the UN Watercourses Convention. The understanding as a framework convention in the case of the UN Watercourses Convention does not correspond to the usual nature of a framework convention under international environmental law, as it does not include binding minimum standards for the contracting parties that watercourse-specific agreements would have to comply with. See also Hey (1998), pp. 292–293. 5 Report of the Sixth Committee convening as the Working Group of the Whole, UN Doc. A/51/869, GAOR, 51st Sess., 11 April 1997, Agenda item 144, para. 8 “Statements of understanding: As regards Article 3(a)”. On the understanding of the UN Watercourses Convention in this sense, see among Egyptian commentators e.g. ‘Abd al-‘Āl (2010), p. 111; and among Sudanese commentators ‘Alī Ṭāhā (2005), pp. 192–193. 6 See also Boisson de Chazournes (2013), p. 65. 7 Ibid., pp. 48–49. For a detailed analysis of the interrelations between legal developments at the universal, regional, and basin level, see Boisson de Chazournes (2009). 8 See also Boisson de Chazournes (2013), p. 51; Sands (1998), p. 86; Bulto (2009), p. 292. 3 4

4.1 Global Conventions

4.1 4.1.1

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Global Conventions Convention on the Law of the Non-Navigational Uses of International Watercourses of 1997

The only international treaty that was negotiated at the global level on the non-navigational uses of international watercourses is the UN Watercourses Convention, adopted by the General Assembly of the United Nations on 21 May 1997.9 This convention is considered a milestone in the development of the law on international freshwater resources10 and is the authoritative international legal framework for the development and protection of transboundary watercourses.11 It entered into force on 17 August 2014 with its ratification by 35 states—a number that was achieved only after almost two decades.12

9

UN Convention on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/RES/51/869, 21 May 1997, ILM 36 (1997), p. 700. See generally on the UN Watercourses Convention McCaffrey (2007), pp. 359–381; Tanzi and Arcari (2001); Hey, 1998, pp. 291–300; McIntyre and Tignino (2013), pp. 286–302. 10 Boisson de Chazournes (2005), p. 23; McCaffrey (2007), p. 377; Sands et al. (2013), p. 312. But see Hey (1998), pp. 291–292. 11 Boisson de Chazournes (2005), p. 23; Türk (2012), pp. 1048–1049. 12 Current status of ratification at https://treaties.un.org/pages/ViewDetails.aspx?src¼TREATY& mtdsg_no¼XXVII-12&chapter¼27&clang¼_en (accessed 26 June 2019). Pursuant to Art. 36, para. 1 UN Watercourses Convention, 35 ratifications were required for the entry into force of the Convention. The fact that this number of ratifications was not achieved for a long time is also attributed to the fact that many countries are not interested in ratifying the Watercourses Convention, for a variety of reasons: Some may already have signed agreements for their transboundary watercourses and therefore consider the Convention neither necessary nor advantageous for them. Other states may have assumed that their position in current disputes is more advantageous if they are not party to the Convention. Finally, a number of countries are not riparian states of an international watercourse and therefore have little interest in becoming contracting parties. McCaffrey (2007), p. 374.

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Background

The Convention is based on draft articles13 prepared by the ILC14 over a period of 23 years.15 The Convention was negotiated in the Sixth Committee (Legal Committee) of the General Assembly based on the draft articles of the Commission16 with participation in the negotiations open to all member states of the United Nations or its specialized agencies.17 At the vote on the Watercourses Convention in the General Assembly on 21 May 1997, 103 states voted for the Convention and 3 against it, with 27 abstentions.18 The fact that only three states voted against the Convention shows that the overwhelming majority of delegations considered the rules embodied in the Convention text acceptable, and also indicates that those rules reflect an equitable balance between the interests of upstream and downstream states.19 The Nile riparian states, however, were by and large critical of the UN Watercourses Convention20 and at the time of writing none of them have signed it. In the General Assembly on 21 May 1997, Burundi voted against the Convention, while Egypt, Ethiopia, Rwanda, and Tanzania abstained. Eritrea, Uganda, and Zaire (today the DR Congo) did not participate in the vote. Only Sudan and Kenya voted in favor of the Convention, but they have not yet signed it.21 The reason for this is the controversy over their diverging claims to Nile water uses.22 However, the active 13 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 89, para. 222. The provisions of the Convention closely follow the text of the draft articles of the ILC. 14 Art. 13, para. 1(a) of the Charter of the United Nations entrusts the General Assembly to initiate studies and make recommendations for the purpose of “encouraging the progressive development of international law and its codification”. Accordingly, in 1947, the General Assembly established the ILC as a permanent subsidiary organ with the objective of promoting the progressive development of international law and its codification; see UN GA Res. A/RES/174 (II), 21 November 1947. See also the revised current statute of the ILC, UN Doc. A/CN.4/4/Rev.2 (1982). 15 Important preparatory work that informed the development of the ILC’s draft articles for the UN Watercourses Convention was carried out by two international non-governmental organizations, the Institute of International Law and the ILA, in particular the ILA Helsinki Rules of 1966. See McCaffrey (2007), p. 377. 16 The Sixth Committee is the primary forum for discussing legal questions within the United Nations General Assembly, http://www.un.org/en/ga/sixth/ (accessed 26 June 2019). 17 UN GA Res. 49/52, 9 December 1994, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, p. 2, para. 3. 18 UN GA, Verbatim record, 99th plenary meeting, 21 May 1997, UN Doc. A/51/PV.99, pp. 7–8. 19 McCaffrey (2007), p. 375. 20 Bulto (2009), p. 317. For a detailed discussion of the opinions of the individual Nile riparian states, in particular Egypt, vis-à-vis the UN Watercourses Convention, see Maḥfūẓ Muḥammad (2009), pp. 327–339. 21 UN GA, Press Release, General Assembly adopts Convention on Law of Non-Navigational Uses of International Watercourses, UN Doc. GA/9248, 21 May 1997, Annex p. 9. 22 See ‘Abd al-‘Āl (2010), pp. 102–103.

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involvement of several Nile riparian states in the drafting and negotiation of the Convention is a sign of the importance they attach to its provisions for the future regulation of Nile uses.23 The importance of the UN Watercourses Convention lies above all in its codification of the customary principles of international water law.24 The essential provisions, namely the principles of equitable and reasonable utilization, the no-harm rule, the notification obligation, and the obligation to protect ecosystems, are codifications of customary international norms that either already existed or, in the case of the protection of ecosystems, were still only emerging at the time of the adoption of the Convention in 1997.25 Thus, the Convention lays down the international minimum standards which states should strive to achieve.26 The codification also strengthens customary international law which, for example, provides for the notification of planned measures, but not for details such as the exact information that must be provided with the notification or how long the notifying state must wait for a reply before implementing a planned measure. The Convention operationalizes this obligation by defining the procedural details for notification in nine articles (Articles 11–19). In practice, the influence of the UN Watercourses Convention on existing and future agreements on particular watercourses is important.27 While the Convention can be used to resolve ambiguities or close regulatory gaps in such watercourse agreements,28 its main function is to provide a basis for riparian states negotiating watercourse agreements. Even before its entry into force in August 2014, numerous bilateral and multilateral watercourse agreements were based on the draft articles of the ILC29 and, after their adoption at the General Assembly, on the UN Watercourses

23 To the same effect see Abseno (2013), p. 196. On the influence of the UN Watercourses Convention on the negotiation and content of the CFA, see Chap. 8, passim. 24 It is important to note that international water law has further evolved since the adoption of the 1997 UN Watercourses Convention. More recent developments include the recognition of an obligation under international law to carry out a transboundary environmental impact assessment and the recognition of a human right to water. For a detailed analysis of the conformity of the UN Watercourses Convention with recent developments in customary international law, see McIntyre and Tignino (2013), pp. 286–302. 25 Caponera (2007), p. 221; Hey (1998), pp. 294–295; Türk (2012), p. 1049. 26 Sands et al. (2013), p. 312. However, the UN Watercourses Convention does not impose binding minimum standards for the management of transboundary watercourses, as it neither obliges states to adapt existing watercourse agreements to minimum standards (see Art. 3, para. 2) nor contains binding requirements for the conclusion of new agreements (see Art. 3, para. 3). 27 Brown Weiss (2013), p. 112; Maḥfūẓ Muḥammad (2009), p. 480. 28 McIntyre and Tignino (2013), p. 301; ‘Alī Ṭāhā (2005), p. 193. 29 These include for example the Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Art. 6 and Annex II of the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, ILM 34 (1995), p. 43; Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Protocol on Shared Watercourse

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Convention itself.30 Those agreements also include the CFA for the Nile that is discussed in Chap. 8. In particular in the Nile Basin, the adoption of the UN Watercourses Convention in the General Assembly raised the question of its impact on the legal regime and the relationship between the Convention and the existing treaties.31 Nevertheless, legal commentators have criticized the Watercourses Convention stating that its legal structure is unclear and can make it difficult for states to use it as a guide for drafting agreements on the management of particular watercourses.32 Such critics see the Convention as containing normative ambiguities and, in parts, being too vaguely formulated.33 They conclude that it does not serve well as an effective regulatory model for conflict resolution but rather invites negotiating states to invoke opposing positions for tactical reasons.34 The Convention itself is divided into seven parts: Part I, Introduction (Articles 1–4); Part II, General Principles (Articles 5–10); Part III, Planned Measures (Articles 11–19); Part IV, Protection, Preservation and Management (Articles 20–26); Part V, Harmful Conditions and Emergency Situations (Articles 27–28); Part VI, Miscellaneous Provisions (Articles 29–33); and Part VII, Final Clauses (Articles 34–37). The Convention also includes an annex containing procedural rules for arbitration. A complementary joint declaration to the Convention indicates that the commentary of the ILC to the draft articles may be used to interpret the provisions of the Convention.35 The following section provides an overview of the main provisions of the Watercourses Convention and also highlights the interventions of the Nile riparian states during the negotiation of the Convention. Some aspects of the Convention were of particular importance for Ethiopia and Egypt. These included the definition

Systems in the Southern African Development Community (SADC) Region (signed 28 August 1995, entered into force 29 December 1998), reproduced in FAO, 1997, p. 146. 30 These include the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321; Agreement between the Syrian Arab Republic and the Lebanese Republic for the Sharing of the Southern Great River Basin Waters and the Building of a Joint Dam on it, 20 April 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019); Framework Agreement on the Sava River Basin, 3 December 2002, UNTS, Vol. 2366, p. 479; Protocol for Sustainable Development of Lake Victoria Basin, 29 November 2003, at http://repository.eac.int/handle/11671/ 1640 (accessed 26 June 2019); Agreement on the Establishment of the Zambezi Watercourse Commission, 13 July 2004, at http://www.zambezicommission.org/sites/default/files/publication_ downloads/zamcom-agreement.pdf (accessed 26 June 2019). See Rieu-Clarke and Loures (2009), p. 191. For a survey of watercourse agreements that were based on the UN Watercourses Convention, see Burchi (2002), pp. 271–279. 31 ‘Abd al-‘Āl (2010), p. 102; ‘Alī Ṭāhā (2005), pp. 120–121. 32 Fitzmaurice (2001), p. 440. 33 Fischhendler (2008), p. 112. 34 Vinogradov et al. (2003). 35 Addendum of Statements of Understanding pertaining to Certain Articles of the Convention, ILM 36 (1997), pp. 700, 719–720.

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of an international watercourse, the relationship between the no-harm rule and the principle of equitable and reasonable utilization, the modalities for notification and information exchange, as well as the question of harmonizing existing watercourse agreements with the Convention. The vote on the Watercourses Convention in the General Assembly revealed the major controversies among the Nile riparian states on these fundamental issues. The positions of the Nile riparian states during the negotiation of the UN Watercourses Convention reflected their claims in the discussions on an allocation regime for Nile water uses, which were ongoing then and also at the time of writing. Their interventions illustrate the extent to which the interests of individual riparian states of a particular watercourse can play a part in determining their positions in the negotiation of international instruments pertaining to transboundary watercourses in general. For example, Egypt’s reservations over the Convention are essentially motivated by the preservation of what it considers to be its acquired rights to the Nile waters and of the existing Nile treaties.36 Furthermore, the view expressed by Egyptian commentators that abstaining from the vote on the Convention allowed the country maximum room for manoeuvre in the negotiations over the allocation of Nile water uses37 may explain Egypt’s abstention.

4.1.1.2

Overview of the Provisions of the Convention

Introduction Part I of the UN Watercourses Convention contains provisions on the scope of the Convention, the use of terms, and watercourse agreements. Pursuant to Article 1, the Watercourses Convention applies to the non-navigational uses of international watercourses and their waters as well as to related protection, preservation, and management measures. In order to clarify the territorial scope of application, the Convention provides a definition for the term “international watercourse” in Article 2: (a) ‘Watercourse’ means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus; (b) ‘International watercourse’ means a watercourse, parts of which are situated in different States.

From the above it can be seen that the UN Watercourses Convention does not follow the drainage basin approach embraced by the 1966 Helsinki Rules. The latter based its territorial scope of application on the drainage basin approach stating in its Article II that: “an international drainage basin is a geographical area extending over two or more States determined by the watershed limits of the system of waters, 36 37

See Kaška (2006), p. 98; Maḥfūẓ Muḥammad (2009), p. 480. See for example Maḥfūẓ Muḥammad (2009), p. 333.

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including surface and underground waters, flowing into a common terminus.”38 Using a narrower definition than the drainage basin concept, the UN Watercourses Convention applies only to international watercourses, which by definition covers neither confined aquifers39 nor the land in the watercourse’s hydrographic catchment area.40 The scope of application eventually settled upon was the result of a compromise, this being one of the most controversial issues in the preparation of the Convention, both within the ILC and the Working Group.41 Despite widespread treaty practice,42 the drainage basin approach was controversial during the work of the Commission, as it included not only confined aquifers but also the often extensive land area within the basin concerned.43 With regard to groundwater resources, it was determining that the preparatory work of the ILC for the Watercourses Convention focused on surface water. It was not until the last year of the work of the ILC on the draft articles that groundwater was included in the discussions on its scope. The then Special Rapporteur Robert Rosenstock recommended that all groundwater resources be covered, including confined transboundary aquifers, to ensure an integrated management of all water resources.44 The Commission did not follow this recommendation. According to its commentary to Article 2 of the draft articles, the scope takes into account the hydrological unity of surface and groundwater and their interrelationships. It follows that the term “watercourse” does not cover confined aquifers, that is, groundwater that is not physically linked to the watercourse.45 The commentaries of the ILC are important for the interpretation of the Watercourses Convention: They were referred 38 ILA, Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference held at Helsinki 1966, 1967, p. 477. 39 The confined aquifer is distinguished from the unconfined aquifer and is characterized by the fact that the water table in a confined aquifer has an overlying rock layer that does not transmit water in any appreciable amount or that is impermeable, while the water table of an unconfined aquifer is open to the atmosphere through permeable material. Encyclopædia Britannica (2011), p. 770. 40 See Boisson de Chazournes (2005), pp. 9–10. 41 See UN GA, Report of the Secretary-General, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and Resolution on Confined Transboundary Groundwater, 51st Sess., UN Doc. A/51/275, p. 21. 42 See e.g. the Protocol for Sustainable Development of Lake Victoria Basin, 29 November 2003, at http://repository.eac.int/handle/11671/1640 (accessed 26 June 2019). Pursuant to its Art. 2, the Protocol applies to the sustainable development of the Lake Victoria Basin, which, according to Art. 1, para. 2 of the Protocol, is referred to as the “geographical area extending within the territories of the Partner States determined by the watershed limits of the system of waters, including surface and underground waters flowing into Lake Victoria”. 43 Rieu-Clarke (2013), p. 250. 44 Rosenstock, (1994), p. 4, para. 3. 45 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 90, para. 4. Specifically for the regulation of confined aquifers, the ILC adopted the Resolution on Confined Transboundary Groundwater, YBILC 1994, Vol. II, Pt. 2, p. 135. On the scope and definition of the Convention with regard to groundwater, see Eckstein (2005), pp. 525–564.

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to throughout the drafting and negotiation process to clarify various articles, according to a statement by the Working Group of the Whole, which negotiated the draft Convention.46 Two delegations, including that of the Nile riparian Rwanda, based their abstention in the vote on the UN Watercourses Convention on the inclusion of groundwater in this definition of a watercourse.47 Other states and expert commentators made the criticisms that the Convention is not wide enough in scope, and contains a regulatory gap with regard to groundwater protection.48 Concerning the land area included in the territorial scope of application, it must be considered that the hydrographic catchment area of a river may be extensive and thus may represent a significant part of the territory of a particular country. For example, the Nile Basin covers approximately 99% of Ugandan territory, 97% of South Sudan’s territory, 84% of Rwandan territory, and 75% of Sudanese territory.49 In view of the considerations of state sovereignty that were to be expected from the member states, acceptance of such a broad territorial scope would have been highly unlikely, hence the ILC chose to narrow the definition of an international watercourse. This approach has also been subject to criticism by expert commentators. From a hydrological and ecological point of view, water should be managed on the basis of the hydrographic unit. Since all land in a catchment area is interlinked by water, measures in one area of a hydrological system have an impact on other parts of that system.50 Article 3 of the Convention contains provisions on the relationship between the Convention and existing or future watercourse agreements between riparian states of a shared watercourse, and produced considerable controversy.51 Some states feared that under the principle of lex posterior derogat legi priori,52 the UN Watercourses Convention would take precedence over existing watercourse agreements and would thereby “destabilize the entire body of international treaty law on the subject”.53 This concern was taken into account in Article 3, paragraphs 1 and 2 of the Convention. The final text adopted for Article 3 stipulates that the Watercourses Convention does not affect the rights or obligations of a watercourse state arising from existing agreements (paragraph 1). The article does nevertheless point out that parties to such agreements “may, where necessary, consider harmonizing such agreements with the basic principles of the present Convention” (paragraph 2). In addition, 46

Statement of the Working Group in UN Doc. A/51/869, p. 6, para. 8. UN GA, Verbatim record, 99th plenary meeting, 21 May 1997, UN Doc. A/51/PV.99, pp. 5 and 12. 48 Brown Weiss (2013), p. 53. See also Türk (2012), p. 1054. 49 NBI, Country information, at http://www.nilebasin.org/index.php/nbi/member-states (accessed 26 June 2019). 50 FAO (2012), p. V. 51 Rieu-Clarke and Loures (2009), p. 189; Caflisch (1998), p. 11. 52 This principle has found expression, for example, in Art. 30, para. 3 and Art. 59 Vienna Convention on the Law of Treaties. 53 Statement by Switzerland, UN Doc. A/51/275, p. 30. In this sense also the statements of Sudan, UN Doc. A/51/275/Add. 3, p. 6; and the United States, UN Doc. A/51/275/Add. 2, p. 5. 47

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Article 3 states that watercourse states may apply and adjust the provisions of the Convention to the characteristics and uses of a particular watercourse through specific agreements, called watercourse agreements (paragraph 3), thereby confirming the framework character of the Convention. The Convention’s provisions are not binding requirements as such but rather guidelines for the development of watercourse agreements.54 This means that basin-specific agreements that derogate from the Convention take precedence over the Convention’s provisions. Thus, with Article 3, the Convention allows states wide leeway for implementation. Article 3 thus represents a compromise between states seeking to include an obligation to align watercourse agreements with the Watercourses Convention, and others who oppose such an obligation. These opposing points of view were especially represented among the Nile riparian states in the drafting of and vote on the Convention, and this dynamic influenced the formulation of the text considerably. Ethiopia advocated that a provision should be included whereby, if an existing watercourse agreement is incompatible with the substantive principles of the Watercourses Convention, the parties are obliged to align it with the Convention.55 As regards future watercourse agreements, it proposed including a provision that those agreements may not deviate significantly from the basic principles of the Convention.56 On the other hand, the Egyptian delegation argued that the Convention should not affect existing bilateral or multilateral agreements on individual watercourses.57 Concerning future watercourse agreements, Egypt advocated the possibility of derogating from the provisions of the Convention. The backdrop for the opposing positions of Ethiopia and Egypt was their controversy over existing Nile treaties and the drafting of the CFA for the Nile that began in 1997, which coincided with the vote on the UN Watercourses Convention.58 Egypt seeks to maintain the status quo along the Nile, including adherence to the Nile Waters Agreement of 1959, which reserves the biggest share of the entire Nile flow for Egypt. It therefore rejected attempts to include in the UN Watercourses Convention any provision that would require the harmonization of existing watercourse agreements, such as the 1959 Nile Agreement, with the Convention. Such a harmonization would result in a new water allocation along the Nile, deviating from the status quo. Even the formulation of Article 3, which was ultimately adopted by the General Assembly, is criticized in Egypt as it still provides room for discussions over a revision of existing Nile treaties, which Egypt is so determined to maintain.59 The 54

Caflisch (1998), p. 12. Statement of Ethiopia in the vote on the Watercourses Convention, UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), p. 9. On the Ethiopian position and its rationale, see ‘Alī Ṭāhā (2005), pp. 120–121. 56 Wolde-Giorghis (2009), p. 283. 57 See the statement of Egypt in the vote on the UN Watercourses Convention in UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), p. 10. On the Egyptian position, see ‘Alī Ṭāhā (2005), p. 120. 58 See also ‘Abd al-‘Āl (2010), p. 103. 59 Maḥfūẓ Muḥammad (2009), p. 332. 55

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reservation made by Egypt against the Convention seems, in essence, based on its desire to preserve what it considers to be its acquired rights and the existing treaties concerning the Nile.60 Ethiopia, on the other hand, considers itself not bound by the existing Nile treaties and seeks to conclude a new agreement for the management and use of the Nile between all Nile riparian states, replacing the previous treaties.61

General Principles Part II of the UN Watercourses Convention sets out the general principles for the use of international watercourses. First, Article 5 enshrines the principle of equitable and reasonable utilization and participation. It forms the cornerstone of the Convention, which is in line with current state practice.62 The provision of the Convention on the principle of equitable and reasonable utilization codifies international customary law, so that reference can be made to the above with regard to its content.63 The provision on equitable and reasonable participation, on the other hand, represents a development of international law. It is based on the theory of the community of interest and provides that riparian states are to participate in an equitable and reasonable manner in the use, development, and protection of their shared watercourse. The Convention thus emphasizes that a regime of equitable utilization cannot be realized by unilateral measures of individual riparian states, but only by means of their cooperation.64 Article 6 is intended to provide guidance on the application of the principle of equitable and reasonable utilization.65 It contains in paragraph 1 an indicative list of factors and circumstances that are to be taken into account for an equitable and reasonable utilization: Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned;

60

For details on the Egyptian point of view on the UN Watercourses Convention, see Kaška (2006), pp. 96–102. 61 On the Nile water agreements and their binding effect from the point of view of the Nile riparian states, see Chap. 6, Sect. 6.2. 62 Rieu-Clarke and Loures (2009), pp. 188 and 190. 63 See Chap. 3, Sect. 3.1.1. 64 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 97, para. 5. See also McCaffrey (2007), p. 363. 65 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 1.

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4 International Agreements on Transboundary Freshwater Resources (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use.

Article 6 provides states with considerable leeway to balance these factors. The factors and circumstances themselves have not been ranked, since with each particular watercourse some factors may be more important than others.66 Pursuant to Article 6, paragraph 2, watercourse states concerned must enter into consultations if necessary in order to determine an equitable and reasonable use. Paragraph 3 states that the weight to be given to each factor is to be determined by its importance for a given watercourse compared to that of other relevant factors. For determining what is an equitable and reasonable use, all relevant factors are to be considered together. As regards the relationship between different kinds of uses, Article 10, paragraph 1 stipulates that no use of an international watercourse enjoys inherent priority over other uses. However, it recognizes that an existing agreement or custom may change this. Paragraph 2 refers to Articles 5–7 in the event of a conflict between uses of an international watercourse and stipulates that “vital human needs” are to be given special consideration. Vital human needs do not constitute a separate factor to those listed in Article 6, paragraph 1, but rather are part of the “social and economic needs of the watercourse States concerned” referred to in Article 6, paragraph 1(b).67 The vital needs include the requirement that sufficient water be provided to maintain human life. This includes both drinking water and water for food production68 and is in line with the recognition of the human right to access safe and clean drinking water and adequate sanitation, by the United Nations General Assembly in 2010.69 The Nile riparian states also criticized Article 10 during the negotiations on the UN Watercourses Convention. Egypt argued against the absence of any priority between different kinds of uses, on the grounds that in arid regions irrigation should have particular priority. Furthermore, the equality of existing and potential uses is unacceptable in Egypt’s view, as it implies that existing uses could not create acquired rights, which in its opinion enjoy absolute protection. It is Egypt’s declared position not to negotiate over what it considers to be its historical rights to the Nile

66

Ibid., p. 101, para. 3. Ibid., p. 110, para. 4. 68 UN GA, Report of the Sixth Committee convening as the Working Group as the Whole, 11 April 1997, UN Doc. A/51/869, p. 5. 69 UN GA Res. A/RES/64/292, 28 July 2010. The human right to water shapes the interpretation of “vital human needs” in Art. 10, para. 2 of the UN Watercourses Convention. It strengthens the priority of the vital human needs over other water uses. On the relevance of the human right to water within the context of the UN Watercourses Convention, see McIntyre and Tignino (2013), pp. 293–302. 67

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water.70 Ethiopia, on the other hand, disagreed with Article 10, paragraph 1, which states that an “existing agreement or custom” may change the general equality of uses.71 This position seems to address specifically the notion that Egypt’s “acquired and historical rights” could be considered regional custom,72 by refuting an interpretation that might favor those rights. Article 7 of the Watercourses Convention codifies the obligation not to cause significant harm in utilizing an international watercourse. This obligation is designed to constitute due diligence.73 The Working Group adopted Article 7, together with Articles 5 and 6, by a majority of 38 votes to 4, with 22 abstentions. The wording of Article 7 and its relationship with the principle of equitable and reasonable utilization was one of the most controversial issues during the drafting and negotiation of the Convention. The controversy centered around paragraph 2 of Article 7, whose final version is an attempt to reconcile the principle of equitable and reasonable utilization and the no-harm rule.74 The paragraph states: Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

In particular from the wording “having due regard for the provisions of articles 5 and 6”, it can be concluded that the Convention gives priority to the principle of equitable and reasonable utilization over the no-harm rule.75 The wording of Article 7, paragraph 2 shows that a watercourse state may even have to tolerate significant harm,76 such harm being only one of several factors to be balanced in the framework of equitable utilization.77 The above paragraph implicitly recognizes that harm may be caused without establishing the responsibility of the state whose use caused it, provided that the use is equitable in the given circumstances, and despite the causing of harm. Moreover, Article 10, paragraph 2 supports this view, stating that a conflict

‘Alī Ṭāhā (2005), p. 196. See ‘Abd al-‘Āl (2010), p. 108. 72 The existence of such regional custom is for example supported by Maḥfūẓ Muḥammad (2009), p. 334. 73 This can be inferred from the formulation “take all appropriate measures” of Art. 7 of the UN Watercourses Convention and corresponds to customary international law, Hey (1998), p. 294. 74 McCaffrey (2013), p. 18. 75 See e.g. Bourne (1997), pp. 224–225; McCaffrey (2007), p. 366; Freestone and Salman (2007), p. 352; Rieu-Clarke (2013), p. 253. To the same effect also Caflisch (1997), p. 798; Nollkaemper (1996), pp. 55–56; Abseno (2009), p. 91. Le Floch considers that the wording of the UN Watercourses Convention is sufficiently vague to either assume a primacy of the principle of equitable and reasonable utilization or an equality of both principles, Le Floch (2010), p. 489. In fact, the Convention is interpreted for example in the writings of Egyptian commentators as laying down an equality of both principles, see Maḥfūẓ Muḥammad (2009), p. 480. 76 Handl (2007), p. 537; Hey (1998), p. 294. 77 Hey (1998), p. 294. 70 71

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between uses of an international watercourse is to be resolved “with reference to articles 5 to 7”.78 This interpretation of Article 7 is confirmed by the commentary of the ILC to the draft article. The commentary states the following with regard to the relationship between the principle of equitable and reasonable utilization and the obligation not to cause significant harm: The fact that an activity involves significant harm would not of itself necessarily constitute a basis for barring it. In certain circumstances ‘equitable and reasonable utilization’ of an international watercourse may still involve significant harm to another watercourse State. Generally, in such instances, the principle of equitable and reasonable utilization remains the guiding criterion in balancing the interests at stake.79

These provisions on the relationship between the principle of equitable and reasonable utilization and the no-harm rule were also the result of a compromise. As previously noted, upstream states in particular favored the primacy of the principle of equitable and reasonable utilization as codified in Article 5, while downstream states preferred the no-harm rule of Article 7.80 Accordingly, Egypt and Ethiopia held opposing positions in this controversy. Egypt, the most downstream state on the Nile, has argued for a primacy of the no-harm rule vis-à-vis the principle of equitable and reasonable utilization. In the Sixth Committee of the United Nations General Assembly, Egypt expressed its reservations over the relationship between the two principles as set out in the draft Convention, stressing that the no-harm rule was the cornerstone of any legal regime on international watercourses. It was partly for this reason that Egypt abstained from voting on the Convention,81 its delegation explained: The delegation of Egypt, while emphasizing the principle of the equitable sharing of international waters, has reservations on the final version of article 5 of the Convention. We stress the need to link this principle with the obligations of the States of a given river not to cause significant harm. [. . .] the factors relative to equitable and reasonable utilization of waters set out in article 6 must not supersede or replace established factors set out in customary international law. [. . .] the provisions of article 7 do not affect the established principle of customary international law, as affirmed by the International Law Commission since its creation, that the exercise of one’s rights should do no harm to others.82

In contrast, Ethiopia, as the most upstream state on the Blue Nile, has maintained that the principle of equitable and reasonable utilization should be seen as the fundamental principle. Its view was that the primacy of Article 5 should have been

78

McCaffrey (2007), p. 366. ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 103, para. 2. 80 McCaffrey (2007), p. 365. 81 UN GAOR, Sixth Committee, 51st Sess., 62nd meeting, UN Doc. A/C.6/51/SR.62/ Add. 1 (1997), pp. 3–4, paras. 9–10. 82 UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), pp. 10–11. 79

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more clearly established in the Convention83 and any harm suffered by a riparian state should simply be considered as one of the factors in considering whether a use is equitable and reasonable. In the Sixth Committee, Ethiopia reiterated its position that Article 7 should be deleted, or else adapted in such a way as to subordinate the notion of significant harm to the principle of equitable and reasonable utilization.84 In the General Assembly, Ethiopia also abstained from voting on the Convention on the basis that it failed to strike a fair balance between the interests of all riparian states, especially with regard to safeguarding the interests of upstream countries. It argued that this was particularly evident in Article 7 and Part III of the Convention.85 The Ethiopian delegate explained in the General Assembly: With regard to articles 5, 6 and 7, my delegation would have liked to see the primacy of article 5 clearly established, as was proposed by the International Law Commission in its draft. [. . .] It is the view of my delegation that the well-established right of equitable utilization in the Convention was the only reason and incentive for any upper riparian country in the position of Ethiopia to accept the Convention. In the absence of this clearly defined right, the Convention will mean very little to these countries.86

The opposing views of Egypt and Ethiopia concerning the relationship between the two principles correspond to their respective geographical locations on the Nile. Their respective positions are an example of the classic conflict between upstream and downstream countries over the relationship between the principle of equitable and reasonable utilization and the no-harm rule. Since all the Nile’s water is already completely used by Egypt and Sudan, any reduction in the river flow that reaches Egypt would cause harm. If the no-harm rule were to take precedence, the status quo of the water uses would be permanently preserved for all riparian states and any new upstream use leading to a measurable flow reduction would be prohibited. Ethiopia would effectively be barred from now developing and utilizing one of the country’s greatest natural resources, the Blue Nile. On the other hand, giving priority to the principle of equitable and reasonable utilization may justify new uses, even if they cause significant harm downstream, as long as they are equitable and reasonable. Nevertheless, when adopting both of these principles into watercourse agreements, the relevance of the relationship between the two—as well as the provisions of the UN Watercourses Convention in general—is qualified by Article 3. As previously discussed, this article allows derogation from the Convention by agreement of the parties concerned on a case-by-case basis.

83

See the statement of Ethiopia in the vote on the Watercourses Convention in UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), pp. 10–11. 84 Sixth (Legal) Committee of the General Assembly, Summary of records of meetings, Summary record of the 16th meeting, 9 October 1996, UN Doc. A/C.6/51/SR.16, p. 9, para. 37. 85 UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), p. 9. Tanzania also abstained from voting with the similar explanation that the Convention did not achieve a balance between the interests of the riparian states with regard to the equitable use of watercourses, see UN GAOR, Sixth Committee, 51st Sess., 62nd meeting, UN Doc. A/C.6/51/SR.62/Add. 1 (1997), p. 9, para. 40. 86 UN GAOR, 51st Sess., 99th plenary meeting, UN Doc. A/51/PV.99 (1997), p. 10.

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Article 8 of the Convention codifies the general obligation of watercourse states to cooperate. Paragraph 2 of Article 8 emphasizes the importance of joint commissions or other cooperative mechanisms of riparian states. The obligation to cooperate is also specified in Article 9 through the obligation to regularly exchange data and information on the condition of the watercourse, as is usually laid down in watercourse agreements. Unlike many other aspects covered by the text, the Convention sets out these obligations quite precisely by specifying the customary norms.

Planned Measures Part III contains detailed procedural rules for the participation of co-riparian states in the planning of measures that could affect the condition of an international watercourse. According to the commentary of the ILC, the term “measures” is to be understood in a broad sense to include new projects and programs as well as changes to existing uses.87 Article 11 requires watercourse states to exchange information and consult each other and, if necessary, to negotiate on the possible impacts of planned measures on the condition of an international watercourse. Article 12 codifies the principle of prior notification concerning planned measures and thus reflects customary international law. Accordingly, a watercourse state planning to implement or to permit the implementation of planned measures which may have a significant adverse effect upon other riparian states must provide those states with timely notification thereof beforehand.88 The term “timely” requires early notification of measures already in the planning stage in order to allow meaningful consultations and negotiations pursuant to the provisions of the subsequent articles of the Convention should these prove necessary.89 The threshold of a “significant adverse effect” for the notification obligation under Article 12 is lower than that of “significant harm” in Article 7.90 Thus, the obligation to notify under the Watercourses Convention not only arises when a state considers that a planned measure could cause significant harm for other riparian states, but is also triggered by the assumption of significant adverse effects. This lower threshold for the notification obligation was deliberately chosen by the ILC to help prevent harm and the resulting disputes by requiring early notification and consultation even before any indications that the planned measure could cause legally significant harm.91 87

ILC, Report of the International Law Commission on the work of its Forty-Sixth Session (1994), UN GAOR, 49th Sess., UN Doc. A/49/10, p. 111, para. 4. 88 Other riparian states do not need to be notified. Hey (1998), p. 296, criticizes this as complicating the overall assessment of all existing and potential uses of a watercourse. 89 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 111, para. 4. 90 Ibid., p. 111, para. 2. 91 McCaffrey (2007), p. 473.

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The Convention does not explicitly require an environmental impact assessment for planned measures; however, the likelihood that such will be carried out is assumed by Article 12. This article states that the notification is to be accompanied by “available technical data and information, including the results of any environmental impact assessment”. The inclusion of this provision was the result of a compromise between delegations proposing to include an environmental impact assessment as a separate requirement, and others who opposed such a proposal.92 The absence of an obligation to carry out an environmental impact assessment in the UN Watercourses Convention is considered as a significant regulatory gap.93 Indeed, in this respect, the Convention seems to now find itself falling short of the norm due to the further development of customary international law after its adoption in 1997. In 2010, in the Pulp Mills case, the ICJ confirmed a customary obligation to carry out a transboundary environmental impact assessment when there is a risk of significant adverse effects on transboundary water resources.94 Article 12 of the Convention should therefore be interpreted in accordance with current customary international law as requiring a transboundary environmental impact assessment.95 Articles 13–17 contain detailed rules for the procedure following a notification. Among the Nile riparian states, Egypt generally supported these provisions on the notification procedure, while Ethiopia submitted several requests for amendments.96 At the voting on the Convention in the United Nations General Assembly, almost all delegations accepted the obligation of prior notification of planned measures, except Ethiopia, which recorded a reservation against all of Part III.97 The general recognition of this obligation is significant since it confirms that the international community rejects the assumption that a state may freely proceed to utilize the part of an international watercourse within its territory without taking into consideration the effects on its co-riparian states.98 The theory of absolute territorial sovereignty which had for a long time been advanced by Ethiopia, in contrast, supports such an unrestricted use right.

92

Ibid., p. 475. See also e.g. Hey (1998), p. 296. 94 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, pp. 82–83, paras. 204–205. The Court later confirmed the obligation in ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, p. 706, para. 104. 95 To the same effect see McIntyre and Tignino (2013), p. 293. 96 See ‘Abd al-‘Āl (2010), pp. 108–109. 97 UN GA, Verbatim record, 99th plenary meeting, 21 May 1997, UN Doc. A/51/PV.99, p. 9. 98 McCaffrey (2007), p. 372. 93

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Protection, Conservation, and Management Part IV of the UN Watercourses Convention sets out rules for the protection and conservation of ecosystems of international watercourses and their management. These provisions of the Convention are new and were traditionally not part of the law on international watercourses.99 Articles 20–23 stipulate obligations, predominantly formulated in a general manner, for environmental protection by integrating it into the water law provisions.100 Pursuant to Article 20, watercourse states are to “individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses”. Thus, Article 20 is based on a holistic, ecosystem-oriented approach and, to that extent, follows the trend of development in contemporary international environmental law.101 Article 21, paragraph 2 requires that riparian states “prevent, reduce and control the pollution of an international watercourse that may cause significant harm”. With the terms “prevent” and “may cause”, this provision seems to lay down the precautionary principle.102 The commentary of the ILC on Article 21 explains: “The principle of precautionary action is applicable, especially in respect of dangerous substances such as those that are toxic, persistent or bioaccumulative”.103 The following articles comprise provisions on the prevention, reduction and control of pollution, the introduction of alien or new species, and the protection and preservation of the marine environment. According to the Working Group on Articles 21–23, these provisions are intended to set a due-diligence standard for riparian states.104 These provisions, mostly very generally formulated, must be further complemented by the principles and rules of international environmental law to ensure a level of detail that allows for implementation in practice.105

Harmful Circumstances, Emergency Situations, Other Provisions, and Final Clauses Part V of the Convention contains provisions on the prevention and mitigation of harmful conditions and emergency situations. Part VI comprises a collection of

99

Fitzmaurice (2001), p. 445; Brown Weiss (2007), p. 222. Boisson de Chazournes (2013), p. 31. 101 See also Nanda and Pring (2013), p. 307; Brown Weiss (2007), p. 206. 102 Nanda and Pring (2013), p. 317. 103 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 122, para. 4. 104 Report of the Sixth Committee convening as the Working Group as the Whole, 11 April 1997, UN Doc. A/51/869, p. 5. 105 See also Boisson de Chazournes (2013), p. 31. 100

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miscellaneous provisions, the most important of which are those dealing with non-discrimination and access to judicial and other procedures (Article 32) as well as the rules for the settlement of disputes concerning the interpretation or application of the Convention (Article 33). Article 32 requires riparian states to grant natural and legal persons access to their judicial and other procedures without discrimination on the basis of nationality, residence, or place where an injury occurred.106 This is the only provision of the Convention that refers to natural or juridical persons. Special Rapporteur Stephen McCaffrey had proposed a series of provisions on public participation as a basis for the participation of persons and local authorities, but these were ultimately not included.107 These proposed provisions addressed, for example, the access to information and public hearings that would have required transparency of water-resource policies, as well as the possibility for the public to have a voice and be involved in the formulation of such policies and their implementation.108 In terms of development and environmental policy, public participation, at least since Agenda 21,109 has become particularly important for the sustainable use of water resources. Chapter 18 of Agenda 21 considers “full public participation [. . .] in water management policymaking and decision-making” as one of the overarching goals for integrated water resources management.110 In addition, that chapter also considers the principle of subsidiarity as a prerequisite for the sustainable management and use of water resources.111 In brief, the principle of subsidiarity requires the transfer of responsibilities for water management to local administrative and community entities where appropriate.112 The Convention does not support the increasing tendency in other fields of international environmental law113 to require public participation and

106

See also ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto, YBILC 1994, Vol. II, Pt. 2, pp. 132–133, para. 1–6. This principle was controversial in both the ILC and the Working Group, see McCaffrey (2007), pp. 509–510. 107 McCaffrey (1990), pp. 57–62. 108 On public participation, see Hey (1995), pp. 133–134. 109 Agenda 21 is an action plan for global sustainable development that was adopted by over 170 governments at the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 and since has been reaffirmed at the various subsequent United Nations conferences concerned with sustainable development. 110 Agenda 21, Chap. 18: 18.9(c). 111 So e.g. Agenda 21, Chap. 18: 18.9(c); 18.12(m) and (n); 18.19; and 18.22. See also Hey (1995), p. 128, note 7. 112 See e.g. Agenda 21, Chap. 18: 18.50(c) and 18.59(e). See also Hey (1995), pp. 133–134. 113 Agreements on other environmental media increasingly include rules on public participation and subsidiarity in decision-making processes, such as Art. 4, para. 1(i) and Art. 6(a)(iii) United Nations Framework Convention on Climate Change, 9 May 1992, UNTS, Vol. 1771, p. 107; Art. 14, para. 1(a) Convention on Biological Diversity, 5 June 1992, UNTS, Vol. 1760, p. 79; Art. 3(a) and Art. 5(d) Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, Doc. A/AC.241/15/Rev.3, ILM 33 (1994), p. 1332. See Wolfrum and Kirschner, 2013, p. 14. The

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subsidiarity in decision-making at international and national level, and as such fails to promote the objectives of Agenda 21. Article 33 of the Convention provides for a multi-staged procedure for the settlement of disputes concerning the interpretation or application of the Watercourses Convention in the absence of an applicable agreement between the parties concerned. Pursuant to paragraph 2, negotiations between the parties constitute a possible first stage. If the parties cannot reach agreement by negotiation, they may jointly seek to settle their dispute in a non-binding manner via a third party or a common watercourse institution that may have been established by them. Alternatively, they may agree to submit the dispute to binding arbitration or to the ICJ. An annex to Article 33 contains more detailed provisions for the conduct of arbitral proceedings. Article 33, paragraph 3 provides for the establishment of an impartial fact-finding commission at the request of any party to a dispute. In this case, the fact-finding commission will provide a report and recommendations for an equitable solution, as stipulated in Article 33, paragraph 8. In this respect, the provisions on the fact-finding commission go beyond the classical diplomatic and legal dispute resolution mechanisms provided for under public international law and constitute a specific development within international water law.114 Part VII of the Convention contains final clauses on its signature, ratification, and entry into force.

4.1.2

Draft Articles on the Law of Transboundary Aquifers

As seen above, the UN Watercourses Convention covers only those groundwater resources that are physically related to an international watercourse. It follows that the Convention is not applicable to confined aquifers. Therefore, the ILC elaborated specific universal rules for all transboundary groundwater resources as set out in the Draft Articles on the Law of Transboundary Aquifers.115 For the purpose of providing comprehensive resource protection that goes beyond the Watercourses Convention, these rules apply to all transboundary aquifers, regardless of whether they are related to surface water.116 In adopting this approach the Watercourses Convention and the draft articles overlap with respect to groundwater that is physically

currently most comprehensive and specific agreement in this field is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, UNTS, Vol. 2161, p. 447. Generally on public participation in environmental matters, see Ebbesson (2009). 114 See also Hey (1998), p. 297; Boisson de Chazournes (2005), p. 31. 115 Draft Articles on the Law of Transboundary Aquifers, UN GA, A/RES/63/124, 11 December 2008. See generally on these draft articles Dellapenna and Loures (2011), pp. 217–233; McCaffrey (2009), pp. 272–293; Mechlem (2009), pp. 801–821; Matz-Lück (2009), pp. 141–150. 116 The draft articles are intended to cover “all transboundary aquifers and aquifer systems regardless of whether or not they are related to surface waters”, Yamada (2005), p. 7, para. 16. On the background of the approach chosen by the ILC, see Matz-Lück (2009), pp. 141–142.

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related to surface water. The Commission considered that, in the event of conflict, the latter should prevail “since the 1997 Watercourses Convention was essentially designed to regulate surface waters”.117 The Draft Articles on the Law of Transboundary Aquifers were taken note of by the General Assembly of the United Nations in 2008.118 Thus far, however, the General Assembly has not decided on their future form, for example whether the draft articles should become an international framework agreement or merely voluntary guidelines.119 The ILC conceived them as a follow-up convention to the Watercourses Convention; however, many countries rather prefer a non-binding instrument with general principles as guidance for regional or aquifer-specific arrangements.120 The draft articles, consisting of 19 articles containing substantive and procedural provisions on the use and protection of transboundary aquifers, are based to a large extent on the Watercourses Convention.121 They incorporate the customary law principles of equitable and reasonable utilization and the no-harm rule as well as general cooperation obligations of riparian states.122 Their provisions are adapted to the characteristics of groundwater resources and, in particular, take into account the need to protect them against contamination and overuse.123

4.2

Regional Agreements

The UN Watercourses Convention leaves room for tailored specifics in the design of watercourse agreements at the regional level. An important function of regional agreements which do not concern a particular watercourse is to address and regulate regional particularities. Regional agreements can thereby provide a regulatory framework that in turn is further specified in agreements for particular watercourses and adapted to their respective characteristics. They can thus promote the development and harmonization of multiple watercourse agreements within a single region.124

117

Yamada (2005), p. 7, para. 16. UN GA, A/RES/63/124, 11 December 2008. 119 See UN GA, A/RES/68/118, 19 December 2013. See also UNGA, Sixth Committee (Legal), 71st session, The law of transboundary aquifers (Agenda item 86), 2016, https://www.un.org/en/ga/ sixth/71/transboundary_aquifers.shtml (accessed 25 June 2019). 120 See UN GA, A/C.6/66/SR.16, 14 February 2012, Agenda item 85. 121 ILC, Text of the Draft Articles on the Law of Transboundary Aquifers with commentaries thereto, Report of the International Law Commission, 58th Sess., 2006, GAOR 61st Sess., Suppl. No. 10, UN Doc. A/61/10, p. 194, para. 5. 122 Boisson de Chazournes (2013), pp. 38–39; Matz-Lück (2009), p. 143. 123 McCaffrey (2007), p. 502. 124 Boisson de Chazournes (2013), p. 36. 118

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Currently there are only a few agreements at regional level concerning the use and management of transboundary water resources. Notably, in Europe there is the Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the United Nations Economic Commission for Europe of 17 March 1992 (UNECE Water Convention).125 A regional agreement of the member states of the Southern African Development Community is the Revised Protocol on Shared Watercourses in the Southern African Development Community of 7 August 2000 (SADC Revised Protocol).126 These regional agreements were influenced by the work of the ILC, in particular its work on the draft articles for the UN Watercourses Convention,127 and they contain comprehensive codifications of fundamental water law principles. Earlier regional agreements include the Act of Asunción on the Use of International Rivers of 3 June 1971 in South America128 and the ASEAN Agreement on the Conservation of Nature and Natural Resources of 9 July 1985 in Asia.129 The most important regional water agreement today is the UNECE Water Convention,130 which is widely considered as one of the most successful treaties on transboundary water resources.131 Initially, it was designed as a regional framework convention for the UNECE region; however, on 6 February 2013 it was amended to open it to all United Nations member states for accession.132 The UNECE Water Convention provides a framework for cooperation between member states to prevent and control the pollution of transboundary waters, including groundwater in the

125

ILM 31 (1992), p. 1312. In addition, important for water management in Europe is the Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive), OJ L 327, 22 December 2000, p. 1. It should be noted, however, that this directive does not constitute a source of international law under Art. 38 of the ICJ Statute, but supranational law at Community law level of the European Union. 126 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. 127 Boisson de Chazournes (2013), p. 33. 128 Act of Asunción on the Use of International Rivers, 3 June 1971, reproduced in Rios y lagos internacionales (Utilización para fines agricolas e industriales) 4th edn., 4 OEA/Ser.I/VI, CIJ-75 rev. 2, Organization of American States, Washington D.C., 1971, pp. 183–186. Contracting parties are Argentina, Bolivia, Brazil, Paraguay, and Uruguay. 129 ASEAN Agreement on the Conservation of Nature and Natural Resources, Kuala Lumpur, 9 July 1985, reproduced in Burchi and Mechlem (2005), pp. 35–46. Contracting and/or signatory states are Brunei, Indonesia, Malaysia, Philippines, Singapore, and Thailand. 130 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, ILM 31 (1992), p. 1312. The Convention entered into force on 6 October 1996. It has been supplemented by two protocols, the 1999 Protocol on Water and Health and the 2003 Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters. 131 See generally Türk (2012), p. 1056. 132 See Arts. 25 and 26 UNECE Water Convention of 28 November 2003, UN ECE/MP.WAT/14.

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territory of contracting parties or contracting parties and third states.133 This means that the UN Watercourses Convention and the UNECE Water Convention overlap and complement each other, as both provide states seeking to regulate the use of a shared watercourse with guidance for the drafting of a treaty. Neither convention was intended to replace specific watercourse agreements, but they rather serve as framework agreements to build commonality among negotiating riparian states. The UNECE Water Convention contains many parallels to the UN Watercourses Convention, in particular concerning the provisions on the principles of equitable and reasonable utilization, cooperation, and protection of watercourse ecosystems. However, while the UN Watercourses Convention focuses on the principles for water allocation, namely an equitable and reasonable utilization coupled with the no-harm rule, the UNECE Water Convention puts its focus on aspects of water and environmental protection.134 Thus, when Article 2, paragraph 2(c) of the UNECE Water Convention lays down the principle of equitable and reasonable utilization, it simply stipulates that the parties must take all appropriate measures “to ensure that transboundary waters are used in a reasonable and equitable way”. The UNECE Water Convention does not list factors for determining what is an equitable and reasonable utilization, nor does it offer any other guidance for the application of this principle. Rather, on this point the Guide to Implementing the Convention refers to the UN Watercourses Convention.135 While it appears to follow behind in this respect, when it comes to the field of water and environmental protection the UNECE Water Convention is clearly ahead of the UN Watercourses Convention. In addition to the precautionary principle, it also adopts the polluter-pays principle as a guiding principle for measures to prevent, control, and reduce transboundary impact, and it establishes the best available technology as the applicable technology standard.136 The two conventions also complement each other with regard to procedural rules. For example, Article 13 of the UNECE Water Convention contains a non-exhaustive list of data and information that riparian states must exchange. The UN Watercourses Convention contains no comparable list. This means that on the one hand the UNECE Water Convention can supplement the UN Watercourses Convention, whose parties can draw on the listing of the data to be exchanged. On the other hand, the UN Watercourses Convention contains detailed provisions on planned measures and their notification in Part III (Articles 11–19) which can be used to supplement the UNECE Water Convention, which has no such provisions. Although both conventions were designed as framework conventions, conceptually they differ considerably. Unlike the UN Watercourses Convention, the UNECE

133

See Art. 1, para. 1 UNECE Water Convention which covers—unlike the UN Watercourses Convention—confined aquifers. 134 Boisson de Chazournes (2013), p. 33. 135 See UNECE, Guide to Implementing the Convention, 2013, p. 24, para. 107. 136 The precautionary principle: Art. 2, para. 5(a); polluter-pays principle: Art. 2, para. 5(b); required standard of technology: Art. 3, para. 1(c) and Art. 13, para. 1(b) in conjunction with Annex I.

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Water Convention prescribes binding minimum standards to the contracting parties for the protection and use of transboundary watercourses and lakes. Those apply regardless of whether the contracting parties are also parties to a basin-specific agreement. One of the core provisions of the UNECE Water Convention is Article 9, which requires riparian parties to enter into bilateral or multilateral agreements “in order to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary impact” and to adapt existing agreements where necessary to eliminate any contradictions with the basic principles of the Convention (Article 9, paragraph 1, first sentence). Riparian parties are to establish joint bodies for shared waters, such as bilateral or multilateral commissions, the main functions of which are set out in the Convention (Article 9, paragraph 2). Conversely, the UN Watercourses Convention leaves the conclusion and adaptation of watercourse agreements, as well as the establishment of joint commissions or other institutional arrangements for cooperation, to the discretion of the contracting parties.137 The UNECE Water Convention has led to the adoption of several agreements at the basin level, where it has served as a reference framework.138 Within a decade of it coming into force, and on the basis of this convention, agreements have been concluded, inter alia, on the Meuse,139 Scheldt,140 Danube,141 Oder,142 the Portuguese-Spanish border waters,143 and the Rhine.144 A notable difference and advantage that the UNECE Water Convention has over the UN Watercourses Convention is that the former has an institutional structure, with a secretariat to assist states with its implementation. Another important regional water agreement is the SADC Revised Protocol of 2000.145 This protocol was adopted as a framework agreement to lay down a

137

See Art. 3, paras. 1–3 and Art. 8, para. 2 UN Watercourses Convention. Boisson de Chazournes (2013), p. 50. 139 Accord concernant la protection de la Meuse (signed 26 April 1994, entered into force 1 January 1998), replaced by the Accord international sur la Meuse (signed 3 December 2002, entered into force 1 December 2006), at http://www.meuse-maas.be/CIM/media/ACCORDS/accord-gand_f.pdf (accessed 26 June 2019). 140 Agreement on the Protection of the River Scheldt (signed 26 April 1994, entered into force 1 January 1998), ILM 34 (1995), p. 859. 141 Convention on Cooperation for the Protection and Sustainable Use of the River Danube, (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19. 142 Convention on the International Commission for the Protection of the River Oder against Pollution (signed 11 April 1996, entered into force 28 April 1999), OJ L 100, 15 April 1999, p. 21. 143 Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aquas de las cuencas hidrográficas hispano-portuguesas (Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins) (opened for signature 20 November 1998, entered into force 31 January 2000), available at http://www.fao.org/faolex/ en/ (accessed 26 June 2019). 144 Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. 145 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. The 138

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comprehensive set of principles for agreements covering shared watercourses in the region. It was signed in 2000 by 13 of the then 14 SADC146 member states and entered into force in 2003. The Protocol was to align the former 1995 Protocol on Shared Watercourse Systems in the SADC region with the principles of international water law as codified in the UN Watercourses Convention.147 In furtherance of this goal, the 2000 Protocol almost completely incorporated the provisions of the UN Watercourses Convention, such as its Articles 5–7 on the principle of equitable and reasonable utilization and the no-harm rule, Articles 11–19 on planned measures, and Articles 20–23 on the protection and preservation of ecosystems.148 The 2000 Protocol and its principles and recommendations for the establishment of joint management mechanisms have also been incorporated in basin-specific agreements.149 The Protocol is seen as a significant step toward promoting cooperation between riparian states in the SADC region in matters of water allocation and water quality of transboundary watercourses.150

protocol replaced the earlier Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region (signed 28 August 1995, entered into force 29 December 1998), reproduced in FAO, 1997, p. 146. Review and discussion of the 2000 SADC Protocol at Salman (2001a), pp. 981–1022. See also Salman (2001b), pp. 317–319. 146 Established in 1992 as a regional organization of Southern African countries, SADC continues the role and activities of the Southern African Development Coordinating Conference (SADCC) which existed from 1980 to 1992 without legal status or constituting treaty. The objective of SADC is to promote socio-economic development, peace, security, and economic growth in the member states through regional integration. The 16 current SADC member states are Angola, Botswana, Comoros, the DR Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, and Zimbabwe. See http://www.sadc.int/ about-sadc/ (accessed 26 June 2019). Detailed overview of the transboundary watercourses in the SADC region, the history and organizational structure of the SADC, and the 1995 and 2000 protocols on transboundary watercourses at Salman (2001a), pp. 981–1022. 147 Salman (2001b), p. 318. 148 Art. 3, paras. 7, 8 and 10 SADC Protocol on the principle of equitable and reasonable utilization and the no-harm rule; Art. 4, para. 1 SADC Protocol on planned measures; Art. 4, para. 2 SADC Protocol on environmental protection and preservation. For a comparison of the main provisions of the SADC Protocol of 2000 with the UN Watercourses Convention, see Salman (2001a), pp. 1004–1022. 149 For example in the Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses, 29 August 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019). See Boisson de Chazournes (2013), p. 126. 150 Salman (2001a), p. 982.

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Watercourse Agreements

Watercourse-specific agreements are indispensable for concretizing the rules of general international law on the use of international watercourses and, where applicable, existing regional water agreements for a particular watercourse, and are also essential for adapting these to the watercourse’s specific circumstances.151 Thus, while international norms provide a framework for designing a utilization regime for a particular watercourse, ultimately, the parties themselves must devise solutions adapted to meet local conditions. Accordingly, the UN Watercourses Convention encourages riparian states to conclude watercourse agreements that apply the principles codified in the Convention to the characteristics and uses of the particular watercourse.152

4.3.1

Regulatory Content

The regulatory contents of the various basin-specific agreements are as diverse as the possible uses of international watercourses. In general, five major purposes of international freshwater agreements have emerged: demarcation, facilitation of navigation, allocation of uses or development of water for particular uses, protection of the ecosystem, and pollution control. Traditionally, most freshwater agreements have dealt essentially only with one field, such as navigation or power generation. Since the second half of the twentieth century, however, agreements have increasingly been designed to serve multiple simultaneous purposes.153 Until the late nineteenth and early twentieth centuries, treaties on shared freshwater resources predominantly focused on issues of either border demarcation or navigation.154 Since the mid-twentieth century, the focus has been on regulating the allocation and use of fresh water for agricultural, industrial, or domestic purposes as 151

See also Boisson de Chazournes (2013), p. 128; Bulto (2009), p. 292. For a survey of watercourse agreements divided by continent, see Sands et al. (2013), pp. 319–340. 152 See Art. 3, para. 3 UN Watercourses Convention: “Watercourse States may enter into one or more agreements, hereinafter referred to as ‘watercourse agreements’, which apply and adjust the provisions of the present Convention to the characteristics and uses of a particular international watercourse or part thereof.” 153 Brown Weiss (2007), pp. 241–242. See also the synopsis of the watercourse agreements on major international watercourses at Mekonnen (2005), pp. 166–194. 154 For example, in the Treaty of Amity, Commerce and Navigation between Great Britain and the United States (signed 19 November 1794), CTS 52 (1793–1795), p. 243; Part VII (Navigation des rivières traversant différens Ètats) Acte du Congrès de Vienne, 9 June 1815, at https://gallica.bnf.fr/ ark:/12148/bpt6k91227n/f1.image (accessed 26 June 2019); Convention relative to the Free Navigation of the Elbe, 23 June 1821, BFSP 8 (1820–1821), p. 953; Act of Mainz, 31 March 1831 and Act of Mannheim, 17 October 1868, BFSP 59 (1868–1869) p. 470; Partie XII (Ports, Voies d’eau et Voies ferrées) Traité de Versailles, 28 June 1919, reproduced in Librairie Militaire Berger-Levrault, 1919. Detailed overview of the historical development of international watercourse agreements and

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well as for energy production155; to date, however, fixed water quotas for shared water resources are rare, and where they do exist, they are increasingly criticized.156 Nearly half of the agreements signed since the beginning of the twenty-first century address issues of allocation and use of water resources. These are often in the form of framework agreements designed to create a comprehensive regime for all matters affecting the catchment area concerned.157 Likewise, the riparian states of the Nile are striving to conclude such a comprehensive agreement with the CFA for the Nile Basin. Furthermore, an ever-increasing number of agreements are being concluded that primarily serve ecological purposes, such as the control of pollution of shared waters and the protection of their ecosystems.158 This development has been tending increasingly toward including both ground and surface water within their regulatory scope, as the complex relationship between the two is better understood.159 Nevertheless, many watercourse agreements still do not adequately address today’s requirements for effective and sustainable water management resulting from the considerable increase in the socio-economic pressures that have arisen since the mid-twentieth century.160

4.3.2

Alignment of Watercourse-Specific Agreements with Global and Regional Water Agreements

Many of the more recent watercourse agreements are oriented toward either the draft articles of the ILC on which the UN Watercourses Convention is based,161 or the

their regulatory contents worldwide at Brown Weiss (2013), pp. 79–110. On the historical development of international watercourse agreements, see also Chap. 2, Sect. 2.1. 155 Brown Weiss (2007), p. 238. 156 Türk (2012), p. 1061. 157 Brown Weiss (2013), pp. 88–89. 158 Caponera (2007), p. 186; Brown Weiss (2007), p. 241. 159 For example the Danube River Protection Convention of 1994, which defines the “catchment area” of the Danube as “the hydrological river basin”, see Art. 1(b) Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19. See also McCaffrey (2007), p. 488. 160 See also UNEP (2006), p. 12; Rieu-Clarke and Loures (2009), p. 187. Similarly Türk (2012), p. 1062, who points out that the agreements often lack adequate management procedures and dispute resolution mechanisms. 161 For example, the Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Art. 6 and Annex II of the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, ILM 34 (1995), p. 43; Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864.

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Convention itself.162 This includes the 2010 CFA for the Nile. At the same time, many other recent agreements have been based on regional water agreements. An example of a watercourse agreement in Europe that adopts universal and regional provisions and adapts them to the characteristics of the particular basin is the 1998 Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins.163 This convention adopted general principles for the allocation of transboundary water resources as enshrined in both the UN Watercourses Convention and the UNECE Water Convention, such as the principle of equitable and reasonable utilization. It then adapted this principle to the local conditions, characterized by water scarcity, by determining the guaranteed annual discharge rates for both Spain and Portugal. In addition, this agreement adopted several regional provisions from the UNECE Water Convention, such as water quality requirements, the obligation to implement an environmental impact assessment, and the obligation of public information.164 A similar process of adopting and adapting principles contained in universal and regional agreements in particular watercourse agreements can be observed in the SADC region in the case of the Tripartite Interim Agreement between the Republic of Mozambique, the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses of 2002.165 This tripartite agreement adopted general principles set out in the UN Watercourses Convention and the SADC Revised Protocol and explicitly refers to them in its preamble. It adds specific provisions to the adopted principles with regard to the protection and sustainable use of the water resources of the Incomati and Maputo watercourses, such as the

162

For example, the Agreement between the Syrian Arab Republic and the Lebanese Republic for the Sharing of the Southern Great River Basin Waters and the Building of Joint Dam on it, 20 April 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019); Framework Agreement on the Sava River Basin, 3 December 2002, UNTS, Vol. 2366, p. 479; Protocol for Sustainable Development of Lake Victoria Basin, 29 November 2003, http://repository.eac.int/handle/11671/ 1640 (accessed 26 June 2019); Agreement on the Establishment of the Zambezi Watercourse Commission, 13 July 2004, http://www.zambezicommission.org/sites/default/files/publication_ downloads/zamcom-agreement.pdf (accessed 26 June 2019). See also Rieu-Clarke and Loures (2009), p. 191. For a detailed discussion of the watercourse agreements that are oriented at the UN Watercourses Convention, see Burchi (2002), pp. 271–279. 163 Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aquas de las cuencas hidrográficas hispano-portuguesas (Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins) (opened for signature 20 November 1998, entered into force 31 January 2000), available at http://www.fao.org/faolex/ en/ (accessed 26 June 2019). 164 See Costa et al. (2008), pp. 5–6; Boisson de Chazournes (2013), p. 127. 165 Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses of 29 August 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019). See Boisson de Chazournes (2013), p. 128.

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obligation to conduct environmental impact assessments166 and the principle of sustainable development of water resources,167 both of which are of crucial importance for these particular rivers.168 Yet another example of how general principles at the universal level are finding their way into agreements at the basin level and being adapted to specific hydrographic circumstances is the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin between Cambodia, Laos, Thailand, and Viet Nam.169 Influenced by the work of the ILC on the draft articles for the UN Watercourses Convention, this agreement is rooted deeply in universal principles such as equitable and reasonable utilization, the no-harm rule, and the obligation to cooperate. In addition, in view of the particular sensitivity of the Mekong’s ecosystem to changes in its run-off pattern, the agreement also provides for environmental protection measures specifically designed to maintain flow volumes along the main channel of the Mekong.170 Lastly, the CFA for the Nile has also been strongly influenced by the provisions of the UN Watercourses Convention. This is discussed in detail in Chap. 8. The analysis shows that many of the problems that impeded the development of international water law, and the negotiations on the UN Watercourses Convention in particular, are exemplified in the negotiations on this framework agreement for the Nile.

4.4

International River Commissions

The rules of general international law on the management and use of international watercourses should be complemented not only by watercourse-specific agreements, but also through institutional structures for the particular watercourse. These structures, such as river commissions or river basin organizations, are necessary in order 166

Art. 13 in conjunction with Art. 1 Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses of 29 August 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019). 167 Preamble paras. 6, 7 and 8, and Arts. 1 and 3(a) Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses of 29 August 2002, available at http://www.fao.org/faolex/en/ (accessed 26 June 2019). 168 Boisson de Chazournes (2013), p. 128. 169 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864. 170 See Art. 6 of the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864. See Boisson de Chazournes (2013), p. 128.

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to institutionalize the cooperation of the various riparian states provided for in watercourse agreements and to ensure that they are observed by all involved.171 Experience has shown that the more formalized the cooperative arrangements are, the greater the likelihood that all riparian states will comply with the treaty provisions. Therefore, watercourse agreements often establish joint commissions of the riparian states for the management of their shared water resources.172 While there is no obligation under international law to create or participate in joint river commissions, there has been an increasing tendency to establish such institutional structures since the nineteenth century.173 Evidence of this is also seen in recent state practice, which shows that river commissions are generally considered as an important institutional framework for the joint management of transboundary water resources. Thus a number of watercourse agreements concluded in recent years contain provisions on the establishment and organizational design of joint institutions responsible for different aspects of river basin management.174 The UN Watercourses Convention recommends the establishment of joint commissions or mechanisms to facilitate cooperation in order to attain optimal utilization, adequate protection, and sustainable water management of international watercourses.175 This view was reinforced in 2010 when the ICJ placed particular emphasis on the importance of joint mechanisms for a continuous and effective cooperation between the riparian states in its judgment concerning the Pulp Mills case.176 The success achieved with the NBI compared with earlier impasses also confirms the important beneficial role of joint institutions for cooperation in river development and management. Worldwide, more than 100 international river commissions for non-navigational uses of international watercourses have thus far been established and entrusted with a wide variety of functions.177 The form and structure of these river commissions vary as widely as the watercourses they oversee. As is the case with watercourse agreements themselves, the commissions are adapted to the respective regional and local conditions.178 In general, there is a tendency to significantly expand the scope of cooperation in such bodies as well as their responsibilities. Until the middle of the twentieth century, the main function of river commissions was commonly limited to one or two regulatory areas, usually navigation and fishing. Since the mid-twentieth 171

Bulto (2009), p. 292. See for a general discussion on international river commissions and other joint mechanisms for the management of transboundary river basins Caponera (2003), pp. 319–396. On international river commissions, see also Wolfrum (1995), pp. 1042–1043. 172 Brown Weiss (2013), pp. 91–92. 173 Boisson de Chazournes (2013), p. 176. 174 See Caponera (2007), p. 235; Vinogradov et al. (2003), pp. 57–62. 175 See Arts. 8 and 24 UN Watercourses Convention. 176 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, pp. 53–54, paras. 89–90. 177 For an overview of agreements that establish joint institutional mechanisms, see Caponera (2003), pp. 351–360. 178 Boisson de Chazournes (2013), pp. 178–179.

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century, the tasks of river commissions have expanded considerably and become multi-dimensional,179 which has also mirrored changes in contemporary watercourse agreements, extending into energy production, irrigation, environmental protection, data collection, and public information. Framework conventions such as the UN Watercourses Convention and the SADC Revised Protocol have contributed to some degree in harmonizing watercourse agreements by generally outlining the role of such commissions.180 Just as with watercourse agreements, the functions entrusted to river commissions reflect the main uses of the watercourses at their time of establishment. For example, international river commissions were traditionally established to regulate the use of waterways for navigation purposes. Over the course of the twentieth century commissions were increasingly established for hydroelectric power generation and water allocation issues; this was later followed by commissions with a greater focus on water quality and pollution control.181 There are numerous examples of river commissions,182 with one of the earliest being established in 1755 between Germany and the Netherlands to regulate navigation on the Rhine.183 Further examples of treaties establishing river commissions in Europe are: the Convention on the International Commission for the Protection of the Rhine against Pollution of 29 April 1963,184 superseded by the Convention on the Protection of the Rhine of 12 April 1999185; the Convention on the International Commission for the Protection of the Elbe of 8 October 1990186; the Convention on Cooperation for the Protection and Sustainable Use of the Danube River of 29 June 1994187; the Convention on the International Commission for the Protection of the

179

Brown Weiss (2007), p. 260. See also Boisson de Chazournes (2013), p. 179. 181 Caponera (2007), pp. 235–236. See for example the Convention on the International Commission for the Protection of the Rhine against Pollution, 29 April 1963, https://www.iksr.org/en/ international-cooperation/about-us/history/index.html (accessed 26 June 2019). 182 For an overview of river commissions, including their structures and functions, divided by continent, see Caponera (2007), pp. 235–246. For a survey of selected bilateral and multilateral institutions for the management of international rivers, lakes, and groundwater, see Burchi and Spreij (2003). 183 See Caponera (2007), p. 235. 184 Convention on the International Commission for the Protection of the Rhine against Pollution, 29 April 1963, https://www.iksr.org/en/international-cooperation/about-us/history/index.html (accessed 26 June 2019). 185 Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. 186 Convention on the International Commission for the Protection of the Elbe (signed 8 October 1990, entered into force 30 October 1992), OJ L 321, 23 November 1991, pp. 0025–0027. 187 Convention on Cooperation for the Protection and Sustainable Use of the River Danube (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19. 180

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River Oder against Pollution of 11 April 1996188; and the Convention on the Protection of Lake Constance against Pollution of 27 October 1960.189 In North America, the Boundary Waters Treaty of 1909 between the United States and Canada created the International Joint Commission for the cooperation on transboundary waters. This commission is regarded as a particularly effective commission for international cooperation concerning transboundary water resources. For example, under Article IX of that treaty, the parties can refer a question or matter of difference to the Commission for examination and report. The parties can then use the report as a basis for reaching an agreed solution on the matter.190 For Africa, the Organization for the Development of the Senegal River established in 1972191 and the Zambezi Watercourse Commission of 2004192 should be mentioned. Furthermore, the 1959 Nile Waters Agreement193 created the Permanent Joint Technical Commission for the Nile; however, only Egypt and Sudan are members while the other nine Nile riparian states are excluded. A proposal for the establishment of a Nile Basin authority with the participation of all riparian states was presented in 1999 at the Eighth Nile Conference for consideration by the riparian states, but it was not adopted.194 In that same year, however, a more positive step was taken with the establishment of the NBI as a temporary institutional mechanism until a permanent Nile Basin Commission could be created.195 In Asia, the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin of 5 April 1995196 is worthy of mention as a relatively recent watercourse treaty. With this agreement, the four countries sharing the lower Mekong, namely Cambodia, Laos, Thailand, and Viet Nam, established the new Mekong River Commission as the institutional framework for their cooperation.197 188

Convention on the International Commission for the Protection of the River Oder against Pollution (signed 11 April 1996, entered into force 28 April 1999), OJ L 100, 15 April 1999, p. 21. 189 Convention on the Protection of Lake Constance against Pollution (signed 27 October 1960, entered into force 10 November 1961), http://www.igkb.org/die-igkb-internationalegewaesserschutz-kommission-fuer-den-bodensee/uebereinkommen-ueber-den-schutz-desbodensees-gegen-verunreinigung/ (accessed 26 June 2019). 190 See McCaffrey (2007), pp. 511–512; Caponera (2007), p. 239. 191 Convention portant création de l’Organisation pour la mise en valeur du fleuve Sénégal (Convention establishing the Organization for the Development of the Senegal River) (signed 11 March 1972), reproduced in FAO (1997), p. 24. 192 Agreement on the Establishment of the Zambezi Watercourse Commission (signed 13 July 2004), http://www.zambezicommission.org/sites/default/files/publication_downloads/zamcomagreement.pdf (accessed 26 June 2019). 193 Agreement between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters, 8 November 1959, UNTS, Vol. 453, p. 51. 194 Draft Convention for the Establishment of the Nile Basin Authority, VIII Nile Conference, Cairo, March 1999, reproduced in Caponera (2003), pp. 361–374. 195 See NBI, http://www.nilebasin.org (accessed 26 June 2019). See also ‘Alī Ṭāhā (2005), p. 175. 196 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864. 197 Ibid., Chap. IV.

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The areas of cooperation under the agreement include, but are not limited to, irrigation, hydroelectric power, navigation, flood control, fisheries, timber floating, recreation, and tourism.198 The joint commission has become a robust institution, although its funding relies essentially on international donor contributions.199 Most of these agreements establishing international river commissions share some common features. Many commissions have predominantly advisory functions and no decision-making power200; they can conduct studies and make recommendations for development projects in the catchment area. The commissions and their secretariats usually have a permanent seat, regulated funding, and diplomatic immunity in the exercise of their functions.201 For the decision-making process within the commissions, most riparian states agreed on the principle of unanimity. A final area of commonality that has been briefly mentioned earlier is that their objectives and functions are often manifold, covering technical, economic, legal, or administrative responsibilities. In view of the diverse conditions along transboundary watercourses, it is not possible to abstractly design an ideal institutional structure as a model for the management of all river basins.202 In general, however, a few key points should be laid down in any treaty establishing an international river commission. These include the objects and purposes of the commission, its form and duration, legal status, territorial competence, functions and powers, decision-making procedures, the financing, accounting and auditing of both the commission and its development projects, as well as the rules governing the settlement of disputes concerning the interpretation and implementation of the treaty.203

198

Ibid., Art. 1. For a brief overview of the Mekong River Commission, see McCaffrey (2007), pp. 285–288. 200 An example for a river commission with decision-making powers is the Organization for the Development of the Senegal River. This commission is, inter alia, vested with powers with regard to development projects in the river basin, see Art. 1, para. 3(e) Convention portant création de l’Organisation pour la mise en valeur du fleuve Sénégal (Convention establishing the Organization for the Development of the Senegal River) (signed 11 March 1972), reproduced in FAO (1997), p. 24. 201 Caponera (2007), pp. 247–248. On potential functions of river commissions, see also Ely and Wolman (1967), pp. 138–146. 202 Caponera (2007), pp. 254–255. To the same effect see already Ely and Wolman (1967), p. 146. 203 See also the Guidelines for the Establishment of an International Water Resources Administration, Annex to the ILA Madrid Report on Administration of International Water Resources (1976), reproduced in Caponera (2003), pp. 330–332. See also the discussion of existing agreements on international river commissions at Caponera (2007), pp. 246–255. 199

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Conclusion

A particular challenge facing international water law is the fact that the situations that need to be regulated vary widely, just as the world’s watercourses differ widely in geography, climate, hydrology, and socio-economic and other conditions. At the global level, therefore, only very general rules can be established that are universally applicable; these must subsequently be specified and adapted through watercoursespecific agreements to the prevailing circumstances of a particular basin. The principles of international law for the use and management of international watercourses were codified in the UN Watercourses Convention, which entered into force in 2014. Even so, during the negotiations on the UN Watercourses Convention the relationship between the principle of equitable utilization and the no-harm rule remained highly controversial. Ultimately, the former was determined as the overarching principle governing the allocation of water uses. Breaking further new ground, the Convention has strengthened the role of environmental aspects in the management of watercourses. With a view to transboundary aquifers, the Convention is supplemented by the Draft Articles on the Law of Transboundary Aquifers, which were taken note of by the General Assembly of the United Nations in 2008. An important function of agreements at the regional level is to address and regulate regional particularities, with a view to promoting the development and harmonization of multiple watercourse agreements within a single region. There are only a few such regional agreements concerning the management of transboundary water resources; notable examples are the 1992 UNECE Water Convention in Europe and the 2000 Revised Protocol on Shared Watercourses in the SADC region. Both have served as reference frameworks for the subsequent adoption of several agreements at the basin level. Watercourse agreements at the basin level are indispensable for concretizing the principles of international water law and provisions of regional agreements for a particular watercourse and adapting them to its specific circumstances. The UN Watercourses Convention has had a notable influence on the treaty practice concerning individual watercourses. For the implementation of such watercourse agreements, establishing a river commission to promote cooperation of all involved riparian states has proved to be exceedingly beneficial. Nile riparian states attach great importance to the UN Watercourses Convention for a future treaty regime on the Nile. This can be seen in the active participation of several of them in the drafting and negotiation of the Convention’s provisions.

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FAO (1984) Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, vol 2. Legislative Study 34. Rome FAO (1997) Treaties concerning the non-navigational uses of international watercourses, Africa. Legislative Study 61. Rome FAO (2012) Coping with water scarcity – an action framework for agriculture and food security. Water Report 38. Rome Fischhendler I (2008) When ambiguity in treaty design becomes destructive: a study of transboundary water. Global Environ Policy 8:111–136 Fitzmaurice MA (2001) International protection of the environment. Recueil des Cours 293. The Hague Academy of International Law, The Hague Freestone D, Salman SMA (2007) Ocean and freshwater resources. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Law. Oxford University Press, Oxford, pp 337–361 Handl G (2007) Transboundary impacts. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Law. Oxford University Press, Oxford, pp 531–549 Hey E (1995) Sustainable use of shared water resources: the need for a paradigmatic shift in international watercourses law. In: Blake G, Hildesley W, Pratt M, Ridley R, Schofield C (eds) The peaceful management of transboundary resources. Graham & Trotman, London, pp 127–152 Hey E (1998) The Watercourse Convention: to what extent does it provide a basis for regulating uses of international watercourses? RECIEL 7:291–300 Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic) Le Floch G (2010) Le difficile partage des eaux du Nil. Annuaire Français de Droit International 56:471–496 Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) Matz-Lück N (2009) The benefits of positivism: the ILC’s contribution to the peaceful sharing of transboundary groundwater. In: Nolte J (ed) Peace through international law. Springer, Berlin, pp 125–150 McCaffrey SC (1990) Sixth report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/427 McCaffrey SC (1991) Seventh report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/436 McCaffrey SC (2007) The law of international watercourses. Oxford University Press, Oxford McCaffrey SC (2009) The International Law Commission adopts draft articles on transboundary aquifers. Am J Int Law 103:272–293 McCaffrey SC (2013) The progressive development of international water law. In: Loures FR, Rieu-Clarke A (eds) UN Watercourses Convention in force: strengthening international law for transboundary water management. Routledge, Abingdon, pp 10–20 McIntyre O, Tignino M (2013) Reconciling the UN Watercourses Convention with recent developments in customary international law. In: Loures FR, Rieu-Clarke A (eds) UN Watercourses Convention in force: strengthening international law for transboundary water management. Routledge, Abingdon, pp 286–302 Mechlem K (2009) Moving ahead in protecting freshwater resources: the International Law Commission’s draft articles on transboundary aquifers. Leiden J Int Law 22:801–821 Mekonnen DZ (2005) Equitable utilization of transboundary watercourses: the Nile Basin and Ethiopia’s rights under international law. Dissertation, University of Vienna Nanda VP, Pring G (2013) International environmental law and policy for the 21st century, 2nd edn. Martinus Nijhoff Publishers, Leiden Nollkaemper A (1996) The contribution of the International Law Commission to international water law: does it reverse the flight from substance? Neth Yearb Int Law 27:39–73

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Rieu-Clarke A (2013) International freshwater law. In: Alam S, Bhuiyan J, Chowdhury T, Techera E (eds) Routledge Handbook of International Environmental Law. Routledge, Abingdon, pp 243–257 Rieu-Clarke A, Loures FR (2009) Still not in force: should states support the 1997 UN Watercourses Convention? RECIEL 18(2):185–197 Rosenstock R (1994) Second report on the law of the non-navigational uses of international watercourses. Doc. A/CN.4/462, 1994 Salman SMA (2001a) Legal regime for use and protection of international watercourses in the Southern African Region: evolution and context. Nat Resour J 41:981–1022 Salman SMA (2001b) Introductory note to SADC: Revised Protocol on Shared Watercourses in the Southern African Development Community. ILM 40:317–319 Sands P (1998) Watercourses, environment and the International Court of Justice: the GabčíkovoNagymaros Case. In: Salman S, Boisson de Chazournes L (eds) International watercourses: enhancing cooperation and managing conflict. Proceedings of a World Bank Seminar. World Bank Technical Paper No. 414. Washington D.C., pp 103–125 Sands P, Peel J, Fabra A, MacKenzie R (2013) Principles of international environmental law, 3rd edn. Cambridge University Press, Cambridge Tanzi A, Arcari M (2001) The United Nations Convention on the Law of International Watercourses – a framework for sharing. International and National Water Law and Policy Series, vol. 5. Kluwer Law International, The Hague Türk H (2012) Water in the contemporary world. In: Hestermeyer H, König D, Matz-Lück N, Röben V, Seibert-Fohr A, Stoll P, Vöneky S (eds) Coexistence, cooperation and solidarity: Liber Amicorum Rüdiger Wolfrum. Martinus Nijhoff Publishers, Leiden, pp 1037–1064 UNEP (2006) Global international waters assessment, challenges to international waters – regional assessment in a global perspective. Nairobi Vinogradov S, Wouters P, Jones P (2003) Transforming potential conflict into cooperation potential: the role of international water law. UNESCO/IHP/WWAP, Technical Documents in Hydrology, PCCP Series No. 2, Dundee Wolde-Giorghis H (2009) Les défis juridiques des eaux du Nil. Bruylant, Brussels Wolfrum R (1995) International administrative unions. In: Encyclopedia of Public International Law, vol 2. Heidelberg, Oxford, pp 1041–1047 Yamada C (2005) Third report on shared natural resources: transboundary groundwaters. UN Doc. A/CN.4/551

Part II

The Nile

The positions and arguments of the Nile riparian states during the negotiation of the UN Watercourses Convention can be explained against the backdrop of the situation in the Nile Basin. The varied geographic, climatic, hydrological, and socioeconomic conditions along the Nile’s almost 7000-km length make it a prime example for the challenges of interstate water management.1 The wide differences in culture, language, and religion among the riparian states make it even more difficult to agree on a basin-wide agreement,2 which is reflected in the fragmentary and controversial status of the current treaty regime. Currently no agreement on the Nile exists between all riparian states, although numerous cooperation initiatives have been undertaken. These initiatives have also not yet led to the establishment of a permanent river basin institution. The current challenge facing the Nile riparian states is to agree for the first time on a legal and institutional framework for the management and use of the Nile between all riparian states, rather than just a select few. Negotiations for such a framework agreement started in 1997 and 13 years later, in 2010, the majority of the Nile riparian states finally adopted the draft agreement. A consensus between all riparian states has been hindered so far primarily by differences over the allocation of Nile water use. Egypt and Sudan want to see the status quo of the current water allocation secured, while the other basin states are opposed to this and instead favor a new arrangement based on the principle of equitable and reasonable utilization. Egypt in particular fears that such an unrestricted application of this principle would significantly reduce what it considers to be its existing use rights.

1

See also Dellapenna (2006), p. 297. This distinguishes the Nile, for example, from the Euphrates and Tigris, see ibid., p. 302. See also Jacobs (1993), pp. 117–118. 2

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References Dellapenna JW (2006) The Nile as a legal and political structure. In: Coopey R, Tvedt T (eds) A history of water: the political economy of water, vol 2. I.B. Tauris, London, pp 295–323 Jacobs L (1993) Sharing the gifts of the Nile: establishment of a legal regime for Nile waters management. Temple Int Comp Law J 7:95–122

Chapter 5

The Nile and Its Catchment Area

5.1

Sources, Catchment Area, and River Course

With a length of almost 7000 km, the Nile is the longest river in the world.1 The Nile catchment area spreads over 11 states2 and covers an area of more than 3 million km2, approximately one-tenth of the continent,3 which makes it Africa’s second largest international river basin after the Congo. The Nile catchment area includes virtually the entire cultivated and populated area of Egypt, almost all Ugandan and South Sudanese territory, as well as three-quarters of Sudanese and one-third of Ethiopian territory.4 The Nile is fed by two tributaries, the White Nile and the Blue Nile. Their water originates from the rainy regions of the African Great Lakes and the Ethiopian Highlands, respectively. The principal source of the White Nile lies in the East African Highlands. Its most important headstream is the Kagera, which rises in the highlands of Rwanda and Burundi and flows into Lake Victoria.5 With a surface area of some 67,000 km2, Lake Victoria, shared by Tanzania, Uganda, and Kenya, is the largest freshwater lake in Africa, the second largest in the world,6 and the largest water reservoir of the White Nile. It receives its water from heavy local rainfall and via rivers flowing from

1

Encyclopædia Britannica Online (2017). Burundi, DR Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda. South Sudan gained independence from Sudan on 9 July 2011, becoming the 11th riparian state on the Nile. 3 FAO (2005), p. 21, Table 5. 4 Country data available at NBI, Member States, http://www.nilebasin.org/index.php/nbi/memberstates (accessed 27 June 2019). 5 Encyclopædia Britannica - Global Edition (2011), p. 12075. 6 After Lake Superior in North America. NBI (2016), p. 17. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_5

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neighboring Tanzania, Kenya, and Uganda, in particular through the Kagera.7 With such a large surface area most of the lake water evaporates; only about 15% (about 23 billion cubic meters) leaves the lake through the Victoria Nile via its only outflow at Jinja in Uganda through the Owen Falls Dam (also called the Nalubaale Dam). From here the Victoria Nile flows through Uganda into Lake Kyoga, where there is little net loss of water, and from there on into Lake Albert.8 Continuing its flow north as the Albert Nile, the water crosses the border to South Sudan, where the river is called Bahr al-Jabal (Mountain River). With an annual water volume of 26.5 billion cubic meters, it reaches the South Sudanese swamps of the Sudd, the world’s largest wetlands, with an area of some 30,000 km2.9 The area is generally referred to as the Sudd, but in fact consists of three main wetlands: the Sudd, the Machar/Sobat, and the Bahr al-Ghazal swamps.10 In these vast wetlands, the Bahr al-Jabal loses about half of its water due to high evaporation rates and infiltration.11 The water that remains leaves the Sudd as the White Nile. Shortly after the Sudd, the White Nile converges with the Bahr al-Ghazal (Gazelle River) which rises in South Sudan at the border with the DR Congo, and which, after further high water losses due to evaporation in the swamps, does not contribute any significant amount of water. The flow of the White Nile only increases again to about 25.2 billion cubic meters through its confluence with the Sobat River, which originates in the Ethiopian Highlands and supplies the White Nile with 13.3 billion cubic meters of water per year. The White Nile then flows through South Sudan further north to Sudan, where, near the Sudanese capital of Khartoum, it joins the Blue Nile, which flows from the Ethiopian Highlands. Thus, the African Great Lakes region contributes through the White Nile, as measured before the inflow of the Sobat, only 14.9 billion cubic meters of water annually to the Nile flow.12 More significantly, though, it provides the important steady flow throughout most of the year that compensates for the strong seasonal fluctuations of the Blue Nile.13 The Blue Nile (called Abbay in Ethiopia) and its main tributaries Dinder and Rahad originate in the Ethiopian Highlands near Lake Tana.14 The Blue Nile contributes about 52 billion cubic meters of water annually to the total Nile flow and can thus be considered as the Nile’s main tributary with regards to water

7

Encyclopædia Britannica - Global Edition (2011), p. 12078. Ibid. 9 Allan (2012), p. 1186. 10 Salman (2013), p. 17; ‘Alī Ṭāhā (2005), pp. 76–77. 11 Waterbury (1979), p. 16. 12 About 10% of the total Nile flow, Encyclopædia Britannica - Global Edition (2011), p. 12078. 13 The steady flow of the White Nile derives from the Great Lakes on the upper reaches of the White Nile, which provide a constant flow that is marginally influenced by the seasonal rains, as well as from the regulatory effect of the Sudd area on the outflow after the swamps. Encyclopædia Britannica - Global Edition (2011), pp. 12077–12078. 14 Last (2012), p. 490. 8

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volume.15 However, its flow is largely seasonal during the months of June to September, as its water stems almost entirely from the heavy rains of the wet summer season in the Ethiopian Highlands.16 With their confluence near Khartoum, the White Nile and the Blue Nile form the Nile River. Another 300 km downstream from Khartoum but still in Sudan, the Nile river receives its last important tributary, the Atbara, which flows from the Ethiopian Highlands north-east of Lake Tana. The Atbara contributes about 12 billion cubic meters of water annually after it is joined by its main tributary, the Tekeze, which also originates in Ethiopia (called Setit after its entry into Sudanese territory).17 From this point in its journey, the Nile flows northwards some 2700 km through the Nubian and Arabian Deserts in Sudan without receiving any further tributaries. A little north of the Sudanese-Egyptian border, with an average annual flow of 84 billion cubic meters, it reaches Aswan, where it is held by the Aswan High Dam to form the largest man-made lake in the world, stretching almost 300 km into Egypt as Lake Nasser and over 180 km into Sudan as Lake Nubia.18 Here, the Nile loses about 10 billion cubic meters of water annually through evaporation and infiltration. The Nile flows further north through Egypt and beyond Cairo forms the Nile Delta, a plain extending 160 km north to south and up to 250 km east to west, before emptying through its two large delta distributaries Rosette and Damiette into the Mediterranean.19 The Nile river basin can thus be divided hydrologically into two large sub-catchment areas, namely the African Great Lakes with the White Nile and the eastern sub-basin of the rivers Blue Nile, Atbara, and Sobat originating in the Ethiopian Highlands. The African Great Lakes region provides between 10% and 15% of the Nile’s annual flow, with the Ethiopian Highlands providing the other 85–90%.20 In addition to the main water contributor Ethiopia, all riparian states with the exception of Egypt, Sudan, and South Sudan21 contribute in different proportions to the Nile’s flow.

FAO Aquastat (2019a). The Blue Nile thus contributes an average of 59% of the total Nile flow. See also Last (2012), p. 490. 16 Salman (2011), p. 158; Taha (2010), p. 181. 17 See Oloo (2011), p. 156. 18 Ward and Roach (2012), pp. 62–63. The Aswan High Dam is the second-largest dam in Africa, with a storage capacity of 162 billion cubic meters. FAO (2005), p. 23, Table 7. 19 Encyclopædia Britannica - Global Edition (2011), pp. 12076–12077. 20 NBI (2012), p. 36. 21 While South Sudan initially contributes water to the Nile flow through several tributaries, the evaporation rate in the South Sudanese swamps is so high that overall, the country does not make a significant contribution to the total water flow of the Nile. Elemam (2010), p. 219. 15

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Climate and Water Scarcity

Within its vast area, the Nile Basin encompasses several different climatic zones, from the Ethiopian Highlands with its months-long, cool rainy season, to tropical East Africa and the deserts of Sudan and Egypt. In the latter, the Nile flows through one of the driest, most water-scarce regions in the world.22 It is expected that climate change will affect the Nile Basin, but the exact consequences are still unclear.23 For Nile-dependent Egypt, the high degree of uncertainty regarding the flow volume of the Nile is considered a serious threat.24 Climate change could lead to fluctuations in the water level of the rivers and lakes in the catchment area, which in turn would affect energy production, agriculture, food production, and drinking water availability.25 The water level of Lake Victoria, the largest reservoir of the White Nile, has dropped significantly in recent years. The causes for this are not entirely known, although it is largely attributed to changes in precipitation patterns, droughts, and the excessive release of water through the Owen Falls and Kiira dams in Uganda.26 In addition, the ever-increasing pollution of the Nile negatively affects the availability of usable water, especially in the downstream state Egypt. This is mainly caused by the heavy use of pesticides and fertilizers in the Nile Valley as well as industrial, household, and agricultural waste seeping into river water.27

5.3

Population Structures and Economies in the Nile Basin

All Nile riparian states are experiencing a high rate of population growth.28 The total population of the Nile countries is currently about 487 million, with more than half living in the catchment area of the Nile.29 Estimates suggest that the population in the catchment area will almost double by 2030.30 According to the United Nations Human Development Index, all Nile riparian states are among the least developed countries in the world, with the exception of

22

See UN-Water (2015), p. 12, Fig. 1.1. See IPCC (2008), p. 79. 24 Ibid., p. 84. 25 See Nkurunziza (2010), pp. 27 and 29. 26 See Mulira (2010), pp. 136–140. 27 Brunnée and Toope (2002), p. 119; ‘Alī Ṭāhā (2005), p. 121. Other significant environmental problems include the degradation of the Lake Victoria ecosystem and soil erosion in Ethiopia. On the causes and effects of pollution of the Nile water, see Wiebe (2001), pp. 736–742. 28 See the country data on population growth in the Nile riparian states at CIA (2019). 29 About 54% or 257 million people. NBI (2016), p. 17. 30 Ibid., p. 171. 23

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Kenya and Egypt,31 the latter being the economically strongest Nile riparian. In the Nile Basin, agriculture is the predominant sector, on average employing approximately 75% of the labor force in the riparian states and contributing about one-third of the GDP generated in the Nile Basin.32

5.4

Development and Uses of the Nile

Nile water is commonly used for irrigated agriculture, hydroelectric power generation, potable water, fisheries, tourism, and transport.33 As mentioned, the most significant consumptive use of the Nile is water abstraction for agricultural purposes, which accounts for more than 80% of the water withdrawal basin-wide.34 Thus, the agricultural sector is the key determining factor for the water balance of the Nile Basin.35 In view of rising energy demands, the non-consumptive use of the Nile for energy production is also becoming ever-increasingly important. Presently not all riparian states of the Nile use its water resources equally. Traditionally, with a history spanning more than five millennia, Egypt has been the main user of Nile water, especially for irrigated agriculture and, more recently, hydroelectric power generation.36 It abstracts an estimated 78 billion cubic meters of water annually from the Nile, of which around 67 billion cubic meters is for the agricultural sector.37 Egypt and Sudan, the second-greatest user of Nile water, also make extensive use of the Nile for hydropower generation, at which they are the first and third countries in Africa, respectively.38 The upstream states have only recently begun to use Nile water to a significant extent, although they increasingly seek to expand their use, notably the populous Ethiopia, one of the countries with the largest hydropower potential on the continent.39 In 2011, it began construction of the Grand Ethiopian Renaissance Dam, the largest dam in Africa, on the upper reaches of the Blue Nile. For the six Nile riparian states of the African Great Lakes, Burundi, Rwanda, Tanzania, DR Congo, Kenya, and Uganda, unmet demand for electricity is

31

See UN Development Policy and Analysis Division (2019). NBI (2016), p. 66. 33 For an overview of the different uses of the Nile, see Wiebe (2001), pp. 734–746; Beschorner (1992), pp. 45–46. See also Varis (2000), pp. 624–637. 34 NBI (2016), p. 181. 35 See Oloo (2011), pp. 154–155. 36 On the historical development of irrigation practices in Egypt, see Garretson (1967), pp. 261–262. 37 FAO Aquastat (2019b). Another 9 billion cubic meters of water serve for municipal uses and 2 billion cubic meters for industrial purposes. Ibid. 38 Besides the DR Congo and Nigeria. UN-Water (2014), p. 99. 39 Ibid. 32

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a major and deepening problem.40 Besides flood control, their interest in the Nile waters therefore primarily concerns hydroelectric power generation,41 which is foreseen to play a significant role in the socio-economic development of these countries.42 In light of these factors, the Nile exemplifies the typical historical development pattern in international river basins, where the river was first used and developed in the delta and lower basin, while significant development in the upper basin began much later.43

5.5

Political Relations Between the Nile Riparian States

Political relations in the Nile Basin region are characterized by interstate and internal conflicts.44 The Nile Basin remains one of Africa’s most volatile and conflict-prone areas since the end of the Cold War, suffering numerous civil wars (Ethiopia, Burundi, DR Congo, Rwanda, Sudan, South Sudan, and Uganda) as well as interstate conflicts (Ethiopia–Somalia, Eritrea–Ethiopia, DR Congo–Rwanda, Sudan– Uganda).45 This has had a negative impact on both socio-economic development and trade in the region. Water has always been a central element of regional politics.46 Throughout most of the twentieth century, the Nile was the source of political tensions between Egypt, Sudan, and Ethiopia.47 Egypt has always been highly dependent upon Nile water and, moreover, due to its high population growth, assumes that it will in the future need to further increase water abstraction for agriculture. At the same time, some of the upstream states, Ethiopia in particular, are seeking to use the Nile on their territory for agricultural purposes and energy generation in order to provide for their similarly fast-growing populations. From an Egyptian policy perspective, the country’s water supply from the Nile is a matter of national security.48 The military superiority of Egypt vis-à-vis the other Nile riparian states has hitherto given Egypt a

40 On average, 57% of the population in the countries of Sub-Saharan Africa had no access to electricity in 2011. Ibid., p. 98. 41 Caponera (1993), p. 662. 42 UN-Water (2014), p. 98. 43 Garretson (1967), pp. 264–265; Dellapenna (1996), pp. 245–246. 44 Oloo (2011), p. 154. 45 For example, during the civil war in the DR Congo in the 1990s, a number of state and non-state actors from Nile Basin states and other countries outside the region were involved. See Adar (2011), p. 180. 46 See Dellapenna (2006), p. 300. 47 Swain (2008), p. 201. 48 See in more detail Kaška (2006), pp. 16–28.

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hegemonic position which it has used, at least in the past, and especially toward Ethiopia.49 It is first and foremost this long-lasting mistrust that has characterized the relationship between Egypt and Ethiopia and has shaped the hydropolitics among the various Nile riparian states.50 The relations between Ethiopia, the source of the lion’s share of the Nile water, and Egypt, its main user, are historically marked by tensions.51 Egypt has always been concerned about what is happening upstream in Ethiopia. For example, in 1990, fearing a negative impact on the flow of the Blue Nile, Egypt is said to have contributed significantly to the rejection of Ethiopia’s African Development Bank loan application to finance a hydroelectric power project.52 This difficult hydropolitical situation has become even more complex as a result of the emergence of South Sudan as an independent state in 2011. On the one hand, South Sudan is now a further state claiming Nile water and on whose territory significant parts of the Nile Basin are located. The issue of the Nile water resources is central to the political relations between Sudan and South Sudan, and the two countries have not yet been able to agree on it.53 On the other hand, given the loss of about 75% of the known oil reserves to South Sudan, the Sudanese government plans to change its economic strategy to focus more on the agricultural sector, which will lead to significantly higher water needs.54 Politically, the emergence of South Sudan as an independent state and its admission to the NBI seems to have influenced the power distribution in favor of the upstream states. Because of ethnic, geographic, historical, and cultural aspects, South Sudan is expected to side with the upper states of the East African lakes region and Ethiopia with regard to Nile water issues.55 The recent rejection of the 1959 Nile Waters Agreement supports this assumption. Culturally, South Sudan is more akin to the countries of the East African Community (EAC) than to the Muslim countries of Sudan and Egypt, and joined the bloc in 2016.56

49

Adar (2011), p. 182. See Tafesse (2011), p. 67. 51 As early as during the Middle Ages, Ethiopian rulers repeatedly exerted political pressure on Egypt by threatening to divert Nile water. Egypt responded by prohibiting Ethiopian pilgrims from passing through the Nile to Palestine, see Kharouf-Gaudig (2012), p. 97. Later, relations were particularly strained under the presidency of Sadat, during which Egypt provided financial support to the opposition in Ethiopia, see Ward and Roach (2012), p. 68. 52 See Swain (1997), p. 688; Brunnée and Toope (2002), pp. 127–128. The Tana Beles project was designed to double hydropower production in Ethiopia and to provide a water supply for new settlements of about 200,000 people. 53 See Chap. 6, Sect. 6.2.8.3. 54 Salman (2011), p. 162. 55 Salman (2013), p. 23. 56 South Sudan became a full member of the EAC on 15 August 2016, see EAC (2019). It is estimated that South Sudan could benefit significantly from cross-border trade with the EAC, see UNDP (2010), p. 23. 50

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The hydropolitics of the Nile Basin countries has also been characterized by unilateral planning and measures. Negotiations on a basin-wide framework agreement revealed significant political tensions and thus far have failed to reach consensus. The NBI was, as previously stated, created as a temporary institution intended to be replaced by the establishment of a permanent Nile Basin Commission. However, this has not come to pass yet. In summary, the Nile Basin is characteristically defined by the strong heterogeneity of its riparian states and their interests, a classical situation of international resource competition that is plainly reflected in the hydropolitics of the basin states. As the following section will show, this rivalry among the riparian states has been further compounded by historical and changing geopolitical developments.

References Adar KG (2011) Kenya’s foreign-policy and geopolitical interests: the case of the Nile River Basin. In: Adar KG, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 167–188 ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Allan JA (2012) South Sudan: physical and social geography. In: Frame I (ed) Africa south of the Sahara, 41st edn. Routledge, London, p 1186 Beschorner N (1992) Water and instability in the Middle East. Adelphi Paper 273. Routledge, London Brunnée J, Toope SJ (2002) The changing Nile Basin regime: does law matter? Harv Int Law J 43:105–159 Caponera DA (1993) Legal aspects of transboundary river basins in the Middle East: the Al Asi (Orontes), the Jordan and the Nile. Nat Resour J 33:629–664 CIA (2019) The World Factbook, Africa. https://www.cia.gov/library/publications/the-worldfactbook/wfbExt/region_afr.html. Accessed 27 June 2019 Dellapenna JW (1996) Rivers as legal structures: the examples of the Jordan and the Nile. Nat Resour J 36:217–250 Dellapenna JW (2006) The Nile as a legal and political structure. In: Coopey R, Tvedt T (eds) A history of water: the political economy of water, vol 2. I.B. Tauris, London, pp 295–323 EAC (2019) Overview of EAC. https://www.eac.int/overview-of-eac. Accessed 17 Apr 2019 Elemam HER (2010) Egypt and collective action mechanisms in the Nile Basin. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 217–236 Encyclopædia Britannica - Global Edition (2011) Vol 20. Chicago Encyclopædia Britannica Online (2017) Nile River FAO (2005) Irrigation in Africa in figures. Water Report 29. Rome FAO Aquastat (2019a) Sudan, Water resources. http://www.fao.org/nr/water/aquastat/countries_ regions/SDN/. Accessed 17 Apr 2019 FAO Aquastat (2019b) Egypt, Water resources. http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/index.stm. Accessed 17 Apr 2019 Garretson AH (1967) The Nile Basin. In: Garretson AH, Hayton RD, Olmstead CJ (eds) The law of international drainage basins. Oceana Publications, New York, pp 256–297 IPCC (2008) Climate change and water. Technical Paper. Geneva

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Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic) Kharouf-Gaudig R (2012) Le droit international de l’eau douce au Moyen-Orient: entre souveraineté et coopération. Collection de Droit International. Bruylant, Brussels Last GC (2012) Ethiopia: physical and social geography. In: Frame I (ed) Africa south of the Sahara, 41st edn. Routledge, London, pp 490–491 Mulira J (2010) Independent Uganda and the Nile: hydroelectric projects and plans. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 125–160 NBI (2012) State of the River Nile Basin NBI (2016) Nile Basin Water Resources Atlas. http://www.nilebasin.org/index.php/informationhub/technical-documents. Accessed 27 June 2019 Nkurunziza P (2010) Burundi and the Nile: water resource management and national development. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 13–30 Oloo A (2011) The Nile ‘Lone Ranger’ in the Nile River waters initiative: the case of Eritrea. In: Adar K, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 153–166 Salman SMA (2011) The new state of South Sudan and the hydro-politics of the Nile Basin. Water Int 36:154–166 Salman SMA (2013) The Nile Basin Cooperative Framework Agreement: a peacefully unfolding African spring? Water Int 38:17–29 Swain A (1997) Ethiopia, the Sudan and Egypt: the Nile River dispute. J Modern Afr Stud 35:675–694 Swain A (2008) Mission not yet accomplished: managing water resources in the Nile River Basin. J Int Aff 61(2):201–214 Tafesse T (2011) Ethiopia’s position on the Nile water agreements. In: Adar KG, Check NA (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 67–83 Taha F (2010) The history of the Nile waters in the Sudan. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 179–216 UN Development Policy and Analysis Division (2019) List of least developed countries. https:// www.un.org/development/desa/dpad/least-developed-country-category/ldcs-at-a-glance.html (latest status: March 2018). Accessed 27 Dec 2019 UNDP (2010) Regional water intelligence report. The Nile Basin and the Southern Sudan Referendum, Paper 18. Stockholm UN-Water (2014) The United Nations World Water Development Report 2014: water and energy, vol 1. Paris UN-Water (2015) The United Nations World Water Development Report 2015: water for a sustainable world. Paris Varis O (2000) The Nile Basin in a global perspective – natural, human, and socioeconomic resource nexus. Water Int 25:624–637 Ward TE, Roach HL (2012) Hydropolitics and water security in the Nile and Jordan River Basins. In: Vajpeyi D (ed) Water resource conflicts and international security. Lexington Books, Plymouth, pp 51–101 Waterbury J (1979) Hydropolitics of the Nile Valley. Syracuse University Press, Syracuse Wiebe K (2001) The Nile River: potential for conflict and cooperation in the face of water degradation. Nat Resour J 41:731–754

Chapter 6

The Treaty Regime for the Nile

6.1

Historical Background

Historical developments have served to intensify the tensions in the Nile Basin, with the current political and legal landscape still shaped by the colonial past and the strategic concerns of the former colonial powers.1 The Scramble for Africa, that is, the wave of colonization of African territory by European powers during the period of New Imperialism, began in the second half of the nineteenth century as evidenced by the United Kingdom occupying Egypt in 1882. The Berlin Conference of 1884–1885 resulted in Africa being divided into zones of influence among the major European powers.2 In the first half of the twentieth century and following the upheavals of the First World War, the Nile Basin was divided into two major influential spheres as the Nile riparian states each fell under the control of either the United Kingdom or Belgium. An exception to this was Ethiopia, which was occupied by Italy in 1936, but regained its independence in 1941.3 Under British colonial administration were Egypt,4 Eritrea,5 Uganda,6

1

Brunnée and Toope (2002), p. 122. Le Floch (2010), p. 475. 3 Encyclopædia Britannica - Global Edition (2011), p. 5473. 4 Egypt was administered as an Anglo-Egyptian condominium from 1882 to 1914. In 1914, the United Kingdom proclaimed Egypt a protectorate. It gained its independence in 1922. Encyclopædia Britannica - Global Edition (2011), p. 5112. 5 Eritrea initially became an Italian colony in 1890, then it came under British military administration in 1941. In 1961, Eritrea was annexed by Ethiopia, which historically considered it part of its territory, and in 1962 incorporated as a province into its territory. After periods of civil war, in 1993, Eritrea became officially independent and was internationally recognized as a state. On the Ethiopian-Eritrean conflict, see Kahsay (2012), pp. 465–467. 6 Uganda first became a British protectorate in 1894. From 1922 until independence in 1962, it was part of British East Africa. Jennings (2012b), p. 1310. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_6

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Kenya,7 and the territories of present-day Tanzania,8 Sudan, and South Sudan.9 Under Belgian colonial administration were today’s DR Congo,10 Rwanda, and Burundi.11 While the Belgian colonial rulers had little interest in the Nile,12 the United Kingdom viewed the Nile and control over Nile Basin countries as central to its colonial interests within the region and beyond from the late nineteenth century. The focus was on Egypt, strategically located on the border between Africa and the Middle East,13 with the Suez Canal providing the shortest passage from Europe to India, the most valuable British colony. As the Suez Canal passes through Egypt, controlling the canal required the United Kingdom to control the country.14 And with its own extensive trade interests in the East, the United Kingdom needed an agriculturally viable Egypt.15 The cotton plantations in Egypt supplied the British industry and this cotton production depended on the combined water flow from both the White and Blue Niles. In order to maintain and further develop irrigated agriculture and cotton production in Egypt, the United Kingdom therefore had to ensure the unimpeded flow of the Nile, and this level of control required that the entire Nile from its sources to its mouth come under British dominion.16 The United Kingdom pursued this central concern through both direct control of important territories and the conclusion of treaties designed to gain legal control over the Nile. The colonial treaties and the Anglo-Egyptian condominium over Sudan were primarily conceived to protect Egyptian and British interests in the Nile Basin and were to guarantee the unhindered flow of the Nile. After its independence, Egypt

7 Kenya became a British protectorate in 1895, a crown colony in 1920, and remained under British colonial rule until its independence in 1963. See Jennings (2012c), p. 645. 8 Tanganyika (the mainland of today’s Tanzania) became a German protectorate in 1885. Afterwards, its administration was transferred to the United Kingdom, first in 1920 as a League of Nations Mandate and then in 1946 as a United Nations Trust Territory. Present-day Tanzania was created in 1964 through the unification of Tanganyika and Zanzibar, after Tanganyika had gained independence in 1961 and Zanzibar in 1963. Jennings (2012a), p. 1257. 9 Sudan was administered from 1899 to 1924 as an Anglo-Egyptian condominium and was subsequently still subordinate to Anglo-Egyptian administration until its independence in 1956. See Woodside (2012), p. 1201. 10 Present-day DR Congo was under Belgian colonial administration from 1879 until independence in 1960. First, in 1879, the Belgian king created the Congo Free State as his personal colony with the consent of the European powers. In 1908, the rule over the country was transferred to the Belgian state until independence in 1960. See Mthembu-Salter (2012), p. 329. 11 Rwanda and Burundi became part of German East Africa in 1890. After the First World War, they came under Belgian administration, first from 1920 as a League of Nations Mandate and from 1946 as a United Nations Trust Territory. Rwanda and Burundi attained independence in 1962. Clark and Kaufman (2012), p. 993. 12 Mangu (2011), p. 24. 13 Check (2011), pp. 85–86. 14 Waterbury (1979), p. 46; Godana (1985), p. 107. 15 Check (2011), p. 86. 16 See Mulira (2010), p. 131.

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pursued similar objectives by securing the Nile flow in order to realize its own interests in the water use.

6.2

Agreements on the Use of the Nile

The Nile treaties,17 most of which date back to the time of British colonial administration, are partially, de jure or de facto, still applied.18 However, the two most important Nile treaties, concluded in 1929 and 1959, are highly controversial among the Nile riparian states and feature prominently in current disputes over the uses of Nile water. At the core of this dispute are the acquired and historical rights to Nile water claimed by Egypt and Sudan, which in their view directly result from the Nile treaties of 1929 and 1959. The 1929 Nile Waters Agreement states that “her Majesty’s Government in the United Kingdom has already recognized the natural and historical right of Egypt to the waters of the Nile”.19 A new question has arisen regarding how the separation of South Sudan from Sudan in 2011 affects the Nile treaties to which Sudan is a party, in particular regarding whether and to what extent those treaties apply to South Sudan. While any ongoing obligation on the part of South Sudan would be of considerable importance for Egypt and Sudan, especially to the Nile Waters Agreement of 1959, South Sudan has recently declined to consider itself bound by this treaty. The 1959 Agreement inter alia allocates specific water shares between Egypt and Sudan and provides that the latter carries out projects in the Sudd swamps to increase the Nile’s water flow. South Sudan objects to this treaty on the grounds that, as part of Sudan at the time, it had no voice in the treaty negotiations. Starting at the end of the nineteenth century, the United Kingdom, through a series of mainly bilateral treaties, gained commitments by the other riparian states or their colonial powers at that time not to interfere with the natural flow of the Nile without its prior consent. In doing so, this former colonial master bound the entire Nile Basin to a treaty regime that secured control over the flow of the Nile reaching Egypt,20 a shackle from which the present-day Nile riparian states are struggling to break free.

17

On the Nile water treaties, see e.g. Degefu (2003), pp. 93–141; Okidi (1994), pp. 323–335; Caponera (1993), pp. 657–659; Godana (1985), pp. 103–121 and 140–157; Wolde-Giorghis (2009), pp. 121–166; Le Floch (2010), pp. 475–486; Wehling (2018), pp. 126–187; among Egyptian commentators, see ‘Abd al-‘Āl (2010), pp. 81–101; ‘Abd al-Wahhāb (2004), pp. 173–179. 18 Abseno (2009), p. 87; ‘Abd al-‘Āl (2010), p. 126; Kaška (2006), p. 28. 19 Exchange of Notes Between his Majesty’s Government in the United Kingdom and the Egyptian Government in regard to the Use of the Waters of the River Nile for Irrigation Purposes, 7 May 1929, LNTS XCIII (1929–1930), p. 44 (emphasis added). 20 Godana (1985), p. 120; Dellapenna (1996), p. 239; ‘Alī Ṭāhā (2005), p. 193.

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Anglo-Italian Protocol of 1891

By 1891, Italy had already established itself as a colonial power in Eritrea but not in Ethiopia. It nonetheless raised claims to the Ethiopian province of Kassala, in which the headwaters of the Atbara River are located. Reacting to this, the United Kingdom urged Italy to conclude an agreement over the use of the Atbara,21 and the AngloItalian Protocol of 15 April 189122 saw the two colonial powers demarcate their respective zones of influence in East Africa. The United Kingdom agreed to Italian military stations in the region around the Ethiopian headwaters of the Atbara, while Italy in return agreed in Article III of the Protocol to restrictions on the use of the Atbara: The Italian government undertakes not to construct any works with regard to irrigation on the Atbara that could significantly alter its flow into the Nile.23

Egypt, under British rule at the time when the treaty was concluded,24 still generally holds the view that the colonial Nile treaties remain binding. Ethiopia, on the other hand, has declined to recognize any of these colonial-era treaty obligations. In an aide-mémoire of 23 September 1957 to the diplomatic community in Cairo, the then Ethiopian emperor Haile Selassie challenged any restrictions with regard to the use of the Nile, stating that “Ethiopia has the right and obligation to exploit the water resources of the Empire” and “reassert[s] and reserve[s] now and for the future, the right to take all such measures in respect of its water resources”.25 That Ethiopia is still bound by Article III of the 1891 Protocol is often challenged in the writings of jurists, which argue that neither of the two colonial powers held sovereignty over Ethiopia at that time.26 Some authors argue that Italy, as a protector state, was able to conclude international treaties for Ethiopia based on the Treaty of Uccialli of 1889, but that the Protocol no longer remains in force for Ethiopia since the country became independent.27 Egyptian commentators, in turn, overwhelmingly

21

Tafesse (2011), p. 68. Protocol between the Governments of Great Britain and Italy for the Demarcation of their respective Spheres of Influence in Eastern Africa, 15 April 1891, BFSP 83 (1890–1891), p. 19, in the original French. 23 Translation from the original French: “Le Gouvernement Italien s’engage à ne construire sur l’Atbara, en vue de l’irrigation, aucun ouvrage qui pourrait sensiblement modifier sa défluence dans le Nil.” Ibid., p. 21. 24 Sudan was not under British colonial administration at the time of the conclusion of the treaty in 1891, so the question of a possible succession of Sudan in respect of the treaty does not arise. 25 Aide-Mémoire of the Ethiopian Government of 23 September 1957, reproduced in Whiteman, Digest of International Law, U.S. Department of State, Vol. 3, 1964, pp. 1011–1012. Quotation also reproduced at Arsano (2006), p. 343. 26 For example, Okidi (1994), pp. 323–324; Godana (1985), p. 156. 27 See e.g. Waterbury (1987), pp. 94–95. 22

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support the notion that both Ethiopia and Egypt succeeded to the rights and obligations under Article III of the Protocol in the post-colonial era.28

6.2.1.1

Responsibility of Italy for the Foreign Affairs of Ethiopia Under the Treaty of Uccialli of 2 May 1889

The validity of the Treaty of Uccialli,29 concluded between Italy and Ethiopia in 1889, is highly controversial because of the diverging provisions in the Italian and the Amharic texts of its Article 17, which deals with the foreign affairs of Ethiopia. According to the Italian text, Ethiopia was obliged to be represented by Italy in such matters: His Majesty the King of Kings of Ethiopia consents to make use of the Italian Government for any negotiations which he may enter into with other Powers or Governments.30

As such, Ethiopia would have become to all intents and purposes an Italian protectorate.31 However, according to the equally authentic32 Amharic text of Article 17, Ethiopia had discretion as to whether or not to avail itself of the offices of Italy in foreign affairs: The King of Kings of Ethiopia, with the kings of Europe, for all the matters he wants, shall have the possibility to communicate with the assistance of the Italian government.33

The Ethiopian emperor, Menelik II, is said to have learned of the different meanings of the texts only a year after the conclusion of the Treaty. In 1890, he objected to the Italian text and explained that he had been misled by the Italian negotiator Conte Antonelli when concluding the Treaty. He stated that he had never

See ‘Abd al-‘Āl (2010), p. 96. To the same effect see Maḥfūẓ Muḥammad (2009), p. 329. Treaty of Friendship and Commerce between the Kingdom of Italy and the Empire of Ethiopia, signed at the Camp of Uccialli, 2 May 1889. Italian text of the Treaty for the first time published in Atti parlamentari, Documenti Diplomatici, 1889–90, XV, Etiopia, p. 434. English translation of the Italian treaty text reproduced in BFSP 81 (1888–1889), p. 733. The Treaty of Uccialli is also called Treaty of Wichale, after the Amharic version. 30 English translation of Art. 17, reprinted in BFSP 81 (1888–1889), p. 735. The Italian original reads as follows: “Sua Maestà il Re dei Re d’Etiopia consente di servirsi del Governo di Sua Maestà il Re d’Italia per tutte le trattazioni di affari che avesse con altre potenze o governi.” Emphasis added. 31 See also Rubenson (1964), pp. 244–251. Protectorates were commonly established by a treaty in which the responsibility for foreign affairs, in particular for the conclusion of international treaties for the protectorate, was transferred to the protector state. See Hoffmann (1997), pp. 1153–1154. 32 Art. 19 of the Treaty of Uccialli states that the Italian and Amharic texts are equally authentic. The Treaty contains no provision for the case of a divergence between the two texts. 33 See Rubenson (1964), p. 250, note 36 (emphasis added). In the Amharic text, the Amharic verb for “being possible” is used instead of the binding “consente” in the Italian text, see Elliesie (2008), p. 240. 28 29

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agreed to such an obligation in the sense of the Italian text and requested that the “error” be “corrected” in Article 17 of the Italian text.34 Subsequently, both countries tried unsuccessfully over a period of three years to agree on a common understanding of Article 17. In 1893, Emperor Menelik II finally denounced the entire Treaty of Uccialli.35 Notwithstanding this declaration, Article 17 of the Treaty can in fact already be considered invalid due to a lack of agreement between the parties. Customary international law on treaties requires reciprocal declarations of the parties in accordance with their concordant intention for the conclusion of a treaty.36 If this is not undertaken then the treaty in question cannot be considered concluded. The substantive meanings of the Article 17 declarations in Italian and in Amharic are not identical concerning Italy’s role in Ethiopian foreign affairs, and these declarations were not based on concordant intentions of the parties. Therefore, it is argued here that under customary international law no treaty was concluded. Hence, the question can be left open as to whether Menelik II could invalidate the treaty on the grounds of deception over the obligatory or optional representation of Italy in Ethiopian foreign affairs.37 During the drawing up of draft Article 49 of the Vienna Convention on the Law of Treaties,38 the ILC discussed the Treaty of Uccialli as one of the rare examples of fraud in the conclusion of an international treaty.39 Thus, it can be concluded that the Treaty of Uccialli was invalid due to a lack of agreement between the parties. Hence, in 1891, Ethiopia was not an Italian protec-

34 Letter of Emperor Menelik II to the Italian King of 1890, excerpt reprinted at Rubenson (1964), p. 250. 35 The conflict over Art. 17 finally led to the Italian-Ethiopian war of 1895. See Rubenson (1964), p. 251. 36 See Klabbers (1996), pp. 65–66. According to the general principle of intertemporal law, legally relevant facts are generally to be considered according to the law in force at that time, see the Island of Palmas case (Netherlands v. USA), Award of 4 April 1928, pp. 845–846. See also Kotzur (2008); ILC, Doc. A/CONF.39/11/Add.2, p. 42, para. 16. 37 Under customary international law, codified in Art. 49 of the Vienna Convention on the Law of Treaties, a state may invoke fraud as invalidating its consent to be bound by a treaty if it has been induced to conclude the treaty by the fraudulent conduct of another negotiating state, see ILC, YBILC 1966, Vol. II, pp. 244–245. However, with regard to Art. 17, it was from the outset unclear whether the divergence in substance between the texts had been incorporated deliberately or due to a misunderstanding. The Ethiopian Emperor Menelik II did not understand Italian, while the Italian negotiator Conte Antonelli understood Amharic quite well and is therefore unlikely to have missed the difference between the treaty texts, see Rubenson (1964), pp. 259–264. 38 Vienna Convention on the Law of Treaties of 23 May 1969, entered into force 27 January 1980, ILM 8 (1969), p. 679. 39 Intervention of Mr. Tunkin, YBILC 1963, Vol. I, p. 31, para. 42, and p. 33, para. 14. Ultimately however it was concluded that there had been no consent established between the parties and “hence, it could not have been vitiated by fraud or in any other way”, Intervention of Mr. Ago, YBILC 1963, Vol. I, p. 31, para. 49.

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torate,40 and Italy could therefore not create any obligations that were binding on Ethiopia under the Anglo-Italian Protocol of 1891 under international law.41

6.2.1.2

Succession of Ethiopia

If, conversely, one were to consider that from 1889 to 1896 Ethiopia was an Italian protectorate under the Treaty of Uccialli,42 the question would arise whether Ethiopia would have succeeded to the rights and obligations under the Anglo-Italian Protocol of 1891 upon the recognition of its full sovereignty by Italy in 1896.43 The independence of a protectorate is considered a succession of states and thus falls under the law of state succession.44 The law of state succession is one of the most controversial fields of public international law,45 and while there exist two conventions that deal with this topic, both have only a small number of contracting states.46 Given the low ratification numbers of both conventions, it can be assumed that they do not generally reflect customary international law.47 Indeed, to date, the general rules of international law have been at best only partially developed in this area.48 Until the nineteenth century, the theory of universal succession, or the doctrine of continuity of rights and obligations, was the prevailing approach to succession cases. According to this theory, the entirety of the rights and obligations of the predecessor state automatically pass to the successor state, largely akin to cases of inheritance under Roman civil law.49 In contrast, the period from the end of the nineteenth century has seen the emergence of the clean-slate or tabula rasa theory. This theory posits that the treaty rights and obligations of the predecessor state do not 40

For similar conclusion see Rubenson (1964), pp. 280–281. Drawing the same conclusion are Okidi (1994), pp. 323–324; Godana (1985), p. 156. 42 See the evidence of authors who assumed that Ethiopia was an Italian protectorate at Rubenson (1964), pp. 252–254. 43 After the victory of Ethiopia over Italy in the Italian-Ethiopian war of 1895, both countries concluded on 26 October 1896 a peace treaty in which they abrogated the Treaty of Uccialli and Italy recognized the independence of Ethiopia as a sovereign state (Art. III). See Rubenson (1964), p. 251. 44 See Craven (2007), pp. 147–150. 45 See Zimmermann and Devaney (2014), pp. 505–506. See also the German Constitutional Court, BVerfGE 96, p. 79, stating that the subject of state succession is “among the most disputed and least secure parts of international law” (“einen der umstrittensten und unsichersten Teile des gesamten Völkerrechts”). 46 Vienna Convention on Succession of States in respect of Treaties (done on 23 August 1978, entered into force 6 November 1996), ILM 17 (1978), p. 1488; and Vienna Convention on Succession of States in respect of State Property, Archives and Debts (done on 8 April 1983, not yet entered into force), ILM 22 (1983), p. 306. 47 See Gruber (1986), p. 276. See generally on the two conventions Stern (2000), pp. 133–172. 48 Hafner and Novak (2012), p. 396; see also Craven (1998), p. 148. 49 Hafner and Novak (2012), p. 401; see also Craven (1998), pp. 147–148. 41

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automatically continue for the new state, but the new state acquires its territory with a clean slate.50 Nowadays, it is generally assumed that the successor state only succeeds to its predecessor’s rights and obligations under certain types of treaties.51 Support for this latter approach is also found in the Vienna Convention on Succession of States in respect of Treaties, which provides for the application of the clean-slate rule solely for states classed as newly independent, principally those which emerged as a result of decolonization.52 A newly independent state is a successor state whose territory, immediately prior to the date of the state succession, was a dependent territory for the international relations of which the predecessor state was responsible.53 Influenced by its temporal proximity to the period of decolonization, the Convention privileges these states and promulgates the idea that they should generally be allowed to begin with a clean slate, without being bound to treaties concluded by their former colonial rulers. The ILC, which had prepared the draft articles for the Convention, explained its treatment of such states with reference to the principle of self-determination: “The main implication of the principle of self-determination in the law concerning succession in respect of treaties was precisely to confirm the traditional clean-slate principle as the underlying norm for cases of newly independent States”.54 Excluded from the clean-slate rule, however, are territorial treaties,55 which continue in force in all cases of state succession.56 Territorial treaties are those that establish boundaries or obligations relating to the use of a territory or restrictions upon its use, thus establishing rights and obligations attached to the territory in question.57 Behind the assumption of automatic succession in these cases is the aim

50

McNair (1961), p. 601; Hafner and Novak (2012), p. 401. See Brownlie (2008), pp. 661–662; Zimmermann (2006), under C., para. 5. 52 See Art. 16 Vienna Convention on Succession of States in respect of Treaties. 53 See Art. 2, para. 1(f) Vienna Convention on Succession of States in respect of Treaties. 54 YBILC 1974, Vol. II, Pt. 1, p. 169, para. 58. Outside of decolonization, however, the Convention is based on the principle of continuity, see Arts. 31, 34 and 35 of the Convention. 55 This is the term used by the ILC in its commentary to Arts. 11 and 12 of the Draft Articles on Succession of States in respect of Treaties. This category of treaties is also variously described as of a “dispositive”, “real”, or “localized” character. These treaties relate for example to international boundaries, rights of transit on international waterways or over another state’s territory, the use of international rivers, or the demilitarization of particular localities. ILC Commentary to the Draft Articles on Succession of States in respect of Treaties, Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol. III, Doc. A/CONF.80/16/Add.2, p. 27, para. 1. 56 This is demonstrated by the so far uniform state practice. See the ICJ, which stated in its decision in the Gabčíkovo-Nagymaros Project case that Art. 12 of the Vienna Convention reflects customary international law. See also Márquez Carrasco (2000), pp. 511–512; Zimmermann and Devaney (2014), p. 533. For detail on state practice, see Gruber (1986), pp. 260–265. 57 See Arts. 11 and 12 Vienna Convention on Succession of States in respect of Treaties; and ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp. 71–72, para. 123. Generally on the difficulty of classifying treaties in the category of territorial treaties, see O’Connell (1979), pp. 735–736. 51

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that the status of the particular territory agreed upon should be permanent and independent of the personality of the states involved in the conclusion of the treaty.58 Territorial treaties persist in all cases of state succession because their continued application is in the interest of international political stability, and not only in the interest of the contracting states.59 Accordingly, Article 12, paragraph 1(a) of the Vienna Convention on Succession of States in respect of Treaties states the following: A succession of States does not as such affect [. . .] obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question.

This provision of the Convention is based on the draft articles elaborated by the ILC, which stated the following in its comments thereto: “Treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties.”60 The Convention does not apply to the state succession of Ethiopia in 189661; rather the customary international law that was applicable at that time applies.62 Most state practice at that time did not concern the attainment of independence by former colonies or other formerly dependent territories; for this particular form of state succession, the rules of customary law only began to substantially consolidate around the middle of the twentieth century.63 At the end of the nineteenth century, 58

O’Connell (1967), p. 14. See also Berber (1960), p. 258; Márquez Carrasco (2000), pp. 541–542. In this sense also O’Connell (1967), pp. 14–15, who pursues the argument that territorial treaties could create or transfer real rights, and “real rights in international law are those which are attached to a territory, and which are in essence valid erga omnes.” The concern of the interests of third parties was also taken up by the ICJ in its decision in the Gabčíkovo-Nagymaros Project case, in which the Court argued in the affirmation of a territorial treaty that the treaty in question “inescapably created a situation in which the interests of other users of the Danube were affected.” ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp. 71–72, para. 123. 60 YBILC 1974, Vol. II, Pt. 1, p. 203, para. 26. The ICJ referred to this commentary of the ILC in its decision in the Gabčíkovo-Nagymaros Project case (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp. 71–72, para. 123. 61 Ethiopia ratified the Convention in 1980, see https://treaties.un.org/Pages/ViewDetails.aspx? src¼IND&mtdsg_no¼XXIII-2&chapter¼23&clang¼_en (accessed 30 April 2019). However, the Convention applies only in respect to the succession of a state which has occurred after the entry into force of the Convention in 1996, see Art. 7, para. 1 of the Convention. 62 See on the principle of intertemporal law the Island of Palmas case (Netherlands v. USA), Award of 4 April 1928, pp. 845–846. See also the reference to this principle by the ILC, for example in ILC, Doc. A/CONF.39/11/Add.2, p. 42, para. 16. 63 However, the ILC also took into account the state practice of the nineteenth century when preparing the draft articles on the newly independent states, and the provisions of the Convention largely conform with this older state practice, see the ILC commentary to Art. 15 of the draft articles, ILC Commentary to the Draft Articles on Succession of States in respect of Treaties, Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol. III, Doc. A/CONF.80/16/Add.2, pp. 41–44, paras. 3–18. See also Zimmermann (2000), p. 233. 59

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however, the majority of states followed the clean-slate rule for all forms of state succession, not limiting it to the independence of formerly dependent territories.64 Even at this point in time, territorial treaties were considered as a special category which, in exception to the clean-slate rule, should remain unaffected by state succession.65 Thus, for Ethiopia, upon recognition of its full sovereignty, the clean-slate rule was generally applicable, meaning that Article III of the 1891 Anglo-Italian Protocol would only have automatically continued to bind Ethiopia if it had been a territorial clause. The provisions of a treaty can generally be considered separately with regard to the succession to the respective rights and obligations they entail.66 Article III forbids the construction of any works for irrigation purposes on the Atbara that could significantly alter its flow into the Nile. In doing so, it establishes a restriction upon the use of the river that could well be considered as “attaching to” the territory of the Atbara in the sense of the above-cited definition of a territorial treaty, although the territorial character of this clause is questionable in several respects. The 1891 Protocol served primarily to determine the colonial spheres of influence of the United Kingdom and Italy in the region, as can be seen in the preamble, which states that the Protocol was concluded “with the aim to complete, in the northern direction, until the Red Sea, the demarcation of the respective spheres of influence between England and Italy.”67 The subsequent treaty provisions largely delimit the geographical spheres of influence of both countries. The Protocol is thus in the tradition of several treaties between European colonial powers, which sought to clearly define their spheres of influence in Africa against each other. In the light of this, Article III of the Protocol is to be regarded primarily as serving broader political considerations. In view of Italy’s claim to the Ethiopian province of Kassala, where the headwaters of the Atbara are located, the United Kingdom’s objective was merely to protect its own interests in the region. In return for the British agreement to Italian military stations in the region of the headwaters of the Atbara, Italy agreed not to construct any works there that could significantly alter its flow into the Nile. Little consideration was given to the local dynamics of the territory itself; rather, the central focus was on the personalities of the two parties as colonial powers, acting only in their respective interests in the region. This denotes that there was no intention on the part of the United Kingdom or Italy to reach a permanent agreement concerning obligations over construction on the Atbara

64

For an overview of state practice from the beginning of the nineteenth century, see O’Connell (1967), passim and Zimmermann (2000), pp. 131–193. 65 See e.g. McNair (1961), p. 601. Overview of the state practice on territorial treaties at O’Connell (1967), pp. 233–250. 66 Thus, provisions of a territorial character may continue in force upon state succession, while other provisions of the same treaty do not survive. See the evidence of state practice at ILC, YBILC 1974, Vol. II, Pt. 1, p. 200, paras. 13–15. 67 Translation from the original French: “désirant compléter, dans la direction du nord, jusqu’à la Mer Rouge, la démarcation des sphères d’influence respective, entre l’Angleterre et l’Italie.” Preamble, Anglo-Italian Protocol of 1891.

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that would extend beyond the colonial era. The intention to establish a permanent arrangement, characteristic of territorial treaties, is lacking. A territorial agreement cannot therefore be assumed in this case. The above-mentioned statement of the ILC in its commentary to the draft articles does not rule out this conclusion, as it simply indicates that treaties concerning water rights are generally considered as “candidates” for inclusion in the category of territorial treaties. As a consequence, Article III would only have continued in force if there had been a corresponding agreement with independent Ethiopia. However, as Ethiopia has not recognized the Protocol since independence, but rather has explicitly rejected any restriction on the use of the Nile and its tributaries, Article III has not remained in force. This means that Ethiopia has not succeeded to Article III of the Anglo-Italian Protocol of 1891,68 and thus—even if considered an Italian protectorate by virtue of the Treaty of Uccialli—is not bound by Article III of the Protocol.69

6.2.2

Anglo-Ethiopian Treaty of 1902

On 15 May 1902, the United Kingdom and Ethiopia concluded a treaty delimiting the state border between Ethiopia and the Anglo-Egyptian condominium70 of Sudan, which in Article III also contains a clause with regard to any construction on the Nile in Ethiopia.71 This clause was included at the insistence of the British72 and remained highly controversial between the parties in the years following the conclusion of the Treaty. More than a century later, Egypt and Sudan still hold the view that the Treaty is valid and binding upon Ethiopia. They argue that Ethiopia may not build any projects on the Nile that could affect their water uses without their prior consent as the successor states of the United Kingdom.73 Egypt accordingly considers the construction of the Grand Ethiopian Renaissance Dam a violation of Article III of 68

To the same effect see Okidi (1994), pp. 323–324; Godana (1985), p. 156. Thus, the further question of whether Egypt, attaining independence only in 1922, succeeded to the rights and obligations under the treaty as the successor state of the United Kingdom, is not relevant here. 70 At the time of the conclusion of the 1902 Treaty, Sudan was administered as an Anglo-Egyptian condominium on the basis of the 1899 Condominium Agreement, which does not contain a provision for the representation in Sudan’s foreign affairs. In a condominium, several states exercise territorial sovereignty jointly, so that in case of doubt they can only represent it together. In this sense for example the decision of the Central American Court of Justice in the dispute between Nicaragua and San Salvador 1917, reproduced in AJIL 11 (1917), pp. 674–675. See also Shaw (2003), p. 207. It may be assumed that, when concluding the 1902 Treaty, the United Kingdom tacitly exercised sovereignty over Sudan’s foreign affairs on behalf of Egypt. 71 Treaty between Great Britain and Ethiopia relative to the Frontiers between the Anglo-Egyptian Sudan, Ethiopia, and Erythroea, 15 May 1902, BFSP 95 (1901–1902), p. 467. 72 Arsano (2006), p. 340. 73 Salman (2013), p. 18; Tadesse (2008), p. 7; Le Floch (2010), p. 480. 69

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the 1902 Treaty.74 Ethiopia, which began work on the dam in 2011, rejects the notion that it is bound by that treaty.75 Both countries maintain their respective positions, despite the signing by Egypt, Sudan, and Ethiopia of an agreement on the general principles for the construction and operation of this dam in March 2015.76 In the writings of commentators, the continued validity of the 1902 Treaty is debated for various reasons. On the one hand, those against it argue that the Treaty was never ratified by Ethiopia and therefore cannot be binding upon it,77 that the Treaty is invalid as an unequal treaty,78 or that Ethiopia has invoked a right to terminate the Treaty due to a fundamental change of circumstances.79 On the other hand, some commentators argue that the 1902 Treaty is valid and, as a territorial treaty, remains binding upon the successor states under the rules of state succession.80

6.2.2.1

Ratification

The Treaty as published in the British and Foreign State Papers includes a note that the ratifications of the United Kingdom and Ethiopia were exchanged in Addis Ababa on 28 October 1902.81 That note notwithstanding, some legal commentators still object to Ethiopia being bound by this treaty on the grounds that Ethiopia has never ratified it.82 This raises the question of whether Ethiopia’s ratification was at all necessary for the Treaty to become binding. For the question of whether ratification of the Treaty by both states was required in 1902 to establish consent for both to be bound by the Treaty, the customary

74

See e.g. the Egyptian State Information Service (2014). See also Salman (2013), p. 18; ‘Abd al-‘Āl (2010), p. 97. As early as 1957, the aide-mémoire of the Emperor Haile Selassie of 23 September that year can be understood as implicitly rejecting Ethiopia being bound by Art. III of the 1902 Anglo-Ethiopian Treaty. See also Waterbury (1979), p. 75. 76 This agreement was intended to settle the dispute over the construction of the dam. It sets out general principles for the construction and operation of the dam, including the principle of cooperation, the principle of equitable and reasonable utilization, and the obligation not to cause significant harm. See the Parts 1, 3, 4 and 9 of the Declaration of Principles on the Grand Ethiopian Renaissance Dam, 23 March 2015, available at State Information Service, https://www.sis.gov.eg/ Story/148329/‫ﻧﺺ‬-‫ﺇﻋﻼﻥ‬-‫ﺍﻟﻤﺒﺎﺩﺉ‬-‫ﺣﻮﻝ‬-‫ﻣﺸﺮﻭﻉ‬-‫ﺳﺪ‬-‫?ﺍﻟﻨﻬﻀﺔ‬lang=ar (Arabic); English text of the Declaration available at http://www.sis.gov.eg/Story/121609?lang¼en-us (accessed 28 June 2019). 77 Degefu (2003), p. 97; Le Floch (2010), p. 481; Tafesse (2011), p. 68. 78 Wolde-Giorghis (2009), pp. 229–230; Degefu (2003), p. 99. Following similar reasoning Waterbury (1979), p. 75. 79 Le Floch (2010), p. 481; Woldetsadik (2013), p. 117. 80 See ‘Abd al-‘Āl (2010), p. 96. Drawing the same conclusion Maḥfūẓ Muḥammad (2009), p. 329. 81 BFSP 95 (1901–1902), p. 467. 82 For example, Degefu (2003), p. 97; Le Floch (2010), p. 481; Tafesse (2011), p. 68. 75

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international law applicable at the time applies.83 In the nineteenth century, the general rule considered ratification necessary. By the mid-twentieth century there was some debate as to whether ratification was generally necessary to establish a state’s consent to be bound by a treaty.84 It was not until the second half of the twentieth century that state practice solidified around the stance that ratification was only deemed necessary if the parties so agreed.85 Thus, according to customary international law at that time, Ethiopia’s ratification of the 1902 Treaty may indeed have been necessary. However, Article V of the 1902 Anglo-Ethiopian Treaty provides that the treaty enters into force with its ratification by the United Kingdom, without requiring ratification by Ethiopia. It can be derived from this provision that, in derogation from state practice, Ethiopia’s ratification was not necessary to establish its consent to be bound by the treaty in this case; rather, that this consent could be considered as already expressed by its signature or exchange of the treaty documents. As such, ratification by Ethiopia was not required for the Treaty to be binding and the Treaty entered into force with ratification by the United Kingdom alone in 1902.

6.2.2.2

Divergence Between the English and Amharic Texts

The English and Amharic texts of Article III of the Treaty are discrepant in their meaning and there is controversy about their interpretation. On the one hand, there is a difference with regard to the requirements of consent in the texts. On the other, with regard to the interpretation of the Treaty, Egypt reportedly argues, based on the English text, that Article III obliges Ethiopia to refrain from any construction of hydraulic engineering projects along the Nile without its prior consent, regardless of their size and impact on the river flow.86 Ethiopian commentators argue, citing the Amharic text, that Article III merely enshrines Ethiopia’s duty not to completely stop the flow of water, whereas all other water uses are at the discretion of Ethiopia.87 83 See Island of Palmas case (Netherlands v. USA), Award of 4 April 1928, pp. 845–846; ILC, Doc. A/CONF.39/11/Add.2, p. 42, para. 16. See also Kotzur (2008). 84 See the ILC commentary to Art. 11, ILC, Draft Articles on the Law of Treaties with commentaries, YBILC 1966, Vol. II, pp. 197–198, paras. 2–7. For example, in 1934, Fitzmaurice stated that ratification was only necessary if the parties had agreed to this, Fitzmaurice (1934), p. 129. McNair, on the other hand, still stated in 1961 that ratification was required unless otherwise agreed by the parties, McNair (1961), p. 133. 85 This approach was then codified in Art. 14, para. 1 of the Vienna Convention on the Law of Treaties, see the ILC commentary to Art. 11, ILC, Draft Articles on the Law of Treaties with commentaries, YBILC 1966, Vol. II, pp. 197–198, paras. 3–7. Under modern customary law, reflected in Art. 14 of the Convention, ratification is only necessary if the treaty so provides, or if it is otherwise established that the negotiating states agreed that ratification be required. According to this, ratification by Ethiopia would not have been necessary for the conclusion of the 1902 Treaty. 86 See for example Dellapenna (2006), p. 305; Salman (2013), p. 18; Tadesse (2008), p. 7; Le Floch (2010), p. 480. 87 See Woldetsadik (2013), p. 58; Tadesse (2008), p. 15.

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According to the provision of Article 33, paragraph 1 of the Vienna Convention on the Law of Treaties that codifies customary law,88 when a treaty has been authenticated in two or more languages the text is equally authoritative in each language.89 Article V of the Anglo-Ethiopian Treaty of 1902 states that the English and Amharic texts are both authentic: “written in the English and Amharic languages, identically, both texts being official”. The Treaty contains no provisions in the event of a divergence between the texts. Hence, the Treaty needs to be interpreted with a view to find a common meaning. A treaty is to be interpreted in good faith in accordance with the ordinary meaning of its terms and in the light of its object and purpose.90 This interpretation must take into account the ordinary meaning of the terms of the treaty at the time of its conclusion,91 and also include a more dynamic interpretation to consider any subsequent change in the meaning of terms.92 The English text of Article III reads: His Majesty the Emperor of Ethiopia [. . .] engages himself toward the Government of His Britannic Majesty not to construct, or allow to be constructed, any works across the Blue Nile, Lake Tana, or the Sobat which would arrest the flow of their waters into the Nile, except in agreement with His Britannic Majesty’s Government and the Government of the Sudan.93

This text can be understood as obliging Ethiopia not to construct or approve any works that would stop or block the flow of the Nile except with the agreement of both the United Kingdom and Sudan. The ordinary meaning of “arrest the flow” is to stop or block the river flow completely, while not necessarily permanently.

88 ICJ, LaGrand Case (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports 2001, p. 501, para. 99. On the applicability of the interpretation rules laid down in the Convention under customary law, see Gardiner (2012), p. 493. 89 The Vienna Convention on the Law of Treaties of 1969 is not directly applicable to the AngloEthiopian treaty concluded in 1902, as pursuant to Art. 4 the Convention applies only to treaties which are concluded after its entry into force and, moreover, Ethiopia has not ratified the Convention. For the current status of ratification see https://treaties.un.org/pages/ViewDetailsIII.aspx? src¼TREATY&mtdsg_no¼XXIII-1&chapter¼23&Temp¼mtdsg3&clang¼_en (accessed 28 April 2019). Nevertheless, the provisions of the Convention may be consulted in so far as they reflect customary international law existing at the relevant time. 90 See Art. 31, para. 1 Vienna Convention on the Law of Treaties. This provision reflects customary international law. ICJ, Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Reports 1994, pp. 21–22. 91 ICJ, Case concerning rights of nationals of the United States of America in Morocco, Judgment of 27 August 1952, ICJ Reports 1952, p. 189. See also Fitzmaurice (1957b), pp. 212 and 225–226; Brownlie (2008), p. 633. 92 See ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, ICJ Reports 1971, p. 31, para. 53. 93 BFSP 95 (1901–1902), p. 467 (emphasis added). Reproduced in Legislative Texts and Treaty Provisions concerning the Utilization of International Rivers for other Purposes than Navigation, UNLS, ST/LEG/SER.B/12, 1963, p. 116.

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The Amharic text is translated by Ethiopian authors as follows: His Majesty Menelik II [. . .] has agreed in this treaty not to construct, nor authorize anyone to construct a work that stops up from river bank to river bank the waters descending from the Black Abbay, from the Tana Sea, and from the Sobat River towards the White Abbay without previously agreeing with the English Government.94

The Amharic verb daffana, which has been translated here as “stops up”, is synonymous with “to block up, to fill, plug or close tightly, or to block a passage” in English.95 According to the ordinary meaning, Ethiopia would thus be required not to construct or approve works that would completely block the river flow except in agreement with the United Kingdom. Consent of Sudan is not required under this text. Thus, with regard to the use restriction, the interpretation of the terms of Article III in both languages does not indicate a difference of meaning between the two texts. Rather, it confirms a narrow understanding of both texts as applying the restriction on use only to works that would completely stop the river flow, although not necessarily permanently. In contrast, the treaty texts do differ with regard to the requirement of Sudan’s consent. Consideration of the context supports this interpretation of the use restriction, while it does not help to remove the difference with regard to Sudanese consent. The sentence in question of Article III in the Amharic text mentions works that stop the flow of water “from river bank to river bank”, the English text refers to works “across the Blue Nile, Lake Tana, or the Sobat”. These formulations reinforce the understanding that only a complete blocking of the water flow is referred to. Furthermore, the 1902 Treaty neither specifies a treaty duration nor a possibility for its termination. Rather, in its preamble96 it says of its signatories that its provisions are “binding on themselves, their heirs and successors”, indicating the intention that it be a permanent arrangement. If Article III were broadly understood to require that any impact on the river flow by Ethiopia would need the prior agreement of the United Kingdom and possibly Sudan, then it would follow that Ethiopia’s signing of the Treaty effectively constituted its consent to a permanent restriction of use of the Nile water resources on its territory, regardless of the country’s demographic and economic development. There exists no subsequent agreement of the parties on the interpretation or application of the 1902 Treaty, nor does any subsequent practice in its application establish their agreement regarding the interpretation.97 As such, when Ethiopia

94 Amharic text and its English translation reproduced at Woldetsadik (2013), p. 57 (emphasis added). See also ibid., note 20 for the corresponding translation of the British representative in Addis Ababa from 1928. 95 See Woldetsadik (2013), p. 75. 96 The preamble of a treaty forms part of the context and can thus be considered for the interpretation, see Art. 31, para. 2 Vienna Convention on the Law of Treaties and ILC, YBILC 1966, Vol. II, p. 221, para. 13. 97 The interpretation is to take both into account, together with the context, see Art. 31, para. 3(a) and (b) Vienna Convention on the Law of Treaties.

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began construction works on the Blue Nile without Sudan’s consent, Sudan protested against this. The above-mentioned 2015 Declaration of Principles on the Grand Ethiopian Renaissance Dam98 cannot be considered an agreement on the interpretation or application of the 1902 Treaty: This declaration merely sets out general rules concerning the way in which the construction and operation of this specific dam is to be carried out, and does not address the controversy surrounding Article III. Ethiopia continues to insist that it is not bound by the 1902 Treaty, while Egypt and Sudan continue to view the construction of the dam without their consent as a violation of the Treaty.99 Similarly, any relevant rules of international law applicable between the parties need to be taken into account.100 This is not limited in terms of time; the rules applicable at the time both of treaty conclusion and of interpretation must be considered.101 Today, between the parties to the 1902 Treaty, the principle of equitable and reasonable utilization of an international watercourse, which evolved in international water law over the late twentieth century, would apply. The principle establishes the right of each riparian state to an equitable and reasonable share of the uses of a shared watercourse. It supports a narrow interpretation of the use restriction expressed in Article III. This understanding of the text is also consistent with the Treaty’s object and purpose. In this respect, the preamble to the Anglo-Ethiopian Treaty is important. It states the contracting states were motivated by “the desire to confirm the friendly relations between the two Powers, and to settle the frontier between the Soudan and Ethiopia”. It is in line with this objective that states should practice mutual consideration in using the resources of a shared river. On the other hand, the concept of sovereignty expressed in the formulation of the preamble would hardly be reconcilable with the view that the construction by Ethiopia of any hydraulic engineering structures on the Blue Nile, Lake Tana, or Sobat, regardless of their size and effect on the Nile flow, would be subject to the prior consent of the United Kingdom and possibly Sudan.

98

Declaration of Principles on the Grand Ethiopian Renaissance Dam, 23 March 2015, available at State Information Service, https://www.sis.gov.eg/Story/148329/‫ﻧﺺ‬-‫ﺇﻋﻼﻥ‬-‫ﺍﻟﻤﺒﺎﺩﺉ‬-‫ﺣﻮﻝ‬-‫ﻣﺸﺮﻭﻉ‬-‫ﺳﺪ‬-‫?ﺍﻟﻨﻬﻀﺔ‬ lang=ar (Arabic); English version available at http://www.sis.gov.eg/Story/121609?lang¼en-us (accessed 28 June 2019). 99 See e.g. the Egyptian State Information Service (2014). 100 See also Art. 31, para. 3(c) Vienna Convention on the Law of Treaties. An earlier draft of the ILC for the interpretation rule stated that the meaning of a treaty text is to be determined “in light of the general rules of international law in force at the time of its conclusion”. This limitation in time was later removed, see the comment by the ILC to Art. 27 of the draft articles (Art. 31 of the Vienna Convention on the Law of Treaties), Doc. A/CONF.39/11/Add.2, p. 42, para. 16. 101 Similarly the ICJ, which moreover assumes that an international treaty is to be interpreted in an evolutionary way within the framework of the entire legal system prevailing at the time of its interpretation, since the interpretation of the treaty cannot remain unaffected by the subsequent development of law, see ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, ICJ Reports 1971, pp. 31–32, para. 53; ICJ, Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, pp. 34–35, para. 80.

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Thus, there is no difference of meaning in the English and Ethiopian texts of Article III with regard to the extent of the use restriction. The clause is to be understood as requiring an agreement solely for the construction or approval of works that would completely block the water flow of the Blue Nile, Lake Tana, or Sobat. Conversely, the application of the rules of interpretation as codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties cannot overcome the difference of meaning in the English and Ethiopian texts with regard to whether Sudan’s consent is required, in addition to that of the United Kingdom. Thus, in this regard, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, is to be adopted.102 This may be done by choosing the text of the treaty which comes closest to the object and purpose of the treaty.103 The Amharic treaty text comes closest to the treaty’s purpose of confirming the friendly relations between two sovereign powers, namely between Ethiopia and the United Kingdom as the colonial power in Sudan. The treaty negotiations took place between Ethiopia and the United Kingdom, and the latter concluded the treaty as the colonial ruler in Sudan. The consent of the United Kingdom was required because it was the colonial power over Sudan, and its consent would imply Sudan’s consent as long as the latter was under British colonial administration; there is no indication that the parties in 1902 even contemplated an end to the colonial rule. The requirement of consent of the British Government is also embraced by both language texts of the 1902 Treaty. Thus, it can be argued that the Amharic text of Article III may be chosen with regard to the question of whose consent is required under the Treaty. Consequently, Article III of the 1902 Anglo-Ethiopian Treaty is to be understood as requiring an agreement of the United Kingdom only, and solely for the construction or approval of works that would completely block the water flow of the Blue Nile, Lake Tana, or Sobat.

6.2.2.3

Unequal Treaty

Some commentators argue that the Anglo-Ethiopian Treaty is void because it is a so-called unequal treaty since it was concluded under the supremacy of the United Kingdom in the region and provides no benefit for Ethiopia.104 The concept of unequal treaties is used to designate treaties that one state has imposed upon another through military, political, or economic coercion, and where there is generally an

102

See also Art. 33, para. 4 Vienna Convention on the Law of Treaties. This norm also reflects customary international law, see ICJ, LaGrand Case (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports 2001, p. 502, para. 101. 103 See also Papaux and Samson (2011), pp. 880–881. 104 Wolde-Giorghis (2009), pp. 229–230; Degefu (2003), p. 99. For similar reasoning see also Waterbury (1979), p. 75: “as it was totally non-reciprocal”.

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imbalance of reciprocal obligations.105 In this regard, in particular treaties concluded between a colonial power and its colony, or a protector state and the protectorate, have been discussed as constituting unequal treaties.106 The question of whether treaties that are unequal in this sense are generally void has historically been controversial and was vigorously debated as late as the 1968 United Nations Conference on the Law of Treaties.107 Some states have considered that such unequal treaties are always void because they violate the principle of the sovereign equality of states and the principle of non-intervention. However, this view has not prevailed. In particular the principle of sovereign equality of states in international law and the freedom of consent regarding the content of a treaty do not support the assumption of invalidity.108 Also, there have been few adherents to the further reasoning that, due to the inequality of obligations, such unequal treaties lack a substantive consensus from the parties. Support for this reasoning is lacking because there is no rule in international law requiring an equality of treaty obligations.109 Even a gross inequality of treaty obligations does not in itself constitute grounds for invalidity.110 Any coercion during the conclusion of a treaty can only lead to that treaty being void if the coercion in question is considered as such under the customary conditions codified in Articles 51 and 52 of the Convention on the Law of Treaties. But there are no indications of this being the case with regard to the Anglo-Ethiopian Treaty of 1902. As such the Treaty cannot be considered void based on it being considered unequal.

6.2.2.4

Succession of Egypt and Sudan

Egypt and Sudan argue that Ethiopia is bound by Article III of the 1902 Treaty111 as they succeeded to the rights and obligations under the Treaty when they became independent.

105

Peters (2007), para. 5. In the ILC session 1963, Mr. Tunkin proposed to include unequal treaties in the text of the then draft Art. 13 “Treaties void for Illegality” and to define them as “treaties establishing gross inequality between the obligations of the parties”, ILC Summary records of the 15th session, YBILC 1963, Vol. I, p. 69, para. 28. 106 See ILC Summary records of the 15th session, YBILC 1963, Vol. I, p. 192, para. 37. For detail on the historical evolution of the concept of unequal treaties and the elements of inequality, see Craven (2005), pp. 335–382. On the historical practice, see Peters (2007), paras. 8–22. 107 See United Nations Conference on the Law of Treaties, First session, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, 1968, UN Doc. A/CONF.39/ 11, for example p. 280, para. 2; p. 299, para. 57; and p. 379, para. 8. 108 See also Caflisch (1992), p. 69. 109 Ibid. 110 Mr. Jiménez de Aréchaga in the ILC session 1963, ILC Summary records of the 15th session, YBILC 1963, Vol. I, pp. 70–71, paras. 44–45. See also Caflisch (1992), p. 69; Peters (2007), para. 2. 111 Salman (2013), p. 18; Tadesse (2008), p. 7; Le Floch (2010), p. 480.

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Interestingly, the United Kingdom seems to have concluded the agreement exclusively for Sudan. The Treaty mainly concerns the boundary demarcation between Ethiopia and Sudan, which was an Anglo-Egyptian condominium, and the English text states that its measures may not be implemented on the Nile, “except in agreement with His Britannic Majesty’s Government and the Government of the Sudan”. None of the treaty provisions indicate that it should establish rights or obligations for the Anglo-Egyptian condominium Egypt. There is no mention whatsoever of Egypt in the treaty text and it is at best affected indirectly by the provision concerning the flow of Ethiopian tributaries into the Nile. Therefore, a succession of Egypt to the rights and obligations under the Treaty does not come into consideration. On attaining independence, Sudan did not conclude devolution agreements for colonial treaties. In accordance with customary international law as it stood in 1956, for Sudan as a newly independent state the clean-slate rule applied to any succession with respect to treaties,112 with the exception of territorial treaties.113 Sudan would thus only be a successor to British rights and obligations under Article III of the 1902 Treaty if this provision was of a territorial character. Some commentators take the view that the rules on territorial treaties are only applicable if the succession of states occurred with respect to the territory affected by the treaty provision concerned. Only in this case would the special protection of territorial treaties justify their continuance for the successor state.114 This is relevant here because, while most provisions of the 1902 Treaty deal with SudaneseEthiopian border issues and thus concern Sudanese territory in respect of which the state succession took place, Article III solely contains provisions concerning the Ethiopian territory. Accordingly, for Article III, which can be considered separately from the other treaty provisions with respect to succession,115 the special rules on territorial treaties would not be applicable. Having noted this, though, the view that the rules on territorial treaties have only such limited applicability cannot be deduced from state practice, nor did the ILC see a corresponding rule as justified by state practice,116 meaning it should not be used as a basis. 112

The Vienna Convention on Succession of States in respect of Treaties is not applicable to the succession of Sudan in 1956, since Sudan is not a party to the Convention. For the current status of ratification see https://treaties.un.org/Pages/ViewDetails.aspx?src¼IND&mtdsg_no¼XXIII-2& chapter¼23&clang¼_en (accessed 21 April 2019). See generally on the limitations of the Convention with regard to its direct binding effect, the observations and proposals of the Special Rapporteur Francis Vallat, YBILC 1974, Vol. II, Pt. 1, pp. 10–11, paras. 34–41. The clean-slate rule was applicable under customary law for former colonies at the time of the state succession of Sudan in 1956, see for example the award in the dispute between Guinea-Bissau and Senegal over a maritime delimitation, Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), pp. 49–50. 113 On the customary applicability of the rules on the succession of newly independent states in respect of territorial treaties, see Sect. 6.2.1.2, above. 114 See Zimmermann (2000), p. 497. 115 See the evidence of state practice at ILC, YBILC 1974, Vol. II, Pt. 1, p. 200, paras. 13–15. 116 See ibid., pp. 204–205, paras. 30–31.

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Article III of the Treaty would therefore continue in force unaffected by the succession of Sudan if it is to be considered a territorial provision. In Article III of the Anglo-Ethiopian Treaty, Ethiopia committed itself, concerning the Nile flow to Sudan, not to construct or allow on its territory any works on the Blue Nile, Lake Tana, or Sobat that would stop their water flow into the Nile. Thus, Article III establishes a use restriction attached to these territories in favor of Sudan. The territorial character of Article III is not impacted by the political considerations that played such a prominent role in the treaties by which colonial powers sought to define their zones of influence in the region. The Treaty focused on defining the boundary between Sudan and then-sovereign Ethiopia, while Article III ensured that this would not affect Sudan’s interests in the water flow of Ethiopian tributaries into the Nile. This agreement was made by Ethiopia and the United Kingdom with the intention of a permanent arrangement (“shall be binding on themselves, their heirs and successors”117). This differs from other colonial agreements that the United Kingdom concluded on the Nile.118 Consequently, Article III is to be regarded as a territorial provision and, upon attaining independence, Sudan automatically succeeded to the rights and obligations under this provision.119

6.2.2.5

Succession of South Sudan

After its separation from Sudan in 2011, the provision of Article III continues in force for South Sudan with regard to the Sobat, which flows from Ethiopia through South Sudanese territory. The state of South Sudan emerged on 9 July 2011 as a result of the separation of one part of the territory of Sudan. Under the law of state succession, this constituted a separation, where a part of the territory of a state separates to form a new state while the other part continues the legal personality of the predecessor state and remains, as such, identical with that state, although to a more limited geographical extent.120 Today’s Sudan continues the international legal personality of the former Sudan and is thus generally subject to its treaty obligations. For South Sudan as a new state, the rules on state succession apply with respect to its treaty obligations. Under state practice, in cases of separation, the predecessor state and the separated successor state have often concluded devolution agreements. However, Sudan and South Sudan have concluded neither a general devolution agreement for treaties nor an agreement on the devolution of the 1902 Treaty to South Sudan, which has

117

Last paragraph of the preamble of the 1902 Anglo-Ethiopian Treaty. One exception to this is the Exchange of Notes between Egypt and the United Kingdom over the Owen Falls Dam from 1949 to 1953 which was also concluded with the intention of a permanent arrangement. For a detailed discussion of the 1949–1953 Exchange of Notes, see Sect. 6.2.7, below. 119 For similar conclusion see ‘Abd al-‘Āl (2010), p. 96; Maḥfūẓ Muḥammad (2009), p. 329. 120 See Zimmermann (2006), under D, para. 4. See also Stern (2000), p. 77. On the rules of international law on separation in general, see Hafner and Novak (2012), pp. 406 and 413–416. 118

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thus far not expressed its view on that treaty. Still, according to the customary rules121 on the succession of states with respect to territorial treaties, South Sudan has automatically succeeded to the obligations under Article III with regard to the Sobat.122

6.2.2.6

Fundamental Change of Circumstances

Since the conclusion of the Treaty in 1902, the social and economic circumstances in Ethiopia have changed significantly. In 2011, the country began work on the Renaissance Dam over the Blue Nile without seeking the prior consent of Sudan, rejecting the notion that it is bound by any colonial-era agreement concerning the use of the Nile.123 This raises the question of whether Ethiopia may invoke a fundamental change of circumstances as a ground for terminating or modifying the 1902 Treaty. The principle of rebus sic stantibus has been codified in Article 62 of the Convention on the Law of Treaties and is widely recognized as customary international law.124 This principle allows for terminating a treaty on the grounds of a fundamental and unforeseen change of circumstances from those existing at the time of the conclusion of the treaty. For it to be applied, the existing circumstances must have constituted an essential basis for the parties’ consent to be bound by the treaty, and the effect of the change must have been to radically transform the extent of obligations still to be performed under the treaty. The conditions under which a change of circumstances may be invoked are extremely narrowly defined, due to the vital importance of having ongoing assuredness for treaties in international law.125 A fundamental change of circumstance cannot be invoked as a ground for terminating a treaty that establishes a boundary126; this exception does not apply

121

The Vienna Convention on Succession of States in respect of Treaties is not applicable to South Sudan, as it is not a party to the Convention. For the current status of ratification see https://treaties. un.org/Pages/ViewDetails.aspx?src¼IND&mtdsg_no¼XXIII-2&chapter¼23&clang¼_en (accessed 28 April 2019). 122 For a detailed discussion of the separation of South Sudan and the applicable rules on state succession, see Sect. 6.2.8.3, below. 123 See for example Africanews (2018). 124 See ICJ, Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of 2 February 1973, ICJ Reports 1973, p. 20, para. 43; ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 61, para. 104. See also Shaw and Fournet (2006), p. 2241. 125 On the conditions under which a change of circumstances may be invoked, see ILC in YBILC 1966, Vol. II, pp. 259–260, paras. 9–13; and Sinclair (1984), pp. 192–193. See also Shaw and Fournet (2006), p. 2251. 126 See Art. 62, para. 2(a) Vienna Convention on the Law of Treaties.

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to other treaties that establish the territorial status of a territory.127 The AngloEthiopian Treaty of 1902 predominantly establishes the Sudanese-Ethiopian boundary, while Article III is construed as a territorial provision with reference to the use of the Blue Nile, Lake Tana, and Sobat on Ethiopian territory. If a treaty contains both provisions establishing a boundary and other, non-boundary related provisions, the rebus sic stantibus doctrine remains generally applicable to the latter.128 It follows that it applies to Article III of the 1902 Treaty. The change in the social and economic circumstances of Ethiopia since 1902 and its concomitant increase in needs for water and water resources development can be considered a fundamental change of essential circumstances. At the time of the conclusion of the 1902 Treaty, Ethiopia had a population of about 11 million. At the time of writing, this has reached 108.4 million.129 The corresponding water needs for food production and, more recently, hydropower generation have increased accordingly. While in 1902 there was neither the need nor the capabilities for large-scale hydraulic works on rivers in Ethiopia, the worldwide technical advances of the twentieth century have facilitated such works, in particular large-scale hydropower generation and its use for economic development. The rebus sic stantibus principle only applies if the parties did not foresee these developments in the social and economic circumstances.130 Specifically, what is decisive is whether it is reflected in the treaty or in any other relevant agreement between the parties, that a change of circumstance was foreseen or considered likely by the parties when the treaty was concluded.131 The extent of the population growth and the technological advances were not foreseeable in 1902. The Treaty contains no provision for such a steep population growth and advances in the technical capabilities with regard to the use and development of rivers, such as large-scale hydropower generation, nor do the circumstances surrounding its conclusion give any indication that the parties contemplated this. The social and economic developments in Ethiopia radically transformed the extent of Ethiopia’s obligations under the Treaty and meant that Sudan could no longer in good faith reasonably expect Ethiopia to continue with this treaty as it stands.132 According to the above interpretation of the 1902 Treaty, Ethiopia’s

127

A proposal of the United States to include such treaties in Art. 62, para. 2(a) of the Vienna Convention on the Law of Treaties was rejected by the majority of states during the negotiations on the Convention, UN Doc. A/CONF.39/11/Add.2, p. 184, para. 543. 128 See Waldock, Fifth Report, 1966, p. 43, para. 7. 129 CIA, The World Factbook, Ethiopia, People and Society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/et.html (accessed 25 April 2019). 130 See Fitzmaurice, Second Report (1957a), p. 33, para. 2(v): “by the exercise of reasonable foresight”. 131 Ibid. 132 On the problem of the wording of Art. 62, para. 1(b) of the Vienna Convention on the Law of Treaties, see Heintschel von Heinegg, who points out that the change of circumstances as such can in fact not affect the scope of the obligations, but rather make the obligations so burdensome that it is unreasonable to insist on their performance. Thus, what is ultimately decisive is whether the

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obligation under Article III is to be understood as meaning that consent is required for any works that would completely, while not necessarily permanently, block the flow of water from the Blue Nile, Lake Tana, or Sobat into the Nile. This obligation covers Ethiopia’s major river, the Blue Nile. It permanently restricts the development and use of those rivers on Ethiopian territory, including major hydraulic works such as the Renaissance Dam, which became technically feasible over the course of the twentieth century, and subjects Ethiopian development to Sudanese consent, and to South Sudanese consent with regards to the Sobat. In view of these new circumstances in Ethiopia and its need to provide for food, water and electricity for its large population, it cannot in good faith be expected that it will continue to observe such a far-reaching restriction on its use and development of the water resources in its territory. The conditions for invoking the principle of rebus sic stantibus are thus met. If the conditions are met, the state party must invoke the principle and first try to adapt the treaty to the changed circumstances by negotiations133 as a termination of the treaty is ultima ratio.134 Thus, it can be argued that Ethiopia could invoke the rebus sic stantibus principle to try to adapt the Treaty to the changed circumstances through negotiations with Sudan and, concerning the Sobat, South Sudan.135 Such adaptation to the changed circumstances could be to agree that, in accordance with the rules of current international water law, notification and consultations for such works that are covered by the 1902 Treaty shall be necessary, rather than prior consent, and that the uses must be equitable and reasonable, which includes the obligation not to cause significant harm to the co-riparian states. This would allow Ethiopia to develop and use these water resources to provide for the needs of its growing population, and at the same time protect the interests of downstream Sudan and South Sudan in a water flow that allows the continued development and uses of the Nile on their territories for their own needs.

further performance of the treaty can in good faith still reasonably be expected from the parties, Heintschel von Heinegg (1992), pp. 292–293. See also Heintschel von Heinegg (2014), p. 466, note 101. To the same effect see Villiger, who stresses in this respect that Art. 62, para. 1(b) of the Convention is ultimately a codified expression of equity and good faith, Villiger (2009), p. 774, note 59. 133 Waldock, Second Report, YBILC 1963, Vol. II, p. 83, para. 8. See also Brownlie (2008), p. 624. 134 See Waldock, Second Report, YBILC 1963, Vol. II, p. 85, para. 18. The procedural rules embodied in Art. 65 of the Vienna Convention on the Law of Treaties did not codify existing customary international law, see Prost (2011), pp. 1486–1490. See also the ILC in its commentary to Art. 62 of the draft articles (Art. 65 of the Vienna Convention on the Law of Treaties), YBILC 1966, Vol. II, p. 263, para. 6. However, at least the basic procedural rules of Art. 65 of the Convention, such as notification and negotiations, have, in the meantime, achieved the status of customary law. See Prost (2011), pp. 1486–1490. 135 Similarly both Le Floch and Woldetsadik, who argue that Ethiopia may terminate the 1902 Treaty on the basis of the doctrine of fundamental change of circumstances, as the Treaty no longer accommodates its needs for water resources development, see Le Floch (2010), p. 481; Woldetsadik (2013), p. 117.

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In conclusion, Sudan, on attaining independence in 1956, succeeded to the rights and obligations under Article III of the 1902 Anglo-Ethiopian Treaty. With its separation in 2011, South Sudan succeeded to the rights and obligations with regard to the Sobat only. Furthermore, Article III is to be interpreted as meaning that Ethiopia requires the consent of Sudan or South Sudan only for such works on the Blue Nile and Lake Tana or the Sobat, respectively, that would completely, yet not necessarily permanently, block their water flow into the Nile. Ethiopia may invoke the rebus sic stantibus principle to adapt the Treaty to the changed circumstances through negotiations with Sudan and South Sudan.

6.2.3

Agreement Between the United Kingdom and the Congo Free State of 1906

After the United Kingdom contractually secured the waters of the eastern sub-basin of the rivers originating in Ethiopia, namely the Blue Nile, Atbara, and Sobat, it turned its attention to the sources of the White Nile. At that time, all equatorial riparian states were under British colonial rule, with the exception of the Congo Free State, which was a personal colony of the Belgian king.136 On 9 May 1906, the United Kingdom137 and the Congo Free State signed an agreement138 that modified their 1894 treaty139 concerning the respective spheres of influence in East and Central Africa. Article III of the 1906 Agreement addresses the use of the tributaries of the White Nile in the territory of the Congo Free State, namely the Semliki and Isango. Article III of the Agreement states that the government of the Congo Free State undertake[s] not to construct, or allow to be constructed, any work on or near the Semliki or Isango River, which would diminish the volume of water entering Lake Albert, except in agreement with the Sudanese Government.

This obligation would still be binding today if, on attaining independence, the Republic of the Congo (Congo-Léopoldville) and Sudan were successors to the rights and obligations under the Agreement.140

136

Mthembu-Salter (2012), p. 329. Here too it can be assumed that the United Kingdom tacitly exercised sovereignty for the foreign affairs of the Anglo-Egyptian condominium Sudan when concluding the treaty. See also Sect. 6.2.2, note 70, above. 138 Agreement between Great Britain and the Independent State of the Congo, modifying the Agreement signed at Brussels, 12 May 1894, relating to the Spheres of Influence of Great Britain and the Independent State of the Congo in East and Central Africa, 9 May 1906, BFSP 99 (1905–1906), p. 173. 139 Agreement between Great Britain and His Majesty King Leopold II, Sovereign of the Independent State of the Congo, relating to the Spheres of Influence of Great Britain and the Independent State of the Congo in East and Central Africa, 12 May 1894, BFSP 86 (1893–1894), p. 19. 140 A succession seems to be supported by Godana (1985), p. 154. 137

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After the end of the Belgian colonial administration141 in 1960, the Republic of the Congo (Congo-Léopoldville) did not conclude a devolution agreement for treaties with Belgium.142 To the request of the Secretary-General of the United Nations for confirmation that the country considered itself bound by a number of international treaties, the Congolese Minister for Foreign Affairs replied in a letter of 29 December 1961: In general the Republic of the Congo considers itself the successor, as an independent and sovereign State, of the Belgian Congo with regard to international conventions, which it acknowledges to remain in force in its territory.143

He added that his ministry would examine each individual treaty in question and provide clarity on whether his country considered itself bound by it. Over the course of 1962, the ministry stated in separate letters with regard to numerous treaties that it considered itself bound by them.144 It also made statements regarding several treaties that were not covered by the request of the Secretary-General of the United Nations. However, the 1906 Agreement is not among that list of treaties and has never been explicitly recognized by the Republic of the Congo or the later DR Congo. Hence, the Republic of the Congo belonged to the group of former colonies which, after attaining independence, considered themselves entitled to continue single treaties by unilateral declaration. As a former Belgian colony, it belonged to the category of newly independent states and thus, according to customary international law,145 it did not automatically succeed to the international obligations of its former colonial master but began its existence with a clean slate. However, it would have automatically succeeded to Article III of the 1906 Agreement regardless of its declaration, if this had been a territorial clause.146 Article III seems to establish a use restriction attached to the territory of the Rivers Semliki and Isango for the then Congo Free State. However, the 1906 Agreement modified the treaty concluded in 1894 between the parties on the delimitation of the

141

From 1879 to 1908, the territory of the present-day DR Congo was a personal colony of the Belgian king. In 1908, the rule over the country was transferred to the Belgian state until its independence in 1960. See Mthembu-Salter (2012), p. 329. 142 No devolution agreement has been registered with the General Secretariat of the United Nations, see UN Doc. A/CN.4/150, YBILC 1962, Vol. II, p. 115, para. 68. 143 See the letter from the Minister for Foreign Affairs of the Congo (Congo-Léopoldville) to the Secretary-General of the United Nations in UN Doc. A/CN.4/150, YBILC 1962, Vol. II, p. 115, paras. 70–71. 144 Ibid., p. 115, paras. 72–74. 145 The Vienna Convention on Succession of States in respect of Treaties is not applicable to the state succession of the Republic of the Congo (Congo-Léopoldville) in 1960, as it is not a party to the Convention. For the current status of ratification see https://treaties.un.org/Pages/ViewDetails. aspx?src¼IND&mtdsg_no¼XXIII-2&chapter¼23&clang¼_en (accessed 28 April 2019). 146 In addition to Art. III, the Agreement also contains provisions on boundary delimitation as well as the construction of a railway and a commercial port. These can be considered separately with regard to the succession of states. See the evidence of some state practice at ILC, YBILC 1974, Vol. II, Pt. 1, p. 200, paras. 13–15.

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respective spheres of influence in East and Central Africa. The Belgian king, as sovereign over the Congo Free State, and the United Kingdom wanted principally to promote their own interests as colonial rulers in the region. In this context, Article III of the 1906 Agreement is to be seen as a primarily political agreement, in which the territorial relationship was less important than the characteristics of the contracting states. It cannot be assumed that the United Kingdom and the Belgian king had any intention to reach a permanent agreement extending beyond a possible end of their colonial rule concerning works on the Semliki or Isango, or to permanently subject them to Sudanese consent. Therefore, the intention to establish a permanent arrangement, characteristic of territorial treaties, is lacking. Accordingly, Article III of the 1906 Agreement does not qualify as a territorial provision and would only have remained in force if and to the extent agreed by the parties. Yet, as previously mentioned, the Republic of the Congo has never explicitly recognized the Agreement in the subsequent period.

6.2.4

Anglo-Italian Exchange of Notes of 1925

By means of an exchange of notes from 14 to 20 December 1925,147 Italy and the United Kingdom concluded an agreement on the Blue and White Nile and their tributaries. In this exchange of notes, Italy recognized priority water rights of Egypt and Sudan to the headwaters of the Blue and White Nile as well as their tributaries, and committed not to construct on the head waters of the Blue Nile and the White Nile and their tributaries and affluents any work which might sensibly modify their flow into the main river.148

In return, Italy was allowed under the Exchange of Notes to freely pursue its colonial plans with regard to Ethiopia, and build roads and railways. Ethiopia, in whose territory are located the headwaters and tributaries of the Blue Nile, and the Sobat, which flows into the White Nile, lodged a protest against the treaty with the League of Nations in 1925 concerning the clause on the use restriction. This protest centered on the claim that the United Kingdom and Italy had concluded an agreement on the use of the Ethiopian river basin without authority to do so, and without Ethiopia’s participation as a contracting party. In expressing its indignation over the treaty, Ethiopia stated: “We should never have suspected that

147

Exchange of Notes between the United Kingdom and Italy respecting Concessions for a Barrage at Lake Tsana and a Railway across Abyssinia from Eritrea to Italian Somaliland, Rome, 14/20 December 1925, BFSP 121 (1925), p. 805. 148 Penultimate paragraph of Note No. 2 of the Italian Prime Minister of 20 December 1925, Exchange of Notes between the United Kingdom and Italy respecting Concessions for a Barrage at Lake Tsana and a Railway across Abyssinia from Eritrea to Italian Somaliland, Rome, 14/20 December 1925, BFSP 121 (1925), p. 808.

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the British Government would come to an agreement with another government regarding our lake”.149 Ethiopia as a sovereign state was not involved in the conclusion of the treaty in 1925, and none of the contracting colonial powers were responsible for Ethiopia’s international relations enabling it to establish obligations on Ethiopia. Therefore, Ethiopia did not become a party to the agreement.150 However, Ethiopia could be obliged by the treaty provision as a third state. Based on the general rule of customary international treaty law151 codified in Article 34 of the Convention on the Law of Treaties, a treaty does not create obligations or rights for a third state without its consent, pacta tertiis nec nocent nec prosunt.152 An obligation arises for a third party only if the parties to the treaty so intend and the third state accepts this obligation.153 The 1925 treaty might constitute a treaty providing for obligations for third states in that it recognizes priority water rights of Egypt and Sudan to the headwaters of the Blue and White Nile and their tributaries, and establishes an obligation not to construct works there which might sensibly modify their flow into the main river. However, the parties to the Anglo-Italian treaty of 1925 did not intend to bind Ethiopia. By agreeing that Italy should pursue its colonial plans with regard to Ethiopia—which was still sovereign at the time of the conclusion of the treaty—it seems that the treaty was concluded in anticipation of the possible colonization of Ethiopia by Italy. Furthermore, Ethiopia has neither explicitly nor implicitly expressed consent to restrictions on the use of the Blue Nile, its tributaries, and the Sobat, but rather protested in the very year in which the treaty was concluded.154 The Anglo-Italian Exchange of Notes of 1925 is thus for Ethiopia a res inter alios acta and cannot establish any obligation on Ethiopia.

149

Quoted at Waterbury (1987), p. 95. For similar conclusion see Godana (1985), p. 106; Okidi (1982), p. 170; Fahmi (1986), p. 59. 151 On the customary nature of this rule, see David (2011), pp. 888–889. 152 The Vienna Convention on the Law of Treaties of 1969 is not directly applicable to the treaty concluded in 1925, as the Convention has no retroactive effect (see Art. 4 of the Convention) and, moreover, Ethiopia is not a party to the Convention. For the current status of ratification see https:// treaties.un.org/pages/ViewDetailsIII.aspx?src¼TREATY&mtdsg_no¼XXIII-1&chapter¼23& Temp¼mtdsg3&clang¼_en (accessed 28 April 2019). Rather, the customary law applicable at the time of the treaty’s conclusion applies, see the Island of Palmas case (Netherlands v. USA), Award of 4 April 1928, pp. 845–846; ILC, Doc. A/CONF.39/11/Add.2, p. 42, para. 16; Kotzur (2008). 153 See also Art. 35 Vienna Convention on the Law of Treaties. This provision largely reflects customary international law, yet the requirement of an explicit and written acceptance of the obligation did not constitute customary law at the time of the codification of the Convention, Laly-Chevalier (2011), pp. 913–914. 154 Thus, the controversially discussed question of whether, under customary international law, the consent to a treaty by the third state could be implicit, is not relevant here. On this question, see ILC, UN Doc. A/CN.4/SER.A/1964, YBILC, 1964, Vol. I, pp. 73–80, paras. 4–73, passim; and LalyChevalier (2011), p. 911. 150

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6.2.5

6 The Treaty Regime for the Nile

Anglo-Egyptian Nile Waters Agreement of 1929

After Egypt attained formal independence from the United Kingdom in 1922, the two countries agreed on 7 May 1929 in an exchange of notes on the use of Nile water for irrigation purposes.155 This agreement was based on the report of a commission established in 1925 by another exchange of notes between Egypt and the United Kingdom. The commission was to prepare a proposal on how irrigation measures could be implemented in Sudan without detriment to the interests and “natural and historical rights” of Egypt in the Nile.156 In the 1929 Nile Waters Agreement, the United Kingdom declared that the British government recognizes the “natural and historical rights of Egypt in the waters of the Nile”.157 In return, the Egyptian government agreed to an increase of the quantity of water which had been so far utilized by Sudan, provided that this “does not infringe Egypt’s natural and historical rights in the waters of the Nile and its requirements of agricultural extension”.158 Thereafter, the Agreement allocates the then usable annual water flow between Egypt and Sudan, without quantifying respective water quotas. Rather, it states that the natural flow of the Nile at Sennar should be reserved for Egypt every year from 19 January to 15 July.159 For the remaining months of the year, quantities of water were determined that Sudan may withdraw from the natural flow of the river and that it is not allowed to exceed.160 The Agreement further provides that, without prior consent from Egypt, no irrigation or building works or measures may be undertaken on the Nile and its tributaries in Sudan or in the countries under British administration—Tanganyika, Kenya, and Uganda—that would reduce or delay the quantity of water arriving in Egypt.161 This effectively gave Egypt a right of veto over any engineering project on the Nile in Sudan and the

155

Exchange of Notes Between his Majesty’s Government in the United Kingdom and the Egyptian Government in regard to the Use of the Waters of the River Nile for Irrigation Purposes, 7 May 1929, LNTS XCIII (1929–1930), p. 44. 156 The concrete reason was the planned Gezira Cotton Scheme in Sudan, for which the Nile should be used for irrigation. See ‘Abd al-Wahhāb (2004), pp. 174–175; McCaffrey (2001), p. 237. 157 Para. 4 of Note No. 2 from Lord Lloyd to Mohamed Mahmoud Pasha of 7 May 1929, LNTS XCIII (1929–1930), p. 116. 158 Para. 2 of Note No. 1 from Mohamed Mahmoud Pasha to Lord Lloyd of 7 May 1929, LNTS XCIII (1929–1930), p. 44. 159 Commission Report, para. 88(a), LNTS XCIII (1929–1930), p. 86. 160 Ibid., para. 88(b)–(e). 161 See para. 4(b) of the Note from Mohamed Mahmoud Pasha to Lord Lloyd of 7 May 1929: “Save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile and its branches, or on the lakes from which it flows, so far as all these are in the Sudan or in countries under British administration, which would, in such manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water arriving in Egypt, or modify the date of its arrival, or lower its level.” LNTS XCIII (1929–1930), p. 46.

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territories under British administration that could have affected its interests.162 Egypt, for its part, was not subject to any corresponding restrictions on works or measures along the Nile in its territory.163 To date, the validity and the binding effect of the 1929 Nile Waters Agreement are controversial among Nile riparian states and legal commentators. Egypt and Sudan consider that the Agreement remains binding.164 They argue that it has automatically devolved to Tanzania, Kenya, and Uganda as a territorial treaty under the law of state succession and, in addition, also binds the other Nile Basin states. The upstream states, in contrast, have declined to be bound by the 1929 Agreement.165 Some commentators affirm the binding effect of the Agreement for Tanzania, Kenya, and Uganda by it being a territorial treaty.166 Other commentators have rejected this using different lines of argument: One is that the 1929 Nile Waters Agreement was terminated by the conclusion of the later Egyptian-Sudanese Nile Waters Agreement in 1959.167 Another argument is that the 1929 Agreement was indeed a territorial treaty, but was principally driven by political considerations at the time and therefore did not automatically devolve to the former colonies by way of state succession168; under the last one, if indeed the rights and obligations under the Agreement continued in force for the former colonies, these countries could invoke the doctrine of fundamental change of circumstances.169

6.2.5.1

Replacement by the 1959 Nile Waters Agreement

Neither the 1929 Nile Agreement nor the 1959 Nile Agreement contains a provision on the relationship with other treaties. The 1929 Agreement, however, could have been tacitly terminated by the conclusion of the 1959 Egyptian-Sudanese Agreement. According to customary international law170 codified in Article 59 of the Convention on the Law of Treaties, a treaty is to be considered terminated if all parties conclude a later treaty relating to the same subject matter; in addition, it must

162

Brunnée and Toope (2002), p. 124; Azarva (2011), p. 467. In addition, the Agreement granted Egypt the right to carry out any measures necessary for studying and recording the hydrology of the Nile River in Sudan, and to monitor that the distribution of water and the regulation of the Sennar Dam are carried out in accordance with the Agreement, see para. 4(c) and (a) of the Note from Mohamed Mahmoud Pasha to Lord Lloyd of 7 May 1929, reproduced in LNTS XCIII (1929–1930), p. 46. 164 See e.g. the Egyptian State Information Service (2010). 165 See Kaška (2006), pp. 25–26; ‘Abd al-Wahhāb (2004), p. 179; Maḥfūẓ Muḥammad (2009), p. 378. 166 See Maḥfūẓ Muḥammad (2009), p. 389, citing further references, pp. 478–479 and 487. 167 For example, Mekonnen (2010), p. 435; Mangu (2011), p. 26; apparently also Okidi (1982), p. 182; Peichert (2002), p. 117. 168 See Godana (1985), p. 142; Lester (1963), pp. 500–501. 169 Le Floch (2010), p. 479. 170 Dubuisson (2006), p. 2095. 163

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either appear from the later treaty or be otherwise established that the parties intended that the matter should be governed by the later treaty alone, unless the provisions of the treaties are so far incompatible that the two treaties cannot be applied at the same time.171 A comparable degree of concreteness of the provisions is required.172 Furthermore, decisive for determining whether the conclusion of the later treaty terminates the earlier treaty is the intention of the parties that emerges from the later one.173 The two Nile treaties in question govern the same subject matter, namely the allocation of the uses of the Nile between Egypt and Sudan. They do this with a similar concreteness by each quantitatively allocating the Nile water. In this respect it is irrelevant that the later treaty of 1959 additionally governs other matters with regard to the Nile.174 However, not all parties to the 1929 Nile Agreement also became parties to the 1959 Nile Agreement. The 1929 Agreement was concluded between Egypt and the United Kingdom, which administrated the condominium of Sudan; Sudan assumed obligations under the treaty after attaining independence in 1956.175 The United Kingdom also had colonial administration over Tanganyika, Kenya, and Uganda then. The parties to the 1959 Agreement are limited to Egypt and Sudan; the United Kingdom neither participated in the negotiations nor consented to the treaty. Rather, it criticized the Egyptian-Sudanese treaty negotiations and, in a letter addressed to both states, reserved the rights of the territories that were still under its administration with regard to any agreement between them.176

171

The Vienna Convention on the Law of Treaties is not directly applicable to the Nile treaties because they were concluded prior to the Convention’s entry into force and not all parties ratified the Convention. For the current status of ratification see https://treaties.un.org/pages/ ViewDetailsIII.aspx?src¼TREATY&mtdsg_no¼XXIII-1&chapter¼23&Temp¼mtdsg3& clang¼_en (accessed 28 April 2019). 172 See Waldock, United Nations Conference on the Law of Treaties, Official Records, Second Session, 1969, UN Doc. A/CONF.39/11/Add.1, p. 253, para. 41. See also the evidence at Dubuisson who, however, does not consider a comparable degree of concreteness of the provisions necessary, Dubuisson (2011), pp. 1335–1336. 173 This follows from the reasoning of the PCIJ in the case Compagnie d’électricité de Sofia et de Bulgarie, in which the Court relies primarily on the intention of the parties, PCIJ, Compagnie d’électricité de Sofia et de Bulgarie, arrêt du 4 avril 1939 (exception préliminaire), Série A/B, no 77, p. 76. See also Dubuisson (2006), p. 2099. At the relevant time in 1959, these rules were already customary law, see the above-cited decision of the PCIJ of 1939. 174 The scope of the 1959 Agreement is broader in that it regulates, for example, the construction of dams and the establishment of a joint technical commission. For a detailed discussion of the content of the Nile Waters Agreement of 1959, see Sect. 6.2.8.1, below. 175 Sudan took over the 1929 Nile Agreement on attaining independence in 1956, after it had first demanded its repeal or revision. See the writings of Sudanese commentators, for example ‘Alī Ṭāhā (2005), p. 63. 176 As late as August 1959, the United Kingdom sent a diplomatic note to Egypt, Ethiopia, Sudan, and Belgium as then colonial power of the DR Congo, Burundi, and Rwanda, pointing out that the territories of British East Africa needed more water for their development than they were currently using. It reserved the right to negotiate an additional quota should the need arise and to provide for

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Under customary international law, a tacit termination of the 1929 Nile Agreement limited to the relationship between Egypt and Sudan by the conclusion of the 1959 Nile Agreement could be possible.177 However, the necessary intention of the parties to terminate the 1929 Agreement does not appear from the 1959 Agreement. If the later treaty governs an identical subject matter, it can be generally presumed that the parties wanted to replace the earlier treaty178; but this presumption is rebutted here. In its preamble, the Agreement of 1959 explicitly refers to the 1929 Agreement: And as the Nile waters Agreement concluded in 1929 provided only for the partial use of the Nile waters and did not extend to include a complete control of the River waters, the Republics have agreed on the following [. . .].

Article 1 of the 1959 Agreement also implicitly refers to the 1929 Agreement by expressly recognizing the “acquired rights” of Egypt and Sudan.179 The 1959 treaty thereby confirms the water allocation determined in the 1929 treaty. It only reallocates the quantities of water that were not already allocated in the 1929 treaty, and thus assumes its continuity.180 This shows that Egypt and Sudan had no intention to terminate the 1929 Agreement, but rather to supplement it by signing the 1959 Agreement.181 This is consistent with the recommendation of the Nile Commission in its report, which forms the basis of the 1929 Agreement and is to be regarded as an integral part thereof. According to the report, the questions of the Nile water distribution and uses governed by the treaty should be reviewed from time to time.182 If the parties to two successive treaties relating to an identical subject matter do not intend to terminate the earlier treaty, the relationship between the two treaties is

review of the quota at stated periods. See the Note from the British Embassy in Khartoum, to the Sudanese Ministry of Foreign Affairs, 31 August 1959, reproduced in Whiteman, Digest of International Law, U.S. Department of State, Vol. 3, 1964, p. 1013. See also Waterbury (1979), p. 72. 177 The Vienna Convention on the Law of Treaties does not provide for the possibility of a tacit termination of an agreement inter se by concluding a later treaty by only some parties to the earlier treaty; this constellation is regulated under the application of successive treaties relating to the same subject matter in Art. 30, para. 4. Insofar as this possibility was not included, the Convention deviates from state practice and does not reflect the state of customary international law. Dubuisson (2006), pp. 2108–2109 and 2111–2112. 178 Dubuisson (2006), p. 2113. 179 ‘Alī Ṭāhā (2005), pp. 73–74; Maḥfūẓ Muḥammad (2009), p. 329. 180 See also O’Connell (1967), pp. 246–247. 181 Likewise in the writings of Sudanese jurists, for example ‘Alī Ṭāhā (2005), p. 73; among Egyptian commentators Maḥfūẓ Muḥammad (2009), p. 329. To the same effect McCaffrey (2007), p. 138; Degefu (2003), p. 130; seemingly also Carroll (2000), p. 280; Le Floch (2010), p. 482. 182 Para. 3 of Note No. 1 from Mohamed Mahmoud Pasha to Lord Lloyd of 7 May 1929 in conjunction with the Commission Report, para. 89, LNTS XCIII (1929–1930), p. 88.

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governed by the customary rule183 codified in Article 30 of the Convention on the Law of Treaties. Accordingly, if not all parties to the earlier treaty are also parties to the later one, the earlier treaty continues to apply between a state party to both treaties and a state party to only the earlier treaty. Between states parties to both treaties, however, the earlier treaty applies only to the extent that its provisions are compatible with those of the later one.184 Thus, between Egypt and Sudan, the 1929 Nile Agreement applies to the extent that it is compatible with the 1959 Nile Agreement. The conclusion of the EgyptianSudanese Agreement of 1959 has no effect on the treaty relationship between these two states on the one hand and the United Kingdom or its colonies on the other— provided that the former colonies succeeded to the rights and obligations under the 1929 Agreement following their independence.

6.2.5.2

Binding Effect of the Agreement for Tanzania, Kenya, and Uganda

Succession of Tanzania, Kenya, and Uganda Tanganyika,185 Kenya, and Uganda may have succeeded to the rights and obligations under the 1929 Nile Waters Agreement according to the rules of state succession with their attainment of independence in the early 1960s. As has already been shown, by the middle of the twentieth century the clean-slate rule was being applied to former colonies.186 One notable exception to the rule is with regard to territorial treaties.187 The newly independent states of East Africa acquiesced to the exclusion of certain treaties from the clean-slate rule under customary international law, and to their automatic continuing in force in respect to the successor states.188 The Prime Minister of Tanganyika, Julius Nyerere, 183

Orakhelashvili (2011), pp. 774–775. See Art. 30, para. 4 in conjunction with Art. 30, para. 3 Vienna Convention on the Law of Treaties. 185 Tanzania was formed in 1964 by the unification of Tanganyika and Zanzibar, after Tanganyika and Zanzibar had attained independence from the British colonial administration in 1961 and 1963, respectively. Under the law of state succession, this was considered as the formation of a new state. See the Articles of Union of Tanganyika and Zanzibar of 22 April 1964, ILM 3 (1964), pp. 763–764. The question of a succession of Tanzania after the unification in 1964 only arises if Tanganyika had succeeded to the rights and obligations under the colonial treaty. 186 The Vienna Convention on Succession of States in respect of Treaties is not applicable to the state succession of Tanganyika, Kenya, and Uganda in the early 1960s, since none of them is a party to the Convention. For the current status of ratification see https://treaties.un.org/Pages/ ViewDetails.aspx?src¼IND&mtdsg_no¼XXIII-2&chapter¼23&clang¼_en (accessed 28 April 2019). 187 For a detailed discussion of the development of these customary rules, see Sect. 6.2.1.2, above. 188 On the question of state succession of the newly independent states of East Africa, see Makonnen (1983). 184

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declared to the Secretary-General of the United Nations on 9 December 1961, after the attainment of independence, that his country would continue for two years to apply the bilateral international treaties concluded by the United Kingdom. During this period, the treaties would be examined and the other state parties informed of which treaties Tanganyika wanted to maintain. International treaties not confirmed within those two years would be considered extinct, with the exception of those treaties that continue in force under customary international law,189 an approach later named as the Nyerere Doctrine.190 The doctrine shaped the state practice of the newly independent African states191 and has been generally accepted in state practice.192 One year after this declaration, on 4 July 1962, the government of Tanganyika sent a note to the Egyptian government stating that it had come to the view that the provisions of the 1929 Nile Agreement were not binding on Tanganyika. Tanganyika itself, the note said, had not participated in the negotiations leading to the conclusion of the treaty, and therefore an agreement purporting to bind [upstream riparian states] in perpetuity to secure Egyptian consent before undertaking [their] own development programs based on [their] own resources was considered to be incompatible with Tanganyika’s status as a sovereign state.193

Kenya and Uganda, on becoming independent, followed the example of Tanganyika and made similar statements.194 Egypt objected to Tanganyika by a letter dated 21 November 1963, stating the view that the 1929 Agreement remained applicable.195 At the same time, it sent copies of this letter to Sudan, Kenya, and Uganda. Egypt maintains this position because of what it sees as the territorial character of the obligations arising from the treaty which, after decolonization, it argues, has automatically devolved to the newly independent East African states.196 By extension, Egypt considers the assumption by those countries that the treaty is not binding on them after independence to be

189

Declaration reproduced in YBILC 1962, Vol. II, para. 127. Hafner and Novak (2012), p. 409; Maluwa (1999), p. 73; ‘Abd al-‘Āl (2010), p. 97. 191 Hafner and Novak (2012), p. 410; Maluwa (1999), p. 73. Among the African states, for example, Burundi, Kenya, Malawi, and Uganda followed the approach of Tanganyika and, on attaining their independence, made only slightly modified declarations concerning the continuity of treaties concluded by the colonial powers. See Zimmermann (2000), pp. 159 and 162. 192 Thus, also the Vienna Convention on Succession of States in respect of Treaties provides that the clean-slate rule applies to newly independent states, see Art. 16 of the Convention. See also Le Floch (2010), p. 477. 193 Reproduced at Knobelsdorf (2006), p. 632; Azarva (2011), p. 472. 194 Declarations reproduced at Godana (1985), pp. 150–151. See also Makonnen (1983), pp. 304–305. 195 Maḥfūẓ Muḥammad (2009), p. 380; Godana (1985), p. 149. 196 See ‘Abd al-Wahhāb (2004), p. 179; Mekonnen (2010), p. 433. 190

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contrary to the rules of international law on the succession of states in respect of treaties.197 The treaty of 1929 imposes restrictions on the use of the Nile in terms of time and quantity and forbids any flow-altering works on the Nile and its tributaries in the countries under British administration without the prior consent of Egypt. This could well be considered as an agreement attached to the concerned territory,198 yet the treaty was based substantially on the political considerations of the United Kingdom. By means of the conclusion of the treaty, the United Kingdom pursued primarily economic and regional political self-interests. It planned to expand cotton production in Sudan to supply its domestic textile industry. However, it wanted to avoid any increase in the volume of water required for this purpose without Egyptian consent, in order not to impair political relations with Egypt, a sensitive issue given British interests in the Suez Canal. Hence, the Agreement was principally conditioned by the politico-economic interests of the colonial power in the region, not primarily attached to the concerned territory. This contradicts the assumption that the treaty was concluded with the intention of a permanent arrangement, an essential feature of a territorial treaty.199 Further undermining the characterization of the Agreement as a permanent arrangement is the above-cited report of the Nile Commission, which formed the basis of the treaty and states: “The Commission foresees that it will be necessary from time to time to review the questions discussed in this Report.”200 The Nile Waters Agreement of 1929 was thus primarily of a political nature, not aimed to establish a permanent arrangement attached to the territory in question, and as such cannot be considered a territorial treaty.201 This means that Tanganyika, Kenya, and Uganda did not succeed to the rights and obligations of the 1929 Nile Agreement.

Fundamental Change of Circumstances If, however, Egypt’s view is followed in that the 1929 Nile Agreement was a territorial treaty automatically devolving to Tanganyika, Kenya and Uganda,202 the further question arises of whether these states could invoke the claim of a fundamental change of circumstances as a ground for terminating or modifying the treaty according to the principle of rebus sic stantibus. This principle is largely recognized

See ‘Abd al-‘Āl (2010), p. 96; ‘Abd al-Wahhāb (2004), p. 179; Elemam (2010), p. 233. For a detailed discussion of territorial treaties, see Sect. 6.2.1.2, above. Among Egyptian commentators, it is predominantly assumed that the 1929 Nile Waters Agreement should be regarded as a territorial treaty, see Maḥfūẓ Muḥammad (2009), p. 389, citing further references, pp. 478–479 and 487. 199 See also Le Floch (2010), pp. 478–479; Godana (1985), pp. 143 and 150. 200 Commission Report, para. 89, LNTS XCIII (1929–1930), p. 88. See also Le Floch (2010), pp. 478–479. 201 For similar conclusion see Godana (1985), p. 142; Lester (1963), pp. 500–501. 202 See e.g. the Egyptian State Information Service (2010). 197 198

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as customary international law.203 It is generally applicable to territorial treaties, except treaties that establish a boundary.204 The end of British colonial rule could be considered a fundamental change of circumstances. It is questionable, however, whether state succession can be considered a fundamental change of circumstances for the application of the rebus sic stantibus principle. Some commentators hold the view that a succession of states can never be considered a fundamental change of circumstances in the framework of the rebus sic stantibus clause.205 In the case of a state succession, this position holds that the termination of a treaty is governed by the rules developed in the specific context of the succession of states.206 This is taken to follow from Article 73 of the Convention on the Law of Treaties, according to which the provisions of the Convention do not prejudge any question that may arise in regard to a treaty from a succession of states.207 The rules of succession ultimately formulate rules for adaptation to changed circumstances, which were developed from the more general rules of the rebus sic stantibus doctrine and good faith.208 It could indeed be argued that, therefore, they should be regarded as lex specialis vis-à-vis the rules of general international law on treaties, as far as the question of a continuation or termination of treaties following a state’s succession is concerned. Another argument for this position could be the risk of contradictory evaluations: The doctrine of rebus sic stantibus aims to prevent undue treaty obligations. In the framework of the law on state succession, however, the decision was made that in the interests of international political stability, territorial treaties continue in force in all cases of a state succession. It is thus considered generally acceptable for the successor state to be bound by the treaty. Allowing states to terminate or withdraw from treaties by invoking state succession as a fundamental change of circumstances could be in conflict with this. If the rebus sic stantibus clause were applied, there could be a risk of the succession rules on the continuation of treaties being circumvented. On the basis of this view, the Nile

203

On the recognition of this principle as customary international law, see ICJ, Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of 2 February 1973, ICJ Reports 1973, p. 20, para. 43; ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 61, para. 104. See also Shaw and Fournet (2006), p. 2241; Fitzmaurice (2012), p. 612. 204 See also Art. 62, para. 2(a) Vienna Convention on the Law of Treaties; and the Proceedings of the Committee of the Whole, UN Doc. A/CONF.39/11/Add.2, p. 184, para. 543. 205 For example Shaw and Fournet (2006), p. 2256. 206 See Provost (2006), p. 2595. 207 The ILC excluded the topic of state succession from the scope of its draft articles for the Vienna Convention on the Law of Treaties, as it considered that the topic would be more comprehensively dealt with under the law on the succession of states in respect of treaties. ILC, Report of the International Law Commission on the work of its Eighteenth Session, (1966), UN Doc. A/6309/ Rev.1, Vol. II, p. 177, para. 30. 208 Oeter (1995), pp. 73–74.

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riparian states could not invoke the end of British colonial rule as a fundamental change of circumstances for terminating or modifying the 1929 Agreement. Conversely, some commentators infer from state practice that it remains generally possible to invoke state succession as a fundamental change of circumstances.209 Reasoning this way makes reference to two cases: namely Iran invoking the rebus sic stantibus doctrine for terminating the 1937 Iran-Iraq boundary treaty in 1969; and the riparian states of the Niger River invoking the doctrine against the river regime. However, the reference to these cases as justification is questionable. Iran, when invoking the change of circumstances,210 disregarded the exclusion of treaties establishing a boundary from the application of the rebus sic stantibus principle, this exclusion being already well established as customary law211 in 1969. Concerning the African case, some of the Niger River riparian states in 1963 held the view that the river regime which was established prior to their independence212 was automatically terminated according to the rebus sic stantibus clause. However, the riparian states ultimately agreed to repeal it by concluding a new agreement.213 Nonetheless, there are reasons for not generally excluding the possibility to invoke a state succession as a change of circumstances. As mentioned earlier, the conditions under which a change of circumstances may be invoked as a ground for terminating a treaty or withdrawing from it are extremely narrowly defined and apply only in exceptional cases. The mere occurrence of a succession of states as such, if one were to consider this generally possible, is not by itself sufficient to substantiate a fundamental change of circumstances; there are further conditions of the rebus sic stantibus clause that must also be met. Thus, a convenient circumvention of the succession rules is not made possible, and there is also no risk of contradictory evaluations. Rather, the application of the rebus sic stantibus clause may even become necessary in a case of a state succession in order to prevent exceptionally unreasonable and burdensome obligations arising in individual cases. This supports the case against any blanket exclusion on invoking state succession as a fundamental change of circumstances. Thus, the abolition of British colonial rule comes into 209

For example, O’Connell (1967), p. 146; Zimmermann (2000), p. 798. In 1969, Iran invoked the end of the colonial era as a fundamental change of circumstances against the Iranian-Iraqi Boundary Treaty and Protocol Concerning the Schatt-al-Arab Waterway of 4 July 1937: “[A]mong the reasons given by the international law for the abrogation of agreements [. . .] is the principle of Rebus Sic Stantibus. [. . .] Considering the principle which has been mentioned, it must be noted that the Frontier Treaty [. . .] was concluded in a time when the British colonial system was at its height of power, and was keeping Iraq under its protecting wings [. . .] At the present time when the period of colonialism has ended and the conditions prevailing in 1316, i.e. the time under which the treaty was signed, have also been changed, the effects and the results emanating from colonialism must also vanish with it.” Reproduced in ILM 8 (1969), pp. 481, 483–484. 211 On the customary exclusion of treaties establishing a boundary, see Shaw and Fournet (2006), pp. 2242–2244. 212 The river regime for the Niger River until then resulted from the Congo Act of 1885 and the Treaty of Saint-Germain-en-Laye of 1919. 213 See ILC, YBILC 1974, Vol. II, Pt. 1, p. 205, para. 32; O’Connell (1967), p. 310. 210

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consideration as a fundamental change of circumstance in the sense of the rebus sic stantibus principle. At the date of the conclusion of the 1929 Nile Agreement, Tanganyika, Kenya, and Uganda were under British administration. The end of the colonial rule in the early 1960s in all three countries fundamentally changed their political situation and status in international law.214 The existence of the British colonial rule over Tanganyika, Kenya, and Uganda constituted the essential basis for the conclusion of the treaty between the United Kingdom and Egypt. Without responsibility for the international relations of the colonial territories, the United Kingdom would not have been able to make any arrangements with Egypt for the territories in question concerning restrictions on the use of the Nile. The rebus sic stantibus principle only applies if the parties did not foresee the end of British colonial rule.215 It is not relevant whether or not it was generally foreseeable that the colonial era would end at some time. What is decisive is specifically whether the treaty, or any other relevant agreement between the parties, reflects that the parties foresaw a change of circumstance, or considered it likely, when the treaty was concluded.216 The Nile treaty of 1929 contains no provision for the eventual end of British colonial rule, nor do the circumstances surrounding its conclusion give any indication that the parties contemplated an end to British colonial rule, which was to persist for another 30 years after the treaty was concluded. The discontinuation of colonial rule radically transformed the extent of obligations still to be met under the treaty, and their further performance could not have been reasonably expected from independent Tanganyika, Kenya, and Uganda. The Agreement established the obligation to refrain from undertaking engineering works on the Nile and its tributaries that would reduce or delay the Nile’s flow of water to Egypt without the latter’s prior consent. This would impose a restriction for the now independent states on their state sovereignty over the water resources on their territory, a restriction which they had not agreed to. The treaty’s obligations cover the entire water resources of the Nile and all tributaries in the territories of the three former colonies. Such a far-reaching restriction of their sovereignty over vital water resources in their state territories, as required by the 1929 treaty obligations, cannot in good faith reasonably be expected from Tanganyika, Kenya, and Uganda. Thus, the conditions for invoking the principle of rebus sic stantibus are fulfilled.217

214

It was controversial whether mere changes of policy on the part of a government could be invoked as a ground for terminating or withdrawing from a treaty under the principle of rebus sic stantibus. In the end, a general exclusion of policy changes was rejected and not included in the draft articles for the Vienna Convention on the Law of Treaties. See the ILC commentary to Art. 59 of the draft articles, YBILC 1966, Vol. II, p. 259, para. 10. 215 See Fitzmaurice, Second Report (1957a), p. 33, para. 2(v): “by the exercise of reasonable foresight”. 216 Ibid. 217 Similarly Le Floch (2010), p. 479; Woldetsadik (2013), p. 117.

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When these conditions are met, the parties have to invoke the principle and first try to adapt the treaty to the changed circumstances by negotiations.218 As noted previously, a termination of the treaty is ultima ratio.219 These negotiating obligations can be deduced from the principle of good faith and the obligation of cooperation.220 On the eve of independence, Tanganyika assumed that it was not bound by the 1929 Nile Agreement and declared that the treaty was incompatible with its status as a sovereign state.221 This statement can be understood as meaning that Tanganyika, in the sense of the rebus sic stantibus doctrine, has invoked the attainment of independence as a reason for terminating the treaty. Kenya and Uganda did not expressly declare themselves with regard to the Agreement of 1929 in the years following their independence, but considered it extinct222 by their declaration to generally regard as extinct those treaties concluded by the United Kingdom that they did not adopt explicitly or by custom.223 However, none of the three upstream states attempted to enter into negotiations with the other parties about adapting the treaty to the new circumstances. This would have been necessary before terminating the treaty, especially in view of the fact that Egypt objected to the declaration of Tanganyika on 21 November 1963 by letter and sent copies to Kenya and Uganda. The participation in the negotiations of all Nile riparian states in the 1990s on the CFA in the context of the NBI224 cannot, given the length of time since the end of colonial rule, be considered as an attempt to adapt the treaty in the sense of the rebus sic stantibus clause. Thus, based on the Egyptian assumption that the treaty of 1929 continued in force for Tanganyika, Kenya, and Uganda being a territorial treaty, it would today still be binding upon Tanzania,225 Kenya, and Uganda.

218

Waldock, Second Report, YBILC 1963, Vol. II, p. 83, para. 8. See also Brownlie (2008), p. 624. See Waldock, Second Report, YBILC 1963, Vol. II, p. 85, para. 18. 220 As previously stated, the procedural rules embodied in Art. 65 of the Vienna Convention on the Law of Treaties did not codify existing customary international law, see Prost (2011), pp. 1486–1490. See also the ILC commentary to Art. 62 of the draft articles (Art. 65 of the Vienna Convention on the Law of Treaties), YBILC 1966, Vol. II, p. 263, para. 6. Insofar as the basic procedural rules of Art. 65 of the Convention have today become customary law, this is not relevant with regard to the 1929 Nile Agreement, since the customary international law applicable at the time when the colonial rule ended in the early 1960s applies. 221 Declaration reproduced at Knobelsdorf (2006), p. 632; Azarva (2011), p. 472. 222 For detail on Kenya’s position on the 1929 Nile Agreement, see Adar (2011), p. 175. For detail on Uganda’s position on the Agreement, see Mulira (2010), p. 155. 223 Declaration reproduced at Godana (1985), pp. 150–151. See also Makonnen (1983), pp. 304–305. 224 On the negotiations on the CFA, see Chap. 8, Sect. 8.1. 225 In this case, Tanzania would have succeeded to the rights and obligations under the 1929 Nile Agreement with the unification of Tanganyika and Zanzibar in 1964. The Articles of Union of Tanganyika and Zanzibar contained no provision concerning a continued validity of international treaties of the two states prior to their unification. However, Tanzania declared after the unification in 1964 to continue all international treaties of the predecessor states, limited to the respectively 219

6.2 Agreements on the Use of the Nile

6.2.5.3

143

Succession of South Sudan

Sudan has accepted the 1929 Nile Waters Agreement after gaining its independence in 1956. The treaty applies between Egypt and Sudan insofar as its provisions are compatible with those of the Nile Waters Agreement of 1959. The question is whether, on attaining independence in 2011, South Sudan succeeded to the rights and obligations under the 1929 Agreement.226 This notwithstanding, the question of whether South Sudan is bound to this agreement is of far less importance than that of whether it is bound to the later Nile Waters Agreement of 1959, because between Egypt, Sudan, and South Sudan, the 1929 Agreement could only apply to the extent that its provisions are compatible with those of the 1959 Agreement.227 The extent of the 1929 treaty provisions that still apply between Egypt and Sudan is minimal. The water allocation between Egypt and Sudan agreed upon in the 1929 Agreement (Note I, paragraph 3 in conjunction with the Commission Report) was confirmed and supplemented in the 1959 Agreement (Article 1 in conjunction with Article 2, paragraph 4). The unilateral requirement of Egypt’s consent for any irrigation and hydroelectric power projects on the Nile under the 1929 Agreement (Note I, paragraph 4(b)) is incompatible with the 1959 Agreement, according to which neither country may implement a major development project on the Nile without the other’s consent (see Article 2, paragraph 2 and Article 3, paragraphs 1 and 2). Consequently, of the provisions of the 1929 Agreement only those concerning the water allocation remain compatible with the provisions of the 1959 Agreement, namely with respect to the quantities agreed in the 1929 Agreement. This allocation of water is less significant, given that the 1959 Agreement allocates all available Nile water and determines the allocation rate for increased water resources in the future. Hence low importance is attributed to the 1929 Agreement today between Egypt, Sudan, and South Sudan, which may well explain why South Sudan has not yet expressed its view toward that treaty. Given that the two treaties cannot be considered separately between the three states, the question of a succession of South Sudan to the rights and obligations under the 1929 Agreement is

concerned part of its territory: “The United Republic of Tanganyika and Zanzibar declares that [. . .] all international treaties and agreements in force between the Republic of Tanganyika or the People’s Republic of Zanzibar and other States [. . .] remain in force within the regional limits prescribed on their conclusion [. . .].” Declaration reproduced at O’Connell (1967), p. 77. The continuity of the international treaties concluded by Tanganyika or Zanzibar for Tanzania was also accepted by third countries, see the evidence at Mériboute (1984), p. 197. 226 South Sudan was admitted to the United Nations on 4 July 2011, see UN GA, Admission of the Republic of South Sudan to membership in the United Nations, UN Doc. A/RES/65/308. For Sudan, on the other hand, the question of a succession with respect to the treaties following the separation in 2011 does not arise, as it is deemed identical with the predecessor state and therefore retains its rights and obligations. Generally on the distinction between state continuity and state succession, see Stern (2000), pp. 39–86. 227 See Sect. 6.2.5.1, above.

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addressed below in the context of the Egyptian-Sudanese Nile Waters Agreement of 1959.228

6.2.5.4

Binding Effect for Ethiopia, Eritrea, DR Congo, Rwanda, and Burundi

Egypt holds that the Nile Waters Agreement of 1929 is also binding upon all the Nile Basin states not under British colonial rule at the time. This would only come into consideration if the 1929 Agreement established obligations for Ethiopia and the colonial territories as third countries, and if Eritrea, the DR Congo, Rwanda, and Burundi had succeeded to those obligations upon attaining independence. Pursuant to the customary rule pacta tertiis nec nocent nec prosunt, the 1929 Agreement that restricts the use of the Nile establishes neither rights nor obligations for them as third states, unless this was intended by the parties to the treaty and the third states accepted the obligation.229 The provisions of the treaty expressly refer to the Nile and its tributaries “so far as all these are in the Sudan or in countries under British administration”. These countries included neither Ethiopia nor today’s states of Eritrea, DR Congo, Rwanda, and Burundi, which were under Italian or Belgian colonial rule at the time. In addition to this, none of Ethiopia, Italy, or Belgium230 accepted the restrictions on the use of the Nile under the 1929 Agreement; thus, the 1929 Agreement cannot bind the other Nile riparian states.231 In summary, it can be concluded so far that the Nile Waters Agreement of 1929 is today only binding upon Egypt and Sudan. Tanzania, Kenya, and Uganda have not succeeded to the rights and obligations under the treaty. If it is assumed, however, that it has continued in force as a territorial treaty for the former British colonies, it would no longer be possible to terminate the 1929 Agreement according to the rebus sic stantibus principle because any reasonable time limit for negotiations to adjust the treaty has elapsed. As for the remaining upstream states, they were never parties to the treaty nor do any obligations arise for them from the treaty as third states.

228

See Sect. 6.2.8.3, below. On the rules on treaties providing for obligations for third states, see Sect. 6.2.4, above. See also David (2011), pp. 888–889; Laly-Chevalier (2011), pp. 913–914. 230 At the time of the conclusion of the Agreement in 1929, Ethiopia was a sovereign state, Eritrea was an Italian colony, the DR Congo was a Belgian colony while Rwanda and Burundi were a League of Nations Mandate under Belgian administration. 231 To the same effect Salman (2013), p. 19; Azarva (2011), p. 470; Ayebare (2010), p. 4. 229

6.2 Agreements on the Use of the Nile

6.2.6

145

Anglo-Belgian Agreement of 1934

The Anglo-Belgian Agreement of 22 November 1934232 governed the joint utilization of the boundary waters of the Kagera River between (British) Tanganyika and (Belgian) Rwanda-Urundi. Article 1 of the Agreement stipulated that: [w]ater diverted from a part of a water course situated wholly within either territory shall be returned without substantial reduction to its natural bed at some point before such water course flows into the other territory or at some point before such water course forms the common boundary.

On attaining independence in the early 1960s, none of Tanganyika, Rwanda or Burundi succeeded to the rights and obligations under this agreement. As previously described, Tanganyika, on becoming independent in 1961, declined to be bound by treaties concluded by the British colonial administration, unless they were expressly recognized or renegotiated, or they continued in force under customary international law.233 The Agreement of 1934 was not a territorial treaty, which would have automatically devolved to Tanganyika according to the customary rules of state succession, but rather a treaty dominated by overriding political interests. It was based on the political considerations of the United Kingdom and Belgium, which, in signing the treaty, primarily pursued their interests in avoiding conflict and in the unimpeded utilization of boundary waters between their colonies. This is manifest by the absence of any mention of the interests or rights of the colonies themselves. The political self-interests of the colonial powers as reflected in the text speak against there being an intention to conclude a permanent arrangement, which is essential for territorial treaties. As the 1934 Agreement was therefore not territorial in nature, its rights and obligations did not devolve to Tanganyika automatically. And as the country did not recognize the treaty, it did not take those on voluntary either.234 Burundi followed the Nyerere Doctrine and shortly after gaining independence in 1962 sent a corresponding note to the United Nations.235 Since it did not declare its recognition of the 1934 Agreement, the latter did not continue in force with respect to Burundi, either.236 Rwanda declared on the eve of independence that it would apply all colonial treaties that it does not expressly reject, rather than the other way around.237 Since it

232

Agreement between the United Kingdom and Belgium regarding Water Rights on the Boundary between Tanganyika and Ruanda-Urundi, London, 22 November 1934, BFSP 139 (1935), pp. 746–747. 233 See Sect. 6.2.5.2, under “Succession of Tanzania, Kenya, and Uganda”, above. 234 For similar conclusion see Godana (1985), p. 154. 235 Note in extracts reproduced at Nkurunziza (2010), p. 16. 236 For similar conclusion see Godana (1985), p. 155; Le Floch (2010), p. 481. 237 Declaration in extracts reproduced at Baligira (2010), p. 51.

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has never expressly rejected the 1934 Agreement, it is occasionally argued by commentators that the Agreement remains in effect for Rwanda.238 However, this stance is problematic as there are no other parties to the treaty that could have rights and obligations toward Rwanda. Thus, the obligations arising from the treaty also ended for Rwanda.

6.2.7

Anglo-Egyptian Exchange of Notes from 1949 to 1953

The last colonial agreement concerning the Nile was the 1949–1953 Exchange of Notes between Egypt and the United Kingdom, which was still the colonial power in Uganda, concerning the construction of the Owen Falls Dam at the outflow of Lake Victoria into the Victoria Nile in Uganda.239 This dam was intended for hydroelectric power generation and for regulation of the Nile water level. In the agreement, Egypt committed, among other things, to contribute to the construction costs and to pay damages to citizens affected by the construction on Ugandan territory. The United Kingdom agreed to an increase in the water level of Lake Victoria and to the permanent stationing of an Egyptian engineer at Owen Falls to monitor compliance with the agreement. Egypt’s interest in the management of the dam was to use Lake Victoria as a seasonal water reservoir to compensate for seasonal fluctuations in the Nile water flow arriving at Aswan.240 The agreement on the Owen Falls Dam is still binding upon Egypt and Uganda today. It was concluded by the United Kingdom as the colonial administrator for Uganda, which, upon attaining independence in 1962, succeeded to the rights and obligations under the agreement. Indeed, Uganda did not conclude a devolution agreement for colonial treaties with the United Kingdom,241 but rather as a newly independent state it followed the Nyerere Doctrine and declared that it would inform state parties within two years

238

See for example ibid., p. 51. Exchange of Notes constituting an agreement regarding the construction of the Owen Falls Dam, Uganda, between the United Kingdom of Great Britain and Northern Ireland and Egypt, 30 and 31 May 1949, UNTS, Vol. 226, p. 273. This exchange of notes is supplemented by three further exchanges, namely the Exchange of Notes constituting an agreement regarding the construction of the Owen Falls Dam, Uganda, between the United Kingdom of Great Britain and Northern Ireland and Egypt, 5 December 1949, UNTS, Vol. 226, p. 280; the Exchange of Notes constituting an agreement regarding co-operation in meteorological and hydrological surveys in certain areas of the Nile Basin, between United Kingdom of Great Britain and Northern Ireland (on behalf of Uganda) and Egypt, 19 January, 28 February and 20 March 1950, UNTS, Vol. 226, p. 287; and the Exchange of Notes constituting an agreement regarding the construction of the Owen Falls Dam in Uganda, between the United Kingdom of Great Britain and Northern Ireland and Egypt, 16 July 1952 and 5 January 1953, UNTS, Vol. 207, p. 277. 240 Mulira (2010), p. 133. 241 A devolution agreement has not been registered with the United Nations Secretariat, see UN Doc. A/CN.4/150, YBILC 1962, Vol. II, p. 122, para. 131. 239

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about the treaties it would seek to maintain. It said it considered all other treaties extinct, with the exception of those that continued in force under customary international law.242 It has not declared toward Egypt that it intends to maintain the Exchange of Notes from 1949 to 1953. However, according to customary international law, in exception to the clean-slate rule, the agreement automatically continued in force with respect to Uganda as it established a territorial regime. The major element of the agreement was the joint construction of a dam at the outflow of Lake Victoria into the Victoria Nile at the Owen Falls at Jinja. The obligation to construct a specific project of a similar size on a concretely determined part of the Ugandan territory establishes rights and obligations attached to that territory. It is similar to the construction project in the Gabčíkovo-Nagymaros Project case, in which the ICJ stated in 1997 that the major elements of the treaty in question were “the proposed construction and joint operation of a large, integrated and indivisible complex of structures and installations on specific parts of the respective territories”.243 This indicates, according to the Court, that the treaty is to be regarded as establishing a territorial regime within the meaning of Article 12 of the Vienna Convention on Succession of States in respect of Treaties.244 The construction of the Owen Falls Dam also began immediately. It was completed together with a hydroelectric power plant and entered into operation in 1954.245 Furthermore, both Uganda and Egypt have evidently assumed that Uganda has succeeded to the rights and obligations under the agreement, as they still mutually apply the agreement and neither has ever questioned its validity.246 In summary, this means that the Exchange of Notes over the Owen Falls Dam is today still binding on Egypt and Uganda.247

See Sect. 6.2.5.2, under “Succession of Tanzania, Kenya, and Uganda”, above. Declaration reproduced at Godana (1985), pp. 150–151. See also Makonnen (1983), pp. 304–305. 243 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 71, para. 123. 244 Ibid., p. 72, para. 123. 245 Langlands (2012), p. 1309; Mulira (2010), pp. 132–133. 246 Thus, hydrologists from the Egyptian Ministry of Water Resources and Irrigation are still currently stationed at the Owen Falls Dam to monitor the water level and collect data according to para. 4 of the agreement, see State Information Service (2013). 247 Same conclusion drawn by Collins (1990), pp. 221–222; Waterbury (1987), p. 96; O’Connell (1967), p. 247, note 5. 242

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Egyptian-Sudanese Nile Waters Agreement of 1959

Only one important treaty on the utilization of the Nile has been subsequently concluded between independent Nile states,248 namely the Nile Waters Agreement of 1959,249 which has been applied by both parties since entering into force.250 Among the Nile riparian states, the fact that the Agreement apportions the entire water flow of the Nile between Egypt and Sudan in perpetuity has raised considerable tensions.251 The legal effect of this treaty is currently the most controversial issue between them252 and impedes a consensus on the 2010 CFA for the Nile. The conclusion of the treaty was preceded by claims from Sudan, which had gained independence from the United Kingdom in 1956, for a modification or revocation of the 1929 Nile Waters Agreement and a more equitable allocation of the Nile water.253 Initially, Egypt and Sudan could not agree on a new allocation regime and in 1958, a diplomatic crisis around water rights developed between the two countries after the Sudanese government had the water flowing through the Sennar Dam stopped earlier than envisaged in the 1929 Nile Agreement. Simultaneously the Sudanese government declared that it was no longer going to accept the provisions of the treaty.254 The subsequent bilateral treaty negotiations between Egypt and Sudan were heavily criticized from the outset by the other Nile riparian states because they were excluded.255 The most vocal was Ethiopia, which protested that it had not been consulted and had not even been invited to any of the treaty negotiations. Emperor Haile Selassie stated in the previously cited aide-mémoire of 23 September 1957 to the diplomatic community in Cairo that “Ethiopia has the right 248

The only other noteworthy treaty is a bilateral cooperation agreement concluded by Egypt and Ethiopia on the Nile of 1993, namely the Framework for general co-operation between the Arab Republic of Egypt and Ethiopia, 1 July 1993, http://www.fao.org/docrep/W7414B/w7414b0p. htm#TopOfPage (accessed 28 June 2019). This agreement contains only a few very generally formulated provisions. Both parties recognize the Nile River and its basin as a “centre of mutual interest” and agree that the use of the Nile waters is to be determined on the basis of the rules and principles of international law, Art. 4. According to Arts. 6 and 7, the parties cooperate in projects that are mutually advantageous. For this purpose, regular consultations are to be provided for. Finally, Art. 8 provides that the two parties are to endeavor to work toward a framework for effective cooperation among all Nile Basin countries so as to promote common interests in the development of the Nile Basin. This 1993 agreement was initially well received; in the intervening period however, it appears that it has not been consistently implemented in practice. See Caponera (1993), pp. 662–663; ‘Abd al-Wahhāb (2004), p. 178; Dellapenna (2006), p. 304. 249 Agreement between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters, 8 November 1959, UNTS, Vol. 453, p. 51. For a detailed discussion of the genesis and provisions of the Agreement, see ‘Alī Ṭāhā (2005), pp. 55–87. 250 ‘Abd al-Wahhāb (2004), pp. 176–177; Waterbury (1979), p. 74. 251 Brunnée and Toope (2002), pp. 125–126; Mekonnen (2010), p. 435. 252 Elemam (2010), p. 233; Ibrahim (2010), p. 199; Taha (2010), p. 214. 253 ‘Abd al-‘Āl (2010), p. 89; Dellapenna (2006), p. 298. 254 Maḥfūẓ Muḥammad (2009), pp. 374–376. 255 Taha (2010), p. 214; ‘Abd al-‘Āl (2010), p. 97.

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and obligation to exploit the water resources of the Empire” and “reassert[s] and reserve[s] now and for the future, the right to take all such measures in respect of its water resources”.256 Criticism also came from the still existent British colonial authorities in East Africa, and in August 1959 the United Kingdom advised Egypt, Sudan, Ethiopia, and Belgium via a diplomatic note of the present water requirements of its colonies of Tanganyika, Kenya, and Uganda; it reserved the right to negotiate an additional quota should the need arise, and to provide for review of this quota at regular intervals.257

6.2.8.1

Content of the Agreement

According to its title and the preamble, the Agreement was concluded “for the full utilization of the Nile waters”. Thereafter, the treaty allocates the entire Nile water flow between Egypt and Sudan. However, the rest of the treaty text indicates that the parties merely intended to regulate the utilization of the natural river flow that arrived at their territories and that was not completely covered by the 1929 Nile Waters Agreement.258 Thus, the last paragraph of the preamble to the Nile Agreement of 1959 reads: “And as the Nile waters Agreement concluded in 1929 provided only for the partial use of the Nile waters and did not extend to include a complete control of the River waters [. . .]”. Article 1 of the Agreement states that the hitherto used quantities of water are the “established rights” of Egypt and Sudan respectively, and that those amount to 48 billion cubic meters annually for Egypt and 4 billion cubic meters for Sudan.259 As such, the treaty is in fact based on the prior appropriation approach.260 In Article 2, the parties agreed that Egypt would construct the Aswan High Dam and Sudan the Roseires Reservoir, which paved the way for construction to start at Aswan261 and for Sudan to implement its irrigation plans by building the Roseires

256

Aide-Mémoire of the Ethiopian Government of 23 September 1957, reproduced in Whiteman, Digest of International Law, U.S. Department of State, Vol. 3, 1964, pp. 1011–1012. Quotation also reproduced at Arsano (2006), p. 343. Already on 6 February 1956, the Ethiopian government had stated in the official Ethiopian daily, The Ethiopian Herald, that Ethiopia reserves its right to use the Nile waters within its territory. Statement of the Imperial Ethiopian Government, Ethiopian Herald, 6 February 1956, in extracts reproduced at Tafesse (2011), p. 73. 257 See the Note from the British Embassy in Khartoum to the Sudanese Ministry of Foreign Affairs, 31 August 1959, reproduced in Whiteman, Digest of International Law, U.S. Department of State, Vol. 3, 1964, p. 1013. At the same time, the United Kingdom called, unsuccessfully, for the convening of an international conference to determine the rights of the riparian states to the Nile waters and to establish an international Nile River institution, see Waterbury (1979), p. 72. 258 See also McCaffrey (2001), p. 244; ‘Abd al-‘Āl (2010), p. 88. 259 Art. 1, paras. 1 and 2 of the 1959 Nile Waters Agreement. 260 See also Brunnée and Toope (2002), p. 126; Godana (1985), p. 239. 261 One year after the conclusion of the treaty, Egypt began with the construction of the dam, which was completed in 1971. Mulira (2010), p. 154.

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and Khashm el-Girba Dams.262 The future net benefit from the Aswan Reservoir is estimated at 22 billion cubic meters, of which 14.5 billion cubic meters are allotted to Sudan and 7.5 billion cubic meters to Egypt. Thus the water allocations, including “established rights”, were increased from the 1929 treaty levels; Egypt went from 48 billion to 55.5 billion cubic meters while Sudan’s allocation more than quadrupled, from 4 billion to 18.5 billion cubic meters.263 Pursuant to Article 2, paragraph 3 of the 1959 Agreement, these net figures were calculated on the basis of an estimated average of 84 billion cubic meters of water passing through Aswan each year. This figure was then adjusted by deducting the “established rights” and allowing for average losses of 10 billion cubic meters annually at the Aswan Reservoir. The technical capabilities of Egypt were so far advanced at the time of the conclusion of the treaty in 1959 that the total amount of water arriving in Egypt per year could be fully utilized and allocated. This meant that, compared to the 1929 Nile Agreement, the usable amount of water included an additional 32 billion cubic meters. This explains the difference between the total annual Nile flow established under the treaties, namely 52 billion cubic meters (1929) and 84 billion cubic meters (1959).264 The Agreement also provides for the scenario where the mean flow of the natural river exceeds this amount, with the increase in net flow being divided equally between the two countries.265 From this it is clear that as with the Nile Agreement of 1929, the interests of the other Nile riparian states were disregarded in the water allocation. Article 3 concerns the water losses due to evaporation in the swamps of Bahr al-Jabal, Bahr al-Zeraf, Bahr al-Ghazal and its tributaries, and in the swamp areas of the Sobat as well as its tributaries in what was then Sudan but is now South Sudan. The treaty provides that Sudan, in agreement with Egypt, carries out projects to increase the Nile’s water flow by preventing excess losses in these areas. The costs and the water benefits of these projects are to be shared equally between the two countries.266 This provision encompassed the Jonglei Canal, which, more than any other engineering project before it, would have served to satisfy the ever-increasing water needs of Egypt and Sudan. The plans, which had already been drawn up at the beginning of the twentieth century,267 provided for the construction of the Jonglei

The World Bank had made an agreement between Sudan and Egypt a prerequisite for financing hydraulic projects on the Nile. Only two years after the conclusion of the 1959 Nile Waters Agreement, the World Bank agreed with Sudan a US$32.5-million loan for the Roseires project on the Blue Nile. See Taha (2010), pp. 192 and 195; ‘Alī Ṭāhā (2005), p. 74. 263 Art. 2, para. 4 of the 1959 Nile Waters Agreement. 264 Tafesse (2011), p. 71, note 16. 265 Art. 2, para. 4 of the 1959 Nile Waters Agreement. 266 Art. 3, para. 1 of the 1959 Nile Waters Agreement. 267 The Jonglei Canal was initially part of the planned Century Storage project. That project was to increase the amount of water available for irrigation in Egypt and Sudan during the season when the natural river flow of the Nile is low. In addition to the construction of the Jonglei Canal, it provided for the construction of dams at the outflows of Lake Victoria, Lake Albert, and Lake Tana, to permit 262

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Canal in the Sudd swamp area in present-day South Sudan.268 The canal was designed to divert the Bahr al-Jabal beginning at the village of Jonglei over about 360 km around the Sudd and return it downstream into the White Nile near the inflow of the Sobat.269 It was estimated that the diversion around the swamp would reduce net evaporation by about 5 billion cubic meters annually.270 Together with three other planned canals in the remaining parts of the swamp area, the flow of the White Nile was expected to almost double.271 While work partially funded by Egypt on the Jonglei Canal began in 1978, in southern Sudan the project encountered resistance from the start.272 The canal was considered by the southern Sudanese people as a quasi-colonial project undertaken by Egypt and northern Sudan, and is among the contributing factors that led to the Sudanese civil war.273 In 1983, during the civil war, the construction of the canal was stopped by the Sudan People’s Liberation Army (SPLA) before completion and has not been resumed since.274 Returning to the 1959 Nile Waters Agreement, it should be noted that the text furthermore institutionalizes the cooperation between Sudan and Egypt by establishing the Permanent Joint Technical Commission (PJTC),275 designed to ensure permanent technical cooperation between the two countries.276 The Commission was not granted regulatory powers and had a merely advisory function, meaning its proposals were subject to approval by both governments.277 Among its functions was to develop projects to increase the Nile river flow, and monitor the project implementation and potential works on the Nile outside the two countries.278 The Agreement did not provide for an alternative body with a structure more conducive to

year-round water storage in these lakes. On the Jonglei project, see Godana (1985), pp. 193–194; ‘Alī Ṭāhā (2005), pp. 46–47. 268 Kharouf-Gaudig (2012), p. 104. The development of the Jonglei Canal, with over 70 years of research and studies since the beginning of the twentieth century, is one of the most intensively studied major development projects in Africa. Taha (2010), p. 200. 269 ‘Alī Ṭāhā (2005), p. 78; Kharouf-Gaudig (2012), p. 104. 270 Kharouf-Gaudig (2012), p. 104; Swain (2002), p. 153. 271 Salman (2011), p. 163; see also Waterbury (2002), pp. 142–144. 272 It was feared that the Jonglei Canal would negatively affect the ecosystem of the Sudd and the livelihoods of the local population, in particular drinking water, pasture, and fisheries, as well as blocking access to the land on either side of the canal. Salman (2011), p. 163; Godana (1985), p. 196. 273 UNDP (2010), p. 22; El Zain (2006), p. 143. 274 In 2008, Egypt and Sudan are said to have agreed on resuming construction and completing the canal, UNDP (2010), p. 22. Since the independence of South Sudan in 2011, however, resuming work on the Jonglei Canal or other water conservation projects in the Sudd region would require the approval of the South Sudanese government. 275 McCaffrey (2001), p. 243. 276 ‘Alī Ṭāhā (2005), p. 78. 277 On the PJTC, see Waterbury (1987), p. 97; Ely and Wolman (1967), p. 132. 278 Arts. 4 and 5 of the 1959 Nile Waters Agreement.

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promoting a basin-wide cooperative approach.279 The Commission was established by a protocol annexed to the 1959 Nile Agreement on 17 January 1960, and began its work in the same year with the implementation of hydro-meteorological surveys on the headwaters of the Nile.280 It has continued its work despite several crises in Sudanese-Egyptian relations since the conclusion of the treaty.281 Finally, Article 5 enshrines a “water alliance” between Egypt and Sudan vis-à-vis the other Nile riparian states.282 It stipulates that, in case negotiations on Nile water needs with other Nile riparian states should become necessary, the two must agree beforehand and adopt a unified negotiating position. Accordingly, Egypt and Sudan continue to adopt a coordinated position, including in the framework of negotiations on the CFA.

6.2.8.2

Binding Effect for the Upstream States

The most controversial question between the Nile riparian states to this day concerns the extent to which the 1959 Nile Waters Agreement is binding on the upstream states.283 Egypt and Sudan continue to hold the view that the Agreement is binding on all Nile riparian states, without detailing grounds for this claim.284 However, the bilateral treaty between Egypt and Sudan cannot establish any rights or obligations for the other Nile riparian states, as they were neither parties to the treaty nor did they consent to it. The customary rule pacta tertiis nec nocent nec prosunt applies here, according to which a treaty cannot establish any rights or obligations for a third state without the consent of the latter.285 Therefore, the Egyptian-Sudanese Agreement is not binding for the upstream states, a view shared by the latter286 as well as the vast majority of commentators.287

279

In order to improve basin-wide cooperation, Egypt and Sudan considered extending the PJTC in the late 1970s to include all Nile Basin countries; however, this never happened. See Godana (1985), p. 264; Taha (2010), p. 212. 280 Collins (1990), pp. 273–274. 281 Waterbury (1979), p. 74. See also Howell (1994), pp. 98–99. 282 ‘Alī Ṭāhā (2005), p. 79. 283 Elemam (2010), p. 233. 284 See e.g. the Egyptian State Information Service (2010). 285 The Vienna Convention on the Law of Treaties is not directly applicable to the Nile Waters Agreement of 1959, which was concluded before the former’s entry into force, see Art. 4 of the Convention. On the rules on treaties providing for obligations for third states, see Sect. 6.2.4, above. See also David (2011), pp. 888–889; Laly-Chevalier (2011), pp. 913–914. 286 Ethiopia has been the most vocal in repeatedly rejecting any obligation arising from the 1959 Nile Waters Agreement on the grounds that it is not a party to that treaty. See ‘Alī Ṭāhā (2005), pp. 85–86; Arsano (2010), p. 174; Tafesse (2011), p. 73. 287 McCaffrey (2001), p. 244; Mekonnen (2010), p. 436; Tafesse (2011), p. 73; Bulto (2009), p. 301; Mangu (2011), p. 27; Degefu (2003), p. 133. See also in the writings of Egyptian commentators for example ‘Abd al-‘Āl (2010), pp. 88–89.

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Succession of South Sudan

Since attaining independence in 2011, the question as to whether South Sudan is bound by the 1959 Nile Agreement has persisted, and more specifically whether South Sudan has succeeded to the rights and obligations under the treaty, either by agreement or automatically in accordance with the rules of state succession. This question is of considerable importance for both Egypt and Sudan, inter alia because the vast swamp areas of the Sudd are now located in South Sudanese territory. After a period of civil war, South Sudan eventually emerged as a new state following a referendum which led to its separation from Sudan, while Sudan continues the international legal personality of the predecessor state. Uncertainty remains in the region at the international law level as Sudan and South Sudan have concluded neither a devolution agreement for treaties in general nor for the 1959 Nile Agreement specifically. Prior to its independence, South Sudan published a Legal Handbook that addresses a number of questions of state succession, among others.288 However, this handbook does not indicate in which cases an automatic succession to rights and obligations under existing treaties would be assumed. The handbook appears to assume that South Sudan is not bound by the treaty obligations of the predecessor state; however, it notes that “based on recent state practice, the international community would likely expect an independent South Sudan to continue the Republic of Sudan’s treaty obligations”.289 Whatever South Sudan’s final decision is, any unilateral declaration it makes providing for the continuity of certain treaties would have no legal effect on other states parties to those treaties.290 The arrangements for South Sudan’s separation were established in 2005 in the Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (CPA).291 This agreement includes provisions on security arrangements, wealth sharing, and resolution of conflicts, but not on a succession to the rights and obligations under the 1959 Nile Waters Agreement. For the transitional period, it divided the legislative and executive powers for water resources between the national government in Khartoum and the government of South Sudan. Accordingly, the national government was granted exclusive jurisdiction over the Permanent Joint Technical Commission established under the 1959 Agreement, the management of the Nile waters, transboundary water resources, and any water disputes between the 288

See Office of the President of the Government of Southern Sudan in Collaboration with the Public International Law & Policy Group, South Sudan: a guide to critical post-2011 issues, 2009, https://de.scribd.com/document/40343514/Southern-Sudan-a-guide-to-critical-post-2011-issues (accessed 28 June 2019). 289 Ibid. 290 See also the provision of Art. 9, para. 1 Vienna Convention on Succession of States in respect of Treaties. 291 Available at https://peacemaker.un.org/node/1369 (accessed 28 June 2019). For a detailed discussion of the content of the CPA, see Salman (2008), pp. 299–311.

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northern and southern states.292 In addition, the Comprehensive Peace Agreement made clear in its text that it would not regulate the ownership of natural resources and that the parties would agree on this at a later date.293 According to the South Sudan Referendum Act of 2009, water was one of 10 topics to be settled immediately after the referendum.294 On 23 June 2010, the National Congress Party of Sudan and the Sudan People’s Liberation Movement signed the Mekelle Memorandum of Understanding on Post-Referendum Issues and Arrangements, under which a negotiating team should negotiate water issues, among other things.295 However, it was not possible to resolve these issues during the transitional period before the emergence of South Sudan as a new state. As envisaged in the 2005 Comprehensive Peace Agreement, a referendum was held on 9–15 January 2011 and the vast majority of the southern Sudanese population voted in favor of separation, with the result that South Sudan emerged as a new state at the end of the planned transitional period on 9 July 2011. No agreement has been reached on a number of issues, including the use of water resources. Thus, South Sudan has not succeeded to the rights and obligations under the 1959 Nile Agreement by agreement with Sudan.296 The 1959 Agreement could, however, have automatically continued in force for South Sudan under the rules of state succession. As described above, the rules for newly independent states, and specifically the clean-slate rule, do not apply to non-colonial succession cases, according to the Vienna Convention on Succession of States in respect of Treaties as well as the unanimous opinion in state and court practice and legal writings. Pursuant to Articles 34 and 35 of that convention, the principle of the continuity of treaty obligations applies to succession cases outside decolonization. Thus, after the separation of South Sudan from Sudan, the principle 292

CPA, Chap. II: Power Sharing, signed at Naivasha, 26 May 2004, Schedule A, p. 40, para. 33. Thus, for the transitional period, jurisdiction over the Nile was transferred exclusively to the national government in Khartoum. This may come as a surprise at first glance, since much of the Nile Basin and almost all of its major tributaries are located on the territory of southern Sudan. The fact that the SPLM/SPLA did not insist on having a say in the management of the Nile during the transitional period may partly be due to the fact that the SPLM/SPLA did not want to cause concerns among other Nile riparian states about claims of a future South Sudan to Nile water and thereby complicate or even endanger the separation of South Sudan with the controversial Nile issue. See in more detail Salman (2011), pp. 160–161; Le Floch (2010), pp. 484–485. 293 Chap. 3, Sect. 2.1 of the CPA. 294 These topics include issues of nationality, currency, oil fields and production, and oil contracts. 295 See Mekelle Memorandum of Understanding between the NCP and SPLM on Post-Referendum Issues and Arrangements, 23 June 2010, Mekelle, https://peacemaker.un.org/sudan-mekelle-mem orandum2010 (accessed 28 June 2019). On the rules on water resources in the CPA and in post referendum agreements, see UNDP (2010), pp. 15–16; Salman (2014), pp. 327–332. 296 A devolution agreement between Sudan and South Sudan as such would also not have any legal effect on Egypt as the other state party to the 1959 Nile Waters Agreement. Rather, it would be necessary that Egypt consents to the devolution of rights and obligations upon South Sudan. This follows from the customary rule pacta tertiis nec nocent nec prosunt which is reflected in Art. 8, para. 1 of the Vienna Convention on Succession of States in respect of Treaties. See generally Zimmermann and Devaney (2014), pp. 536–537.

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of continuity would apply under the Convention. Yet, the Convention is not applicable to South Sudan, as it is not a party to it.297 However, South Sudan could have succeeded to the rights and obligations under the Agreement by customary international law. As previously noted, very few rules of general international law have emerged in the field of state succession. The provision of Article 34 of the Vienna Convention on Succession of States in respect of Treaties, which generally provides for a continuity of treaties in cases of separation, did not reflect customary international law at the time of the codification and remains unsupported by subsequent state practice.298 In fact, recent state and court practice do show a tendency to apply the continuity principle to succession cases.299 This is because the community of states is, since the last century, increasingly characterized by interdependencies where legal relations are primarily regulated by international treaties; hence the assumption of a clean slate would make it difficult for new states to politically and economically integrate into the international community. Nonetheless, the existence of a customary principle of continuity of treaties has thus far been largely rejected.300 Also the latest state practice still declines automatic succession to the rights and obligations under international treaties of the predecessor state when it comes to instances of separation.301 With respect to treaties concerning water rights, such as the 1959 Nile Agreement, it will always be necessary to examine whether they are territorial in nature. In cases where they are, under customary international law the rights and obligations established by them remain unaffected by the succession of states.302 In its decision in the Gabčíkovo-Nagymaros Project case in 1997, the ICJ considered that Article 12 of the 1978 Vienna Convention on Succession of States in respect of Treaties reflects a rule of customary international law.303 Article 12 concerns territorial regimes other than boundary regimes, and determines that a succession of states does not as such affect obligations and rights “relating to the use of any territory, or 297

For the current status of ratification see https://treaties.un.org/Pages/ViewDetails.aspx? src¼IND&mtdsg_no¼XXIII-2&chapter¼23&clang¼_en (accessed 1 May 2019). 298 For a detailed discussion of Art. 34 of the Convention, see Zimmermann and Devaney (2014), pp. 524–530. Critical on the provision of Art. 34 Craven (1998), p. 158. 299 See Degan (1996), pp. 222–227; Zimmermann (2006), under F. 300 For example, Hafner and Novak (2012), pp. 407–408; Zimmermann (2006), under F.; Le Floch (2010), p. 485. In its decision in the Gabčíkovo-Nagymaros Project case, the ICJ explicitly left open the question of the customary application of the provision contained in Art. 34 of the Convention, see ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 71, para. 123. 301 Hafner and Novak (2012), pp. 407–408. For a survey of state practice, distinguishing between the different forms of state succession, see Zimmermann and Devaney (2014), pp. 519–530. 302 See generally on this question Hafner and Novak (2012), p. 420; Sanchez and Gupta (2011), p. 374. 303 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 72, para. 123. For a detailed discussion of the decision of the ICJ in the Gabčíkovo-Nagymaros Project case from the point of view of a succession of states in respect of treaties, see Stern (2000), pp. 190–196.

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to restrictions upon its use, [. . .] considered as attaching to the territories in question”. In the Gabčíkovo-Nagymaros Project case, the Court had to decide whether Slovakia succeeded to a treaty concluded by Czechoslovakia and Hungary in 1977 for the construction of a dam system on the Danube. The Court stated in its decision that the major elements of the 1977 Treaty between Hungary and Czechoslovakia were “the proposed construction and joint operation of a large, integrated and indivisible complex of structures and installations on specific parts of the respective territories”.304 It further stated that this treaty “also established the navigational régime for an important sector of an international waterway [. . .] In so doing it inescapably created a situation in which the interests of other users of the Danube were affected.”305 The Court concluded from this, in the end, that “[t]aking all these factors into account, [. . .] the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial régime within the meaning of Article 12 of the 1978 Vienna Convention. It created rights and obligations ‘attaching to’ the parts of the Danube to which it relates” as per Article 12 of the Convention.306 Therefore, the Court considered that the 1977 Treaty remains unaffected by the succession of states. Accordingly, the 1959 Nile Agreement could also be regarded as establishing a territorial regime and thus remain unaffected by state succession. South Sudan would then have automatically succeeded to the rights and obligations under the treaty.307 This position seems questionable, however. The major elements of the Nile treaty are not concerned with a specific or at least determinable construction project on the territory of the successor state as was the situation with the GabčíkovoNagymaros project. Rather, the primary objective of the treaty was to enable Egypt to construct the Aswan High Dam and Sudan to construct the Roseires Reservoir308 as well as to recalculate the water quotas both would receive.309 With regard to projects on South Sudanese territory, the 1959 treaty merely states in a very general manner that Sudan “shall construct projects for the increase of the River yield by preventing losses of waters of the Nile Basin in the swamps of Bahr el Jebel, Bahr el Zeraf, Bahr el Ghazal and its tributaries, the Sobat River and its tributaries and the White Nile Basin.”310 The treaty does not specify the nature or scale of these projects designed to increase the water flow nor details of where along the river these were to be built. Hence the treaty is not sufficiently precise, with regard to the territory of present-day South Sudan, to establish determinable rights and obligations 304

ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 71, para. 123. 305 Ibid., pp. 71–72, para. 123. The concern of the interests of third parties through territorial treaties had already been taken up by O’Connell (1967), pp. 14–15. 306 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 72, para. 123. 307 A succession of South Sudan to the rights and obligations under the 1959 Nile Waters Agreement is supported for example by Helal (2013), pp. 981–982. 308 See ibid., p. 981. 309 Waterbury (2002), pp. 72–73. 310 Art. 3, para. 1, first sentence of the 1959 Nile Waters Agreement.

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and thus a territorial regime in accordance with the provision of Article 12 of the 1978 Vienna Convention as recognized in customary law. Furthermore, it does not appear that the projects would create a situation in which the interests of other users of the concerned parts of the Nile would be affected. In view of the above, it can be argued that the 1959 Agreement does not constitute a territorial treaty, which would have automatically continued in force. Nevertheless, at least a presumption of continuity of the Agreement could be adopted. In recent state practice, inter alia in the case of separations, a continuity of treaties has frequently prevailed. It can be argued that a general presumption of continuity can be derived from this state practice,311 which is complemented by cooperation, consultation, and negotiation duties of the successor state in order to come to a mutually agreed-upon solution with the third state.312 Hence the new state must enter into talks with the states concerned, namely those having an interest in knowing whether and to what extent the new state considers itself bound to the rights and obligations under the treaties of the predecessor state. This also serves the secondary function of facilitating the integration of the new state into the international community. However, states are only encouraged—and not obliged—to continue treaties as far as possible. Accordingly, South Sudan’s initial position should be the provisional continuation of the 1959 Nile Agreement, and an obligation to negotiate with Egypt and Sudan for the continuation and eventual adaptation of the treaty to meet the new circumstances in the region. Despite the above, since attaining independence it has not sought to negotiate a continuation or adaptation of the treaty. Rather, in 2013 South Sudan explicitly rejected the Nile Agreement of 1959. The South Sudanese Minister for Irrigation and Water Resources, Paul Mayom Akech, stated during an interview with the media in March 2013: South Sudan does not recognize—and underline does not recognize—the content of the 1959 agreement [. . .]. Having been under Sudan at the time, we could not say anything, today we say, we have nothing to do with this agreement.313

Before declaring that it does not consider itself bound by the Agreement, however, South Sudan may have been obliged to seek its renegotiation. But it should be borne in mind that, if it were to accede to the Agreement, South Sudan would recognize Egypt’s “acquired rights” to Nile water as opposed to a water allocation in accordance with the principle of equitable and reasonable utilization under contemporary customary law. An adoption of the 1959 treaty would make it difficult or even impossible for South Sudan to join the 2010 CFA, as South Sudan would be required to adopt a unified negotiating position together with Egypt and Sudan under the treaty’s Article 5. Given that both Egypt and Sudan have previously rejected the

311 Gruber (1986), pp. 265–268, citing further references; Schachter (1993), pp. 257–258; Zimmermann (2000), p. 21. 312 See also Zimmermann, who refers to the general obligation of states to settle the questions that arise in the context of the succession by negotiation or any other agreed means of peaceful dispute settlement, Zimmermann (2006), under C., para. 4. 313 Quoted at Amos (2013); Tigrai Online (2013).

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CFA, this would leave South Sudan few options in trying to move forward. Above all, it should be remembered that the Jonglei Canal, planned under the 1959 Agreement, is among the factors that contributed to the Sudanese civil war. In view of this, South Sudan was not obliged to first attempt to renegotiate the 1959 Nile Agreement. Indeed, after the explicit declaration of South Sudan not to be bound by that agreement, even a provisional continuity of the Agreement for South Sudan can no longer be presumed. Similar considerations also hold true for the Nile Waters Agreement of 1929. This older treaty is similarly not to be regarded as a territorial treaty,314 meaning that South Sudan has not automatically succeeded to its rights and obligations in accordance with the above. Rather, its provisional continuity could be assumed together with a duty on the part of South Sudan to negotiate with Egypt and Sudan for the continuation and eventual adaptation of the treaty. South Sudan has not explicitly commented on the 1929 Agreement; this might be due to the fact that the provisions of the 1959 Agreement have virtually incorporated those of the 1929 Agreement between Egypt and Sudan.315 The previously quoted declaration of the South Sudanese Minister for Irrigation and Water Resources on the 1959 treaty may however be understood to embrace the 1929 Agreement. Therefore, with South Sudan’s declaration not to be bound by the 1959 Agreement, the presumption of any provisional continuity of the 1929 Nile Waters Agreement for South Sudan has also been refuted. If, contrary to the statement of its Minister for Irrigation and Water Resources, South Sudan does wish to succeed to the rights and obligations under the 1959 Nile Agreement, this would have far-reaching consequences. For South Sudan, the question of succession in respect of the treaty is crucial for its positioning among the Nile riparian states well beyond the Nile regime. It would politically signal a rapprochement with Egypt and Sudan, rather than with the other EAC member countries. The allocation of water would have to be renegotiated between South Sudan and Sudan and, where appropriate, Egypt.316 It can be assumed that in this case Sudan and South Sudan would have to agree on the allocation of the former united Sudan’s share of 18.5 billion cubic meters under the treaty.317 In seeking such a reallocation, the two countries could use Article 6 of the UN Watercourses Convention as a useable framework to reach agreement.318 Another possibility would be for South Sudan to submit a request under Article 5, paragraph 2 of the 1959 Nile Agreement,319 which states as follows: As the riparian states, other than the two Republics, claim a share in the Nile waters, the two Republics have agreed that they shall jointly consider and reach one unified view regarding

See Sect. 6.2.5.2, under “Succession of Tanzania, Kenya, and Uganda”, above. See Sect. 6.2.5.3, above. 316 See also UNDP (2010), pp. 24–25. 317 See also Sanchez and Gupta (2011), p. 383. 318 Salman (2014), p. 349. 319 Le Floch (2010), p. 485. 314 315

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the said claims. And if the said consideration results in the acceptance of allotting an amount of the Nile water to one or the other of the said states, the accepted amount shall be deducted from the shares of the two Republics in equal parts, as calculated at Aswan.

Accordingly, half of the water allocated to South Sudan would be deducted from the Egyptian water quota and half from Sudan’s. It appears questionable, though, whether this clause should be applicable in the case of the separation of South Sudan, because this was part of Sudan when the treaty was concluded.320 In summary, it can be concluded that the 1959 Nile Waters Agreement is valid but only binding upon Egypt and Sudan. The upstream states were not parties to the Agreement and are therefore not bound by it. With regard to South Sudan, the Nile’s newest riparian state is not bound by the Agreement following its separation from Sudan in 2011.

6.2.9

Conclusion

There is no basin-wide treaty on the Nile that involves all Nile riparian states. The bilateral colonial treaties were predominantly conceived to promote broader British political interests in the then colonies of Egypt and to a lesser extent Sudan, and thus they primarily protected the unimpeded flow of the Nile in favor of its preferential use in Egypt and Sudan. This pattern continued in the post-colonial Nile Waters Agreement of 1959, in which the interests and rights of other Nile riparian states were not taken into account. In this way, the current treaty regime stands in stark contrast to the principle of equitable and reasonable utilization of shared water resources, which has in recent decades become the overarching principle of use allocation in international water law. In accordance with this principle and based on the equality of rights of all riparian states with regard to the use of an international watercourse, each riparian state has an equal right to an equitable share of the uses of the watercourse and the benefits derived from it. The analysis in this book leads to the conclusion that the Nile agreements of 1929 and 1959 are only binding upon Egypt and Sudan, and not on the other riparian states. Tanzania, Kenya, and Uganda did not succeed to the rights and obligations under the 1929 Nile Waters Agreement on attaining independence in the 1960s, particularly given that this cannot be considered a territorial treaty; the other upstream states never became parties to it. All upstream states neither were parties nor consented to the 1959 Nile Waters Agreement, which therefore cannot establish any rights or obligations for them. South Sudan, after its separation from Sudan, has neither by agreement nor automatically under the rules on state succession succeeded to the rights and obligations conveyed by the agreements of 1929 and 1959, neither of which can be considered territorial in nature.

320

See also Salman (2011), p. 165, note 5.

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The analysis furthermore concludes that, with regard to the Nile-related Article III of the Anglo-Ethiopian Treaty of 1902, Sudan as a successor state to the United Kingdom succeeded to the treaty obligations, as did South Sudan after its separation from Sudan, concerning the Sobat. However, Ethiopia may invoke the rebus sic stantibus principle with regard to that article. The Exchange of Notes from 1949 to 1953 over the construction of the Owen Falls Dam still binds Egypt and Uganda, the successor state of the United Kingdom, and is an arrangement that is still applied by both states today. The various remaining colonial Nile treaties, it is argued, are not binding for any of the Nile riparian states.

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Woldetsadik TK (2013) International watercourses law in the Nile River Basin: three states at a crossroads. Routledge, London Woodside D (2012) Sudan: recent history. In: Frame I (ed) Africa south of the Sahara, 41st edn. Routledge, London, pp 1201–1202 Zimmermann A (2000) Staatennachfolge in völkerrechtliche Verträge. Springer-Verlag, Berlin Zimmermann A (2006) State succession in treaties. Max Planck Encyclopedia of Public International Law Online Zimmermann A, Devaney J (2014) Succession to treaties and the inherent limits of international law. In: Tams CJ, Tzanakopoulos A, Zimmermann A (eds) Research handbook on the law of treaties. Edward Elgar, Cheltenham, pp 505–540

Chapter 7

Regional Cooperation Initiatives

Starting in the late 1960s, and particularly from the 1980s, a series of overlapping cooperation initiatives began to thaw the relationships between the Nile riparian states.1 These initiatives ranged from informal consortia and ministerial meetings to the establishment of river organizations at the sub-basin level. In addition to various initiatives for a basin-wide cooperation, the riparian states of Lake Victoria in particular strove to establish institutionalized cooperation among themselves. These efforts correlated with the movement worldwide to increasingly create institutions for sustainable cooperation between riparian states over the management and use of their various shared water resources. The initiatives along the Nile initially focused on technical issues and were often supported by financial and technical assistance schemes from international organizations and other donors. They faced immense challenges, including ongoing political instability, mistrust between riparian states, a lack of domestic technical and financial capacity, and developmental and economic disparities within the region.2 The following section presents the main regional cooperation initiatives on the Nile and their overall significance in the basin’s broader context.

7.1

Hydromet

The first regional cooperation arrangement was the Hydrometeorological Survey of the Catchment of Lakes Victoria, Kyoga, and Albert (Hydromet) Project for hydrometeorological studies at those lakes agreed on by Egypt, Sudan, Kenya, Tanzania,

1 On the cooperation initiatives along the Nile, see Brunnée and Toope (2002), pp. 132–140; ‘Alī Ṭāhā (2005), pp. 161–179. 2 See Oloo (2011), p. 160; ‘Alī Ṭāhā (2005), p. 161.

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_7

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and Uganda in 1967.3 Hydromet was created in response to severe flooding around Lake Victoria and in order to collect comprehensive hydrometeorological data with international assistance.4 The original five founding members were joined by Rwanda and Burundi in 1970, and Ethiopia gained observer status in 1971.5 The technical committee responsible for the project consisted of the heads of the water development departments in Kenya, Tanzania, and Uganda, as well as the executive members of the Permanent Joint Technical Commission established under the 1959 Nile Waters Agreement, acting as representatives for Egypt and Sudan. In addition, the Director General of the then British East African Meteorological Department participated as a co-opted member of the committee.6 The main objective of Hydromet was to collect and analyze meteorological and water-quality data for the equatorial lakes Victoria, Kyoga, and Albert.7 It was hoped that the exchange of information would also promote joint planning; however, given the political unrest in some basin states, this did not materialize. Rather, Hydromet remained a project limited to technical cooperation at the sub-basin level.8 A considerable volume of hydrometeorological data was collected and the technical cooperation was generally considered successful,9 even though Hydromet did not significantly contribute to an approximation of the upstream and downstream states’ interests regarding the use of the Nile as a whole. This aside, it did serve as an important forum for discussions on the establishment of a viable mechanism for regional cooperation within the Nile Basin.10 In addition, Hydromet led to the conclusion of the agreement between Rwanda, Burundi, Tanzania, and Uganda on the establishment of the Kagera Basin Organization in 1977.11 The Hydromet project ended in 1992.12

On Hydromet, see ‘Alī Ṭāhā (2005), pp. 162–163; Arsano (2006), p. 344. Waterbury (2002), pp. 76–77; ‘Alī Ṭāhā (2005), pp. 162–163. 5 Taha (2010), p. 215. 6 Godana (1985), p. 260. 7 See Arsano (2006), p. 344; Taha (2010), p. 215. 8 See Waterbury (2002), pp. 76–77; Abseno (2009), p. 88. 9 Elemam (2010), p. 227; Taha (2010), p. 215. 10 Taha (2010), p. 215; Godana (1985), p. 260. 11 See Adar (2011), p. 175; Brunnée and Toope (2002), pp. 132–133. 12 Maḥfūẓ Muḥammad (2009), p. 484; Bosire (2011), p. 206. 3 4

7.3 Undugu

7.2

169

Kagera Basin Organization

The riparian states of the upper White Nile, namely Burundi, Rwanda, and Tanzania, established the Kagera Basin Organization (KBO) in 1977, which Uganda joined in 1981.13 The objective was to establish cooperation between the member states in the areas of hydroelectric power development, water resources management, agricultural development, fisheries, trade, tourism, and environmental protection in the Kagera Basin.14 Thus, their objectives went well beyond cooperation purely on water resources.15 The founding agreement of the Organization created a management system covering the catchment area of the Kagera.16 This included, first and foremost, the establishment of an institutional framework for cooperation with regard to the Kagera Basin, without, however, laying down provisions on the rights and obligations of the riparian states concerned, or detailed modalities for project development.17 The development plans prepared under this organization included the construction of an 80.5-megawatt hydroelectric power plant at the Rusumo waterfalls on the Rwandan-Tanzanian border as well as various irrigation and agricultural projects. Most of the projects were not implemented, mainly due to lack of funding, political instability in the region, and disagreement between member states.18 The Organization was formally dissolved in 2004.19

7.3

Undugu

In 1983, Egypt, Sudan, Uganda, Zaire (today the DR Congo), and, as the only participating country not bordering the Nile, the Central African Republic created an informal consortium with annual ministerial meetings called Undugu.20 Undugu served as a platform for informal discussions about the general economic

13 The KBO was established by the Agreement for the Establishment of the Organization for the Management and Development of the Kagera River Basin (signed 24 August 1977), UNTS, Vol. 1089, p. 171. This agreement was amended with the accession of Uganda in 1981, see FAO (1997), p. 75. 14 Art. 2 Agreement for the Establishment of the Organization for the Management and Development of the Kagera River Basin (signed 24 August 1977), UNTS, Vol. 1089, p. 171. 15 Waterbury (1987), pp. 98–99. 16 See Adar (2011), p. 175; Brunnée and Toope (2002), pp. 132–133. 17 Insofar critical Godana (1985), p. 192. 18 See Baligira (2010), p. 54; Nkurunziza (2010), p. 24. 19 Bosire (2011), p. 208. 20 The name Undugu comes from the word “ndugu” in Swahili and means “brotherhood”, Collins (2000), p. 260.

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development of the Nile Basin region.21 Later, Burundi, Rwanda, and Tanzania joined, while Ethiopia and Kenya participated only as observers. The aim of the initiative was to coordinate cooperation in specific areas, which included water resources development, energy production, and agricultural development along with culture, telecommunication, and commerce.22 Undugu was the first initiative implementing a measure of cooperation across the whole catchment area,23 but was also criticized for not being very productive.24 Undugu was primarily concerned with energy production and joint hydroelectric power projects to interconnect the various national power grids.25 Commentators have also made the criticism that the efforts of the initiative were undermined by Egypt developing and implementing large-scale irrigation and land-reclamation projects without consulting the other riparian states.26 Undugu ended in 1993 after the 10th ministerial meeting in Addis Ababa.27

7.4

TECCONILE

In 1992, the six Nile riparian states Egypt, Sudan, Rwanda, Tanzania, Uganda, and Zaire established the Technical Cooperation Committee for the Promotion of the Development and Environmental Protection of the Nile (TECCONILE), with Ethiopia and Kenya again participating only as observers.28 TECCONILE was designed as a transitional arrangement for a period of three years to continue the work of the Hydromet Project, which was concluded in 1992.29 The participants hoped that after this three-year period, a permanent institution covering the entire catchment area could be created.30 TECCONILE was to initially assist member states in the development of master plans and their integration into a joint action plan for the Nile Basin development as a whole. The long-term goal was to support participating states in the integrated and sustainable development, conservation, and utilization of the Nile Basin’s water resources through basin-wide cooperation.31

21

Peichert (2002), p. 121. See Arsano (2006), p. 345. 23 See e.g. Mekonnen (2010), p. 426. 24 For example Collins (2000), p. 260. 25 Mekonnen (2010), p. 426; Peichert (2002), p. 121. 26 Mekonnen (2010), p. 426. See also Collins (2002), p. 225. 27 Arsano (2006), p. 345. 28 Ibid., pp. 345–346; Brunnée and Toope (2002), pp. 133–134. 29 Caponera (1993), p. 659; Arsano (2006), p. 345. 30 Mekonnen (2010), p. 426. 31 Arsano (2006), p. 346. 22

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Under TECCONILE, the Nile River Basin Action Plan was developed and formally adopted in 1995 by the Council of Ministers of Water Affairs in Arusha.32 All Nile Basin states participated in the development of this action plan,33 which provided for 22 projects with an estimated total cost of US$100 million. The parties unanimously agreed to include a Nile Basin cooperation framework covering the entire catchment area, the D3 Project, as one of the priority projects. This was the precursor of the 2010 CFA for the Nile, which was later developed under the NBI.34 As was the case for previous arrangements, only a few of the projects were ever implemented in the following years. Furthermore, TECCONILE’s work principally had a strong technical focus, dissuading Ethiopia and Kenya from becoming full members as they considered the work of the Committee to be inadequate by not addressing the fundamental issue of fair water allocation.35 Ethiopia raised the critique that a legal and institutional basis for cooperation was long overdue and should be created before any operational cooperation could be facilitated.36 Nevertheless, TECCONILE is largely seen as a key precursor for the subsequent phase of cooperation between the Nile riparian states, notably through its Nile River Basin Action Plan37: In 1999, TECCONILE and the Nile River Basin Action Plan were replaced by the NBI and its first program, the Nile River Basin Strategic Action Program, respectively.38

7.5

Nile 2002 Conferences

Another effort to promote rapprochement between the Nile Basin countries and enable basin-wide cooperation was the Nile 2002 Conferences series. This was a series of non-governmental conferences that focused primarily on technical issues of Nile water management. The conference series was scheduled to run for a 10-year period, and provided for one conference in each of the then 10 riparian states.39 The first conference took place in 1993 in Aswan, Egypt.40 This was followed by another eight conferences, each attended by representatives of riparian states,

32

Mekonnen (2010), p. 427. Brunnée and Toope (2002), p. 134. 34 ‘Alī Ṭāhā (2005), pp. 172 and 179–180; Mekonnen (2010), p. 427. 35 See Brunnée and Toope (2002), pp. 133–134. 36 Arsano (2006), p. 346. Ethiopia had proposed in the Council of Ministers that the Action Plan should prioritize the drafting of a cooperative framework agreement for the Nile Basin, see Tadesse (2008), p. 18. 37 See e.g. Mekonnen (2010), p. 427; ‘Alī Ṭāhā (2005), p. 173; Adar (2011), p. 175; Tadesse (2008), p. 18. 38 Brunnée and Toope (2002), p. 135. 39 Oloo (2011), p. 158; Brunnée and Toope (2002), p. 135. 40 ‘Alī Ṭāhā (2005), p. 172; Brunnée and Toope (2002), p. 135. 33

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non-governmental organizations, and business and research institutions.41 All Nile Basin states sent participants to these conferences, and although the conferences were meant to address primarily technical issues, legal issues of the utilization of the Nile’s water were often the focus. Another key topic of discussion proved to be the possibility of creating sub-regional organizations in the Nile Basin. This conference series also played an important role in developing mutual understanding among the riparian states and in improving the political climate along the Nile.42

7.6

Lake Victoria Basin Commission

The member states of the East African Community (EAC)43 established the Lake Victoria Basin Commission44 in 2004 as a permanent EAC apex institution responsible for coordinating the sustainable development of the Lake Victoria Basin.45 This commission acts as a forum to coordinate the various measures implemented at Lake Victoria and in its catchment area and also as a center for facilitating financial investment and the exchange of information.46 Lake Victoria is of great economic importance to its riparian states47 and the EAC member states have a common interest in promoting the economic development in its basin. This in turn has provided them with a strong incentive to settle the longstanding legal issues with regard to the use of the Nile’s water as a whole.48 To this

41

Oloo (2011), p. 158. See also ‘Alī Ṭāhā (2005), p. 172; Brunnée and Toope (2002), pp. 135–136. 43 The six Nile riparian states of Burundi, Kenya, Rwanda, South Sudan, Tanzania, and Uganda form the EAC. The EAC was founded in 2000 as a regional intergovernmental organization by Kenya, Tanzania, and Uganda. Burundi and Rwanda joined in 2007 and South Sudan in 2016. The objective of the EAC is to expand and intensify cooperation between member states in the political, economic, and social fields. To this end, EAC countries established a customs union in 2005 and created a common market in 2010. In 2013, the Protocol on the creation of an East African Monetary Union was adopted which shall be implemented within 10 years. The ultimate goal of the regional integration is the formation of a political federation of East African states in order to create a strong and sustainable East African economic and political bloc. For detailed information on the EAC, see http://www.eac.int/ (accessed 30 June 2019). 44 Further cooperation initiated by the East African Nile riparian states alone, which also concern water use aspects of Lake Victoria, are the Lake Victoria Environmental Management Project (LVEMP) and the Lake Victoria Fisheries Organisation (LVFO), both established in 1994 with the aim to promote joint management and optimal use of Lake Victoria. 45 The Commission was established through the Protocol on Sustainable Development of Lake Victoria and its Basin of 29 November 2003. 46 Ward and Roach (2012), p. 68; see also Kagwanja (2007), pp. 321–322. 47 Kagwanja (2007), p. 326. 48 Ibid., p. 321. 42

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end, within the framework of the EAC, they have agreed to act as a unified negotiating bloc in future negotiations concerning the Nile.49

7.7

Nile Basin Initiative

The first tentative steps toward a comprehensive basin-wide institutional framework for the Nile may already be seen in the creation of Hydromet and the adoption of the action plan under TECCONILE. The establishment of the NBI, however, has initiated a new and unprecedented phase in cooperation among states in the Nile Basin.50 This initiative is currently the most important institution for the cooperation of Nile riparian states.51 Among Egyptian commentators, it is also seen as a hope for the conclusion of a comprehensive cooperation agreement, involving all Nile riparian states, which will overcome the prevailing conflicts between those over the past century.52 As part of the Initiative, for the first time all the states of the Nile Basin came together and declared their genuine interest in a common dialogue. The Initiative was established as an intergovernmental partnership on 22 February 1999 in Dar es Salaam at the meeting of the ministers responsible for water resources of the then nine member states.53 It does not have a constituting treaty, but rather was established by signing the minutes of the ministerial meeting.54 All the existing riparian states became members of the NBI, with the exception of Eritrea which opted for observer status. On 5 July 2012, South Sudan’s request for admittance as the 10th member state of the Initiative was approved by the Council of Ministers of the Initiative during its 20th regular meeting, in Kigali.55 The objective of the Initiative is to develop the Nile in a cooperative manner, to share socio-economic benefits, and to promote peace and security in the region.56 The ultimate goal of the Initiative, which is conceived as a transitional mechanism, is

49

Ward and Roach (2012), p. 68; Kagwanja (2007), pp. 330–331. Similarly Brunnée and Toope (2002), p. 137; ‘Alī Ṭāhā (2005), p. 161; Swain (2002), p. 155. 51 Kaška (2006), p. 255. 52 Maḥfūẓ Muḥammad (2009), p. 485. 53 These were Burundi, DR Congo, Egypt, Ethiopia, Kenya, Rwanda, Sudan, Tanzania, and Uganda. 54 ‘Alī Ṭāhā (2005), p. 175; Vinogradov et al. (2003), p. 60. 55 NBI, Member States, http://www.nilebasin.org/index.php/south-sudan (accessed 30 May 2019). Under customary international law, a successor state does not automatically succeed to membership of international organizations enjoyed by the predecessor state. Accordingly, the new state of South Sudan, after its separation from Sudan, was subject to the admission procedure of the NBI. Sudan, on the other hand, is deemed identical with the predecessor state and therefore retains its membership. Generally on the succession to the membership in international organizations, see Bühler (2001), p. 288. 56 NBI, http://www.nilebasin.org (accessed 30 May 2019). 50

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the conclusion of a permanent legal and institutional framework agreement for cooperation that incorporates the principles, structures, and institutions of the NBI and includes all Nile riparian states.57 By its very nature the Initiative is thus to be regarded as a process rather than a structure of common river organization in the traditional sense.58 The NBI is guided by the shared vision objective of the riparian states “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources”.59 This declaration introduced, for the first time, the concept of equitable utilization in the dialogue on the use of the Nile.60 Changes to several factors that were stumbling blocks in the past facilitated the establishment of the Initiative. Increasing political stability and economic growth have fostered a significant change in the attitude of formerly hesitant Ethiopia in particular. In Ethiopia, economic growth requires water, and with increased political stability, effective planning has now become possible. For long-envisaged projects, such as the construction of the Grand Ethiopian Renaissance Dam, the necessary financial and political conditions have been met. Additionally, the growing comprehension of all riparian states that common interests exist in important areas, such as the protection of water quality and the development of hydroelectric power generation, has also facilitated change.61 Moreover, riparian states, particularly the downstream states, are increasingly aware of the fact that the status quo of Nile water uses is not sustainable given the high population growth rates and the increasing need for agricultural irrigation in the basin.62 Another prominent factor was the active involvement of multilateral and bilateral donors. An example in this regard is the fact that the establishment of the NBI was preceded by two years of negotiations between the various Nile riparian states in which the World Bank played a major role.63

7.7.1

Institutional Structure and Financing

The institutional structure of the Initiative facilitates active dialogue and consultation between the states sharing the Nile.64 The Initiative is headed by the Nile Council of Ministers (Nile-COM), which is supported by the Nile Technical Advisory

57

Salman (2013), p. 20. Vinogradov et al. (2003), p. 60. 59 NBI, http://www.nilebasin.org (accessed 30 May 2019). 60 Tadesse (2008), p. 18; Check (2011), p. 92. 61 Brunnée and Toope (2002), pp. 140–141. 62 Ibid., p. 140. See also Whittington et al. (1995), pp. 167–168. 63 Swain (2008), p. 209; Ward and Roach (2012), p. 72. 64 Arsano (2006), p. 347. 58

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Committee (Nile-TAC) and the NBI Secretariat (Nile-SEC). In addition, there is a National NBI Focal Point Institution, called the NBI Office, in each member state, as well as two project offices, one in Kigali and the other in Addis Ababa. It is envisaged that these organs of the Initiative will later be incorporated into the institutions to be created by a future cooperative framework agreement.65 The Nile Council of Ministers, which meets annually, is the highest administrative and decision-making body of the NBI, and is composed of the ministers responsible for water affairs from the various Nile riparian states. The functions of the Council include providing policy guidance and ensuring that the transitional arrangements of the Initiative are respected. It adopts programs and projects as well as approving both the work plan and the budget of the Initiative.66 The Council also played a leading role in the drafting of the CFA. As previously mentioned, the Nile Council of Ministers is supported by the Nile Technical Advisory Committee. The Committee consists of two senior officials from each member state’s water authority, who meet at least twice a year. The Committee oversees the work of the NBI, provides technical assistance to ministers responsible for water resources and the Nile Council of Ministers, and advises on questions of the management and development of Nile Basin water resources. Finally, it also acts as a liaison body between the Nile Council of Ministers and the Initiative on the one hand and the development partners on the other.67 The Nile Council of Ministers and the Nile Technical Advisory Committee are organizationally assisted by the NBI Secretariat, the executive body of the Initiative, which is in charge of all administrative work, including finance. It is headed by an executive director, a position which rotates every two years among the member states.68 In addition, within the two subsidiary action programs of the Initiative, an office has been established for the sub-basin of the Eastern Nile Basin, and another one for that of the Equatorial Lakes. For the eastern sub-basin of the Nile, the Eastern Nile Technical Regional Office (ENTRO) was created in Addis Ababa as an executive body of the Eastern Nile Subsidiary Action Program (ENSAP). This regional office is a joint body comprised of Egypt, Ethiopia, South Sudan, and Sudan. It supports the Eastern Nile Council of Ministers (ENCOM) and the Eastern Nile Subsidiary Action Program Team (ENSAPT), and manages and coordinates the preparation of ENSAP projects, as well as performing secretarial functions.69 The office was to become an Eastern Nile Sub-Basin Organization with its own legal framework for the cooperative sustainable development of the eastern Nile by 2015. However, despite its success thus far, Egypt and Sudan tentatively ceased their participation in

65

See Salman (2013), p. 20. NBI, Governance, http://www.nilebasin.org/index.php/nbi/governance (accessed 30 May 2019). 67 Ibid. 68 NBI, Nile-SEC, http://nilesec.nilebasin.org (accessed 30 May 2019). 69 See NBI, ENTRO, http://entro.nilebasin.org (accessed 30 May 2019). See also Sanchez and Gupta (2011), p. 368. 66

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the office’s activities in protest against the signing of the CFA by several Nile riparian states in May 2010. The second program office is the Nile Equatorial Lakes Subsidiary Action Program Coordination Unit (NELSAP-CU) for the sub-basin of the Equatorial Lakes located in Kigali. As an executive body for the Nile Equatorial Lakes Subsidiary Action Program (NELSAP), this unit includes the riparian states of Burundi, the DR Congo, Egypt, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda. It is responsible for the secretarial work of the NELSAP bodies, namely the Nile Equatorial Lakes Council of Ministers (NELCOM) and the Nile Equatorial Lakes Technical Advisory Committee (NELTAC).70 In addition, there is one national office in each member state under the direction of the respective national member of the Technical Advisory Committee. Each acts as a platform for national coordination of NBI projects and activities and supports the coordination and integration of these activities with relevant national initiatives. The organs of the Initiative and its programs are funded by contributions from the riparian states as well as development partners.71

7.7.2

Programs

Cooperation within the framework of the NBI is structured in programs. The first Strategic Action Program was established in 1999 and consisted of two complementary components. These were the Shared Vision Program for projects covering the entire catchment area and the Subsidiary Action Program for regional projects on sub-basin level.72 The Shared Vision Program comprised a range of basin-wide projects to promote cooperation and capacity building for joint integrated water management. These projects concerned, inter alia, environmental protection, confidence building and stakeholder engagement, regional electricity trade, and efficient use of water for agricultural production.73 The basin-wide projects were intended to facilitate dialogue among the riparian states beyond the issue of water utilization and reduce tensions between upstream and downstream states.74 Part of this program was the

70

NBI, NELSAP, http://nelsap.nilebasin.org/index.php/en/ (accessed 30 May 2019). In 2001, the Nile Basin Trust Fund was established by 10 development partners as a trust fund to support the pursuit of the NBI’s shared vision in a coordinated manner. The fund was administered by the World Bank and monitored by a committee representing donors, the NBI, and the World Bank. International donors financed basin-wide projects mainly through this trust fund. The fund was closed in 2015. On the Nile Basin Trust Fund, see World Bank (2016). 72 For detailed information on the programs of the NBI, see World Bank (2015), pp. 20–31. 73 See Council of Ministers of Water Affairs of the Nile Basin States, Policy Guidelines for the Nile River Basin Strategic Action Program, 1999, www.africanwater.org/Nile-TACPolicyGuidelines. html (accessed 30 May 2019). 74 Check (2011), p. 93. 71

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drafting of a cooperative framework agreement for the Nile.75 As such, the program continued the former D3 Project of the Nile River Basin Action Plan adopted under TECCONILE.76 The D3 Project was adopted as part of the Action Plan in order to develop recommendations for a legal and institutional framework for the Nile Basin, and in 1999 the project was integrated into the NBI. The project’s stated objective was to: [I]n the long term, pave the way for the Nile River Basin countries to achieve milestones which would determine net equitable entitlements for each riparian country for the use of the Nile waters and therefore to enhance and promote the utilisation of the Nile waters for optimum sustainable socio-economic benefits for the inhabitants of the Basin.77

The Shared Vision Program, which expired in 2009, was continued by the Institutional Strengthening Project for another four years. At present, the Basin Cooperation Program provided by the NBI Secretariat is the only platform for a basin-wide exchange between all Nile riparian states and for their cooperation for basin-wide development planning.78 The Subsidiary Action Program, the second component of the Strategic Action Program, is designed to develop regional projects on the sub-basin level. This program has been divided into two investment programs, one for each of the two major sub-basins, the Eastern Nile Basin and the Nile Basin of the Equatorial Lakes. This subdivision is based on the assumption that cooperation can be facilitated by reducing the complexity of the decision-making processes.79 The investment program for the sub-basin of the Equatorial Lakes is the Nile Equatorial Lakes Subsidiary Action Program, in which Burundi, the DR Congo, Egypt, Kenya, Rwanda, Sudan, Tanzania, and Uganda participate. The program oversees the implementation of joint projects on the use of Nile Basin water resources. It promotes investment in energy generation and trading, water resources management, management of the lakes and fisheries, as well as in agricultural trade and production.80 The second regional investment program is the Eastern Nile Subsidiary Action Program for the eastern sub-basin of the Nile with Egypt, Ethiopia, and Sudan being the participants in this program. Eritrea, if it were to formalize its participation, would also be involved in this program, which currently aims to ensure cooperation between the three active countries. Projects address flood and early warning systems, a power

75 Council of Ministers of Water Affairs of the Nile Basin States, Policy Guidelines for the Nile River Basin Strategic Action Program, 1999, www.africanwater.org/Nile-TACPolicyGuidelines. html (accessed 30 May 2019). 76 ‘Alī Ṭāhā (2005), p. 179; Brunnée and Toope (2002), p. 138. 77 Quoted at McCaffrey (2001), p. 247, note 104; Mason (2004), p. 194. See also ‘Alī Ṭāhā (2005), pp. 179–180. 78 For an overview of the components of this project, see NBI, Nile-Sec, Basin Cooperation Program, http://nilesec.nilebasin.org/index.php/what-we-do/basin-cooperation-program (accessed 30 May 2019). 79 Nicol (2003), p. 25; Elemam (2010), p. 230. 80 NBI, NELSAP Projects, http://nelsap.nilebasin.org/index.php/en/ (accessed 30 May 2019).

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transmission line between Ethiopia and Sudan, a study on energy trading for the eastern Nile, irrigation measures, and river basin management.81 This strategic subdivision of action programs into the two major sub-basins, each with dedicated implementation bodies, is often seen as the key success of the NBI to date.82 The Initiative has thus introduced a new institutional structure for cooperation among the riparian states which, in accordance with the principle of subsidiarity, is based on the management of the basin at the lowest appropriate level.83 With this subdivision into sub-catchment areas, the potential for conflict between the upstream and downstream states of the Nile is reduced.84 Overall, the Initiative has led to an increase in bilateral development projects in the Nile Basin, although some basin countries continue to unilaterally implement major water development projects within their own territory.

7.8

Conclusion

Toward the end of the twentieth century, the Nile riparian states intensified their cooperation efforts. Initially, their attempts at collaboration were rather short-lived, failed to provide comprehensive management of the Nile Basin, and were not comparable to the more effective forms of institutionalized cooperation, for example those implemented on major rivers in Europe and North America.85 At first, Nile riparian states could only find commonality by addressing uncontroversial questions in technical fields on a sub-basin level. Only the establishment of the NBI in 1999 started a significant change in the levels of cooperation among all Nile riparian states. It is the most important initiative on this issue, and still represents the fundamental, albeit temporary, institutional framework for broader and more meaningful cooperation among riparian states on the Nile. The establishment of the NBI can be seen as a success insofar as it provided a new cooperative depth and involved for the first time all riparian states. Through its organizational and program structure, it has institutionalized cooperation both at a basin-wide level as well as at the level of the two major Nile sub-basins, thereby more readily facilitating cooperation and consensus building. For the first time, the Initiative formulated the core principle of international water law, namely equitable utilization, as the common objective for the use of the Nile. These multilateral efforts finally led to the drafting of the CFA with the aim of concluding a comprehensive framework agreement for the Nile Basin and to establish a Nile Basin commission as a permanent cooperation body. Ultimately, the

81

NBI, ENTRO Projects, http://entro.nilebasin.org/index.php/our-projects (accessed 30 May 2019). See e.g. Nicol (2003), p. 25; Oloo (2011), p. 159; Elemam (2010), p. 230. 83 Nicol (2003), p. 25; Elemam (2010), p. 230. 84 To the same effect see ‘Alī Ṭāhā (2005), p. 194. 85 See also Godana (1985), p. 238. 82

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success of the NBI will have to be measured by its ability to achieve the stated core goal of a permanent legal and institutional framework for cooperation between all riparian states.

References ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Abseno MM (2009) The concepts of equitable utilization, no significant harm and benefit sharing under the Nile River Basin Cooperative Framework Agreement: some highlights on theory and practice. J Water Law 20:86–95 Adar KG (2011) Kenya’s foreign-policy and geopolitical interests: the case of the Nile River Basin. In: Adar KG, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 167–188 Arsano Y (2006) Nile Basin co-operation: prospects for the twenty-first century. In: Coopey R, Tvedt T (eds) A history of water: the political economy of water, vol II. I.B. Tauris, London, pp 324–351 Baligira R (2010) Rwanda and the Nile: water plans and their implementation. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 31–56 Bosire RM (2011) Tanzania: multilateralism and national interests in the Nile River Basin question. In: Adar K, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 189–214 Brunnée J, Toope SJ (2002) The changing Nile Basin regime: does law matter? Harv Int Law J 43:105–159 Bühler KG (2001) State succession and membership in international organizations: legal theories versus political pragmatism. Martinus Nijhoff Publishers, The Hague Caponera DA (1993) Legal aspects of transboundary river basins in the Middle East: the Al Asi (Orontes), the Jordan and the Nile. Nat Resour J 33:629–664 Check N (2011) Rwanda and the Nile Cooperative Framework Agreement: assessing the 1929 Nile treaty. In: Adar K, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 85–103 Collins RO (2000) In search of the Nile waters, 1900–2000. In: Erlich H, Gershoni I (eds) The Nile: histories, cultures, myths. Lynne Rienner Publishers, Boulder, pp 245–267 Collins RO (2002) The Nile. Yale University Press, New Haven Council of Ministers of Water Affairs of the Nile Basin States (1999) Policy Guidelines for the Nile River Basin Strategic Action Program. www.africanwater.org/Nile-TACPolicyGuidelines.html. Accessed 30 May 2019 Elemam HER (2010) Egypt and collective action mechanisms in the Nile Basin. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 217–236 FAO (1997) Treaties concerning the non-navigational uses of international watercourses, Africa. FAO Legislative Study 61. Rome Godana BA (1985) Africa’s shared water resources: legal and institutional aspects of the Nile, Niger and Senegal River systems. F Pinter, London Kagwanja P (2007) Calming the waters: the East African Community and conflict over the Nile resources. J East Afr Stud 1:321–337 Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic)

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Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) Mason SA (2004) From conflict to cooperation in the Nile Basin. Center for Security Studies, Zurich McCaffrey SC (2001) The law of international watercourses: non-navigational uses. Oxford University Press, Oxford Mekonnen DZ (2010) The Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘water security’ paradigm: flight into obscurity or a logical cul-de-sac? Eur J Int Law 21:421–440 Nicol A (2003) The Nile: moving beyond cooperation. UNESCO-IHP, PCCP Publications No. 16 (2001–2003). Paris Nkurunziza P (2010) Burundi and the Nile: water resource management and national development. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 13–30 Oloo A (2011) The Nile ‘Lone Ranger’ in the Nile River waters initiative: the case of Eritrea. In: Adar K, Check N (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 153–166 Peichert H (2002) The Nile Basin Initiative: a promising hydrological peace process. In: Al Baz I, Hartje VJ, Scheumann W (eds) Co-operation on transboundary rivers. Nomos, Baden-Baden, pp 113–132 Salman SMA (2013) The Nile Basin Cooperative Framework Agreement: a peacefully unfolding African spring? Water Int 38:17–29 Sanchez N, Gupta J (2011) Recent changes in the Nile region may create an opportunity for a more equitable sharing of the Nile River waters. Neth Int Law Rev 58:363–385 Swain A (2002) Managing the Nile River: the role of sub-basin co-operation. In: Chatterji M, Arlosoroff S, Guha G (eds) Conflict management of water resources. Ashgate Publishing, Hampshire, pp 145–161 Swain A (2008) Mission not yet accomplished: managing water resources in the Nile River Basin. J Int Aff 61(2):201–214 Tadesse D (2008) The Nile: is it a curse or blessing? Institute for Security Studies Paper 174, Pretoria Taha F (2010) The history of the Nile waters in the Sudan. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 179–216 Vinogradov S, Wouters P, Jones P (2003) Transforming potential conflict into cooperation potential: the role of international water law. UNESCO/IHP/WWAP, Technical Documents in Hydrology, PCCP Series No. 2, Dundee Ward TE, Roach HL (2012) Hydropolitics and water security in the Nile and Jordan River Basins. In: Vajpeyi D (ed) Water resource conflicts and international security. Lexington Books, Plymouth, pp 51–101 Waterbury J (1987) Legal and institutional arrangements for managing water resources in the Nile Basin. Int J Water Resour Dev 3:92–103 Waterbury J (2002) The Nile Basin: national determinants of collective action. Yale University Press, Yale Whittington D, Waterbury J, McClelland E (1995) Toward a new Nile waters agreement. In: Dinar A, Loehman ET (eds) Water quantity/quality management and conflict resolution: institutions, processes, and economic analyses. Praeger, Westport, pp 167–178 World Bank (2015) The Nile story – 15 years of Nile cooperation: making an impact. http:// documents.worldbank.org/curated/en/541381468185966451/The-Nile-story-15-years-of-Nilecooperation-making-an-impact. Accessed 30 May 2019 World Bank (2016) The Nile Basin Trust Fund. http://www.worldbank.org/en/programs/coopera tion-in-international-waters-in-africa/brief/nile-basin-trust-fund. Accessed 30 May 2019

Chapter 8

Agreement on the Nile River Basin Cooperative Framework

The CFA1 was negotiated under the auspices of the NBI and adopted by the Nile Council of Ministers in May 2009. This treaty, also known as the Entebbe Agreement, has since been signed by six Nile riparian states.2 On 13 June 2013, Ethiopia became the first Nile riparian state to ratify the Agreement, followed by Rwanda on 28 August 2013 and Tanzania on 26 March 2015.3 Pursuant to its Article 43, the Agreement enters into force on the 60th day following the date of the deposit of the sixth instrument of ratification or accession with the African Union.

1 Agreement on the Nile River Basin Cooperative Framework, http://www.nilebasin.org/index.php/ documents-publications/30-cooperative-framework-agreement/file (accessed 30 June 2019). See generally on the CFA Mekonnen (2010), pp. 421–440; Salman (2013); Le Floch (2010), pp. 487–495; Abseno (2009), pp. 86–95; Ayebare (2010); Ibrahim (2010), pp. 198–207; Wehling (2018), pp. 205–241. On the drafting process of the Agreement, see in particular NBI, Cooperative Framework Agreement, http://www.nilebasin.org/index.php/nbi/cooperative-framework-agree ment (accessed 30 June 2019); ‘Abd al-‘Āl (2010), pp. 121–124; Wehling (2018), pp. 206–213. 2 These are Ethiopia and the five EAC member states Rwanda, Tanzania, Uganda, Kenya, and Burundi, see NBI, Cooperative Framework Agreement, http://www.nilebasin.org/index.php/nbi/ cooperative-framework-agreement (accessed 12 January 2020). 3 Ibid.

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_8

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Drafting and Negotiations

The drafting4 of the CFA began in 1997 with the aim of concluding a comprehensive basin-wide treaty on the Nile and establishing a Nile Basin commission as a permanent cooperation vehicle. All the member states of the NBI were involved in the drafting of the Agreement.5 The first draft for the Agreement was prepared by an independent panel of experts in accordance with the specifications stipulated by the Nile Council of Ministers. This panel consisted of three high-ranking water experts from each Nile riparian state at the time, with the exception of Eritrea, which sent none.6 The panel of experts was instructed to comprehensively examine the law on transboundary watercourses prior to preparing the draft agreement. This included reviewing the state of international water law, the substantive and procedural provisions of the UN Watercourses Convention, and the legal and institutional frameworks for other watercourses, and identifying the principles applicable to the Nile Basin. They were also asked to determine the quantity and quality of the water supply within the Nile Basin and prioritize the existing uses and needs, before proceeding to examine the development potential in the basin.7 The panel of experts prepared a draft agreement which was first presented to the Nile Council of Ministers at its meeting in August 2000 in Khartoum. The ministers did not adopt that draft as they found that key issues remained unresolved.8 In particular, the negotiating parties were unable to agree on how to handle the contentious issue of the existing Nile water treaties. The upstream states insisted that a new framework agreement should replace all existing Nile treaties,9 and proposed to explicitly declare those treaties void where incompatible with the provisions of the new agreement.10 Egypt and Sudan, maintaining their traditional approach, disagreed with this proposal. Instead, they sought an agreement that would rather be supplementary to the existing treaties and guarantee what those countries consider to be their historical rights.11 They therefore proposed either to explicitly maintain the 1959 Nile Waters Agreement or at least to include a provision in the CFA that the 1959 Agreement should be re-interpreted in the light of the new

4

The working documents and minutes of the negotiations are confidential and are only available to the Nile Council of Ministers and the NBI Secretariat. See also ‘Alī Ṭāhā, who explains the absence of any official declarations on the recommendations of the expert panel drafting the Agreement given the sensitivity of the issues involved, ‘Alī Ṭāhā (2005), p. 180. 5 These were all the Nile riparian states except Eritrea. ‘Abd al-‘Āl (2010), p. 122; Mekonnen (2010), p. 428. 6 ‘Alī Ṭāhā (2005), p. 179; ‘Abd al-‘Āl (2010), pp. 121–122. 7 Abseno (2009), p. 88; see also Tafesse (2011), p. 75. 8 ‘Abd al-‘Āl (2010), p. 122; ‘Alī Ṭāhā (2005), p. 179. 9 Taha (2010), p. 216; Arsano (2010), p. 177. 10 Wolde-Giorghis (2009), p. 300; Ibrahim (2010), p. 203. 11 See ‘Abd al-‘Āl (2010), p. 123; Arsano (2010), p. 177.

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agreement and according to the rules of international law.12 This proposal, in turn, was rejected by the upstream states,13 leading to a stalemate that threatened to block the negotiations. Adding further to this impasse were the Ethiopian members of the expert panel, who expressed reservations about certain other provisions, in particular regarding the requirement for prior notification of planned measures in the Nile Basin.14 As a result, at its meeting in Cairo in February 2002, the Nile Council of Ministers set up a joint negotiating committee composed of two water experts from each riparian state. Its task was to revise the draft agreement and find an amicable solution for the outstanding issues.15 After the negotiating committee was also unable to secure agreement from the parties on the question of how to deal with existing Nile water treaties, the concept of water security was introduced into the negotiations as a substitute for a provision on those treaties, in a bid to overcome the impasse.16 However, the parties could not agree on the wording of Article 14 dealing with water security. Egypt and Sudan proposed the inclusion in Article 14(b) of a provision that the water security and current uses and rights of Nile Basin states may not be affected.17 The upstream states rejected this proposal, considering that its insertion was equivalent to recognition of the Nile water treaties of both 1929 and 1959,18 which they view as not having any binding effect for themselves. Ethiopia and the other riparian states considered the proposal by Egypt and Sudan to include those references to current uses and rights in the article on water security as an attempt to maintain the status quo.19 As such, when the negotiations continued Ethiopia proposed replacing the divisive article on water security with an obligation of the riparian states to use Nile water in accordance with the principle of equitable and reasonable utilization and the no-harm rule. This proposal was dismissed by Egypt and Sudan, with both stating that they were not willing to accept an agreement without recognition of historical rights and reference to the Nile treaties of 1929 and 1959.20 Finally, the negotiating committee submitted a revised draft agreement to the Nile Council of Ministers at its meeting in Entebbe in June 2007, without, however, having agreed on a provision on water security. This was a situation that recurred in the Nile Council of Ministers, who also found it impossible to reach consensus.21

12

See Wolde-Giorghis (2009), p. 300. Taha (2010), p. 216; Arsano (2010), p. 177. 14 Panel of experts, Draft of the Cooperative Framework: Revisions 2, Entebbe, Uganda, 10 December 1999. See also Tafesse (2011), p. 76. 15 See ‘Abd al-‘Āl (2010), p. 122; Mekonnen (2010), p. 430. 16 Wolde-Giorghis (2009), p. 300; Mekonnen (2010), p. 430. 17 Mekonnen (2010), p. 428. 18 Ayebare (2010), p. 4. 19 Wolde-Giorghis (2009), p. 301. 20 ‘Abd al-‘Āl (2010), pp. 122–123; Azarva (2011), p. 488. 21 Azarva (2011), p. 488; Tafesse (2011), p. 76. 13

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In May 2009, the draft was renegotiated at the 16th meeting of the Nile Council of Ministers, in Kinshasa. Following the failure to reach consensus on a provision on water security, the then president of the Council, the Minister of Environment of the DR Congo José Endundo Bononge, proposed three alternatives: to delete the controversial provision of Article 14(b) on water security and existing uses and rights without substitution; to again attempt to renegotiate the provision; or to attach it as an annex to the Agreement and to accept the latter.22 The Nile Council of Ministers supported the third alternative and adopted the draft agreement by majority, with the proviso that the Nile Basin Commission to be established under the Agreement should decide on the annexed Article 14(b) within six months of its establishment.23 Egypt and Sudan instead advocated continuing negotiations until an alternative wording could be found.24 They were unwilling to endorse the treaty without a resolution of the central issue of water allocation and the related question of whether the Nile treaties of 1929 and 1959 are binding on all Nile riparian states with regard to water allocation. Egypt voted against the text, and the Sudanese delegate is said to have left the meeting room in protest before the vote.25 The next meeting of the ministers for water affairs of the NBI took place in July 2009 in Alexandria. On the sidelines of this meeting, the Egyptian Minister of Water Resources and Irrigation, Mohamed Nasr El-Deen Allam, said that the obstacle to reaching consensus on the Agreement was the non-recognition of the historical rights of Egypt and Sudan. Of the upstream states, he said “it doesn’t matter if they are convinced” of the rights given to Egypt in the 1929 and 1959 treaties. “It matters that we are convinced.”26 The draft agreement provided that it should be opened for signature for all Nile states in Entebbe on 1 August 2009. However, the Council of Ministers decided to move that date six months later, to grant the member states more time to find a solution.27 In order to finalize the process of signing the Agreement, the Nile Council of Ministers and the negotiating committee held their last meeting in April 2010 in Sharm El Sheikh. This meeting, however, confirmed the division between upstream and downstream countries. They were unable to reach agreement on either the provisions on water security or on existing uses and rights. In addition, Egypt and Sudan requested that a procedure of early notification for all upstream projects on the Nile be included in the text. Furthermore, they rejected the two-thirds and majority principles and insisted upon the inclusion of a provision that required decisions to be

22

Arsano (2011), p. 5. See also Le Floch (2010), p. 493. The Annex to Art. 14(b) of the CFA thus states: “The Extraordinary Meeting of the Nile Council of Ministers held in Kinshasa, the Democratic Republic of Congo, on 22 May 2009 resolved that the issue on the Article 14(b) be annexed and resolved by the Nile River Basin Commission within six months of its establishment.” 24 Ayebare (2010), p. 4. See also Tafesse (2011), p. 77. 25 Wolde-Giorghis (2009), p. 302; Le Floch (2010), p. 493. 26 Quoted at El Dahan (2009). 27 Mekonnen (2010), p. 429. 23

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taken unanimously. The upstream states rejected these proposals and stated their intention to open the Agreement for signature, which was then rejected by both Egypt and Sudan.28 These two states proposed that the Nile Basin Commission should first be established by presidential decree, which should be followed by further negotiations on the treaty until the achievement of a consensus.29 At the end of the meeting, the upstream states agreed to sign the Agreement. However, Egyptian Minister of Water Resources and Irrigation Mohamed Nasr El-Din Allam, reiterated the following: We still want historical uses of the Nile water to be recognized by the Nile Basin countries because this is the only source of water we have [. . .] we want historical rights to be recognized in the agreement before it is signed.30

He said Egypt would not sign an agreement that did not guarantee its water share determined in the 1959 Nile treaty. The substantive proposals of the upstream states for the formulation of the Agreement were considered by Egypt as an attempt to modify the water quotas of Egypt and Sudan.31 The CFA was finally opened for signature on 14 May 2010 in the Secretariat of the NBI in Entebbe for a period of exactly one year. It was immediately signed by Ethiopia, Kenya, Rwanda, Tanzania, and Uganda, an approach that sparked anger in Egypt. The Egyptian Ministry of Foreign Affairs dismissed the Agreement as non-binding, stating that such a document does not release its signatories from their obligations “under the rules of international and customary laws, and the current practices, as well as the existing agreements, which enjoy sanctity as being border agreements that cannot be disregarded”.32 Egypt’s rights to the Nile and its annual water quota of 55.5 billion cubic meters remain unaffected, the ministry said.33 In protest against the Agreement, Egypt and Sudan threatened to cease their participation in the NBI.34 With the turmoil that led to the resignation of Egyptian President Hosni Mubarak in February 2011, a fundamental political upheaval took place in Egypt. Mubarak had been a decisive opponent of the CFA. Shortly after his resignation, Burundi signed as the sixth member of the NBI the Agreement on 28 February 2011,35 and Ethiopia officially announced the construction of the Renaissance Dam that had been opposed by Egypt. As a result, the transitional government formed in Egypt asked

28

State Information Service (2010). For a detailed discussion of the Egyptian-Sudanese position in the negotiations on the CFA, see ‘Abd al-‘Āl (2010), pp. 121–124. 29 State Information Service (2010). 30 Quoted at Pham (2010); Tafesse (2011), p. 78. 31 For example ‘Abd al-‘Āl (2010), p. 128. 32 Quoted at Hussein (2010). 33 Asharq Al-Awsat (2010). 34 Kortam (2012). 35 NBI, Cooperative Framework Agreement, http://www.nilebasin.org/index.php/nbi/cooperativeframework-agreement (accessed 22 June 2019).

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Ethiopia in May 2011 to wait with the ratification of the Agreement until the formation of a new Egyptian parliament, which Ethiopia agreed to in the same month.36 In addition, the riparian states agreed to hold an extraordinary meeting of the Nile Council of Ministers to discuss the legal and institutional implications of the entry into force of the CFA. After repeated postponements, the meeting was finally organized for 27 January 2012 in Nairobi37; however, the ministers of Egypt and Sudan did not attend. Therefore, the ministers from the six countries of the African Great Lakes instead held their meeting of the Nile Equatorial Lakes Council of Ministers under the Nile Equatorial Lakes Subsidiary Action Program of the NBI, and agreed to upgrade Ethiopia from observer status to full member. Thus, the six countries that signed the CFA have created in the Council of Ministers of the East African Lakes an institutional framework for cooperation and joint decision-making, albeit a temporary one. They stated that they would proceed with the ratification of the Agreement and, if it came into force, would establish the Nile Basin Commission.38 Meanwhile, South Sudan has also voiced support for the CFA. In March 2013, Minister for Irrigation and Water Resources of South Sudan Paul Mayom Akech stated: “We have joined the NBI and are already a long way to joining the Cooperative Framework Agreement, being an entity within which all the Nile Basin countries come together and discuss how best they could utilize the water resource.”39 Sudan resumed its cooperation in the meantime, after having voluntarily suspended its participation in the NBI for two years due to the conflict over the Agreement. At their meeting in Khartoum in June 2014, the Nile Council of Ministers urged Egypt to also return to a full participation in the Initiative.40 Egypt has not followed suit, but President Abd al-Fattah al-Sisi attended the Nile Basin States Summit in Uganda in June 2017, reaffirming Egypt’s commitment to cooperate and its continued desire to address proposals for a revision of the Agreement.41

36 Reuters Africa (2011). The Ethiopian Prime Minister, Meles Zenawi, thanked the Egyptian Prime Minister, Essam Sharaf, during his first visit to Cairo since the Egyptian uprising in September, “for helping to open a new chapter of relations between Egypt and Ethiopia”. Zenawi confirmed that Ethiopia had postponed the submission of the Agreement for ratification “so that the new Egypt can study it carefully”, and it would wait for Egypt’s decision regarding the Agreement. Al Jazeera (2011). 37 Salman (2013), p. 25. 38 Ibid., pp. 26–27. 39 Quoted at Amos (2013). 40 NBI (2014), p. 3. 41 See State Information Service (2018).

8.2 Treaty Provisions

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Treaty Provisions

The CFA incorporates substantive and procedural principles of international water law and establishes a permanent institutional framework replacing the NBI. It determines the criteria for an equitable and reasonable utilization of the Nile, but it does not stipulate concrete figures for water allocation. The obvious basis for the drafting of the Agreement was the 1997 UN Watercourses Convention, from which many provisions, including those on the two core water allocation principles, were adopted verbatim. This is remarkable given that the majority of the Nile riparian states did not vote in favor of the Watercourses Convention in the United Nations General Assembly. The Agreement is divided into six parts: Part I, General Principles (Article 3); Part II, Rights and Obligations (Articles 4–14); Part III, Institutional Structure (Articles 15–31); Part IV, Subsidiary Institutions (Articles 32–33); Part V, Miscellaneous Provisions (Articles 34–35); and Part VI, Final Clauses (Articles 36–44). It also contains two appendices, one on a fact-finding commission and one, as previously mentioned, constituting an attachment to Article 14(b) on water security.

8.2.1

Scope

The scope of the Agreement is defined in its Article 1: The present Framework applies to the use, development, protection, conservation and management of the Nile River Basin and its resources and establishes an institutional mechanism for cooperation among the Nile Basin States.

The “Nile River Basin” is defined in Article 2(a) as “the geographical area determined by the watershed limits of the Nile River System of waters”. This definition is based on the drainage basin approach, which has also been adopted by the Helsinki Rules. Thus, the “Nile River Basin” includes not only the actual water, but also other natural resources of the river42 as well as the land area over which the basin spreads. However, Article 2(a) specifies that the term Nile River Basin is only used “where there is reference to environmental protection, conservation or development”. In contrast, “where there is reference to utilization of water” in the Agreement, the narrower term “Nile River system” applies according to Article 2(b), which defines that term as “the Nile River and the surface waters and groundwaters which are related to the Nile River”. Accordingly, both surface and groundwater are included in the scope of the Agreement with regard to water use, provided that they are related to the Nile River itself. Importantly, this definition of the scope only covers blue

42

Burchi (2011), p. 221.

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water,43 namely the surface and groundwater runoff. Conversely, it does not include green water,44 that is, rainwater directly used and evaporated by non-irrigated agriculture, pastures and forests in the basin area. The definition of a river system in the CFA is drawn from neither the UN Watercourses Convention nor the Helsinki Rules. Article 1 does not determine what uses fall within the scope of the Agreement, thereby covering all uses including those for navigational purposes. Unlike the UN Watercourses Convention,45 the CFA does not explicitly exclude navigational uses from its scope of application. However, the text relates in substance to non-navigational uses only.

8.2.2

General Principles

Part I of the Agreement sets out 15 general principles for the protection, use, conservation, and development of the Nile River Basin and the Nile River System (Article 3): cooperation; sustainable development; subsidiarity; equitable and reasonable utilization; prevention of the causing of significant harm; the right of Nile Basin states to use water within their territories; protection and conservation of the Nile Basin and its ecosystems; information concerning planned measures; community of interest of all Nile Basin states; exchange of data and information; environmental impact assessment and audits; peaceful resolution of disputes; water as a finite and vulnerable resource; the recognition of the social and economic value of water; and water security. These principles are in substance all generally recognized in international water law. They partly overlap, and not all listed principles are defined in the Agreement or specified for their implementation. The ongoing aspirations of the Nile riparian states to forge close and comprehensive cooperation are reflected in the Agreement. The principle of cooperation is the first of the 15 principles listed to guide the Nile Basin states in their use of their shared watercourse. The Agreement states that Nile riparian states are to cooperate on the basis of “sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection and conservation of the Nile River Basin and to promote joint efforts to achieve social and economic development.”46 This wording was adopted from Article 8, paragraph 1 of the UN Watercourses Convention.

43

For a definition of blue water, see FAO Aquastat, Glossary, http://www.fao.org/nr/water/aquastat/ data/glossary/search.html (accessed 28 June 2019). 44 For a definition of green water, see ibid. 45 See Art. 1, paras. 1 and 2 UN Watercourses Convention. 46 Art. 3, para. 1 CFA.

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Community of Interest

Noteworthy is the inclusion of a “principle of the community of interest”, even if this is not defined in the Agreement. As discussed earlier, the assumption of a community of interest of all riparian states sharing a transboundary watercourse is considered to be indicative of the development of the law and state practice with regard to international watercourses.47 As early as 1929, the PCIJ described the community of interest of riparian states as the basis of a common right to the use of the whole watercourse for navigation.48 In 1997, the ICJ, in its decision in the GabčíkovoNagymaros Project case, recognized the community of interest for non-navigational uses also.49 The recognition of a community of interest reinforces the impression that Nile riparian states explicitly seek to put behind them their past history of unilaterally pursuing national interests. With this commitment, the opposing approaches to usage rights as advanced by Ethiopia and Egypt-Sudan during the twentieth century, namely the theories of absolute territorial sovereignty and of absolute territorial integrity respectively, should be discarded as they are conceptually incompatible with a community-of-interest approach.

8.2.4

Principle of Equitable and Reasonable Utilization and No-Harm Rule

The provisions on the principle of equitable and reasonable utilization and the no-harm rule were adopted almost verbatim from the UN Watercourses Convention.

8.2.4.1

Principle of Equitable and Reasonable Utilization

Article 4, paragraph 1, sentences 1 and 2 of the CFA lay down the principle of equitable and reasonable utilization in accordance with Article 5, paragraph 1 of the UN Watercourses Convention: Nile Basin States shall in their respective territories utilize the water resources of the Nile River System in an equitable and reasonable manner. In particular, those water resources shall be used and developed by Nile Basin States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the Basin States concerned, consistent with adequate protection of those water resources.

47

McCaffrey (2007), p. 147. PCIJ, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 10 September 1929, PCIJ Series A.-No. 23, p. 27. 49 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 56, para. 85. 48

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A third sentence was added which is almost identical to a passage from Article IV of the Helsinki Rules:50 “Each basin state is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River System.” This addition expressly formulates a right of all riparian states to an equitable and reasonable share of the positive uses of the Nile. In terms of content, the addition adds nothing to the principle of equitable and reasonable utilization, as the very interpretation of this principle already includes the right of every riparian state to an equitable and reasonable share of the use of an international watercourse. Article 4, paragraph 2 of the CFA determines the following: In ensuring that their utilization of Nile River System water resources is equitable and reasonable, Nile Basin States shall take into account all relevant factors and circumstances, including but not limited to the following: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the Basin States concerned; (c) The population dependent on the water resources in each Basin State; (d) The effects of the use or uses of the water resources in one Basin State on other Basin States; (e) Existing and potential uses of the water resources; (f) Conservation, protection, development and economy of use of the water resources and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use; (h) The contribution of each Basin State to the waters of the Nile River System; (i) The extent and proportion of the drainage area in the territory of each Basin State.

Paragraph 2 thus enumerates verbatim all factors contained in Article 6, paragraph 1 of the UN Watercourses Convention. Then it adds two factors: the contribution of each riparian state to the waters of the Nile River system, and the extent and proportions of the drainage area in the territory of each riparian state, which are contained in Article 4, paragraph 2(h) and (i), respectively. The first of these two factors privileges Ethiopia and, in general, the upstream states, the second factor particularly privileges Sudan.51 While these criteria were taken from Article V, paragraph 2(a) and (b) of the Helsinki Rules, the latter cited them as examples for the geographic factors and the hydrology of the basin respectively, whereas the CFA emphasizes them by listing them as independent criteria. In terms of content, both

50

ILA, Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference held at Helsinki 1966, p. 478, reproduced in Garretson et al. (1967), pp. 779–830. Art. IV of the Helsinki Rules determines: “Each Basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.” While the Helsinki Rules use the formulation “entitled [. . .] to a reasonable and equitable share” for the provision on the principle of equitable utilization, the UN Watercourses Convention uses in this place “utilize [. . .] in an equitable and reasonable manner”. However, both provisions on the principle of equitable utilization are interpreted as having the same meaning. 51 Ethiopia contributes 85–90% of the Nile’s total annual water flow measured at Aswan; almost 44% of the area of the Nile Basin is located on the territory of Sudan. See Chap. 9, Sect. 9.1.1.

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criteria are already contained in the geographical and hydrographic factors of Article 4, paragraph 2(a) of the Agreement. The separate enumeration of these criteria illustrates the flexibility of the principle of equitable and reasonable utilization, which allows riparian states to determine the factors relevant to the characteristics of their watercourse.52 The CFA—in line with the UN Watercourses Convention and unlike the Helsinki Rules53—does not give priority to existing uses over potential uses of the water resources, indeed there does not seem to be any hierarchy between the two.54 According to Article 4, paragraph 4 of the Agreement, in determining what is an equitable and reasonable use, all relevant factors are to be considered together and the respective weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. This provision has been taken word for word from Article 6, paragraph 3 of the UN Watercourses Convention. However, with the controversial reservation proposed by Egypt for Article 14(b) of the CFA, current uses would be granted absolute priority, contrary to the general abstract equality of uses. According to the version of Article 14(b) proposed by Egypt, Nile Basin states would agree “not to adversely affect the water security and current uses and rights of any other Nile Basin State”. Article 4, paragraph 5 contains an interesting provision that is not found in the UN Watercourses Convention: “Nile Basin States shall, in their respective territories, according to their national laws and regulations, keep the status of their water utilization under review in light of substantial changes in relevant factors and circumstances.” The inclusion of this provision can provide a mechanism to ensure an equitable use of the Nile’s water while also contributing to a more flexible implementation of equitable utilization on the ground.55 According to Article 4, paragraph 6, Nile Basin states are required to observe the rules and procedures established by the Nile Basin Commission for the implementation of equitable and reasonable utilization. The Agreement does not contain a provision on the relationship between different kinds of uses. Article 10, paragraph 1 of the UN Watercourses Convention, controversial among Nile riparian states during the negotiation of that convention,56 was not adopted in the Agreement. According to this article, no use of an international watercourse enjoys inherent priority over other uses unless such priority is otherwise agreed to or is customary. In principle, however, the abstract equality of uses already results from the formulation of Article 4, paragraph 2 of the Agreement. In addition, paragraph 4 expressly states that the weight to be attributed to each factor is to be determined by its importance in comparison with that of other relevant factors.

52

See Abseno (2013), p. 149. See Art. 6, para. 1(e) UN Watercourses Convention and Art. V, para. 2(d) Helsinki Rules. 54 See Le Floch (2010), p. 490. 55 See also Abseno (2009), p. 90. 56 See Chap. 4, Sect. 4.1.1.2, under “General principles”. 53

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Obligation Not to Cause Significant Harm

Article 5, paragraph 1 of the CFA states: Nile Basin States shall, in utilizing Nile River System water resources in their territories, take all appropriate measures to prevent the causing of significant harm to other Basin States.

According to the classification of this obligation under the UN Watercourses Convention, it is designed as a due-diligence obligation. Pursuant to Article 5, paragraph 2, a Nile Basin state whose use nevertheless causes significant harm to another basin state must take all appropriate measures to eliminate or mitigate such harm. The CFA virtually adopts verbatim the provision of Article 7 of the UN Watercourses Convention. Accordingly, it can be assumed that the interpretation of these rules should also correspond to their interpretation in the context of the Watercourses Convention. The proposal by Egypt for Article 14(b) of the Agreement57 is partly in contradiction with this general formulation of the no-harm rule. According to the proposed formulation, the Nile riparian states would agree “not to adversely affect the water security and current uses and rights of any other Nile Basin State” (emphasis added). Notwithstanding the fact that the relationship between this proposed provision and Article 5 of the Agreement would remain unclear, there would be no threshold for the impairment of current uses. This is in line with the views of Egyptian commentators that there should be no threshold for the severity of harm, but that any harm is to be prevented under the no-harm rule.58 While the significance of harm is generally acknowledged today as the applicable threshold for the causing of harm to constitute a contravention of international law,59 it is possible for states to agree on a customized threshold by means of a treaty.

8.2.4.3

Relationship Between the Principle of Equitable and Reasonable Utilization and the No-Harm Rule

Thus, the CFA adopts the provisions on these two core principles, in content as well as with regard to their sequence, from the UN Watercourses Convention. Article 7, paragraph 2 of the Convention, from which a general priority of the principle of equitable and reasonable utilization is derived, is reproduced almost verbatim in Article 5, paragraph 2 of the Agreement: Where significant harm nevertheless is caused to another Nile Basin State, the State, whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of Article 4 above, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

57

On this Egyptian proposal, see Sects. 8.2.8 and 8.2.9, below. See Maḥfūẓ Muḥammad (2009), p. 480, citing further references. 59 See e.g. McCaffrey (2007), p. 435; Nanda and Pring (2013), pp. 314–315. 58

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In accordance with the understanding of Article 7, paragraph 2 of the UN Watercourses Convention, this formulation should be understood to mean that a Nile Basin state can be obliged to tolerate even significant harm, as such harm is merely one of several factors that must be included in the weighing process in the context of equitable utilization. It can therefore be assumed that the Nile riparian states have adopted an approach giving priority to the principle of equitable and reasonable utilization, as enshrined in the UN Watercourses Convention. This stance was controversial among Nile riparian states during the negotiations on the final version of the UN Watercourses Convention in the General Assembly. Had the Nile riparian states, in the context of the CFA, wished to deviate from the assumption that the principle of equitable use prevailed, they could have included a corresponding provision in the Agreement. Even Article 3 of the UN Watercourses Convention allows deviations from its provisions so that the relationship between the principle of equitable utilization and the no-harm rule can be customized by mutual agreement. The Nile’s riparian states did not exercise this option and the CFA thus appears to resolve their fundamental controversy with regard to the two principles in favor of a priority of the principle of equitable and reasonable utilization over the no-harm rule.

8.2.5

Benefit Sharing

Interestingly, the Agreement goes beyond requiring an equitable use and development of the Nile “with a view to attaining optimal and sustainable utilization thereof and benefits therefrom”.60 The Agreement does this by explicitly providing that, where appropriate, the council of the Nile Basin Commission decides upon “formulas for cost and benefit sharing by Nile Basin States in respect of particular joint projects within the Nile River Basin”.61 The Agreement hereby seizes upon the concept of benefit sharing and lays the initial foundation for operationalizing this concept, leaving it to the Council to develop more precise formulas for the actual implementation. The benefit-sharing concept62 assumes that for most transboundary watercourses, potential benefits from the river’s use can often only be maximized by basin-wide planning and coordination among the riparian states, rather than by such states acting individually. Therefore, it promotes a focus on sharing the benefits that can be gained from the use of the watercourse as a whole, broadly defined to include

60

Art. 4, para. 1, second sentence of the CFA. Art. 24, para. 16 of the CFA. 62 Generally on the concept of benefit sharing, see Sadoff and Grey (2002); Boisson de Chazournes and Leb (2016), pp. 356–383. See also Hensengerth et al. (2012), who focus on exploring incentive structures and mechanisms specific for sharing the benefits of dams on shared rivers. 61

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environmental, economic, social, and political gains,63 rather than simply allocating the water resources as such. Ultimately, this approach has been adopted based on the belief that it can create win-win situations in which each riparian state is able to derive higher benefits from cooperation than those achievable by unilateral measures.64 While benefit sharing is not directly required by international water law, it is however anchored in the principle of equitable and reasonable utilization, which requires riparian states to use and develop a shared watercourse “with a view to attaining optimal and sustainable utilization thereof and benefits therefrom”.65 According to the ILC’s commentary, this implies attaining “maximum possible benefits for all watercourse States”.66 To date, there are very few watercourse agreements that include benefit sharing arrangements,67 and only a small number of cases where riparian states of a shared watercourse have actually developed formulas for benefit sharing. Interestingly, one such example can be found within the region, namely the 2003 Convention on the Sustainable Management of Lake Tanganyika between Burundi, DR Congo, Tanzania, and Zambia.68 This treaty includes “the principle of fair and equitable benefit sharing” as one of the general principles for the development of the lake,69 although it does not contain provisions on how to concretize this principle for the implementation.

63 See chiefly Sadoff and Grey (2002), who describe four types of cooperative benefits: ecosystem management, economic growth, political stability, and regional integration. 64 As such, the approach is conceptually akin to the community of interest theory in that both approaches rely on considering a transboundary watercourse as a single economic and geographical unit whose waters can only be optimally used by coordination of the riparian states based on a basin-wide perspective. 65 See the second sentence of Art. 5, para. 1 of the UN Watercourses Convention. See also Boisson de Chazournes and Leb (2016), p. 363. 66 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, p. 97, para. 3. 67 An example of a treaty that sets up a detailed benefit-sharing arrangement is the 1961 Columbia River Treaty. In this treaty, Canada and the United States agreed to a series of dam and reservoir construction projects for hydroelectric power generation and flood control, and then allocated the power benefits and the estimated value of the flood damage reduction between each other. See the Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin (opened for signature 17 January 1961, entered into force 16 September 1964), UNTS, Vol. 542, p. 244. Another example for a treaty concerning cost and benefit sharing through infrastructure development is the convention between Mali, Mauritania, and Senegal concerning joint works on the Senegal River (Convention conclue entre le Mali, la Mauritanie et le Sénégal relative au statut juridique des ouvrages communs) (signed 21 December 1978, entered into force 6 May 2005), available at https://www.ecolex.org (accessed 22 June 2019). For a survey of watercourse treaties which provide for benefit sharing, see Boisson de Chazournes and Leb (2016), pp. 369–374. 68 Convention on the Sustainable Management of Lake Tanganyika (signed 12 June 2003, entered into force 23 August 2005), UNTS, Vol. 2338, p. 43. 69 Ibid., Art. 5, para. 2(f).

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The provision for benefit sharing in the CFA, coupled with the inclusion of the community of interest approach, represent the most beneficial formula for cooperation among the Nile states, requiring and promoting planning and collaboration at the basin-wide level. The Nile Basin offers various opportunities for cost and benefit sharing between the riparian states, for example in the form of compensation for undertaking upstream measures such as constructing water storage infrastructure to increase the water volume, or in the form of hydroelectric power production and power trading.70 Concrete opportunities would need to be identified and benefitsharing principles and mechanisms clearly defined and agreed upon by the riparian states, as has already been initiated within the NBI.

8.2.6

Environmental Protection

The Agreement also addresses issues of environmental protection. It postulates in Article 3, paragraph 2 that sustainable development is one of the guiding principles for the use of the Nile. This guiding principle has been included in numerous watercourse agreements since the 1992 United Nations Conference on Environment and Development in Rio de Janeiro,71 as well as in the UN Watercourses Convention which expressly provides in Article 5 for “sustainable utilization”. Furthermore, the Agreement demonstrates the will to promote integrated basin management. Under Article 3, paragraph 13, Nile water is to be managed in an integrated and holistic manner that links social and economic development with the protection and conservation of natural ecosystems. This provision anchors the concept of integrated water resources management in the Agreement. This is in line with recent treaty practice to increasingly include environmental aspects, and corresponds to the most advanced regulations in this area.72 Even the UN Watercourses Convention did not explicitly incorporate this approach, although it refers in

70

For a discussion of potential benefits and costs of the Grand Ethiopian Renaissance Dam to Eastern Nile countries, see Tawfik and Dombrowsky (2017), pp. 116–124. 71 For example, in Art. 2, paras. 1 and 5 Convention on Cooperation for the Protection and Sustainable Use of the River Danube, (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19; Arts. 1 and 2 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864; Art. 3, para. 1 Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31; Art. 2 Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), p. 321. See also Wolfrum and Kirschner (2013), pp. 10–11. 72 See for example at the Community level of the EU, Directive 2000/60/EG of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive), OJ L 327, 22 December 2000, p. 1. See generally Wolfrum and Kirschner (2013), p. 12.

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its preamble to the “principles and recommendations adopted by the United Nations Conference on Environment and Development of 1992 in the Rio Declaration and Agenda 21”. Furthermore, Nile riparian states agree to undertake all appropriate measures for the protection and conservation of the Nile River Basin and its ecosystems, Article 3, paragraph 7. This principle is specified in Article 6, which consolidates the provisions of Articles 20 and 22 of the UN Watercourses Convention, but only to determine general protection goals: 1. Nile Basin States shall take all appropriate measures, individually and, where appropriate, jointly, to protect, conserve and, where necessary, rehabilitate the Nile River Basin and its ecosystems, in particular, by: (a) protecting and improving water quality within the Nile River Basin; (b) preventing the introduction of species, alien or new, into the Nile River System which may have effects detrimental to the ecosystems of the Nile River Basin; (c) protecting and conserving biological diversity within the Nile River Basin; (d) protecting and conserving wetlands within the Nile River Basin; and (e) restoring and rehabilitating the degraded natural resource base. 2. Nile Basin States shall, through the Nile River Basin Commission, take steps to harmonize their policies in relation to the provisions of this article.

In view of the importance of the swamp areas of the Sudd for the total water balance of the Nile River, it is noteworthy that the parties agree in the context of environmental protection measures to protect and conserve the “wetlands within the Nile River Basin”, Article 6, paragraph 1(d).73 This stands in contrast to the 1959 Nile Waters Agreement, which requires Sudan to drain large parts of the Sudd wetlands so as to increase the water volume of the Nile that reaches Aswan.74 The CFA furthermore provides for environmental impact assessments and audits in Article 9, which are among the most important instruments for the implementation of environmental protection objectives. Article 9 requires that any planned measures that may have significant adverse environmental impacts must undergo environmental impact assessments and audits. In that regard, the Agreement goes beyond the UN Watercourses Convention and adopts the most recent developments in international water law.75 With these provisions, the CFA places an emphasis on environmental protection, unlike the previous Nile water treaties, which merely aimed to maximize water usage.76 Overall, however, the focus when drafting the Agreement was more on the economic use of the Nile than on issues of environmental protection and water quality. The Agreement does not contain detailed rules on environmental protection;

73

Burchi (2011), pp. 220–221. See Art. 3, para. 1, first sentence of the 1959 Nile Waters Agreement. 75 On the customary nature of the obligation to conduct an environmental impact assessment, see Chap. 3, Sect. 3.2.2. 76 Similarly Katz (2013), p. 1272. 74

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the Nile states did not decide to adopt the relevant and detailed provisions, namely Articles 20 to 26, of the UN Watercourses Convention. This corresponds to traditional state practice, which is primarily concerned with regulating the economic use of the resource in international watercourse agreements, and regards environmental protection as a secondary issue.77 However, it is not in line with the current developmental trend of international water law and modern treaty practice to increasingly include provisions on environmental protection. Today, the question of how water resources can be preserved for sustainable long-term use is increasingly coming to the fore. Also, the environmental provisions of the UN Watercourses Convention were not controversial among the Nile riparian states during its negotiation. In view of the growing environmental problems throughout the Nile Basin,78 including stronger environmental protection within the Agreement is both desirable and increasingly necessary.

8.2.7

Planned Measures

The Agreement also does not contain detailed provisions on planned measures. It merely provides in Article 8 for the basin states to exchange information concerning planned measures through the Nile River Basin Commission in accordance with the rules and procedures to be established by that commission: 1. Nile Basin States agree to exchange information through the Nile River Basin Commission. 2. Nile Basin States shall observe the rules and procedures established by the Nile River Basin Commission for exchanging information concerning planned measures.

This provision is complemented by Article 9, which requires an environmental impact assessment and audits for planned measures. However, the Agreement does not contain explicit provisions on consultations and the notification of planned measures. The detailed provisions of Articles 12 to 19 of the UN Watercourses Convention, which lay down minimum requirements for notification and procedural obligations of the states concerned, were not adopted. Instead, it appears that Article 8 of the Agreement on the exchange of information between the riparian states implicitly requires the Nile Basin Commission to fill this regulatory gap.79 The absence of provisions on the notification of planned measures in the Agreement itself is likely to be due to the fact that the question of notification was one of the most controversial issues between the Nile riparian states during the

77

See generally Wolfrum (1990), p. 321. The Nile is exposed to an increasing degradation of water quality due to pollution and other negative environmental effects, see ‘Alī Ṭāhā (2005), p. 121; Wiebe (2001), pp. 736–742. 79 Burchi (2011), p. 220. 78

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negotiations of the Agreement. Ethiopia, in particular, opposed the inclusion of a notification obligation, as it did previously in the negotiations on the UN Watercourses Convention.80 A clear procedure for the notification of planned measures is, however, indispensable for effective cooperation between watercourse states, and the Nile is no exception. It allows states on which planned measures could have significant adverse effects to raise their concerns early and in an orderly manner. Even before planned measures are initiated, the riparian states must exchange all relevant technical data and information and coordinate with each other. The UN Watercourses Convention stipulates that the implementation of planned measures is subject to the consent of the notified states during the pre-determined period for reply to the notification.81 In this way, the notification procedure protects the interests of potentially affected co-riparian states and helps to prevent the causing of significant harm, while forestalling or minimizing disputes that could arise from the measure. The controversy over the construction of the Grand Ethiopian Renaissance Dam on the Blue Nile exemplifies the political consequences of the absence of a notification procedure. Because of its importance in maintaining cooperation among all riparian states of a watercourse, the obligation to notify is today generally recognized as one of the core principles of international water law.82 In view of its importance, it is a serious shortcoming not to enshrine the notification obligation and prescribe its procedure in the Agreement itself, which as it stands leaves such regulation to the future Nile Basin Commission. A noteworthy positive feature of the Agreement is the public participation during the planning and implementation process of projects foreseen within the context of the principle of subsidiarity.83 Article 3, paragraph 1 establishes as a general principle that the “development and protection of the Nile River Basin water resources is planned and implemented at the lowest appropriate level”. Article 10(a) expands upon this principle as follows: In planning and implementing a project pursuant to the principle of subsidiarity set forth in Article 3(3), Nile Basin States shall [. . .] allow all those within a State who will or may be affected by the project in that State to participate in an appropriate way in the planning and implementation process.

The inclusion of public participation is in line with the growing trend in other areas of international environmental law to require public participation in decisionmaking processes at both the international and national level.84 However, the formalized rules of international water law have been rather slow to embrace this

80

On the Ethiopian reservation against the inclusion of the notification rules in the UN Watercourses Convention, see Chap. 4, Sect. 4.1.1.2, under “Planned measures”. 81 Art. 14(b) UN Watercourses Convention. 82 See principally McCaffrey (2007), p. 415; Baker Röben (2000), pp. 293–294. 83 Burchi (2011), p. 221. 84 See Chap. 4, Sect. 4.1.1.2, under “Harmful circumstances, emergency situations, other provisions and final clauses”.

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thus far. The Helsinki Rules of 1966 do not contain provisions on public participation. Even some three decades later, the UN Watercourses Convention contains only one provision referring to natural and juridical persons, namely Article 32 on the non-discrimination of persons claiming compensation. Only the more recent Berlin Rules of 2004 have adopted an obligation of riparian states to provide for public participation.85 At the Community level of the EU, public participation is required by the Water Framework Directive.86 Thus, public participation has only slowly been taken up in the field, and as such, only a few watercourse agreements currently provide for it.87 In terms of development and environmental policy, public participation has become increasingly important for the sustainable use of water resources, at least since Agenda 21 was adopted in 1992.88 The involvement of the public in decision-making is important because international environmental law ultimately has to impact on the behavior of individuals and businesses.89 Securing the involvement of all stakeholders increases the buy-in of those who will, in the end, be affected by the decisions. The question emerges whether the transboundary public participation provided for in the CFA can be considered as replacing a notification procedure. This would be conceivable as transboundary public participations require that all relevant parties be informed, including the public authorities of potentially affected riparian states. Art. 18, para. 1 of the Berlin Rules determines: “In the management of waters, States shall assure that persons [. . .] likely to be affected by water management decisions are able to participate, directly or indirectly, in processes by which those decisions are made and have a reasonable opportunity to express their views on programs, plans, projects, or activities relating to waters.” ILA, Report of the Seventy-First Conference held in Berlin 2004, p. 334. However, the ILA Berlin Rules are controversial—even within the ILA itself—and have not yet achieved an importance comparable to the Helsinki Rules. See also Nanda and Pring (2013), p. 305; Caponera (2007), p. 201. 86 Art. 14 “Public information and consultation” of Directive 2000/60/EG of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive), OJ L 327, 22 December 2000, p. 1. 87 For example, the Convention on Cooperation for the Protection and Sustainable Use of the Danube River of 1994 and the Convention on the Protection of the Rhine of 1999. Pursuant to Art. 14 of the Convention on Cooperation for the Protection and Sustainable Use of the Danube River, contracting states are to ensure the access of natural and legal persons to watercourse-related information; Art. 18, para. 6 provides for cooperation between the Danube Commission and legal entities involved in water management and water protection. See Convention on Cooperation for the Protection and Sustainable Use of the River Danube, (signed 29 June 1994, entered into force 22 October 1998), OJ L 342, 12 December 1997, p. 19. Similarly, Art. 14, paras. 2–5 of the Convention on the Protection of the Rhine provide for the cooperation and exchange of information between the Rhine Commission and non-governmental organizations. See Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. 88 See Chap. 4, Sect. 4.1.1.2, under “Harmful circumstances, emergency situations, other provisions, and final clauses”. 89 On the importance of public participation in international environmental law in general, see Beyerlin and Marauhn (2011), p. 445. For a detailed discussion of the development of international norms concerning public participation and its rationale, see Ebbesson (2007), pp. 681–703. 85

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Those authorities thus have the opportunity to become involved in an appropriate manner in the planning and implementation of potentially adverse measures. However, the purpose of notification, namely intergovernmental information and coordination guaranteed through a formalized procedure, cannot be achieved by transboundary public participation. Public participation, as an aspect of good governance, focuses on the relationship between the state and the citizen; the main purpose of such participation is to provide transparency in decision-making and administration. Thus, notification and public participation are conceptually different from each other. Furthermore, the notification obligation includes not only the obligation to consult but also the obligation to conduct a transboundary environmental impact assessment so that the planning state can assess whether there could be adverse effects on other states. The environmental impact assessment requires for its part, among other things, the participation of the public. In this context, the latter in essence contributes to the fulfillment of one aspect of the broader range of duties required by the notification obligation; it cannot be a replacement for the other procedural requirements of that obligation.

8.2.8

Water Security

The Agreement determines water security as one of the general principles for the use and management of the Nile. The concept of water security was introduced in the Agreement with the aim to facilitate, by way of its normative breadth, the signing of the Agreement without prior consensus on the treatment of existing Nile treaties.90 This drafting technique, that is, including broad or ambiguous provisions concerning controversial issues in agreements, can allow the negotiating parties to adopt an agreement without consensus on those controversial issues, and to leave finding a solution for a later time. However, the inclusion of this concept of water security has not led to a resolution of the differences between the Nile riparian states. Water security is defined in Article 2(f) as “the right of all Nile Basin States to reliable access to and use of the Nile River System for health, agriculture, livelihoods, production and environment”. Article 14 is intended to specify the legal significance of the principle of water security. But in the end, the formulation of Article 14(b) became the most controversial issue between the negotiating parties in the entire Agreement.91 The Nile Council of Ministers adopted the following version of the text despite votes against by Egypt and Sudan: Having due regard to the provisions of Articles 4 and 5, Nile Basin States recognize the vital importance of water security to each of them. The States also recognize that the cooperation, management and development of waters of the Nile River System will facilitate achievement

90 Mekonnen (2010), p. 430. Generally on the amicable inclusion of ambiguous provisions in agreements on the use of shared water resources, see Fischhendler (2008), pp. 91–109. 91 Ayebare (2010), p. 3; Tafesse (2011), pp. 76–77.

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of water security and other benefits. Nile Basin States therefore agree, in a spirit of cooperation: (a) to work together to ensure that all states achieve and sustain water security; (b)
. . .
the unresolved Article 14(b) is attached to this agreement and it will be resolved by the Nile River Basin Commission within six months of its establishment [. . .].

The attachment concerning Article 14(b) states: At the end of the negotiations, no consensus was reached on Article 14(b) which reads as follows: “not to significantly affect the water security of any other Nile Basin State”. All countries agreed to this proposal except Egypt and Sudan. To this effect, Egypt proposed that Article 14(b) should be replaced by the following wording: “not to adversely affect the water security and current uses and rights of any other Nile Basin State.”

The concept of water security is not an established principle of international water law and is not mentioned in either the UN Watercourses Convention or the Helsinki Rules. It is also usually not found in multilateral or bilateral watercourse agreements,92 possibly because it is not so much a legal concept as a political and socioeconomic one.93 Thus far, none of the numerous definitions of water security proposed since the 1992 Rio Conference has been widely recognized, making interpretation of the term and determining its criteria difficult.94 At the core of all proposals for a definition is that it comprises at least access to sufficient drinking water and water for food production.95 As mentioned above, the CFA defines water security in Article 2(f) as the right of all Nile states to reliable access to and use of the Nile River System for health, agriculture, livelihoods, production, and environment.96 Hence, the concept of water security includes some of the principle of equitable utilization, which already includes a right to use the watercourse. It is not clear what additional legal significance should be assigned to the provision on water security in the context of the Agreement. While its purpose and regulatory content within the text remain unclear,

92

See also Le Floch (2010), p. 492. Water security is included as an objective in the national water legislation of some countries, for example in Art. 3(e) of the Australian Water Act 2007. 93 Salman (2013), p. 22; Ward and Roach (2012), pp. 51–101. 94 UNEP (2012), p. 114. Detailed discussion of possible definitions and core elements of water security at Magsig (2015), pp. 29–44. 95 See also Tarlock (2008), p. 716. See for example the definition of water security proposed by the UN-Water Task Force on Water Security: “The capacity of a population to safeguard sustainable access to adequate quantities of and acceptable quality water for sustaining livelihoods, human well-being, and socio-economic development, for ensuring protection against water-borne pollution and water-related disasters, and for preserving ecosystems in a climate of peace and political stability.” UN-Water (2013). This definition has since been adopted in the United Nations World Water Development Reports of 2015 and 2018. See UN-Water (2015), p. 8 and UN-Water (2018), p. 11. 96 On the importance of the water security concept and its relation to national security with regard to the Nile Basin from the viewpoint of Egyptian politics, see Kaška (2006), pp. 16–28.

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only the wording of Article 14(b) proposed by Egypt makes manifest an important independent meaning with reference to the protection of current uses and rights. This reinforces the assumption that the concept of water security in the formulation proposed by Egypt was primarily designed to introduce a protection of current uses and rights, or the status quo, into the Agreement. It is difficult to foresee how or even whether the principle of water security, as per the formulation adopted in the Agreement, would impact on the interpretation of the Agreement if that entered into force.97

8.2.9

Existing Treaties and Current Uses

Ultimately, no unanimous adoption of the Agreement was reached, because the Nile riparian states could not agree on how to treat existing treaties and current uses—as had earlier been the case, during the negotiations on the UN Watercourses Convention.98 This controversy ultimately centered on the quoted provision proposed by Egypt, now in the Annex to Article 14(b), which is also supported by Sudan. It is worth noting that, although both Egypt and Sudan support their respective positions by referring to the 1959 Nile Waters Agreement, their interests are not completely congruent. Sudan is more vocal on the rights aspect of the 1959 Agreement, under which it enjoys an allocation of 18.5 billion cubic meters annually, considerably more than the 13.3 billion cubic meters99 it currently uses each year. Egypt, on the other hand, emphasizes the uses angle, since it already uses more than its allocated 55.5 billion cubic meters of Nile water.100 From the Egyptian and Sudanese viewpoint, the proposed clause would be the only acceptable substitute for an explicit recognition of their “acquired and historical rights” to the Nile’s water. Its purpose is to ensure that the signing of the CFA by Egypt and Sudan cannot be understood as a renunciation of the 1929 and 1959 Nile agreements.101 The upstream states reject the proposed clause because, in their view, it would be equivalent to a recognition of the Nile treaties,102 which they decline to be bound by. The clause proposed by Egypt would indeed be tantamount to a recognition in the CFA of the status quo of current uses. With the addition in Article 14(b), the currently used amounts of water would be guaranteed. Such a reservation of current 97

Here, the working protocols on the drafting and negotiation of the Agreement or a commentary on the Agreement could help, but as noted earlier, these are not available to the public. 98 See Chap. 4, Sect. 4.1.1.2. 99 NBI (2016), Chap. 7, Irrigation areas in Sudan, http://atlas.nilebasin.org/treatise/irrigation-areasin-sudan/ (accessed 20 July 2019). 100 See also Salman (2013), p. 27, note 1. On the under-utilization by Sudan of the water quota agreed to in the 1959 Nile Waters Agreement and the reasons for it, see ‘Alī Ṭāhā (2005), pp. 82–84; Kliot (1994), p. 59. 101 ‘Abd al-‘Āl (2010), p. 123. 102 Ayebare (2010), p. 4.

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uses would not be in line with the principle of equitable and reasonable utilization, under which existing uses are only one of several relevant factors to be taken into account, and do not enjoy any inherent priority. Rather, Article 14(b), as proposed by Egypt, would in essence enshrine the pure no-harm rule with regard to current uses and would as such assign priority to that rule over the principle of equitable utilization. Furthermore, in that scenario the question would arise as to whether the 1959 Nile Waters Agreement would establish “current rights” of Egypt and Sudan within the meaning of Article 14(b), so that those rights must not be affected. As noted earlier, both countries still advocate that the 1929 and 1959 Nile treaties are binding on all Nile Basin states under international law.103 Thus, the inclusion of Article 14(b) as worded by Egypt could indeed be interpreted as a recognition of those treaties.104 This would mean that the upstream states, who are not bound by these treaties, would henceforth undertake to honor the Egyptian and Sudanese water-allocation regime determined by the treaties. On the other hand, the controversy over the validity and binding effect of these two Nile treaties for the upstream states could also continue in the context of the CFA, namely in the question of whether these treaties do in fact establish “current rights” within the meaning of Article 14(b). The consequence of the clause proposed by Egypt would be to reserve the currently used quantities of water as minimum shares for Egypt and Sudan, and to limit the application of the principle of equitable utilization to the remaining amount of water. As the Nile river flow reaching Sudan and Egypt is currently being almost completely used, the CFA would thus essentially only allocate an additional amount of water that could be generated by development measures in the future. The Egyptian premise to negotiate only over additional amounts of water, or to apply the CFA and the principle of equitable and reasonable utilization only to an additional and currently non-existent flow of water, continues Egypt’s traditional negotiating position and the logic of the 1959 Nile Waters Agreement. Even when negotiating the 1959 Agreement, Egypt refused any compromise on “its acquired rights”105; the water quota determined in the 1929 Nile Agreement was accordingly recognized as acquired rights and only newly available water was allocated based on a new allocation formula between Egypt and Sudan. In the same line, inclusion of Article 14(b) as worded by Egypt and Sudan into the CFA would embed a prior appropriation approach. States are in principle free to contractually agree on guaranteeing existing uses. There are treaties between riparian states of other watercourses that expressly guarantee the preservation of existing uses or acquired rights.106 However, such treaties overwhelmingly date back to the early or mid-twentieth century, just like the Nile agreements of 1929 and 1959. The advent of the Helsinki Rules in 1966 saw

103

See e.g. State Information Service (2010). See also Ayebare (2010), p. 4. Similarly Salman (2013), p. 22. 105 On the 1959 Nile Agreement negotiations, see ‘Alī Ṭāhā (2005), pp. 57–62. 106 See the discussion at Lipper (1967), p. 51, with examples at p. 83, note 162. 104

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existing uses become merely one factor that is to be weighed against other factors for the allocation of uses, and that does not enjoy absolute protection.107 The Helsinki Rules explicitly determine that existing situations may require modification or termination in order to facilitate new and competing demands on international watercourses.108 This more inclusive approach has also been embraced by the UN Watercourses Convention which lists “existing and potential uses” as relevant factors on an equal footing.109 In contrast to Egypt’s and Sudan’s preferred approach, the allocation of water uses under the CFA in its current form would be entirely governed by the principle of equitable and reasonable utilization. In applying this principle, current uses would, according to Article 4, paragraph 2(e) of the Agreement, represent only one of the factors to be taken into account when determining an equitable use. Competing new uses or other factors may require a change or even termination of existing uses. Likewise, the “current rights” or existing treaties would not be protected, but rather replaced by the later CFA for the Nile. Thus, the 55.5 billion cubic meters or 18.5 billion cubic meters stipulated in the 1959 Nile Agreement would not be guaranteed as minimum shares for Egypt and Sudan, respectively. This explains why Egypt and Sudan refuse to sign the CFA without the proposed clause. Accordingly, behind the disagreement over the formulation of Article 14(b) stands the controversy over maintaining the status quo of water allocation and the treatment of the existing Nile agreements of 1929 and 1959. The proposal of Egypt and Sudan with regard to Article 14(b) is a clear indication that the two countries are not willing to reallocate any existing water uses and insist on maintaining their current water allocation. Consequently, the purpose of enhanced cooperation for them seems primarily to engage in basin-wide efforts to increase the volume of Nile water flow to meet the needs of the upstream states.

8.2.10 Institutional Structure Part III of the CFA contains provisions on the institutional structure for cooperation on the Nile. The Agreement provides for the establishment of a joint river commission, the Nile River Basin Commission. It determines its legal status, objectives and territorial competence, the composition of the Commission and its organs, functions and powers, as well as decision-making procedures and financing. The institutional structure of the NBI has been generally adopted as it was envisaged prior to the drafting of the Agreement.110 The Nile Basin Commission is ultimately intended to be a permanent replacement for the temporary NBI.

107

See Art. V, para. 2(d) Helsinki Rules. See Art. VIII, para. 1 Helsinki Rules. 109 Art. 6, para. 1(e) UN Watercourses Convention. 110 See Salman (2013), p. 20. See Chap. 7, Sect. 7.7.1. 108

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Pursuant to Articles 15 and 19 of the Agreement, the Commission has been designed by the riparian states as an intergovernmental organization with an international legal personality. It is intended to serve as an institutional framework for cooperation among the Nile Basin states in the use, development, protection, conservation, and management of the Nile Basin. According to Article 16, the Commission is to promote and facilitate the implementation of the agreed principles, rights, and obligations under the Agreement, and facilitate closer cooperation among the states in social, economic, and cultural fields. The Nile Basin Commission has an institutional structure that is common to other African river commissions.111 According to Article 17, the Commission is comprised of several organs, namely the Conference of Heads of State and Government, the Council of Ministers, the Technical Advisory Committee, Sectoral Advisory Committees, and a Secretariat. Under Article 20, the Conference of Heads of State and Government is composed of the heads of state and government of the Nile Basin states, and establishes its own rules and procedures. Article 22 provides details regarding the Council of Ministers, which is composed of the various riparian states’ ministers responsible for water affairs, although other ministers may be added depending on the agenda of the Commission. This council convenes once a year in regular session. The Technical Advisory Committee established in Article 25, paragraph 1, is composed of two members from each Nile Basin state, and, according to paragraph 3 of Article 25, convenes two regular meetings per year. Sectoral Advisory Committees may be established by the Council of Ministers as it deems appropriate, according to Article 27, paragraph 1. Unless the Council decides otherwise, each Nile Basin state provides one member who is an expert in the field of activity of the respective Sectoral Advisory Committee. Finally, the Secretariat is headed by an Executive Secretary appointed for a three-year period by the Council under the terms stipulated in Article 29, paragraph 1. The functions and decision-making procedures of the Commission and its organs are largely similar to the common design of international river commissions worldwide. Article 21 determines that the Conference of Heads of State and Government is the supreme policy-making organ, while Article 24 names the Council of Ministers as the governing body of the Commission. The Council of Ministers approves the annual work programs of the Commission as well as the rules and procedures governing the operations of the Technical Advisory Committee, Sectoral Advisory Committees, and the Secretariat, in addition to its work program and financial and staff regulations. The Council appoints the Executive Secretary and other senior staff

111 Similarly e.g. Arts. 3–20 Convention portant création de l’Organisation pour la mise en valeur du fleuve Sénégal (Convention establishing the Organization for the Development of the Senegal River) (signed 11 March 1972), reproduced in FAO (1997), p. 24; Arts. 5–9 Revised Convention creating the Niger Basin Authority (signed 29 October 1987), reproduced in FAO (1997), p. 62. See outside of Africa for example Arts. 11–33 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864. For an overview of institutional frameworks, see Caponera (2007), pp. 235–246; Burchi and Spreij (2003).

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of the Commission and determines the staffing and organizational structure of the Secretariat. It adopts, keeps under review, and revises as necessary the plans for the coordinated, integrated, and sustainable management and development of the Nile River Basin. It oversees the implementation of the CFA and adopts rules, procedures, guidelines, and criteria for its implementation. The Council of Ministers also examines and makes decisions regarding the determination of equitable and reasonable use of water in each riparian state, taking into consideration the factors listed in Article 4, paragraph 2 of the Agreement. In addition, the Council of Ministers serves as a discussion forum for all matters that fall within the scope of the Agreement. The Technical Advisory Committee assists the Council of Ministers in the performance of its functions, details of which can be found in Article 26. It prepares cooperative programs for the management and development of the Nile River Basin, which are submitted to the Council for consideration. It makes recommendations to the Council on the implementation of the CFA regarding the determination of equitable and reasonable use of water in each riparian state. It advises the Council on technical matters relating to the use, development, protection, conservation, and management of the Nile River Basin and the Nile River system. The Technical Advisory Committee supervises the Secretariat, makes recommendations to the Council for the rules and procedures governing the work of operations of the Secretariat and makes proposals to the Council concerning the appointment of the Executive Secretary and senior technical staff of the Secretariat. In addition, other functions may be assigned to the Committee by the Council. The Executive Secretary represents the Commission, inter alia, in its relations with international organizations and any Nile sub-basin institutions. The Executive Secretary is furthermore responsible for the administration and finances of the Commission, according to Article 30, paragraphs 1 and 3. The Secretariat assists all organs of the Commission in the performance of their duties. Article 30, paragraph 9 also requires the Secretariat to compile available data and information relating to the Nile Basin, coordinate the monitoring of such information, and develop mechanisms for the regular exchange of information. With regard to the decision-making process, the Agreement in Article 23, paragraphs 5 and 6 stipulates that decisions of the Council of Ministers are taken by consensus and that they are binding upon all Nile Basin states. The requirement of unanimity for decisions corresponds to the approach adopted by the majority of international river commissions worldwide, for example the International Commission for the Protection of the Rhine,112 the Mekong River Commission,113 and the Senegal River Development Organization.114 112

Art. 10 Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. 113 Art. 20 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (signed 5 April 1995, entered into force on the same day), ILM 34 (1995), p. 864. 114 Arts. 4 and 10 Convention portant création de l’Organisation pour la mise en valeur du fleuve Sénégal (Convention establishing the Organization for the Development of the Senegal River) (signed 11 March 1972), reproduced in FAO (1997), p. 24. Further examples are Art. 10,

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Hence, ultimately only member states’ government representatives within the Conference of Heads of State and Government and within the Council of Ministers decide on measures to be taken. The Commission does not have autonomous decision powers; it was not conceived as an institution with supranational functions, but rather only has advice, information, and coordination functions. At the international level, almost all states have opted for this regulatory model: The vast majority of international river commissions are intergovernmental organizations that predominantly have only advisory function, no decision-making power, and in which government representatives can bind member states only by unanimous decision.115 For example, the UNECE Water Convention provides for the transfer of monitoring and advisory tasks to joint bodies of the riparian states.116 Accordingly, the International Commission for the Protection of the Rhine functions as an investigative and consultative body whose main task is to prepare studies on the state of the Rhine.117 Another example is the International Commission for the Protection of the Elbe River, which is also designed as a primarily advisory body.118 Similarly, the Chad Basin Commission has been tasked with preparing general rules, collecting and examining information on projects, and, more generally, monitoring treaty implementation.119 Just as with the vast majority of international river commissions, the Nile Basin Commission has not been entrusted with functions that would directly create legal consequences within the jurisdictions of the riparian states, in particular the implementation of its decisions and recommendations.120 Considerations of sovereignty of the riparian states regularly set limits here. For example, during the negotiations on the establishment of the German-Dutch Advisory Commission for the Ems-Dollart, the Dutch suggested that the Commission be granted powers to decide on the authorization of individual industrial companies to use river water. The German side rejected this proposal on the grounds that this would substantially

para. 3 Convention and Statutes relating to the development of the Chad Basin (signed 22 May 1964), reproduced in FAO (1997), p. 10; Art. 7 Agreement for the establishment of the Organization for the Management and Development of the Kagera River Basin (signed 24 August 1977), UNTS, Vol. 1089, p. 171. See generally Caponera (2007), pp. 250–251. Overview of selected commissions at Burchi and Spreij (2003). 115 Caponera (2007), pp. 247–248. On the functions of river commissions, see also Ely and Wolman (1967), pp. 138–146. 116 Arts. 9–13 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, ILM 31 (1992), p. 1312. 117 Art. 8 Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003), OJ L 289, 16 November 2000, p. 31. 118 See Arts. 4, 13 and 16 Convention on the International Commission for the Protection of the Elbe (signed 8 October 1990, entered into force 30 October 1992), OJ L 321, 23 November 1991, pp. 0025–0027. 119 Art. 9 Convention and Statutes relating to the development of the Chad Basin (signed 22 May 1964), reproduced in FAO (1997), p. 10. Survey of functions entrusted to selected international river organizations at Caflisch (1989), pp. 30–43. 120 See generally Burchi and Spreij (2003).

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impede sovereignty, and ultimately only advisory functions were transferred to this commission.121 Further provisions on the institutional framework are contained in Part IV of the CFA. In Article 32, paragraph 1, the Nile Basin states recognize the importance of sub-basin organizations and arrangements. Their purposes, functions, and activities must be consistent with those of the Commission and with the principles and rules of the Agreement. They are required to work in close cooperation with the Commission (Article 32, paragraphs 2 and 3). Through these provisions, the Agreement strengthens cooperation at the sub-basin level and at the same time harmonizes activities across the basin. Sub-basin-level cooperation is already taking place under the NBI with the Nile Equatorial Lakes Subsidiary Action Program and the Eastern Nile Subsidiary Action Program. Finally, Article 33 provides for the establishment of a National Nile Focal Point Institution for the Commission in each Nile Basin state.

8.2.11 Rights, Obligations, and Assets of the Nile Basin Initiative Article 31 provides that, upon the entry into force of the Agreement, the Nile Basin Commission succeeds to all rights, obligations, and assets of the NBI. When the Initiative was established, its member states agreed that the future framework agreement would adopt its principles, structures, and institutions as well as involve all Nile riparian states.122 However, as previously discussed, Egypt and Sudan refuse to sign the Agreement in its present form and to join the Nile Basin Commission to be established thereunder. The upstream states still aim to implement the Agreement and establish the Commission, even without the participation of the downstream states. If this were to happen, the question would arise of whether a smaller Nile Basin Commission would succeed to all rights, obligations, and assets of the NBI, and what would happen to the rights and obligations of states in relation to the Initiative that do not become member states of the smaller Nile Basin Commission. This scenario, which would see the Nile Basin Commission established without some of the original members of the NBI, is not provided for in the Agreement. The Agreement contains a regulatory gap with regard to the succession of such a smaller Nile Basin Commission to the rights, obligations, and assets of the Initiative. This could either be an oversight, or the authors might not have considered it a possibility.123

121

See Arts. 39 and 40 of the Treaty between the Federal Republic of Germany and the Kingdom of the Netherlands on cooperation in the area of Ems and Dollart and in the adjacent areas (signed 10 September 1984). See also Torka (1998), p. 167. 122 Salman (2013), p. 20. 123 Ibid., p. 23.

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The rules for a succession with regard to international organizations and the legal consequences resulting from such a succession vary considerably from case to case.124 Under international law, member states of an international organization can terminate the organization by agreement125 and transfer its functions to a successor organization.126 If the membership of states is not identical, an agreement between the members of the predecessor organization and those of the successor organization is necessary.127 Accordingly, an agreement would also be needed between all member states of the NBI and those of the future smaller Nile Basin Commission in order to divide or transfer the rights, obligations, and assets of the Initiative to the new commission.

8.2.12 Dispute Settlement Part V of the Agreement contains in Article 34, in conjunction with Annex 1 on the fact-finding commission, detailed rules for the settlement of disputes concerning the interpretation and application of the Agreement. These provisions correspond almost verbatim to Article 33 of the UN Watercourses Convention. As a means for dispute settlement, they foresee negotiations, the good offices of a third party, mediation, and conciliation, as well as the possibility of arbitration or submission of the dispute to the ICJ. If the dispute is not settled by any of these means within six months, it is to be submitted, at the request of one of the parties, to a fact-finding commission. The provisions of the Annex to the UN Watercourses Convention on arbitration, in contrast, were not adopted for the Agreement.

124

For a survey of cases of succession between international organizations, see Sands and Klein (2009), pp. 531–536; Schermers and Blokker (2011), pp. 1045–1048, §§ 1625–1627. An example of the transition of assets between river commissions offers the case of the Danube commissions. Through the Supplementary Protocol to the Convention regarding the Regime of Navigation on the Danube of 18 August 1948, the European Danube Commission and the International Danube Commission were dissolved and a new Danube Commission was founded. Two of the former member states had not signed the 1948 Convention and declared that they would consider the old commission still in force. In fact, however, the two old commissions ceased to exist. On the basis of the Additional Protocol of 1948, their functions and assets were transferred to the new Danube Commission. Art. 1 of the Additional Protocol states that the old founding treaties of 1921 are no longer in force, and Arts. 2 and 3 provide that the assets of the two old commissions are transferred to the new one. If the Supplementary Protocol did not dissolve the old commissions, they would have come to an end by disuse. See Schermers and Blokker (2011), pp. 1052–1053, § 1635. 125 See Schmalenbach (2013), pp. 89–90. For a detailed discussion of the dissolution (termination or succession) of international organizations and its consequences, see Schermers and Blokker (2011), pp. 1044–1076, §§ 1623–1680. 126 Schermers and Blokker (2011), pp. 1050–1051, § 1632. 127 Schmalenbach (2013), pp. 89–90; Schermers and Blokker (2011), pp. 1051–1052, § 1633.

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8.2.13 Other Provisions Article 35 contains provisions on supplementary instruments between the Nile Basin states. Accordingly, the state parties may adopt bilateral or multilateral instruments concerning portions of the Nile that supplement the Agreement. These instruments are intended to implement the principles of the Agreement and are to be consistent with its provisions (Article 35, paragraphs 2 and 3). Part VI of the Agreement consists of the final clauses. Article 36, paragraph 3 lists the articles of the Agreement that can only be amended by consensus of the state parties. Notably, these include the Articles 4 and 5 on the principle of equitable and reasonable utilization and the no-harm rule as well as Article 14 on water security. Egypt and Sudan demand that generally any changes to the Agreement can only be decided upon unanimously. They argue that, in view of the current and anticipated conflicts of interest, this would be necessary for the protection of their interests; otherwise the upstream states could act in concert and amend the Agreement at their discretion.128 Further final clauses govern the adoption and amendment of annexes (Article 37), the relationship between the Agreement and its protocols (Article 38), reservations (Article 39), withdrawal (Article 40), the signature of the Agreement (Article 41), its ratification or accession to it (Article 42), and its entry into force (Article 43). The last ones determine the authentic texts and the depositary (Articles 44 and 45).

8.3

Conclusion

The drafting of the CFA in itself represents a change in previous treaty practice on the Nile. It was the first joint attempt by all Nile riparian states to work together and establish a framework agreement on their cooperation and use of the Nile. It replaces their previous practice of unilateral planning and bilateral agreements, which created tension throughout the region. However, the adoption of the Agreement in the Nile Council of Ministers despite Egyptian-Sudanese protest, coupled with the subsequent signature by several riparian states in the face of that protest, has to some degree set back this newfound spirit of cooperation. In terms of content, the drafting of the Agreement introduced, for the first time, the question of equitable and reasonable use of the Nile’s water—which inherently implies its possible reallocation—in the negotiations of the riparian states, a question they had previously always avoided.129 This avoidance stems from the fact that for the Nile riparian states, use allocation is the core issue of any future agreement, an issue which they have found it impossible to agree upon. By adopting the principle of equitable and reasonable utilization for the Nile, the CFA establishes a new 128 129

‘Abd al-‘Āl (2010), p. 124. Mekonnen (2010), p. 427; ‘Alī Ṭāhā (2005), p. 181.

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approach to the allocation. At the same time, this has laid bare the historically founded imbalance of current water-use allocations.130 The negotiations for the Agreement made significant progress, with the Nile riparian states agreeing upon many points. The provisions of the Agreement adopt the two substantive core principles of international water law, namely the principle of equitable and reasonable utilization and the no-harm rule. The wording of the provisions concerning these principles is adopted almost verbatim from the UN Watercourses Convention. The Agreement thus seems to settle the fundamental differences of opinion among the Nile riparian states in favor of giving precedence to the principle of equitable use. In particular, Egypt and Ethiopia appear to finally have abandoned their conflicting theories of absolute territorial integrity and absolute territorial sovereignty which they advocated during the twentieth century.131 However, the controversy over Article 14(b) of the Agreement, or more specifically over the inclusion of a provision protecting current uses and rights, shows that the Nile countries were in fact not able to agree on how to approach the existing Nile treaties and current uses. Consensus was reached on the institutional framework. The comprehensive provisions on the Nile Basin Commission form a significant part of the CFA and indicate the great importance that the riparian states attach to an institutionalized cooperation for the management and use of the Nile. The Agreement contains provisions on the objectives, legal status and territorial competence of the Commission, its composition and organs, their functions and powers, as well as the decisionmaking procedures and financing. They include the main areas and issues to be regulated in a treaty establishing an international river commission. The countries also agreed on the scope of the Agreement, the general principles for the use and development of the Nile, environmental protection provisions, and dispute settlement mechanisms. The Agreement is conceived as a framework that establishes general obligations and is to be further specified by protocols and other agreements on specific water-management and water-use matters. This framework approach chimes with an increasing tendency in treaty practice concerning international watercourses worldwide since the beginning of the twenty-first century. It introduces flexibility into the Agreement, which allows the parties to adjust its implementation to changing conditions.132 The close cooperation of the riparian states, which is required for the successful implementation of such a framework agreement, is to be ensured by the Nile Basin Commission under the Agreement. Several provisions of the Agreement are evidence of the efforts of the riparian states to ensure implementation on the national level through adapted policies and legislation, such as Article 4, paragraph 5 for an equitable and reasonable use and

130

Abseno (2009), p. 90. Bulto (2009), p. 307. 132 Such conditions could be, for example, a long period of drought leading to water shortages or demographic developments. Generally on the importance of building flexibility into water treaties, see McCaffrey (2003), pp. 156–162. 131

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Article 6, paragraph 2 for environmental protection. Thereby, the riparian states interconnect the international and the national legal levels, and promote harmonization among all the member states. In taking this step, the effectiveness of implementing the Agreement locally can be sustainably and substantially enhanced. The Agreement also mirrors a change in the mindsets of Nile riparian states from one focused on unilateral action toward one that considers the basin as a single unit for water use planning and development. This is especially reflected in the inclusion of the principle of a community of interest between Nile Basin states as well as the inclusion of benefit sharing with respect to joint projects within the basin. The Agreement facilitates the actual implementation of benefit sharing by requiring the Council of the Nile Basin Commission to decide upon formulas for the sharing of costs and benefits. The Agreement furthermore reflects recent trends in international environmental law; for example, it incorporates the principles of subsidiarity and public participation. It is interesting in this respect that in 2004 reforms were initiated in Egypt in the field of national water law that were precisely intended to introduce and promote those principles. The reforms aimed, among other things, to decentralize water supply and increase public participation.133 Given the concurrent development of the CFA, it can be assumed that the developments in international environmental law have also influenced these national reforms. The Agreement does not adopt the third core principle of international water law, namely the customary obligation134 to notify of planned measures. Egypt and Sudan wanted to anchor in the Agreement a mandatory procedure for prior notification for all planned water development projects upstream. The rejection of this by the upstream states was one of the reasons why Egypt and Sudan did not sign the Agreement.135 The absence of provisions on notification of planned measures falls short of the standard of more recent watercourse agreements and leaves a regulatory gap in the Agreement. This gap was seemingly intended to be filled by the future Nile Basin Commission, which according to Article 8 of the Agreement would establish the rules and procedures for exchanging information concerning planned measures. Overall, the CFA provides a sound basis for regulating the joint management and use of the Nile. Nevertheless, it would be necessary to amend and supplement it with regard to some key aspects in order to reconcile the interests of all the riparian states and align the Agreement with the principles of contemporary international water law.

133

As part of these reforms, a Water and Wastewater Holding Company was established in 2004 by Presidential Decree. In addition, the Egyptian Water Regulatory Agency was set up as an autonomous regulatory authority. See Presidential Decrees No 135 and 136 of 2004, respectively. 134 McCaffrey (2007), p. 473; Rieu-Clarke and Loures (2009), p. 194; Boisson de Chazournes (2013), pp. 68–69; Rieu-Clarke (2013), p. 254; Nanda and Pring (2013), pp. 329–330; Baker Röben (2000), pp. 305–306. 135 See ‘Abd al-‘Āl (2010), pp. 122–123; Azarva (2011), p. 489.

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Accordingly, based on the review of the Agreement above, the clause proposed by Egypt for Article 14(b), now annexed to the Agreement, should not be included. The provisions concerning the concept of water security should be deleted altogether because this concept is not necessary for the purposes of the CFA and there are ongoing uncertainties as to the interpretation of this concept within the context of the Agreement, which could give rise to further disputes. Moreover, the concept of water security introduces aspects of national security into the Agreement, which would ultimately be antagonistic to the notions of cooperation and a community of interest between all riparian states. If, however, the concept of water security is to be maintained, it should be clearly defined in the Agreement and its definition should have a regulatory content that is clearly distinct from the principle of equitable utilization. As a final note on this subject, if water security were not defined as a right of the riparian states, but rather as a common objective or matter of concern for their cooperation, this would turn it from a divisive notion to a more unifying one. Concerning the use allocation, several reasons speak against establishing fixed water quota in the Agreement itself, whether explicitly, or implicitly through a reservation of current uses and rights of any riparian state. In particular in the realm of the utilization and management of shared water resources, legal and institutional frameworks should be adaptable to changes over time, which may come for example with climate change or demographic and socio-economic developments in individual riparian states. Leaving the use allocation to be guided by the principle of equitable and reasonable utilization, in contrast to establishing fixed water quotas, would ensure the necessary flexibility for adapting the implementation to changes in any relevant factors and circumstances. The use allocation under the Agreement would be guided by the principle of equitable and reasonable utilization if the clause proposed by Egypt now annexed to Article 14(b) were ultimately not included in the main text of the Agreement. In order to finally put an end to the controversy over the legal effect of previous Nile water treaties, in particular those of 1929 and 1959, the inclusion of a provision clarifying the relationship between the CFA and previous Nile treaties would be helpful. It is furthermore critical to stipulate an obligation of prior notification for planned measures which may have a significant adverse effect upon other Nile riparian states, as well as clear-cut and detailed provisions on the notification procedure. Importantly, the obligation to notify should apply not only to measures in upstream countries, as requested by Egypt and Sudan, but equally to measures planned on the territory of any riparian state, as these may well affect the equitable and reasonable utilization of all. The obligation to consult with potentially affected states, which is part of the customary notification obligation, also needs to be explicitly stated. Furthermore, it should be explicitly required that the notification be accompanied by the results of the environmental impact assessment to be conducted for planned measures that may have significant adverse environmental impacts pursuant to Article 9, paragraph 1 of the Agreement. Framing precise,

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clear-cut, and unambiguous obligations facilitates compliance136; therefore it is important to clearly set out the stages and requirements of the notification procedure in the Agreement. Moreover, stipulating strong procedural rules significantly contributes to the effective implementation of substantive provisions in practice, in particular equitable utilization and the no-harm rule. This applies in particular to the most important of the procedural water law principles, namely prior notification. When it comes to the drafting of provisions on notification, useful guidance can be found in the UN Watercourses Convention with its detailed rules for the notification procedure. Furthermore, it is important to include more detailed provisions on environmental protection in the Agreement, because the current management structure for the Nile is not adequate to control the increasing environmental degradation in the Nile Basin and the pollution of the Nile. This would also be consistent with the trend in international water law to incorporate environmental considerations into management regimes. In that regard, the environmental provisions of the UNECE Water Convention may serve as an inspiration for drafting such provisions, as may the agreements for other international watercourses containing more detailed environmental regulations. In particular, agreements for water-scarce river basins can serve as examples for the Nile, such as the Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins between Portugal and Spain.137 Lastly, it would be beneficial to also include an explicit obligation to maintain and protect installations and other works related to the Nile. This is very relevant in view of the importance of dam safety, in particular concerning large-scale projects such as the Grand Ethiopian Renaissance Dam, and the potential risk of considerable adverse effects on co-riparian states. This obligation should be complemented by one of consultation at the request of any co-riparian state that has reasonable grounds to fear significant adverse effects. Such provision would protect downstream countries and be in line with the aim to prevent harm and forestall disputes. In this regard, Article 26 of the UN Watercourses Convention can provide useful guidance.

136

See generally on ensuring more effective treaty compliance for multilateral environmental agreements Beyerlin and Marauhn (2011), pp. 443–444. 137 Convenio sobre cooperación para la protección y el aprovechamiento sostenible de las aquas de las cuencas hidrográficas hispano-portuguesas (Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins) (opened for signature 20 November 1998, entered into force 31 January 2000), available at http://www.fao.org/faolex/ en/ (accessed 22 June 2019).

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References ‘Abd al-‘Āl MS (2010) Al-intifā‘ al-munṣif bi-miyāh al-anhār ad-dawlīya ma‘ īšāra ḫāṣa li-ḥāla nahr an-Nīl (The equitable utilization of the water of international rivers with particular reference to the case of the Nile). Cairo (Arabic) Abseno MM (2009) The concepts of equitable utilization, no significant harm and benefit sharing under the Nile River Basin Cooperative Framework Agreement: some highlights on theory and practice. J Water Law 20:86–95 Abseno MM (2013) Nile River Basin. In: Loures FR, Rieu-Clarke A (eds) UN Watercourses Convention in force: strengthening international law for transboundary water management. Routledge, Abingdon, pp 139–151 ‘Alī Ṭāhā F‘A (2005) Miyāh an-Nīl: As-sīāq at-tārīḫī wa-l-qānūnī (Nile water: the historical and legal context). Markas ‘Abd al-Karīm Mīrġanī aṯ-Ṯaqāfī, Khartoum (Arabic) Al Jazeera (2011) Egypt and Ethiopia to review Nile River dam, 17 September 2011. http://www. aljazeera.com/news/middleeast/2011/09/2011917132445980153.html. Accessed 22 June 2019 Amos M (2013) Juba rebuffs Cairo on Nile Waters Agreements, Africa Review. http://www. africareview.com/News/Juba-rebuffs-Cairo-on-Nile-waters-agreements/-/979180/1725630/-/ 40dvaw/-/index.html. Accessed 22 June 2019 Arsano Y (2010) Institutional development and water management in the Ethiopian Nile Basin. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 161–178 Arsano Y (2011) Negotiations for a Nile-Cooperative Framework Agreement. Institute for Security Studies Paper 222, Pretoria Asharq Al-Awsat (2010) Duwal ḥūḍ an-Nīl tataǧih al-yaūm li-taūqī‘ ittifāqīa īṭār. . . fī ġīāb Miṣr wa-s-Sūdān (The Nile Basin states will today sign the framework agreement . . . in absence of Egypt and Sudan), 14 May 2010 (Arabic) Ayebare A (2010) Issue brief: a political storm over the Nile. International Peace Institute, New York Azarva JD (2011) Conflict on the Nile: international watercourse law and the elusive effort to create a transboundary water regime in the Nile Basin. Temp Int Comp Law J 25:457–498 Baker Röben B (2000) International freshwaters. In: Morrison FL, Wolfrum R (eds) International, regional and national environmental law. Kluwer Law International, The Hague, pp 285–328 Beyerlin U, Marauhn T (2011) International environmental law. Hart, Oxford Boisson de Chazournes L (2013) Fresh water in international law. Oxford Boisson de Chazournes L, Leb C (2016) Political economy and international water law: political economy induced changes to the uptake of benefit sharing in international water law. In: Fabbricotti A (ed) The political economy of international law – a European perspective. Edward Elgar Publishing, Cheltenham, pp 356–383 Bulto TS (2009) Between ambivalence and necessity: occlusions on the path towards a basin-wide treaty in the Nile Basin. Colo J Int Environ Law Policy 20:291–320 Burchi S (2011) International rivers and lakes – groundwater. Yearb Int Environ Law 21:219–226 Burchi S, Spreij M (2003) Institutions for international freshwater management. FAO Legal Office Report, Rome Caflisch L (1989) The law of international waterways in its institutional aspects. In: Haller W, Kölz A, Müller G, Thürer D (eds) Im Dienst an der Gemeinschaft. Festschrift für Dietrich Schindler. Verlag Helbing und Lichterhahn, Basel, pp 21–45 Caponera DA (2007) Principles of water law and administration: national and international, 2nd edn. Taylor & Francis, London Ebbesson J (2007) Public participation. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Law. Oxford University Press, Oxford, pp 681–703 El Dahan M (2009) Egypt says historic Nile River rights not negotiable, Reuters, 27 July 2009. http://www.reuters.com/article/2009/07/27/us-egypt-nile-framework-idUSTRE56Q3LZ20090727. Accessed 22 June 2019

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Ely N, Wolman A (1967) Administration. In: Garretson AH, Hayton RD, Olmstead CJ (eds) The law of international drainage basins. Oceana Publications, New York, pp 124–159 FAO (1997) Treaties concerning the non-navigational uses of international watercourses, Africa. FAO Legislative Study 61. Rome Fischhendler I (2008) Ambiguity in transboundary environmental dispute resolution: the IsraeliJordanian water agreement. J Peace Res 45:91–109 Garretson AH, Hayton RD, Olmstead CJ (1967) The law of international drainage basins. Oceana Publications, New York Hensengerth O, Dombrowsky I, Scheumann W (2012) Benefit-sharing in dam projects on shared rivers. Discussion Paper 6/2012, German Development Institute, Bonn Hussein AR (2010) Egypt to begin PR offensive against Nile water treaty. Daily News Egypt, 17 May 2010. www.masress.com/en/dailynews/66038. Accessed 22 June 2019 Ibrahim AM (2010) A critical assessment of the legal principles underlying the Nile River Basin Cooperative Framework Agreement. J Water Law 21:198–207 Kaška AM (2006) As-sīyāsa l-mā’īya l-miṣrīya tiǧāh duwal ḥūḍ an-Nīl (The Egyptian water policy toward the Nile Basin states). Barnāmaǧ ad-Dirāsāt l-Miṣrīya l-Ifrīqīya, Cairo (Arabic) Katz CL (2013) Another cup at the Nile’s crowded spigot: South Sudan and its Nile water rights. Georgetown J Int Law 44:1249–1279 Kliot N (1994) Water resources and conflict in the Middle East. Taylor & Francis, London Kortam H (2012) Egypt meets with Nile Basin countries. Daily News Egypt, 28 June 2012. http:// thedailynewsegypt.com/2012/06/28/egypt-meets-nile-basin-countries/. Accessed 22 June 2019 Le Floch G (2010) Le difficile partage des eaux du Nil. Annuaire Français de Droit International 56:471–496 Lipper J (1967) Equitable utilization. In: Garretson AH, Hayton RD, Olmstead CJ (eds) The law of international drainage basins. Oceana Publications, New York, pp 15–88 Magsig BO (2015) International water law and the quest for common security. Routledge, London Maḥfūẓ Muḥammad M‘A (2009) Ḥuqūq Miṣr fī miyāh an-Nīl fī ḍau’ al-qānūn ad-dawlī li-l-anhār (Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic) McCaffrey SC (2003) The need for flexibility in freshwater treaty regimes. Nat Res Forum 27:156–162 McCaffrey SC (2007) The law of international watercourses. Oxford University Press, Oxford Mekonnen DZ (2010) The Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘water security’ paradigm: flight into obscurity or a logical cul-de-sac? Eur J Int Law 21:421–440 Nanda VP, Pring G (2013) International environmental law and policy for the 21st century, 2nd edn. Martinus Nijhoff Publishers, Leiden NBI (2014) Nile news. Quarterly Newsletter of the NBI, vol 11, June 2014 NBI (2016) Nile Basin Water Resources Atlas. http://atlas.nilebasin.org/start/. Accessed 20 July 2019 Panel of experts (1999) Draft of the cooperative framework: revisions 2. Entebbe, 10 December 1999 Pham P (2010) Crisis, conflict, and opportunity in the Nile Basin, 12 March 2010. http:// currentanalyst.com/index.php/opeds/104-crisisconflictand-opportunity-in-the-nile-basin. Accessed 22 June 2019 Reuters Africa (2011) Ethiopia delays Nile treaty until Egypt’s election, 3 May 2011. http://af. reuters.com/article/topNews/idAFJOE7420M120110503. Accessed 22 June 2019 Rieu-Clarke A (2013) International freshwater law. In: Alam S, Bhuiyan J, Chowdhury T, Techera E (eds) Routledge Handbook of International Environmental Law. Routledge, London, pp 243–257 Rieu-Clarke A, Loures FR (2009) Still not in force: should states support the 1997 UN Watercourses Convention? RECIEL 18(2):185–197 Sadoff CW, Grey D (2002) Beyond the river: the benefits of cooperation on international rivers. Water Policy 4:389–403

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Salman SMA (2013) The Nile Basin Cooperative Framework Agreement: a peacefully unfolding African spring? Water Int 38:17–29 Sands P, Klein P (2009) Bowett’s law of international institutions, 6th edn. Sweet & Maxwell, London Schermers HG, Blokker NM (2011) International institutional law: unity within diversity, 5th edn. Martinus Nijhoff Publishers, Leiden Schmalenbach K (2013) International organizations or institutions, succession. In: Wolfrum R (ed) Max Planck Encyclopedia of Public International Law, vol VI. Oxford University Press, Heidelberg State Information Service (2010) Final Communiqué of the Nile Basin Ministerial Meetings in Sharm el-Sheikh, 13–15 April 2010. http://www.sis.gov.eg/En/Templates/Articles/tmpArticles. aspx?ArtID¼68012. Accessed 22 June 2019 State Information Service (2018) Egypt and Nile Basin countries, First Nile Basin Countries Presidential Summit. http://www.sis.gov.eg/section/52/6260?lang¼en-us. Accessed 22 June 2019 Tafesse T (2011) Ethiopia’s position on the Nile water agreements. In: Adar KG, Check NA (eds) Cooperative diplomacy, regional stability and national interests: the Nile River and the riparian states. Africa Institute of South Africa, Pretoria, pp 67–83 Taha F (2010) The history of the Nile waters in the Sudan. In: Tvedt T (ed) The River Nile in the post-colonial age: conflict and cooperation among the Nile Basin countries. I.B. Tauris, London, pp 179–216 Tarlock D (2008) Water security, fear mitigation and international water law. Symposium. Hamline Law Rev 31:703–728 Tawfik R, Dombrowsky I (2017) GERD and hydropolitics in the Eastern Nile: from water-sharing to benefit-sharing? In: Yihdego Z, Rieu-Clarke A, Cascão AE (eds) The Grand Ethiopian Renaissance Dam and the Nile Basin: implications for transboundary water cooperation. Routledge, London, pp 113–137 Torka A (1998) Nichtnavigatorische Wassernutzungen: Mechanismen der Internationalen Zusammenarbeit. Von der Konfrontation über die Kooperation zu koadministrativen Formen der Zusammenarbeit. Peter Lang, Mannheim UNEP (2012) Global Environment Outlook 5 – environment for the future we want. Valletta UN-Water (2013) Water security and the global water agenda: a UN-Water analytical brief. Revised version, October 2013 UN-Water (2015) The United Nations World Water Development Report 2015: water for a sustainable world. Paris UN-Water (2018) The United Nations World Water Development Report 2018: nature-based solutions for water. Paris Ward TE, Roach HL (2012) Hydropolitics and water security in the Nile and Jordan River Basins. In: Vajpeyi D (ed) Water resource conflicts and international security. Lexington Books, Plymouth, pp 51–101 Wehling P (2018) Wasserrechte am Nil – Der Einfluss des internationalen Wasserrechts auf die Entwicklung eines Vertragsregimes zur Nutzungsverteilung und gemeinsamen Wasserwirtschaft am Beispiel des Nils. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 269. Springer, Heidelberg Wiebe K (2001) The Nile River: potential for conflict and cooperation in the face of water degradation. Nat Resour J 41:731–754 Wolde-Giorghis H (2009) Les défis juridiques des eaux du Nil. Bruylant, Brussels Wolfrum R (1990) Purposes and principles of international environmental law. German Yearb Int Law 33:308–330 Wolfrum R, Kirschner A (2013) A survey of challenges and trends in the context of international water law. In: Kibaroglu A, Kirschner A, Mehring S, Wolfrum R (eds) Water law and cooperation in the Euphrates-Tigris region: a comparative and interdisciplinary approach. Martinus Nijhoff Publishers, Leiden, pp 3–19

Chapter 9

Implementing the Principle of Equitable and Reasonable Utilization in the Nile Basin

Egypt and Tanzania have proposed to negotiate amendments to the CFA so that it could be adopted by all Nile riparian states.1 Egypt is noticeably open for dialogue.2 For the first time since the country suspended its participation in the NBI in 2010, the Egyptian minister responsible for water resources participated with a technical delegation in an extraordinary meeting of the water ministers of the Nile Basin states in 2015. The minister declared that Egypt was open to amendments to the Agreement that would help overcome previous disagreements and resolve the outstanding issues.3 The key issue to be agreed upon by the Nile riparian states is a mechanism for the allocation of water uses, which includes the status of the current uses and existing agreements. Under the CFA without inclusion of the annexed Article 14(b) discussed above, the principle of equitable and reasonable utilization would apply to water use allocation along the Nile without guaranteeing the status quo. This would, with regard to the allocation rules, be consistent with the customary principles of international water law and would ensure flexibility in the utilization regime. Under this principle, as described by the ILC, “[t]he scope of a State’s rights of equitable utilization depends on the facts and circumstances of each individual case, and specifically on a weighing of all relevant factors, as provided in article 6 [of the UN Watercourses Convention]”.4 The next step for the Nile riparian states would then be to implement the principle of equitable use. According to the ILC, “article 6 is to provide for the manner in

1

The EastAfrican (2014) and Maṣris (2014). See the Egyptian State Information Service (2019a). 3 Amān (2015) and Nader (2015). 4 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 98, para. 8. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_9

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which States are to implement the rule of equitable and reasonable utilization”.5 In order to apply the equitable use principle, this article establishes a non-exhaustive list of factors that riparian states should take into account, which includes natural factors pertaining to the transboundary watercourse in question, as well as the needs and uses of the riparian states concerned. What constitutes an equitable and reasonable utilization in a specific case therefore depends on a weighing of all relevant factors and circumstances,6 as detailed in Chap. 3 above. Article 6 of the UN Watercourses Convention was adopted in Article 4, paragraph 2 of the CFA for the Nile. The ILC considered that an indicative list of factors was necessary to provide guidance for states in the application of the principle. At the same time, however, the Commission emphasized that the weight to be accorded to individual factors and even their relevance will vary with circumstances.7 To date, the principle of equitable utilization has seen little concretization in state practice.8 Some attempts have been made to develop a model or method, often based on economic models, for practical application of the principle.9 In its decision in the Gabčíkovo-Nagymaros Project case, the ICJ emphasized that in complex cases, conflicts should be resolved through cooperation and compromise with regard to the specific factors and circumstances of the particular case.10 Thus the riparian states eventually need to implement the principle through negotiations which, under the CFA, would take place within the Council of Ministers. The CFA foresees that the Council “examines and makes decisions regarding the determination of equitable and reasonable use of water in each riparian country taking into consideration the factors provided in Article 4, paragraph 2.”11 This chapter addresses the implementation of the principle of equitable and reasonable utilization along the Nile in accordance with the guidance provided by the UN Watercourses Convention and adopted in the CFA. The focus thereby lies on the process involved to implement the principle in practice, and on the factors to consider when determining what constitutes equitable and reasonable use of Nile water in each riparian state. The analysis highlights the advantages that the principle’s application can bring to riparian states, as well as its limitations.

5

Ibid., p. 101, para. 1. Ibid. 7 Ibid., p. 102, para. 9. 8 In the writings of jurists, the legal content and significance of the factors for equitable utilization in general are discussed by Fuentes (1996), pp. 337–412; McIntyre (2007), pp. 155–189. See also the analysis of factors and circumstances affecting the equity and reasonableness of uses in the sub-basin of the Blue Nile at Woldetsadik (2013), pp. 208–260. 9 For example Lankford (2013), pp. 130–145, citing further references at p. 133. See also the Legal Assessment Model developed by Wouters et al. (2005). This model, however, is designed specifically for assessing whether one particular use is equitable and reasonable, not for guiding use allocation among riparian states. 10 See ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, pp. 76–80, paras. 132–147. See also McCaffrey (1998), p. 22. 11 Art. 24, para. 12 of the CFA. 6

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Accordingly, the following sections discuss the relevant factors that should be considered by the riparian states of the Nile when determining equitable use of water in each riparian state, as codified in the UN Watercourses Convention and adopted in the CFA. For every relevant factor, the legal content is considered, the respective country data is surveyed for each of the riparian states, and considerations for determining that factor’s importance in the context of the Nile are discussed. The chapter then outlines the considerations involved in the weighing and overall assessment of all relevant factors and circumstances together, as foreseen under the principle of equitable utilization.

9.1 9.1.1

Consideration of Relevant Factors and Circumstances Along the Nile Factors of a Natural Character

According to Article 6, paragraph 1(a) of the UN Watercourses Convention and Article 4, paragraph 2(a) of the CFA, “geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character” are to be taken into account. The commentary of the ILC on the draft Article 6, paragraph 1(a) states that it contains a list of natural or physical factors that are likely to influence important characteristics of an international watercourse (such as the water quantity and quality, flow rate, and periodic variations in flow) and at the same time determine the physical relation of a watercourse to each watercourse state. Geographic factors embrace the extension of the watercourse in the territory of each watercourse state. Hydrographic factors relate generally to the measurement, description and mapping of the waters of the watercourse, while hydrological factors relate to the properties of the water, such as its flow, as well as to water distribution, such as the contribution of water to the watercourse by each riparian state.12 The CFA adds “the contribution of each Basin State to the waters of the Nile River system” and “the extent and proportion of the drainage area in the territory of each Basin State” in Article 4, paragraph 2(h) and (i) as independent factors, although both aspects are already accounted for within the geographic and hydrographic factors. From this, it can be deduced that the Nile riparian states wish to attach special importance to those factors as they apply along the Nile when assessing the relevant factors and circumstances.13 12 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 13 Woldetsadik even concludes from this that the contribution to the waters of the Nile is one of the “controlling factors” for the equity of uses, see Woldetsadik (2013), p. 214. However, this is not apparent from the CFA, but rather both factors are listed in Art. 4, para. 2 equally side by side with the other relevant factors.

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Of the total drainage area of the Nile, about 10% is on Egyptian territory.14 The average annual flow of the Nile at Aswan on the Egyptian-Sudanese border is about 84 billion cubic meters per annum; the Nile receives no tributaries in Egypt.15 The Nile Basin in Egypt has an arid, hot, subtropical desert climate with extremely low precipitation. With an average rainfall of 51 mm per year, Egypt is the most arid country in Africa.16 About 44% of the drainage area of the Nile lies within the territory of Sudan.17 In Sudan, the Blue and White Nile converge to form the Nile proper, which receives its last major inflow from the Atbara, which originates in the Ethiopian highlands.18 Sudan also does not contribute to the waters of the Nile. Similarly to Egypt, the Nile Basin in Sudan is also subject to a hot and predominantly arid climate with no significant rainfall.19 Ethiopian territory represents almost 12% of the total drainage area of the Nile.20 Here the Blue Nile arises with its main tributaries being the Dinder and Rahad, the Atbara with its main tributary, the Tekeze, as well as the Sobat, an important tributary of the White Nile.21 Through the Blue Nile, the Atbara and the Sobat, Ethiopia contributes 85–90% of the total annual water flow of the Nile as measured at Aswan.22 The waters of the Blue Nile, which is the main source of the Nile water with an average annual inflow of about 52 billion cubic meters, stem almost entirely from the summer rains over the Ethiopian highlands. Therefore, its flow is highly seasonal, concentrated on the months of July to October.23 Overall, the Ethiopian Nile Basin has a monsoon climate with cool temperatures, low evaporation rates and an average annual rainfall of more than 1000 mm.24 The next and final riparian state in the Eastern Nile Basin, Eritrea, represents only 0.8% of the total drainage area of the Nile.25 The rivers Tekeze and Mareb, which form part of the catchment area of the Atbara, only pass through a small part of the

Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. For an overview of the repartition of the Nile drainage area on the riparian states, see also NBI (2016), p. 19. 15 Oloo (2011), pp. 156–157. 16 At Aswan, for example, precipitation reaches only 3 mm per year. FAO (2005), p. 19. 17 This is about two-thirds of the Nile drainage area in the former Sudan before the secession of South Sudan. Salman (2011), p. 157. 18 FAO Aquastat, Sudan, Water resources, http://www.fao.org/nr/water/aquastat/countries_regions/ SDN/. All websites cited in this chapter were last accessed 20 May 2019. 19 Ward and Roach (2012), p. 59. 20 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 21 Last (2012), p. 490. 22 NBI (2012), p. 36. 23 See FAO Aquastat, Sudan, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/SDN/. See also Last (2012), p. 490. 24 See Last (2012), p. 490. 25 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 14

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country.26 As such, Eritrea does not contribute significantly to the Nile27 even though the basin area in its territory has a moderate climate with an average annual rainfall of about 1000 mm.28 Almost 20% of the Nile drainage area lies within South Sudan.29 Here, the equatorial and Ethiopian sources of the White Nile converge, forming the swamp areas of the Sudd in the middle of the country, stretching over 30,000 km2.30 Due to high evaporation rates in the Sudd, the White Nile loses half of its water here,31 meaning that overall South Sudan makes negligible net contribution to the total flow of the Nile. The Nile Basin in South Sudan has a tropical humid climate and receives more than 1000 mm of rain annually.32 All other Nile countries are upstream riparian states in the sub-basin of the White Nile. About 7% of the drainage area of the Nile lies on Ugandan territory,33 where the catchment area of the White Nile includes lakes Victoria, Edward and Albert as well as most of the country’s rivers.34 About 45% of the surface area of Lake Victoria—the main source of water for the White Nile and its largest reservoir35— is in Uganda.36 The only outflow from Lake Victoria into the Victoria Nile (the upper stretch of the White Nile) is near the Ugandan city of Jinja. Thus, this country contributes significantly to the Nile waters. It has a temperate tropical climate and in most parts of the country, including around the shores of Lake Victoria, precipitation reaches 1000–1500 mm annually.37 Only some 2% of the total drainage area of the Nile,38 and only 6% of the surface area of Lake Victoria,39 is located in Kenya. Nevertheless, the country contributes 8.4 billion cubic meters of water annually and is therefore a significant contributor to the lake.40 In the Kenyan Nile Basin there is a predominantly mild climate with an average annual rainfall of 1300 mm.41

26

Oloo (2011), pp. 161 and 163; Salman (2011), p. 158. Oloo (2011), p. 163. 28 Smith-Morris (2012), p. 465. 29 Salman (2011), p. 157. 30 Allan (2012), p. 1186. 31 Waterbury (1979), p. 16. 32 Allan (2012), p. 1186. 33 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 34 Langlands (2012), p. 1309. 35 Van Buren (2012a), p. 1318. 36 Mwiandi (2010), p. 94; Mulira (2010), p. 127. 37 Langlands (2012), p. 1309. 38 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 39 Mwiandi (2010), p. 94; Mulira (2010), p. 127. 40 FAO Aquastat, Kenya, Water resources, http://www.fao.org/nr/water/aquastat/countries_regions/ KEN/. 41 Mwiandi (2010), p. 96. 27

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Tanzania contains 3% of the total Nile drainage area42 and 49% of the surface area of Lake Victoria.43 This state also holds 35% of the total catchment area of the Kagera,44 which supplies about one-third of the total inflow of river water into Lake Victoria.45 From Tanzania, 10.7 billion cubic meters per annum of water flow through Lake Victoria into the Nile.46 The Tanzanian Nile Basin is predominantly temperate, with an average annual precipitation of up to 1000 mm.47 Only 0.4% of the drainage area of the Nile is located within the territory of Burundi.48 For the most part, the Luvironza (also called Ruvironza), which has its headwaters in Burundi and flows close to the Ugandan-Tanzanian border into Lake Victoria, is considered the most distant source of the Nile.49 The average flow from Burundi into the White Nile is estimated at 2.6 billion cubic meters annually.50 There is a changeable tropical climate in this region with two rainy seasons, normally mild temperatures and an annual rainfall of around 1200 mm.51 Less than 0.7% of the total drainage area of the Nile is located on Rwandan territory.52 The total annual water contribution from Rwanda to the White Nile is estimated at 5 billion cubic meters. With a temperate tropical climate, the rainfall varies from 800 mm annually in the east of the country to 2000 mm in the west.53 The remaining 0.7% of the Nile drainage area lies within the DR Congo,54 a riparian state of the Semliki River, Lake Edward and Lake Albert. Each year some 2 billion cubic meters of water leave the DR Congo through Lake Edward and the Semliki River into Lake Albert, which in turn feeds the Bahr al-Jabal in South Sudan.55 The Congolese Nile Basin is dominated by a tropical humid climate with precipitation of up to 2000 mm annually.56 Thus, it can be noted that the circumstances of the riparian states differ considerably with regard to the factors of a natural character that are to be taken into

Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. Ngowi (2010), p. 58. 44 Bosire (2011), p. 207. 45 Ngowi (2010), pp. 58–59; Check (2011), pp. 97–98. 46 FAO Aquastat, United Republic of Tanzania, Water resources, http://www.fao.org/nr/water/ aquastat/countries_regions/TZA/. 47 See FAO Aquastat, United Republic of Tanzania, Geography, climate and population, http:// www.fao.org/nr/water/aquastat/countries_regions/TZA/. 48 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 49 Arsano (2006), p. 325; Swain (2008), p. 201. 50 See Nkurunziza (2010), p. 15. 51 Mthembu-Salter (2012), p. 182. 52 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 53 FAO Aquastat, Rwanda, Géographie, climat et population, http://www.fao.org/nr/water/aquastat/ countries_regions/RWA/. 54 Karyabwite (2000), p. 10, Table 2 “Nile Basin repartition”. 55 Tshimanga (2010), pp. 78–79. 56 See Gourou (2012), p. 328. 42 43

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account for determining equitable and reasonable utilization. Ethiopia contributes 85–90% of the total water flow of the Nile, and the proportion of the total Nile drainage area in Ethiopian territory is substantial. Similarly, significant parts of the drainage area are located in the territories of Egypt, South Sudan and especially Sudan, but these countries do not contribute to the waters of the Nile. For Egypt, and to a lesser extent for Sudan, the arid climate should be taken into account in the assessment,57 while South Sudan receives abundant rainfall. A significant proportion of the total drainage area also lies within Ugandan territory, as does the only outflow from Lake Victoria into the White Nile, which, as the largest water reservoir of the White Nile, contributes significantly to its waters and to balance out the Nile’s yearround flow. However, Uganda’s favorable climate and ample rainfall should also be taken into account. Although the other East African states and Eritrea contribute in moderation to the Nile, no significant proportions of the total Nile drainage area lie within their territories nor do they influence important characteristics of the river flow. The favorable climate with abundant rainfall that most of these states enjoy should also be taken into account. In judicial and state practice, factors of a natural character are generally neglected or, at best, attributed a relatively low weight for the assessment of equitable use.58 However, as both the water contribution of the riparian states and their share of the drainage area are explicitly emphasized in Article 4, paragraph 2(h) and (i) of the CFA as factors to be taken into account, they should be given special significance in the case of the Nile. It can be argued that these two factors are particularly relevant for Ethiopia, followed by Sudan, Egypt, and South Sudan.

9.1.2

Social and Economic Needs

According to Article 6, paragraph 1(b) of the UN Watercourses Convention, adopted in Article 4, paragraph 2(b) of the CFA, “the social and economic needs of the watercourse States concerned” are to be taken into account. The ILC only mentions in its commentary to the draft article that paragraph 1(b) concerns the water-related social and economic needs of watercourse states.59 Likewise, the ILA did not further concretize how this factor, which was already listed in the 1966 Helsinki Rules, is to be applied in practice.60 Thus the exact content of this factor and the indicators for measuring the social and economic needs remain unclear at first glance; however,

57

Similarly Woldetsadik (2013), p. 216. On the state practice, see McIntyre (2007), pp. 180–183. 59 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 60 See the commentary of the ILA on Art. V of the Helsinki Rules, ILA, Report of the Fifty-Second Conference held at Helsinki, 14–20 August 1966, pp. 488–491. 58

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they can be concretized from the context—at least for the purpose of an approximate weighting. In addition, the ILC commentary on Article 10, paragraph 2 of the draft articles may be consulted for further specification. Accordingly, “vital human needs” are part of the “social and economic needs of the watercourse States concerned” mentioned in Article 6, paragraph 1(b).61 In determining vital human needs, the provision of sufficient water to sustain human life is to be afforded top priority. This includes both drinking water and water required for food production in order to prevent starvation.62 Not to be taken into account is the general “stage of economic development” of the watercourse states. Although this was initially included in the list of relevant factors in one of the earlier versions of the draft articles of the ILC,63 it was not retained and was not adopted in the Watercourses Convention. In Egypt, the social and economic needs related to Nile water are immense. The Nile is virtually the sole source of drinking water in the country and agriculture is almost entirely dependent on it for irrigation. The country’s arable land is essentially limited to the Nile Valley and Delta, as well as a few oases.64 Almost one-third of the country’s labor force is employed in agriculture65 and the immediate basic water needs of almost the entire population are met using the Nile.66 In this respect, the question arises whether the social and economic needs of the entire population should be included in this consideration, or whether a restriction to the parts of the population living within the Nile Basin area is required. The wording of both Article 6, paragraph 1(b) of the UN Watercourses Convention and of Article 4, paragraph 2(b) of the CFA indicates no such restriction. On the contrary, Article 6, paragraph 1(b) refers to the social and economic needs of “the watercourse States concerned”. Such an understanding is in line with the obligation of a state to ensure the basic supply of drinking water and food to its entire population. This view has been supported by courts of federal states concerned with interstate water resources disputes. For example, the Krishna Water Disputes Tribunal stated: “The need for diversion of water to another watershed may be a relevant factor in equitable apportionment [...] A State is one integral unit and its interests encompass the well being of all its inhabitants within its territory [...] Thus, the relevant consideration is the interest of the State as a whole and all its inhabitants and not merely the interest

61 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 110, para. 4. 62 UN GA, Report of the Sixth Committee convening as the Working Group as the Whole, 11 April 1997, UN Doc. A/51/869, p. 5. 63 In the proposed Art. 7, para. 1(ix) of the draft articles. See Schwebel (1981), p. 90, para. 106. 64 In total, irrigated area in Egypt is 3,610,000 hectares, or 98.3% of the cultivated area. FAO Aquastat, Egypt, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/countries_regions/ EGY/index.stm. 65 FAO Aquastat, Egypt, Economy, agriculture and food security, http://www.fao.org/nr/water/ aquastat/countries_regions/EGY/index.stm. 66 See CIA, The World Factbook, Egypt, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/eg.html.

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of the basin areas of the State”.67 Consequently, the Nile water-related social and economic needs of the entire Egyptian population should be taken into account. In terms of use allocation, Egypt often refers to its high population growth and a corresponding future increase in demand for water. However, this cannot be taken into consideration within the framework of Article 6, paragraph 1(b) of the UN Watercourses Convention and Article 4, paragraph 2(b) of the CFA, as the wording does not include future social and economic needs. The inclusion of such future situations is also not necessary, as the principle of equitable and reasonable utilization is to be understood as an ongoing process that requires constant reassessment and, if necessary, adaptation. When and if significant changes occur, they are to be considered at that stage, not beforehand. For Sudan, similar considerations apply as for Egypt. The Nile water covers the basic needs for drinking water and food production of almost the entire population. The main areas of Sudanese agriculture rely on the use of the Blue Nile for irrigation.68 Agriculture employs 80% of the labor force69 and due to Sudan’s arid climate agriculture is highly dependent on irrigation.70 In Ethiopia, irrigated agriculture has thus far not been employed to a large extent71 and consequently its importance in food production and employment is limited. The drinking water supply is not significantly dependent on the Nile’s water; however, Ethiopia’s social and economic needs related to the Nile for hydroelectric power production should be taken into account. In Eritrea, South Sudan and the upstream riparian states of the White Nile, the Nile water-related needs for drinking water and irrigated agriculture are low72 compared to Egypt and Sudan. While as far as Uganda is concerned, economic needs in terms of energy production using the Nile should be taken into account. In summary so far, it can be noted that social and economic needs as regards the waters of the Nile vary considerably between its riparian states. Especially in Egypt, but also in Sudan, the population’s social and economic needs related to the Nile are immense; the river provides virtually all the water for drinking and for irrigated agriculture, the latter of which in turn employs large parts of the population. In the other riparian states, Nile water is not used to a significant extent for agricultural irrigation. However, especially in Ethiopia and Uganda, its use for hydropower

67

Report of the Krishna Water Disputes Tribunal, 1973, Vol. 2, pp. 126–127. On this question, see also McIntyre (2007), pp. 158–159. 68 Taha (2010), p. 192. 69 CIA, The World Factbook, Sudan, Economy, https://www.cia.gov/library/publications/theworld-factbook/geos/su.html. 70 Ward and Roach (2012), p. 59; Swain (2008), p. 205. 71 The total volume of water abstracted from the Nile annually for irrigation in Ethiopia is estimated to be only 1.5 billion cubic meters. See NBI (2016), Chap. 7, Irrigation areas in Ethiopia, http:// atlas.nilebasin.org/treatise/irrigation-areas-in-ethiopia/. 72 See also NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas. nilebasin.org/treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. For the total volume of water withdrawn from the Nile for irrigation in each of the riparian states, see Sect. 9.1.5, below.

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generation has a certain importance. With regards to any country’s future use, any forecast increase in the demand for water, even if clearly rooted in current trends, should not be taken into account until such demand materializes. Although the above review does not include an exhaustive analysis of the needs, it can nevertheless be concluded that social and economic needs should be granted particular significance when determining equitable utilization in the Nile Basin. This is especially relevant for Egypt and Sudan and, to a lesser extent, Ethiopia and Uganda.

9.1.3

Population Dependent on the Watercourse

According to Article 6, paragraph 1(c) of the UN Watercourses Convention, adopted in Article 4, paragraph 2(c) of the CFA, another factor to be taken into account in the weighing of factors when assessing equitable utilization is “the population dependent on the watercourse in each watercourse State”. The commentary of the ILC states that this factor is intended to “note the importance of account being taken of both the size of the population dependent on the watercourse and the degree or extent of their dependency”.73 Almost the entire population of Egypt, which at the time of writing is about 99.4 million, is almost completely dependent on the Nile water.74 This is reflected in the fact that 95% of the population lives in the Nile Valley and Delta, which constitute only 4% of the state’s territory.75 Nile water covers more than 95% of the population’s water needs as it is practically the only source of water in the country. Any agriculture, even subsistence agriculture, is dependent on irrigation from the Nile,76 making the population existentially dependent on the Nile for its food supply, even outside of the Nile Basin. In the context of this factor, the entire population should be included in the consideration, and should not be restricted to the parts of the population living within the Nile Basin area. The wording of Article 6, paragraph 1(c) of the UN Watercourses Convention, which is effectively the same as that in Article 4, paragraph 2(c) of the CFA, does not indicate a restriction to the population living only within the basin area. The inclusion of the entire population is furthermore based

73

ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 74 CIA, The World Factbook, Egypt, People and society, https://www.cia.gov/library/publications/ the-world-factbook/geos/eg.html. 75 FAO Aquastat, Egypt, Geography, climate and population, http://www.fao.org/nr/water/aquastat/ countries_regions/EGY/index.stm. 76 Elemam (2010), p. 219.

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on the same considerations that were already set out in determining the social and economic needs of a watercourse state.77 The population of Sudan stands at approximately 43.1 million.78 Precise information on the proportion of its population that is dependent on the Nile is not available. However, a large part of the country is dominated by an arid climate and the Nile and its tributaries are the only sources of water for both irrigated agriculture79 and drinking water supply.80 From this it can be presumed that a considerable proportion of the population depends to a significant extent on Nile water. With a population of 108.4 million, Ethiopia is the most populous country among the Nile riparian states.81 About 88% of the Ethiopian population lives in the highlands,82 where the Blue Nile, Atbara, and Sobat (as well as their tributaries) originate. However, rainfall is high in the highlands and Ethiopia uses only a small proportion of Nile water83 to supply its various needs.84 Eritrea has a population of approximately six million,85 of which about one-sixth lives in the drainage area of the Blue Nile.86 However, most of the population and the nation’s agricultural sector are located in the central highlands,87 where rainfall is sufficient to grow the most important crops.88 The population of the Nile’s newest riparian state, South Sudan, is estimated at around 10.2 million.89 Currently, the heavy rainfall in South Sudan is sufficient for the local population to maintain the subsistence farming common to the region.90

77

See Sect. 9.1.2, above. CIA, The World Factbook, Sudan, People and society, https://www.cia.gov/library/publications/ the-world-factbook/geos/su.html. 79 Ward and Roach (2012), p. 59; Swain (2008), p. 205. 80 See Taha (2010), p. 205. 81 CIA, The World Factbook, Ethiopia, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/et.html. 82 Swain (2008), p. 206. 83 The term “Nile water” in this Chapter is used in accordance with Art. 2(b) of the CFA to comprise only the surface and groundwater runoff. As noted previously, green water is not considered part of the Nile water resources under the CFA when it comes to water use. 84 See NBI (2012), p. 51. See also Tafesse (2011), p. 67. 85 CIA, The World Factbook, Eritrea, People and society, https://www.cia.gov/library/publications/ the-world-factbook/geos/er.html. 86 Oloo (2011), p. 161. 87 Kahsay (2012a), p. 476; Oloo (2011), p. 161. 88 Kahsay (2012a), p. 476. 89 CIA, The World Factbook, South Sudan, People and society, https://www.cia.gov/library/publi cations/the-world-factbook/geos/od.html. 90 Salman (2011), p. 161. 78

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Uganda’s population is estimated at 40.9 million.91 A large part of the population lives in the drainage area of Lake Victoria, with agriculture mainly sustained by the annual rainfall.92 As a consequence, Lake Victoria and the Nile Basin are barely used for irrigated agriculture.93 The majority of Kenya’s 48.4 million people94 live in the Central Highlands, along the coast and in the Lake Victoria area.95 More than 80% of the population in the Kenyan portion of the Nile Basin is involved mainly in subsistence agriculture,96 which relies largely on rainfall.97 The population of Tanzania is estimated at 55.5 million,98 of which about one-fifth lives in the most densely populated peripheral areas of Lake Victoria and the coastal strip.99 Tanzanian agriculture is predominantly rain-fed and therefore is largely not dependent on Nile water.100 Turning to Burundi and its estimated population of 11.8 million,101 one finds again widespread reliance on rainfall for agriculture.102 Irrigation has thus far only been marginally employed.103 Water demand in Burundi only accounts for a small percentage of the country’s available renewable water resources.104

91 CIA, The World Factbook, Uganda, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/ug.html. 92 Van Buren (2012a), p. 1317. 93 See Arsano (2006), p. 334. 94 CIA, The World Factbook, Kenya, People and society, https://www.cia.gov/library/publications/ the-world-factbook/geos/ke.html. See also Van Buren (2012b), p. 652. 95 Van Buren (2012b), p. 652. 96 Mwiandi (2010), p. 110. 97 Van Buren (2012b), p. 653. Irrigated agriculture is minimal, see FAO Aquastat, Kenya, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/countries_regions/KEN/. See also NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/hydraulic-infrastruc ture-in-the-nile/. 98 CIA, The World Factbook, Tanzania, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/tz.html. 99 NBI, Member States – Tanzania, http://www.nilebasin.org/index.php/nbi/member-states. 100 See NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/ hydraulic-infrastructure-in-the-nile/. On the development of irrigation in Tanzania, see FAO Aquastat, United Republic of Tanzania, Irrigation and drainage, http://www.fao.org/nr/water/ aquastat/countries_regions/TZA/. 101 CIA, The World Factbook, Burundi, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/by.html. 102 Nkurunziza (2010), p. 16. 103 FAO Aquastat, Burundi, Irrigation et drainage, http://www.fao.org/nr/water/aquastat/countries_ regions/BDI/index.stm. 104 Water demand is estimated at less than 3% of the country’s available renewable water resources, see Nkurunziza (2010), p. 17.

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Rwanda’s 12.2 million people105 receive abundant rainfall throughout the year, covering most of their water needs. Agriculture is predominantly rain-fed and is, therefore, largely not dependent on Nile water for irrigation.106 Finally, the population of the DR Congo, estimated at almost 85.3 million,107 is fortunate in terms of water wealth. The Congo River, its tributaries and the African Great Lakes make the DR Congo one of the most water-rich countries in the world.108 In stark contrast to Egypt and Sudan, the country relies on the Nile for only a small fraction of its total water resources. Thus, the variations between the conditions prevailing in Nile Basin states can also be observed with regard to the various populations’ dependence upon the Nile. At one end of the spectrum sits Egypt’s large population of 99.4 million, almost completely dependent on the Nile. Sudan sits alongside with 43.1 million inhabitants, who are also to a great extent dependent on Nile water. In contrast, none of the other Nile riparian states have comparably sizeable portions of their populations that are dependent to a high degree on Nile water for agriculture or water supply, as they largely rely on alternative water resources. Population growth and the expected corresponding increase in water needs, which is raised as a consideration by almost all Nile riparian states, should not be taken into account before these needs actually arise. The factor of population dependence on a watercourse is of particular importance because of Egypt’s and Sudan’s very high level of dependence on the Nile. This factor is particularly relevant for those two states.

9.1.4

Effects of Uses on Other Watercourse States

Furthermore, pursuant to Article 6, paragraph 1(d) of the UN Watercourses Convention, adopted in Article 4, paragraph 2(d) of the CFA, “the effects of the use or uses of the watercourses in one watercourse State on other watercourse States” are to be taken into account when determining equitable and reasonable utilization. According to the commentary of the ILC, this sub-paragraph refers to the question

105

CIA, The World Factbook, Rwanda, People and society, https://www.cia.gov/library/publica tions/the-world-factbook/geos/rw.html. 106 See FAO Aquastat, Rwanda, Irrigation et drainage, http://www.fao.org/nr/water/aquastat/coun tries_regions/RWA/. See also NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 107 CIA, The World Factbook, Democratic Republic of the Congo, People and society, https://www. cia.gov/library/publications/the-world-factbook/geos/cg.html. 108 Gourou (2012), p. 328.

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of whether uses of the watercourse by one riparian state will have effects on other such states, and in particular whether such uses interfere with uses by these states.109 First and foremost Egypt, and on a lesser scale Sudan, use the Nile extensively for irrigated agriculture and hydroelectric power generation. The uses of these two downstream states do not affect the uses of other riparian states in any practical manner.110 However, Sudan’s consumptive use of Nile water, especially for irrigated agriculture, directly affects water availability for Egypt. Ethiopia and Eritrea do not currently use the Nile to any significant extent, although almost every major use in Ethiopia will have direct effects on both Sudan and Egypt.111 Ethiopia’s construction of the Grand Ethiopian Renaissance Dam, which began in 2011, has led to fears in Egypt concerning adverse effects on its own water uses due to a reduction of the Nile water flowing to Aswan, which would lead to reduced electricity generation at the Aswan High Dam.112 Of even greater concern in Cairo is that a reduction in the water flow would directly affect Egyptian agriculture, the country’s principal employer. In response to these concerns, Ethiopia has stated that it will use the Renaissance Dam only for hydroelectric power generation and not for irrigation.113 However, while hydroelectric power projects do not actually extract water from a watercourse, their effects on downstream users still depend on how they are operated. Conversely, uses by the riparian states of the White Nile, namely South Sudan, Uganda, Kenya, Tanzania, Burundi, Rwanda and the DR Congo, have, due to their hydrogeography, at most minimal effects on Egypt and Sudan, which lie downstream of the swamp area of the Sudd.114 The vast wetlands of the Sudd regulate to a large extent any increase or decrease in the water flow of the White Nile. In summary, it can be noted that there are currently no uses of the Nile in any of the riparian states that have significant effects on any of the other riparian states in any practical manner. The only exception is the consumptive water use by Sudan which directly affects Egypt by reducing the flow volume of the Nile at Aswan. But overall, this factor is currently of rather little importance for the Nile as a whole. In the future, however, exploitation of the Blue Nile, particularly by Ethiopia, may significantly affect Egypt and Sudan: Any uses that reduce Nile water flow, even temporarily, interfere with water uses downstream, since the full amount of the normal current flow is already being used to the maximum usable capacity. Given

109

ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 110 A possible effect of dams downstream can be, for example, to block fish migration routes upstream. 111 Dellapenna (2006), p. 299. 112 State Information Service (2019b). See also ‘Abd ar-Raḥmān (2013), p. 5; ‘Abd Ḥasnīn (2013), p. 6. 113 Ethiopiantimes (2011). 114 See Dellapenna (2006), p. 299; Waterbury (1979), pp. 14–17 and 23.

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that the construction of the Renaissance Dam is already well advanced, this factor will gain weight, and it is in particular relevant for Egypt and Sudan.

9.1.5

Existing and Potential Uses

According to Article 6, paragraph 1(e) of the UN Watercourses Convention, adopted in Article 4, paragraph 2(e) of the CFA, “existing and potential uses of the watercourse” are to be taken into account. The commentary of the ILC explains that existing and potential uses of an international watercourse are mentioned in order to emphasize that neither is given priority. One or both factors may be relevant in any given case,115 meaning that existing and potential uses of the watercourse are, in principle, to be treated as equal.116 Egypt extracts an estimated 78 billion cubic meters of water annually from the Nile, of which some 67 billion cubic meters is used for the agricultural sector.117 Egypt has the largest irrigated area in Africa. In 2002, about 3.6 million hectares were under irrigation in Egypt, 98.3% of the total cultivated area.118 In order to facilitate permanent, year-round irrigation, numerous barrages and dams have been constructed on the Nile in Egypt since the second half of the nineteenth century.119 The Aswan High Dam was completed in 1971 and is now the second-largest dam in Africa, with a storage capacity of 162 billion cubic meters. It is primarily used for irrigation and hydroelectric power generation, with flood control being another important function.120 In addition, Egypt is making great efforts to develop new land in the desert regions for agricultural production.121 The agricultural areas developed since 1952, especially in the desert to the east and west of the Nile Delta, represent about

115

ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 116 For a detailed discussion of the significance of existing uses in the context of the overall assessment of relevant factors and circumstances, see Fuentes (1996), pp. 356–366. 117 FAO Aquastat, Egypt, Water resources and use, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/. Another 9 billion cubic meters for municipalities and 2 billion cubic meters for industries, ibid. 118 FAO Aquastat, Egypt, Irrigation and drainage http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/. 119 See Elemam (2010), p. 219. The first modern dam was built in 1861 near Cairo, this was followed in 1902 by dams on the Nile in Aswan, Asyut, and Sittah. See also NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/hydraulic-infrastructure-inthe-nile/. 120 FAO (2005), p. 23, Table 7. 121 Overview at FAO Aquastat, Egypt, Prospects for agricultural water management, http://www. fao.org/nr/water/aquastat/countries_regions/EGY/.

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one-quarter of the total cultivated land area.122 Since the second half of the 1990s, Egypt has been pursuing large-scale water diversion projects outside of the natural valley of the Nile for land-reclamation projects in the Sinai and the south-western desert. These include the Northern Sinai Development Project, the South Valley Development Project, and the West Delta Irrigation Project. Together, they will make thousands of hectares of land usable for agriculture,123 thus allowing increased agricultural production in Egypt and the opportunity to create new urban communities outside of the Nile Valley and Delta. As part of the Northern Sinai Development Project on the Sinai Peninsula, on both sides of the Suez Canal, more than 84,000 hectares124 of desert has been developed for cultivation. The plan is to double this area with the irrigation system of the new land being connected to the El Salam Canal, which has an annual capacity of up to 4.45 billion cubic meters of water. Half of the water will be drawn from the Nile and the other half provided by the treatment of drainage water from the agricultural land itself. The infrastructure needed for this project, including a dam at Dumyat, is largely completed.125 The South Valley Development Project, also called the Toshka Project, is a large landreclamation program in the south-western desert near Lake Nasser. It will allow more than an extra 168,000 hectares126 to be cultivated by pumping water from Lake Nasser.127 Lastly, the largest land-reclamation project is currently the Million and a Half Feddan Project in the western desert (launched in 2015). For this project, mainly groundwater will be used for irrigation and only a small portion of surface water drawn from the Nile.128 These endeavors pose the question of whether or not such land-reclamation projects should be taken into account as uses of the watercourse under Article 6, paragraph 1(e) of the UN Watercourses Convention and Article 4, paragraph 2(e) of the CFA. A possible reason for not including them in the overall assessment is that they were initiated despite objections from other riparian states. They are seen across the Nile Basin as Egypt’s continued efforts to prevent other riparian states 122

FAO Aquastat, Egypt, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/. 123 Cascão (2009), p. 249; Ward and Roach (2012), pp. 65–66. Detailed information about the projects is available on the homepage of the Egyptian Ministry of Water Resources and Irrigation (2019a), Al-mašrū‘āt (The Projects), https://www.mwri.gov.eg/index.php/ministry-2 (Arabic). 124 That is 200,000 feddan. Feddan is an Arabic unit of area used in Egypt, among other countries. 1 feddan is 0.42 hectares. 125 For details on the project, see the Egyptian Ministry of Water Resources and Irrigation (2019b), Mašrū‘ tanmīya šamāl sīynā (Northern Sinai Development Project), https://www.mwri.gov.eg/ index.php/ministry-2/ministry-20 (Arabic). 126 That is 400,000 feddan. 127 For details on the project, see the Egyptian Ministry of Water Resources and Irrigation (2019c), Mašrū‘ tanmīya ǧanūb al-wādī (South Valley Development Project), https://www.mwri.gov.eg/ index.php/ministry-2/ministry-21 (Arabic). 128 For details on the project, see the Egyptian Ministry of Water Resources and Irrigation (2019d), Mašrū‘ al-milīūn wa-nuṣf fiddān (One Million and a Half Feddan Project), https://www.mwri.gov. eg/index.php/ministry-2/ministry-25 (Arabic).

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from using their respective shares in the Nile.129 Some authors argue that, because of the objections, those land-reclamation projects should be excluded from consideration under the principle of equitable use.130 It must be noted, though, that such an approach would enable a riparian state, or groups thereof, to deter other states from further development or use of the shared watercourse simply by raising objections. Under customary international law, if a riparian state expresses concern about a new use planned by a co-riparian, both states must enter into consultations and negotiations with a view to reaching an agreement.131 There is, however, no obligation to find an agreed solution, since such a requirement would effectively establish a veto right of the potentially affected co-riparian states over the project implementation.132 Given this, the arbitral tribunal in the Lake Lanoux case in 1957 found that hydraulic projects do not require a prior agreement between the concerned riparian states.133 By refusing to enter into consultations or negotiations, Egypt may well have violated the customary obligation of consultation, but this does not mean that the uses in question are excluded from being assigned value under the principle of equitable utilization. Indeed, these uses should be included in the comprehensive assessment of relevant factors if an equitable use allocation is to be found. The question remains whether diversions that take water beyond the basin area should be taken into account as uses for the purposes of assessing equitable and reasonable utilization, or whether only water uses within the basin area itself are considered relevant. Such a restriction cannot, however, be derived from the wording of the UN Watercourses Convention nor the CFA. Moreover, it is in the interest of the equitable and reasonable use of a watercourse to generally consider as relevant any use of the river water that can or must be made to supply the population of a riparian state. Thus, all water diversions are in principle covered by Article 6 of the UN Watercourses Convention and Article 4 of the CFA, requiring them to be included in the overall assessment. Sudan is the second-greatest user of Nile water after Egypt.134 Since the colonial period, Sudan’s agricultural development has been centered on irrigation, predominantly in areas adjoining the Nile.135 Sudan has almost 2 million hectares under irrigation, the second largest of any African country after Egypt, and an area almost

129

Ward and Roach (2012), p. 66. For example Woldetsadik (2013), p. 248. 131 Boisson de Chazournes (2013), p. 74. 132 See Caponera (2007), p. 221. See also Chap. 3, Sect. 3.2.3. 133 In its decision, the tribunal observed that “the rule that States may utilize the hydraulic power of international watercourses only on condition of a prior agreement between the interested States cannot be established as a custom, even less as a general principle of law” (emphasis in original), English translation in ILR 24 (1957) p. 130, of the original Lake Lanoux Arbitration (France v. Spain), 16 November 1957, RIAA XII (1957), p. 308, para. 13. 134 Arsano (2010), p. 176. 135 Taha (2010), p. 205. 130

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undiminished by the 2011 secession of South Sudan.136 Irrigation accounts for approximately 96% of the state’s total water extraction from the Nile.137 All major irrigation projects in the country use the water of the Blue Nile, the White Nile or the Atbara,138 the only significant sources of water for irrigation.139 The total net abstraction of water for irrigation from the Nile in Sudan is estimated at 13.3 billion cubic meters annually.140 Sudan’s first large hydraulic engineering structure, the Sennar Dam, was completed on the Blue Nile in 1925.141 The dam serves to irrigate the Gezira Scheme, Sudan’s largest irrigated area, which is situated in the state of Al Jazirah south-east of the confluence of the Blue and White Nile rivers at Khartoum. The Gezira Scheme covers almost 900,000 hectares, thereby ranking among the largest irrigation projects in the world, and has played an important role in the economic development of Sudan. It was for many years the main source of foreign exchange and government revenue, contributed to national food security, and continues to provide a livelihood for 2.7 million people living in its vicinity.142 The second dam on the Blue Nile, the Roseires Dam, was constructed in the 1960s and serves both for irrigation and as the site of a large hydroelectric power plant, with a capacity of 250 MW. The total storage of the Roseires Dam reservoir is 3 billion cubic meters which, when combined with the Sennar Dam, can supply irrigation water from the Blue Nile for approximately 1.48 million hectares.143 In 1981 the Rahad Irrigation Project east of the Rahad River was completed, the latter being a tributary of the Blue Nile downstream from the Sennar Dam. Through two canals and a dam on the Rahad, approximately 126,000 hectares is now irrigated with water from the Blue Nile and the Rahad.144 On the White Nile, the 3.5-billion-cubic-meter capacity Jebel Aulia Dam was completed in 1937 and provides water to pumping facilities that today irrigate 200,000 hectares.145 On the Atbara River, the Khashm el-Girba Dam, with a total storage capacity of 1.3 billion cubic meters, and the Halfa el Jadida irrigation project, now with over 210,000 hectares under cultivation, were completed in 1964.146

136

FAO Aquastat, Sudan, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/countries_ regions/SDN/. 137 See FAO Aquastat, Sudan, Water use, http://www.fao.org/nr/water/aquastat/countries_regions/ SDN/. Another 4% is withdrawn for municipal households, ibid. 138 Taha (2010), p. 194. 139 Ibid., p. 205. 140 NBI (2016), Chap. 7, Irrigation areas in Sudan, http://atlas.nilebasin.org/treatise/irrigation-areasin-sudan/. 141 Kharouf-Gaudig (2012), p. 99; Taha (2010), p. 182. 142 For more details on the Gezira Scheme, see Taha (2010), pp. 184–185, 193 and 209. 143 Ibid., pp. 195–196 (approximately 3,512,000 feddan). 144 Ibid., p. 199 (approximately 300,000 feddan). 145 Ibid., pp. 184–185. 146 Ibid., p. 186 (approximately 500,000 feddan).

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However, over time, the Khashm el-Girba Dam has lost more than half of its storage capacity as a result of the accumulation of sludge in its reservoir.147 Also on the Atbara, the Upper Atbara and Setit Dam complex was completed in 2018 with an installed capacity of 320 MW.148 Lastly, the Merowe Dam (also known as the Hamdab Dam) is a large dam for electricity generation about 350 km north of Khartoum on the main Nile. The dam was completed in 2009. It has a reservoir of 12.5 billion cubic meters and a power station with an installed capacity of 1250 MW. All of the foregoing combine to show how extensive Sudan’s existing uses of the Blue and White Nile are. The construction of the Kajbar Power Station on the main Nile with an installed capacity of 350 MW has been proposed, but it has faced resistance from the local population and implementation does not seem to be imminent.149 Currently, there appear to be no concrete plans for other significant new uses of the Nile in Sudan. Commentators often point to Sudan’s great potential to expand its irrigated agriculture through further hydro-engineering projects on the Blue Nile.150 However, such mere potential does not fall into the category of “potential uses” within the meaning of Article 6, paragraph 1(e) of the UN Watercourses Convention and Article 4, paragraph 2(e) of the CFA.151 It would not be in accordance with the aspired optimal use of water if one were to weigh pure potential for use against existing uses in such a way that might even potentially restrict the latter. Qualified criteria need to be specified under which potential uses can be taken into account within the principle of equitable utilization; such criteria are proposed in the paragraphs concerning Ethiopia’s planned uses below. Again, it should be taken into account that the flexible principle of equitable and reasonable utilization allows for, and requires, a subsequent adjustment at the time when use potential is about to be translated into concrete uses. For a variety of reasons, Ethiopia makes little use of the Nile water at present. Agriculture mainly relies on rainfall and as such only 12% of the area under cultivation is irrigated land.152 In the Ethiopian portion of the Nile Basin, which consists of the Blue Nile, Sobat, Atbara and Mereb, only approximately 91,000 hectares of land are equipped for irrigation, where irritation is used only when rainfall is not sufficient to meet the crop water requirements.153 The total water

‘Alī Ṭāhā (2005), p. 83; Taha (2010), p. 195. For details on this dam complex, see https://tractebel-engie.com/en/news/2018/dam-complex-ofthe-upper-atbara-multi-purpose-project-all-power-generating-units-in-operation. 149 See for example AllAfrica (2018). 150 See for example Taha (2010), p. 216; Arsano (2006), p. 330. 151 For a detailed discussion of the criteria for the consideration of potential uses, see in the context of the following presentation of potential uses by Ethiopia. 152 FAO Aquastat, Ethiopia, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/coun tries_regions/ETH/. 153 NBI (2016), Chap. 7, Irrigation areas in Ethiopia, http://atlas.nilebasin.org/treatise/irrigationareas-in-ethiopia/. 147 148

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abstraction for irrigation from the Nile in the country is estimated at 1.5 billion cubic meters annually.154 The main hydraulic infrastructure in the Ethiopian Nile Basin is located along the Blue Nile. At the headstream of the Blue Nile, the water flowing from Lake Tana is used for hydropower generation by the Tis Abay I and II power plants, which were commissioned in 1964 and 2011, respectively. Combined, these plants have an installed capacity of 84 MW. The Koga Dam, with a reservoir capacity of 0.083 billion cubic meters, was completed on the Blue Nile in 2012 and is used exclusively to facilitate irrigation: this is the first new large-scale irrigation scheme in the Blue Nile Basin since the 1970s. Further downstream on the Blue Nile, the Finchaa Power Station, with a power generating capacity of 100 MW, and the Finchaa Amerti Neshe Plant, with a capacity of 95 MW, were completed in 1973 and 2011, respectively. On the Beles River, a tributary of the Blue Nile, the Beles Hydroelectric Power Plant, with an installed capacity of 460 MW, was commissioned in 2010.155 Besides the Blue Nile, on the Alwero River, the Alwero Dam was completed in 1995 for irrigation purposes only. Lastly, on the Tekeze River, the Tekeze Dam was completed in 2009 together with a hydroelectric power plant with an installed capacity of 300 MW.156 Still, the focus for Ethiopia with regard to the Nile is on the question of potential uses. An extensive program for the construction of dams was developed under the Water Sector Development Program 2002–2016 and adopted by the Ethiopian government, which includes the construction of several large dams and irrigation schemes on the Blue Nile.157 The largest of those dams is the Grand Ethiopian Renaissance Dam, which is expected to create a reservoir of 79 billion cubic meters.158 In March 2011, Ethiopia announced its plans to build the Renaissance Dam on the Blue Nile, some 40 km from the Sudanese border. Construction officially began in the following month and was to be completed by 2017, but construction work on the dam has fallen behind schedule and completion is currently expected in 2022. Once in operation, the dam will produce an estimated 6000 MW.159 As previously mentioned, Egypt in particular vocally protested against

154

Ibid. For a list of dams in Ethiopia, see FAO, Aquastat, Dams of Ethiopia, www.fao.org/nr/water/ aquastat/dams/country/ETH-dams_eng.xlsx. See also NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/hydraulic-infrastructure-in-the-nile/. 156 See NBI (2016), Chap. 7, Hydropower Generation Potential, http://atlas.nilebasin.org/treatise/ hydropower-generation-potential/. 157 See Arsano (2010), p. 169; Salman (2013), p. 24. 158 FAO Aquastat, Ethiopia, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/ETH/. 159 Details of the project are available on the homepage of the Italian construction company carrying out the work: https://www.salini-impregilo.com/it/lavori/in-corso/dighe-impianti-idroelettrici/ grand-ethiopian-renaissance-dam-project.html. See also Kahsay (2012b), p. 501. 155

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the construction of this dam160; however, as discussed above in the context of the Egyptian water diversion projects, objections by co-riparian states do not exclude projects from consideration under the principle of equitable use. The question in Ethiopia’s case is whether the planned uses of the Blue Nile should be taken into account as “potential uses of the watercourse” in the overall assessment of relevant factors, as laid out by Article 6 of the UN Watercourses Convention and Article 4 of the CFA. The consideration of potential uses in general raises the question of what specific criteria potential uses must fulfill to be taken into account. Not every hypothetically possible use of a watercourse can be taken into account and given equal consideration to that granted to existing uses. Otherwise, riparian states could ultimately reserve a future use for themselves and thus restrict a competing existing use, regardless of whether or not this future use is a serious prospect. The ILA has already voiced opposition to allowing states to reserve water for future uses if they have no current need and could only use the water, if at all, at a later time. In addition, from a practical point of view it would not be possible to determine such future water uses with sufficient certainty without detailed plans.161 The existence of a mere possibility cannot justify assigning general equality with existing uses for which efforts have been made and costs incurred to meet a current need. Moreover, it also raises the question of a time limit for planned projects, as projects that will only be implemented decades from the time of the assessment cannot legitimately be included. Thus, qualified requirements for the equivalent consideration of potential uses need to be established. First, in view of the above concerns, it should be required that the putative potential use be determinable in the form of concrete and detailed plans for the future project, and that the project implementation is planned for the short-term future. Moreover, it should be required that the planned project has been examined and found to be technically and financially feasible, and that implementation is also likely. Lastly, the planning state should be required to provide corroborating evidence for the above criteria. An existing use could then even be ousted by a new potential use if the latter satisfies a priority need, although this will usually be difficult to prove. Accordingly, the concretely planned projects of Ethiopia, and in particular the Renaissance Dam which is already under construction, should be taken into account as potential uses in the overall assessment. In addition, Ethiopia’s oft-cited considerable water-use potential remains largely untapped.162 In the Ethiopian part of the Nile Basin there is an irrigable area of 1,312,500 hectares, representing some 49% of the country’s total irrigable area.163

State Information Service (2019b). See also ‘Abd ar-Raḥmān (2013), p. 5; ‘Abd Ḥasnīn (2013), p. 6. 161 Commentary of the ILA on Art. VII of the Helsinki Rules, ILA, Report of the Fifty-Second Conference held at Helsinki, 14–20 August 1966, pp. 492–493. 162 Ward and Roach (2012), p. 67. 163 FAO Aquastat, Ethiopia, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/coun tries_regions/ETH/. 160

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Ethiopia also has further untapped hydroelectric power potential on the Blue Nile.164 However, according to the above discussion, this mere use potential cannot be considered as a potential use in the weighing of relevant factors without concrete plans for its exploitation. The waters of the Eritrean Nile Basin have been largely untapped over the last century.165 The area suitable for irrigated agriculture in the Eritrean portion of the Nile Basin is estimated at between 60,000 and 300,000 hectares.166 However, as discussed, without concrete plans the mere usage potential cannot be considered as a potential use within the overall assessment of equitable utilization. There appear to be no current plans for utilization of the Nile in Eritrea.167 In South Sudan, the White Nile has been used only marginally so far. The annual withdrawal of water from the Nile for irrigation is estimated at only 0.003 billion cubic meters.168 There is currently only one irrigation scheme using the Nile water, with a total equipped area of 500 hectares,169 and no plans have been made public that suggest South Sudan is likely to change this situation in the foreseeable future. That said, at the meeting of the Nile Council of Ministers of the NBI in June 2013, the country did announce its intention to construct several small hydroelectric power plants on the White Nile; however, in the absence of concrete plans those cannot be taken into account. The high hydroelectric power potential on the White Nile in South Sudan170 cannot be taken into account in the overall assessment. Uganda barely uses Lake Victoria or the other waters belonging to the drainage area of the White Nile within its territory from a consumptive perspective.171 For irrigation, an estimated 0.26 billion cubic meters of water are withdrawn from the Nile per year.172 However, fishing is an important non-consumptive use of Lake Victoria in Uganda,173 as is the use of the Victoria Nile to generate hydroelectric power. In 1954, the Owen Falls Dam was built at the outflow of Lake Victoria by the city of Jinja together with the Nalubaale Plant, which has an installed capacity of

164

See World Energy Council, World Energy Resources (2013), pp. 7–8 and 21. See CIA, The World Factbook, Eritrea, Economy, https://www.cia.gov/library/publications/theworld-factbook/geos/er.html. 166 FAO (1997), Chap. 6. 167 Oloo (2011), p. 157. 168 NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 169 See ibid. 170 The hydroelectric power potential of South Sudan has been evaluated several times. The largest hydroelectric power potential on the Nile is located between Nimule and Juba, where it is estimated that 1045 MW could be generated annually. UNDP (2010), p. 21. 171 See Arsano (2006), p. 334. Agriculture in Uganda predominantly relies on rainfall. Van Buren (2012a), p. 1317. 172 NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 173 Van Buren (2012a), p. 1318. 165

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180 MW.174 In 1999, the Kiira Power Station with a capacity of 200 MW was completed as an extension to the Owen Falls Dam.175 A third power station was completed at the Bujagali Falls on the Victoria Nile in 2012, and produces an additional 255 MW.176 The electricity supply in Uganda is generated primarily from these three hydroelectric power plants.177 Downstream of the Bujagali Falls Hydropower Plant on the Victoria Nile, the 183-MW Isimba Hydropower Plant was commissioned in 2019.178 Again further downstream, construction of the Karuma Hydroelectric Power Station started at the Karuma Falls in 2013.179 Completion of this power station is expected by the end of 2019, with an installed capacity of 600 MW, the largest in the country.180 There are currently no publicly available plans for the construction of other hydroelectric power plants that are concrete or detailed enough to meet the requirements for consideration as potential uses. Furthermore, the high water-use potential of the Nile for Uganda,181 particularly with regard to power generation, cannot either be taken into account when determining equitable use. The waters of the Kenyan Nile Basin have thus far not been used to a large extent.182 Irrigated agriculture is minimal.183 While there are several small-scale irrigation schemes in the drainage basin of Lake Victoria,184 only an estimated 0.307 billion cubic meters of Nile water are used for irrigation per year.185 There are two dams on the Nile. The Ellegirini Dam was completed in 1987; it has a storage capacity of 0.002 billion cubic meters and is used for water supply.186 The second

174

See also Langlands (2012), p. 1309. For details see Mulira (2010), pp. 134–136. 176 For detailed information on the Bujagali Power Station, see https://www.salini-impregilo.com/ en/projects/completed/dams-hydroelectric-plants/bujagali-hydropower-plant.html. 177 International Hydropower Association, Country profiles, Uganda, https://www.hydropower.org/ country-profiles/uganda. 178 For details, see the Electricity Regulatory Authority, 2019, http://www.era.or.ug/index.php/ media-centre/what-s-new/269-isimba-hydropower-plant-commissioned. 179 The EastAfrican (2013). 180 Electricity Regulatory Authority, 2019, http://www.era.or.ug/index.php/media-centre/what-snew/271-increased-electricity-generation-implications-for-the-end-user-tariffs. 181 It is estimated that Uganda has immense hydroelectric power potential amounting to approximately 3000 MW from the White Nile, of which less than 10% is currently being exploited. The Ugandan areas bordering Lake Victoria also have great potential for irrigated agriculture, which has similarly been barely used thus far. Van Buren (2012a), p. 1319. 182 Mwiandi (2010), p. 93. 183 See FAO Aquastat, Kenya, Irrigation and drainage, http://www.fao.org/nr/water/aquastat/coun tries_regions/KEN/. 184 See NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/ hydraulic-infrastructure-in-the-nile/. 185 NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 186 See World Bank (2011), p. 6, Table 1. 175

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dam was commissioned in 2007, together with the 60-MW Sondu Miriu Hydroelectric Power Station, on the Sondu River, which is one of the influent rivers to Lake Victoria.187 Fishing is one of the most important economic uses of Lake Victoria and the main tributaries of the Nile in Kenya.188 There appear to be no significant water use plans for the Nile in Kenya. The high water-use potential189 as such in the Kenyan Nile Basin is not relevant for the overall assessment. Similarly, Tanzania has not used Nile water to a great extent for agriculture or hydroelectric power generation190 and, as is the case with Uganda and Kenya, fishing is widespread on Lake Victoria. There are small-scale irrigation schemes within the drainage basin of Lake Victoria,191 and the annual volume of Nile water used for irrigation is estimated at 0.063 billion cubic meters.192 Notable for Tanzania is its growing mining sector, which requires fresh water; water from the Nile Basin, particularly around Lake Victoria, is used for this purpose. While Tanzania is also said to be planning irrigation projects in the drier areas of the Lake Victoria region,193 no concrete plans are available for this. Within the Nile Equatorial Lakes Subsidiary Action Program of the NBI, Tanzania, Burundi and Rwanda jointly developed the Regional Rusumo Falls Hydroelectric Project at the Rusumo Falls on the Kagera River. Construction started in 2017, and completion is expected in 2020. It will have an installed capacity of 80 MW, which the three countries will receive in equal parts.194 Any assessment should take this project into account as a potential use in accordance with what has been set out above. Conversely, the unused irrigation and hydroelectric power potential in Tanzania195 as such cannot be taken into account. Burundi has thus far not used Nile water to a significant extent for agriculture.196 The country extracts an estimated 0.029 billion cubic meters of water annually from 187 See NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/ hydraulic-infrastructure-in-the-nile/. See also Van Buren (2012b), p. 655. 188 Mwiandi (2010), pp. 115 and 119. 189 There is potential for irrigated agriculture and hydroelectric power generation in Kenya along the major rivers that flow into Lake Victoria, see Mwiandi (2010), pp. 107 and 112. 190 See FAO Aquastat, United Republic of Tanzania, Water resources, http://www.fao.org/nr/water/ aquastat/countries_regions/TZA/. 191 See NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/ hydraulic-infrastructure-in-the-nile/. 192 NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 193 See Bosire (2011), pp. 203–204. 194 The project is financed by the World Bank. For information on the project, see https://www. rusumoproject.org/index.php/en/rrfhp/who-we-are. See also World Bank, http://projects. worldbank.org/P075941/nelsap-regional-rusumo-falls-hydroelectric-multipurpose-project? lang¼en. 195 For more details on the water-use potential, see Bosire (2011), pp. 203–204. 196 Irrigated agriculture in Burundi has only been marginally employed thus far. FAO Aquastat, Burundi, Développement de l’irrigation et du drainage, http://www.fao.org/nr/water/aquastat/coun tries_regions/BDI/index.stm. See also Nkurunziza (2010), p. 26.

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the Nile for irrigation.197 Similarly, the use of the Nile for hydroelectric power generation is minimal. There is a multi-purpose reservoir for hydroelectric power generation and water supply on the Ruvyronza River (22 MW) and a small hydroelectric power station on the Mugere River (8 MW), both of which are part of the Nile River system.198 Together with Tanzania and Rwanda, the Regional Rusumo Falls Hydroelectric Project on the Kagera River described above is currently being implemented, which should be taken into account as a potential use in the overall assessment. No other significant current or planned projects on the Nile seem to exist; the Nile Basin’s high irrigation and hydropower potential199 in Burundi cannot be taken into account as a potential use. There is neither significant irrigated agriculture nor hydroelectric power generation in the Rwandan part of the Nile Basin.200 The annual volume of water withdrawn from the Nile for irrigation is estimated at 0.057 billion cubic meters.201 There are small hydroelectric power plants on rivers within the Nile River Basin, namely on the Rukarara (9.5 MW), the Nyabarongo (28 MW), and the Ntaruka (11.5 MW). The above-mentioned Regional Rusumo Falls Hydroelectric Project on the Kagera River should also be considered as a potential use for Rwanda. There appear to be no other current or planned water development projects on the Nile in Rwanda. Thus far, the situation in the DR Congo mirrors that of Rwanda in that it has not used Nile water on a large scale for irrigated agriculture or hydroelectric power generation.202 Only 600,000 cubic meters of water are withdrawn from the Nile River for irrigation per year.203 In 2004, a survey of the development opportunities in the Semliki region was carried out, the final report of which recommends promoting agriculture and hydroelectric power generation, including the construction of a small hydroelectric power plant on the Semliki River.204 However, the recommendations of a survey report cannot be considered as concrete plans for such projects for the purposes of taking them into account as potential uses in the overall assessment. In summary, it can be noted that there is a strong imbalance between riparian states with regard to their existing and potential uses of the Nile. Currently, the only

197

NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 198 See NBI (2016), Chap. 7, Hydraulic Infrastructure in the Nile, http://atlas.nilebasin.org/treatise/ hydraulic-infrastructure-in-the-nile/. 199 On the water-use potential in more detail, see Nkurunziza (2010), pp. 19 and 26. 200 See FAO Aquastat, Rwanda, Irrigation et drainage http://www.fao.org/nr/water/aquastat/coun tries_regions/RWA/. 201 NBI (2016), Chap. 7, Water withdrawal for irrigation in the Nile Basin, http://atlas.nilebasin.org/ treatise/water-withdrawal-for-irrigation-in-the-nile-basin/. 202 See FAO Aquastat, République démocratique du Congo, Irrigation et drainage, http://www.fao. org/nr/water/aquastat/countries_regions/COD/indexfra.stm. 203 NBI (2016), Chap. 7, Irrigated areas in Democratic Republic of Congo, http://atlas.nilebasin.org/ treatise/irrigated-areas-in-democratic-republic-of-congo/. 204 For details on this survey, see Tshimanga (2010), pp. 87–88.

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intensive users of the Nile are Egypt and Sudan, whose water use is primarily for irrigated agriculture. An estimated 80% and 17% of the total basin-wide water abstraction for irrigation occurs in Egypt and Sudan, respectively.205 Among other uses, the Aswan High Dam as well as the Merowe, Roseires and Jebel Aulia Dams should be taken into account for Egypt and for Sudan, respectively, as important existing uses of the Nile. The large-scale water diversion projects outside of the natural valley of the Nile in Egypt should be included in the weighing process: Their exclusion cannot be justified, neither by the objections raised by upstream states against the projects, nor by their geographical location outside of the basin area. Ethiopia in particular uses the Nile for significant hydroelectric power generation, while Eritrea has not made significant use of the Nile and its tributaries to date. The upstream countries more widely have made limited use of the White Nile, and South Sudan’s use of the river and its tributaries for consumptive purposes such as irrigated agriculture has been minimal. Uganda uses the White Nile for significant hydroelectric power production at the outflow of Lake Victoria and along the Victoria Nile, while all countries bordering Lake Victoria, namely Uganda, Kenya and Tanzania use the lake primarily for small-scale irrigation and fishing, with some mining uses in the latter. With regard to potential uses, Ethiopia’s construction of the Renaissance Dam on the Blue Nile for hydroelectric power generation is the primary project that needs to be taken into account. Furthermore, the joint Regional Rusumo Falls Hydroelectric Project currently under construction at the Rusumo Falls on the Kagera River by Tanzania, Burundi, and Rwanda should be taken into account. Conversely, the mere existence of irrigation and hydroelectric power potential of the upstream states should not be included in the weighing process, in the absence of concrete plans for its exploitation. The construction projects on the Nile that are still in the planning phase and that can at present, due to their still very abstract character, not be considered as potential uses in the overall assessment of factors, could lead to a re-evaluation of the uses, if and when they are actually pursued further. Thus, given the long history of extensive and highly developed uses by Egypt and Sudan, coupled with Ethiopia’s significant potential uses that are currently under way, substantial weight should be assigned to this factor when considering an equitable and reasonable utilization of Nile water. The importance is greatest for Egypt, followed by Sudan and then Ethiopia, as the scale of the current uses of Egypt and Sudan is significantly greater than that of Ethiopia’s current and planned uses. As discussed, these current uses of Egypt and Sudan are not generally accorded inherent priority over potential or planned uses by Ethiopia under the CFA, in accordance with the UN Watercourses Convention. According to Article 6, paragraph 3 of the UN Watercourses Convention and Article 4, paragraph 4 of the CFA, all relevant factors are to be considered together, and the weight given to each factor determined by its importance in comparison with that of other relevant factors. At

205 See NBI (2016), Chap. 7, Water Withdrawal for Irrigation in the Nile Basin, http://atlas. nilebasin.org/treatise/water-withdrawal-for-irrigation-in-the-nile-basin/.

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this point, the reservation proposed by Egypt in Article 14(b), according to which the Nile Basin states agree “not to adversely affect the [. . .] current uses [. . .] of any other Nile Basin State”,206 would make a crucial difference by granting current uses absolute priority—contrary to the generally abstract equality of all uses. Given the fact that Egypt uses Nile water intensively, this reservation would put in place a mechanism that heavily favors Egypt and, to a lesser extent, Sudan.

9.1.6

Conservation, Protection, Development, Economy, Costs of Measures

In accordance with Article 6, paragraph 1(f) of the UN Watercourses Convention, adopted in Article 4, paragraph 2(f) of the CFA, another relevant group of factors is the “conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect”. According to the commentary of the ILC, this sub-paragraph contains a number of factors relating to measures that may be taken by riparian states with regard to an international watercourse. The term “conservation” comprises all measures that address the deterioration of water quality, notably uses resulting in pollution, or that aim to solve other watercourse problems, such as those relating to living resources, flood control, erosion, sedimentation and saltwater intrusion. “Protection” extends beyond conservation measures to cover the control of water-related diseases, as well as technical and hydrological control measures, for instance measures taken to regulate the river flow, to control floods, pollution and erosion, to mitigate drought and to control saline intrusion. Thus, with regard to the latter control measures, there is a certain overlap between conservation and protection measures. According to the Commission, the term “development” refers generally to projects or programs undertaken by riparian states to obtain benefits from a watercourse or to increase the benefits that may be obtained therefrom. Finally, the expression “economy of use” refers to the avoidance of any unnecessary waste of water.207 The Aswan High Dam in Egypt is both a protection measure (regulation of the river flow and flood control, and mitigation of the effects of drought) and a development measure for the use of the Nile’s water resources in the sense of the commentary of the ILC. The dam creates water reserves for periods of low water levels and at the same time it controls the inundations that previously led to regular flooding of the Nile Valley in Egypt.208

206

Annex II to the CFA. ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 208 On the benefits of the Aswan High Dam, see State Information Service (2019c). 207

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However, the question arises of whether the high levels of water loss caused by evaporation at Lake Nasser should be negatively considered as an avoidable and unnecessary waste of water. Due to its location in the desert, the Aswan High Dam reservoir loses about 10 billion cubic meters annually, mainly through evaporation.209 The dam thereby also increases the salinization of the Nile’s water that flows from it and sedimentation in the reservoir itself. Indeed, it would be more waterefficient to dam the (Blue) Nile further upstream in Ethiopia, where the evaporation rate is significantly lower. However, it can be argued that a riparian state cannot be referred to alternative measures if these would be on foreign territory. Within Egypt, there is no other location downstream where a dam of a comparable size could be constructed, given the Nile Valley’s geography. Thus, the water losses caused by the Aswan High Dam should not be taken into account negatively in the overall assessment. A further question arises as to whether the significant water losses due to the often antiquated, defective pipe and channel systems used in irrigation and water supply in Egypt should be negatively taken into account. More specifically, the question is whether this represents an unnecessary waste of water and hence constitutes an uneconomic use. In this respect, it is necessary to consider the technological status of a country. Failure to adopt this approach leaves the more economically and technologically advanced states in an advantaged position compared to less developed states. The ILC addressed this aspect in its commentary to Article 5, paragraph 1, second sentence of the draft articles. That sentence states that international watercourses “shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom”. The commentary specifies that “[a]ttaining optimal utilization and benefits does not mean achieving the ‘maximum’ use [...] nor does it imply that the State capable of making the most efficient use of a watercourse—whether economically, in terms of avoiding waste, or in any other sense—should have a superior claim to the use thereof.”210 But it does state that “the attainment of optimal utilization and benefits is the objective to be sought by watercourse States” in utilizing a shared watercourse.211 Thus, while neither the maximum nor the most efficient use are required, states must nonetheless seek to attain optimal utilization. Hence, if a state does not make any effort in that direction and instead intentionally accepts unnecessary water losses, this should be taken into negative account. The water losses in Egypt are not intentionally accepted, and the country is making great efforts to improve its water-use efficiency.

209

FAO Aquastat, Egypt, International water issues, http://www.fao.org/nr/water/aquastat/coun tries_regions/EGY/. 210 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 97, para. 3. See in the same sense already the ILA’s commentary on Art. V of the Helsinki Rules, Report of the Fifty-Second Conference held at Helsinki, 14–20 August 1966, p. 487. 211 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 97, para. 3.

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Therefore, these water losses should not be negatively taken into account in the weighing of the relevant factors. In this context, yet another related question arises, namely whether the voluntary cultivation of plants with relatively high water consumption should be negatively taken into account as an avoidable and unnecessary waste of water. Egypt cultivates cotton and sugarcane, which both consume high levels of water, and could reduce its water consumption by growing crops that require less water. As argued above, a country can generally not be obligated to adopt the most efficient possible use of water, but a knowingly accepted wasteful use can be negatively taken into account. It could thus be argued that Egypt’s choice to grow such crops in arid regions indeed constitutes an unnecessary waste of limited water resources. However, when considering what constitutes an unnecessary wasteful use, it is necessary to also look at the technological status of a country, as well as the relevance of the water uses for the national economy overall. This is indicated by the ILC’s commentary quoted above, and explicitly spelled out by the ILA in its commentary to Article V of the Helsinki Rules concerning the determination of an equitable and reasonable utilization. That commentary states that “[a] beneficial use need not be the most productive use to which the water may be put”, reasoning that “to provide otherwise would dislocate numerous productive and, indeed, essential portions of national economies”. The commentary goes on to clarify that “in its application, the present rule is not designed to foster waste but to hold States to a duty of efficiency which is commensurate with their financial resources.”212 In Egypt, the growing of crops with high water consumption, in particular cotton and sugarcane, constitutes an essential and productive activity of the national economy and supports rural development and employment. It can be argued that, given the current conditions of the Egyptian economy, the cultivation of such crops should not be considered an unnecessary waste of water to be taken into negative account in the context of assessing equitable and reasonable utilization. Lastly, Egypt’s programs for the reuse of agricultural drainage water and wastewater could be positively taken into account as development measures undertaken to increase the benefits obtained from the Nile. According to the commentary of the ILC, the term “development” refers generally to projects or programs that serve the purpose of obtaining benefits from a watercourse or of increasing the benefits obtained.213 The reuse of water is generally considered an important measure to increase the available amount of water in arid regions.214 Egypt has launched pro-

212

Emphasis in original. ILA, Report of the Fifty-Second Conference held at Helsinki, 14–20 August 1966, p. 487. 213 ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, p. 101, para. 4. 214 UN-Water (2017), p. 19.

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grams for the reuse of agricultural drainage water and treated wastewater.215 This should be taken into account in an overall assessment. For Sudan, the Merowe Dam on the main Nile, the Roseires Dam on the Blue Nile, and the Jebel Aulia Dam on the White Nile are particularly to be regarded as protection and development measures. The high evaporation rate at the Jebel Aulia reservoir should not be negatively taken account of as an unnecessary waste of water for Sudan for the same reasons set out above with regard to the Aswan High Dam in Egypt. Likewise, the high water losses due to defective pipe and channel systems used in irrigation, as well as the voluntary growing of crops with high water consumption in arid Sudan should not considered as a wasteful use of water, on the same basis as discussed above. The Renaissance Dam under construction on the Blue Nile in Ethiopia should be considered as a development measure to obtain benefits from the river as well as in the sense of “economy of use”, since it will contribute to saving water thanks to the low evaporation rate at its location. In addition, the dam will significantly reduce the problem of sedimentation in the Sudanese dams downstream: The accumulation of sludge in the large Roseires, Sennar and Khashm el-Girba Dams has greatly reduced their storage capacity, which also affects the use of the Nile for irrigation purposes.216 For South Sudan it could be a negative that the country opposes the completion of the partly built Jonglei Canal around the wetlands of the Sudd. The Jonglei Canal could reduce the high levels of evaporation in the Sudd swamps, contributing to significant water savings. It is a special characteristic of the Nile that the amount of water in the river could be considerably increased through water conservation measures, in particular in the wetlands of the Sudd. The Bahr al-Jabal (White Nile) loses about half of its water in these wetlands due to high levels of evaporation and infiltration.217 Its diversion through the Jonglei Canal was forecast to reduce the water losses by almost 5 billion cubic meters per annum.218 Another 5 billion cubic meters of water per year was expected to be saved by the use of canals in the Sudd at Bahr al-Jabal and Bahr al-Zeraf, in the wetlands of Bahr al-Ghazal and in the Machar/Sobat swamps. These projects could almost double the amount of water in the White Nile.219 Work on the Jonglei Canal began in 1978220; however, construction was stopped by the Sudanese People’s Liberation Army during the Civil War in 1983, after 280 of the planned 360 km were completed. In the southern parts of what was then Sudan, the project was rejected from the outset based on fears of negative impacts on the ecosystem of the Sudd and the livelihoods of the local population, in

215

FAO Aquastat, Egypt, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/index.stm. 216 See ‘Alī Ṭāhā (2005), pp. 82–83. 217 Waterbury (1979), p. 16. 218 ‘Alī Ṭāhā (2005), p. 78; Kharouf-Gaudig (2012), p. 104. 219 See Waterbury (2002), p. 144; Salman (2014), p. 342. 220 ‘Alī Ṭāhā (2005), p. 78; Kharouf-Gaudig (2012), p. 98.

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particular on drinking water, pasture and fisheries.221 The canal could present a barrier to local communities, affect the seasonal migratory routes of nomadic livestock owners and create new land ownership issues between South Sudanese tribes. Thus far, work on the Jonglei Project has not been resumed,222 and the Sudan People’s Liberation Movement made it clear during the transition period that the project is not one of its priorities. The president of South Sudan, Salva Kiir Mayardit, indicated that further detailed studies on the construction of the canal and its environmental and social impacts would be needed.223 The environmental and social standards for water infrastructure projects today are far more stringent and comprehensive than when the canal was planned in the 1970s.224 In 2006, the Sudd was officially recognized as a wetland of international importance under the 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention).225 This creates something of a conundrum, as it strengthens the case for preserving these wetlands,226 but refusal to continue the construction of the canal would be seen negatively as an unused possibility for significant water savings. On the other hand, the protection of the Sudd wetlands should be considered positively in the sense of environmental protection, and this aspect currently prevails. Indeed, the decision against implementing a use in favor of maintaining an ecosystem along the length of an international watercourse should be taken into account positively as a conservation measure in the context of the principle of equitable and reasonable utilization. In Uganda, the Owen Falls Dam and its extension, the Kiira Hydroelectric Power Station, control water level and flow rate at the only outflow of Lake Victoria.227 In addition to generating hydroelectric power, they thus allow for the use of the lake for water storage for times of low water levels and particularly for irrigation projects along the Nile downstream. This should be taken into account positively in the weighing of factors, as a control measure in the technical and hydrological sense and thus as a protection measure. In the other upstream riparian states of the White Nile and in Eritrea, no comparably significant measures along the Nile are apparent that need to be taken into account in any overall assessment.

221

UNDP (2010), p. 22; Salman (2014), p. 343. UNDP (2010), p. 22. 223 Sudanile (2 May 2010), http://www.sudanile.com/index.php?option¼com_content& view¼article&id¼14036:2010-05-02-18-05-53&catid¼43:2008-05-30-16-11-36&Itemid¼67 (Arabic). See also Salman (2011), p. 161. 224 Salman (2014), p. 343. 225 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971, http://www.ramsar.org/sites/default/files/documents/library/current_convention_ text_e.pdf. 226 Salman (2014), p. 344. Sudan joined the Ramsar Convention on 7 May 2005, and South Sudan on 10 October 2013. See Ramsar Convention, Country profiles, http://www.ramsar.org/countryprofiles. 227 Mulira (2010), p. 136. 222

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In summary, it can be noted that the Renaissance Dam under construction on the Blue Nile in Ethiopia should be taken into account as a development measure and in the sense of an economy of use, since it contributes to saving water due to its low evaporation rate. In South Sudan’s favor is the conservation of the wetlands of the Sudd which should be taken into account as environmental protection, despite the foregone possibility to save water. For Uganda, its water storage combined with the outflow regulation of Lake Victoria should be taken into account as a protection measure for the downstream countries. Finally, for Egypt and Sudan, the Aswan High Dam and the Jebel Aulia Dam should be taken into account, respectively, as important development and conservation measures. Moreover, for Egypt, its programs for the reuse of agricultural drainage water and wastewater are positive developmental measures that increase the benefits gained from the Nile. In view of the local importance of such protection and development measures, this factor should be given considerable weight with regard to the Nile. It is particularly relevant for Ethiopia, Uganda, Egypt, Sudan, and South Sudan.

9.1.7

Availability of Alternatives

Lastly, according to Article 6, paragraph 1(g) of the UN Watercourses Convention and Article 4, paragraph 2(g) of the CFA, “the availability of alternatives, of comparable value, to a particular planned or existing use” is also to be taken into account. The commentary of the ILC states that this factor requires an examination as to whether there exist alternative means for satisfying the needs that are or would be met by an existing or planned use. According to the Commission, the alternatives may include not only alternative sources of water supply, but also other means not involving the use of water, such as alternative sources for energy or means of transport. In addition, the Commission notes that the alternatives must be of a value that is generally equivalent to that of the planned or existing use in question, and specifies that the expression “comparable value” thus conveys the idea of a generally comparable feasibility, practicability and cost-effectiveness of the alternatives.228 It must be admitted that the UN Watercourses Convention again here leaves a broad scope for interpretation. Egypt has virtually no alternative source of water supply besides the Nile. Internal renewable water resources229 amount to only 1.8 billion cubic meters per year.230 228

ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994, Vol. II, Pt. 2, pp. 101–102, para. 4. 229 Internal renewable water resources are the annual flow of rivers and recharge of aquifers generated from endogenous precipitation. FAO Aquastat, Glossary, http://www.fao.org/nr/water/ aquastat/data/glossary/search.html?submitBtn¼-1&termId¼4157. 230 FAO Aquastat, Egypt, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/.

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The country’s dependency ratio is one of the highest in the world: 96.9% of the total renewable water resources enter its territory from neighboring countries.231 Supplying 55.5 billion cubic meters annually, the Nile is Egypt’s key water resource as it represents 100% of the surface water entering the country. Another 1 billion cubic meters of external groundwater flows from Sudan through the Nubian Sandstone Aquifer, which is not connected to the Nile River. Thus, the total renewable water resources amount to 58.3 billion cubic meters annually, or 700 cubic meters per capita. This per capita value is expected, due to population growth, to drop below the threshold for absolute water scarcity, which is 500 cubic meters, by 2030.232 The most important groundwater resource is the Nile Aquifer, which provides approximately 87% of the country’s total groundwater abstraction.233 However, it is considered part of the Nile234 and therefore does not constitute an alternative water resource. While the above-mentioned Nubian Sandstone Aquifer, which is shared with Sudan, Libya and Chad, is also an important source of groundwater, it is fossil groundwater and thus non-renewable.235 Apart from these natural water resources, Egypt only has at its disposal non-conventional water resources, namely treated wastewater, agricultural drainage water, as well as desalinated seawater and brackish water.236 As such, there are no significant alternative water resources to replace Egypt’s extensive abstraction of Nile water for irrigated agriculture and other consumptive uses; these cannot be replaced by other means not involving the use of water. An alternative for a portion of the water consumed by agriculture could be the import of “virtual water”. The definition of virtual water varies, but as a concept it involves importing the agricultural and industrial goods that would otherwise require water for their production.237 In short, countries or regions affected by water scarcity can reduce their water needs by importing the products that require a large amount of water for their production and conserve the country’s water resources for other purposes.238 Water transfers through the import of virtual water are considered to be one of the most effective ways to balance the inequality between the global distribution of water resources and water needs worldwide.239 For Egypt, an increase in the import of virtual water could, at least to some extent, represent an alternative to using Nile water for irrigated agriculture, as far as it would be “of comparable value”

231

Ibid. Ibid. 233 Elemam (2010), p. 221. 234 FAO Aquastat, Egypt, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/. 235 For details see ibid. See also FAO (2005), p. 203. 236 FAO Aquastat, Egypt, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/EGY/. 237 Brown Weiss (2013), p. 66. For example UNEP (2012), pp. 105–106. 238 UNEP (2012), pp. 105–106; Brown Weiss (2007), pp. 163 and 382–383. 239 Türk (2012), p. 1062. 232

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to the use of the Nile, that would be comparably feasible, practicable and costeffective. To date, Egypt has used this possibility to a limited extent, recording a net import of virtual water of 5–10 billion cubic meters annually over the period 1996–2005,240 which has, however, been increasing since. Sudan likewise does not have any significant water source other than the Nile. Sudan’s internal renewable water resources are estimated at 4 billion cubic meters annually. The total inflow into the country is estimated at 99.3 billion cubic meters per year, almost entirely through the Nile system. This brings the total renewable water resources of the country to 103.3 billion cubic meters annually, or 933 cubic meters of water per capita.241 While exploration of groundwater in Sudan is still in its infancy,242 known groundwater resources in Sudan are the Nubian Sandstone Basin, mentioned above, and a small portion of the Umm Ruwaba Aquifer, a groundwater formation mostly situated within South Sudanese territory. Non-conventional water resources in Sudan are limited.243 Sudan’s use of Nile water for irrigated agriculture and other consumptive purposes is not replaceable by any alternative means, except for the possibility of importing limited amounts of virtual water. For the non-consumptive use of the Nile employed in hydroelectric power generation, there could be at least partially alternative means, but these would not be of comparable value to the existing, essentially non-problematic, use of the Nile. Unlike Egypt and Sudan, Ethiopia has access to significant alternative sources of water supply apart from the Nile. Ethiopia has annual internal renewable water resources estimated at 122 billion cubic meters, of which approximately one third is from the Nile; Ethiopia has no external water resources. Thus, the total renewable water resources amount to 122 billion cubic meters annually, or 1162 cubic meters per capita.244 Given the currently minor uses of Nile water for irrigation and other consumptive purposes, the question of alternatives currently primarily concerns the planned non-consumptive use of the Nile for hydroelectric power generation, particularly through the Renaissance Dam. Alternatively, for example, other watercourses could be used for hydropower generation. Their use, however, would have to be of comparable value in terms of feasibility, practicability and cost-effectiveness to the hydropower-production capacity created by the Nile; criteria which seem difficult to fulfill. Should this factor become significant for the overall assessment of

UNEP (2012), p. 106, Fig. 4.6 “Virtual water imports, exports and flows around the world”. FAO Aquastat, Sudan, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/SDN/. 242 Taha (2010), p. 205. 243 FAO Aquastat, Sudan, Water resources, http://www.fao.org/nr/water/aquastat/countries_ regions/SDN/. 244 The overlap between surface water (120 billion cubic meters) and groundwater (20 billion cubic meters) amounts to 18 billion cubic meters, bringing the total amount of internal renewable water resources to 122 billion cubic meters. FAO Aquastat, Ethiopia, Water resources database, http:// www.fao.org/nr/water/aquastat/countries_regions/ETH/. 240 241

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factors between the Nile riparian states, a closer examination of these circumstances within Ethiopia would become necessary. Eritrea also has alternative sources of water supply, with total internal renewable water resources of some 2.8 billion cubic meters annually.245 In addition, there are total external renewable water resources of 4.5 billion cubic meters entering the country.246 Thus, the total renewable water resources amount to 7.3 billion cubic meters annually, or 1443 cubic meters per capita. The majority of these resources derive from the Nile River. The question of alternatives to which Eritrea could be referred does not, however, currently arise, given the absence of existing or planned uses of Nile water. South Sudan does not currently use, or plan to use, Nile water to a significant extent, so the need to examine alternatives is correspondingly limited. Its total internal renewable water resources are estimated at 26 billion cubic meters per year247 and external renewable water resources at 50 billion cubic meters, primarily from the Nile River. Thus, the country’s total renewable water resources amount to 76 billion cubic meters, or 3936 cubic meters per capita annually. The major groundwater formation is the Umm Ruwaba Basin, also called the Sudd Basin, although its extent and the relationship with the overlaying surface water is still not clearly understood.248 Thus, there exist alternative water resources that could be taken into account for South Sudan to replace future uses of Nile water that may be planned. In a similar vein to South Sudan, Uganda has not used Nile water for consumptive purposes to any significant extent nor is it planning any significant uses, so the value of assessing alternative sources of water supply is limited. A review of Uganda’s situation reveals that it has at its disposal internal renewable water resources of 39 billion cubic meters249 and external water resources of 21 billion cubic meters per year.250 Thus, total renewable water resources amount to 60.1 billion cubic meters annually, or 1402 cubic meters per capita. All rivers in the country ultimately feed into the Nile, which is the primary water resource of the country. Uganda uses the 245

This consists of 2.7 billion cubic meters of surface water and 0.5 billion cubic meters of groundwater, with an overlap of 0.4 billion cubic meters. FAO Aquastat, Eritrea, Water resources database, http://www.fao.org/nr/water/aquastat/countries_regions/ERI/. 246 These external water resources entering the country are mainly surface water from border rivers. Ibid. 247 This total water volume consists of 26 billion cubic meters of internally produced surface water and 4 billion cubic meters of groundwater per year, with an overlap of 4 billion cubic meters. See FAO Aquastat, South Sudan, Water resources database, http://www.fao.org/nr/water/aquastat/coun tries_regions/SSD/index.stm. 248 Ibid. 249 This total water volume consists of 39 billion cubic meters of internal surface water and 29 billion cubic meters of groundwater per year. As the overlap between surface water and groundwater reaches 100% of the groundwater recharge, the total amount of internal renewable water resources remains at 39 billion cubic meters. FAO Aquastat, Uganda, Water resources database, http://www. fao.org/nr/water/aquastat/countries_regions/uga/index.stm. 250 Ibid.

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Nile for hydroelectric power generation, although it should be noted that equivalent alternatives for this unproblematic use for energy production do not exist. Kenya also has alternative water resources and thus far has not used the Nile to a large extent. It has annual internal renewable water resources of 20.7 billion cubic meters,251 and external water resources of 10 billion cubic meters of surface water not originating from the Nile system. Thus, its total renewable water resources amount to 30.7 billion cubic meters per year, or 618 cubic meters per capita. This per capita value is expected to drop below the absolute water scarcity threshold of 500 cubic meters annually by 2030, due to population growth.252 The groundwater storage in the drainage area of Lake Victoria is estimated at approximately 70 billion cubic meters, of which about 16 billion cubic meters is readily accessible253; however, this groundwater is considered part of the Nile. Likewise, in Tanzania there are significant alternative water resources available besides the Nile. Tanzania’s annual internal renewable water resources are estimated at 84 billion cubic meters.254 These water resources are distributed over nine main drainage basins in the country, only one of them being the Nile Basin. Besides Lake Victoria, Tanzania is also a riparian state of the other two East African Great Lakes, Lake Tanganyika and Lake Nyasa.255 From outside the country, a renewable amount of almost 12.3 billion cubic meters of surface water flows through the Kagera into Tanzania. Total renewable water resources amount to almost 96.3 billion cubic meters per year, or 1800 cubic meters per capita.256 Like a number of the other upstream states, Burundi has not used Nile water to any significant extent, limiting the need to explore alternative sources of water supply, especially since the country has alternative water resources. Internal renewable water resources of Burundi amount to 10.1 billion cubic meters.257 External renewable water resources entering the country include almost 0.2 billion cubic meters of surface water from the Kaburantwa River flowing from the DR Congo.258 Total renewable water resources within the country amount to 12.5 billion cubic

251

Of these, 20.2 billion cubic meters is surface water and 3.5 billion cubic meters groundwater, with an estimated overlap of 3.5 billion cubic meters. FAO Aquastat, Kenya, Water resources database, http://www.fao.org/nr/water/aquastat/countries_regions/KEN/. 252 Ibid. 253 Mwiandi (2010), p. 109. 254 Of these, 80 billion cubic meters is surface water and 30 billion cubic meters is groundwater, with an overlap of 26 billion cubic meters. FAO Aquastat, United Republic of Tanzania, Water resources database, http://www.fao.org/nr/water/aquastat/countries_regions/TZA/. 255 See also FAO Aquastat, United Republic of Tanzania, Water resources, http://www.fao.org/nr/ water/aquastat/countries_regions/TZA/index.stm. 256 FAO Aquastat, United Republic of Tanzania, Water resources database, http://www.fao.org/nr/ water/aquastat/countries_regions/TZA/. 257 Of these, 10.06 billion cubic meters is surface water and 7.47 billion cubic meters is groundwater, with an overlap of 7.47 billion cubic meters or 100%. FAO Aquastat, Burundi, Ressources en eau, base de données, http://www.fao.org/nr/water/aquastat/countries_regions/BDI/. 258 The Kaburantwa River is not part of the Nile River system.

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meters annually, or 1154 cubic meters per capita.259 Burundi is situated on the divide separating the drainage basins of the Nile and Congo rivers, and the country’s territory is approximately divided equally between each respective basin.260 The country’s rivers drain into either river system. Like Tanzania, Burundi is also a riparian state of Lake Tanganyika, which flows into the Congo River system. Rwanda has also not used the Nile to any significant extent thus far, at least in part because it has other water resources. Nonetheless, the Nile Basin constitutes the main water resource, draining 90% of the national waters, while the Congo Basin drains the remaining 10%.261 Overall, Rwanda’s annual internal renewable water resources comprise a total volume of surface and groundwater of 9.5 billion cubic meters.262 In addition, the country receives 3.8 billion cubic meters of water from outside its borders. Thus, there is a total of 13.3 billion cubic meters, or 1089 cubic meters per capita, of renewable water resources annually.263 The DR Congo is, as previously noted, one of the most water-rich countries in the world. Annual internal renewable water resources total 900 billion cubic meters.264 In addition, there are 383 billion cubic meters of external surface water entering the country, most of it through the Congo River. Total renewable water resources equal 1283 billion cubic meters annually, or 15,773 cubic meters per capita. The land receives little water from the Nile water system,265 and since the DR Congo does not significantly use the Nile the need to examine alternatives to Nile water use does not arise. In summary, there are stark contrasts between the different countries across the Eastern Nile Basin with regards to the availability of viable alternatives to using the Nile. Egypt has virtually no alternative water resources, meaning there are no significant alternatives to its consumptive use of Nile water for agriculture and for satisfying the water needs of its population. The import of virtual water has only limited potential as an alternative to using Nile water for food production. The

259

FAO Aquastat, Burundi, Ressources en eau, base de données, http://www.fao.org/nr/water/ aquastat/countries_regions/BDI/. 260 See NBI, Country information, at http://www.nilebasin.org/index.php/nbi/member-states. 261 FAO Aquastat, Rwanda, Ressources en eau, http://www.fao.org/nr/water/aquastat/countries_ regions/RWA/. 262 This total water volume consists of 9.5 billion cubic meters of internal surface water and 7 billion cubic meters of groundwater per year. As the overlap between surface water and groundwater is 7 billion cubic meters, the total amount of internal renewable water resources remains at 9.5 billion cubic meters. FAO Aquastat, Rwanda, Ressources en eau, base de données, http://www.fao.org/nr/ water/aquastat/countries_regions/RWA/. 263 Ibid. 264 Of this total water volume, 899 billion cubic meters is surface water and 421 billion cubic meters is groundwater, with an estimated overlap of 420 billion cubic meters. FAO Aquastat, République démocratique du Congo, Ressources en eau, base de données, http://www.fao.org/nr/water/ aquastat/countries_regions/COD/indexfra.stm. 265 FAO Aquastat, République démocratique du Congo, Ressources en eau, http://www.fao.org/nr/ water/aquastat/countries_regions/COD/indexfra.stm.

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situation in Sudan is similar. Ethiopia and Eritrea, by comparison, enjoy alternative water resources to the Nile. The situation of the riparian states of the White Nile is more homogenous. None of these states use the Nile water to a large extent, nor do they have plans for any significant uses as they currently rely on their alternative sources. The significant weight of this factor in the assessment for the Nile stems from Egypt’s and Sudan’s lack of viable alternatives to the use of Nile water, while alternative water resources are available to all the other riparian states. It can be argued that this factor is particularly relevant for Egypt and to an only slightly lesser extent Sudan.

9.2

Overall Assessment and Conclusion

After considering each relevant factor individually, under the principle of equitable use all relevant factors are to be considered together to reach a conclusion as to equitable utilization. Within this overall assessment, as an initial step the negotiating parties should determine the weight given to each factor according to its importance in comparison with that of other relevant factors. Along the Nile, the dependency on the river’s water seems of the highest importance among all relevant factors, because circumstances make Egypt and Sudan critically dependent on it. Dependency, in its different dimensions, is in fact contained in several relevant factors. It is directly contained in the factors pertaining to the social and economic needs of the riparian states, the population dependency on the watercourse, and the availability of alternatives, which are set out in Article 6, paragraph 1(b), (c), and (g) of the UN Watercourses Convention and Article 4 paragraph 2(b), (c), and (g) of the CFA, respectively. It can be argued that these factors are of paramount importance along the Nile in comparison with the other relevant factors. Arguably, the next most important factor is the existing uses of the watercourse. These are also of particular importance because the length of time involved and the scale of these developed uses in Egypt and Sudan mean that the uses have become essential to these countries’ very existence. Ultimately, these long-standing and extensive existing uses also reflect the degree of the dependency on Nile water. The protection and conservation of the water resources of the Nile and the development measures that increase the water volume are also of some, albeit less, importance, given the increasing water scarcity in the Nile Basin. In addition, due to the particular emphasis in Article 4, paragraph 2(h) and (i) of the CFA on this aspect, special importance should be attributed to each state’s contribution to the Nile water and the proportion of the Nile drainage area in each riparian state. From the perspective of the individual riparian states, the relevance of each of the pertinent factors and circumstances varies considerably. For Egypt, the population’s high dependence on the Nile, in the absence of viable alternative water resources, includes a range of extensive social and economic needs. These dependencies are of significant importance when compared to factors impacting all the other riparian

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states. In addition, the Nile in Egypt is used extensively, and a considerable proportion of the total drainage area is on Egyptian territory. The situation in Sudan mirrors that of Egypt, although to a slightly lesser extent. A further factor that is particularly relevant for Sudan according to Article 4, paragraph 2(i) of the CFA is the fact that 44% of the total drainage area of the Nile is situated on Sudanese territory. For Ethiopia, it is significant that the country contributes 85–90% of the Nile’s total annual water flow and that a considerable proportion of the Nile’s drainage area is located in its territory. Hydroelectric power generation at the Renaissance Dam should also be taken into account as an important potential use, which can at the same time also be considered a protection measure. However, the most important factors for the Nile, namely dependency on Nile water and the social and economic needs of the population related to the Nile, are of less relevance to Ethiopia due in particular to its alternative water resources. Nevertheless, with the completion of the Grand Ethiopian Renaissance Dam on the Blue Nile expected in 2022, the socioeconomic needs met in particular by hydroelectric power generation will become considerable. For South Sudan as well, some factors are very relevant. These factors are mainly the expansive area of the White Nile’s drainage area within South Sudan, and the importance of the Sudd wetlands for the water balance of the Nile. The protection of this wetland ecosystem should be taken into account. However, the most important factors, particularly the dependence of the population on the Nile water and the social and economic needs, as well as the availability of alternative water resources, are significantly less relevant for South Sudan compared with Egypt and Sudan. Likewise for Uganda, its dependency on the Nile is less significant than that of Egypt and Sudan, therefore these most important factors are not highly relevant from Uganda’s perspective. However, a full 7% of the drainage area of the Nile lies within its territory, including almost half of the surface area of Lake Victoria, through which Uganda contributes significantly to the waters of the White Nile. In addition, as a protection measure, the water level of Lake Victoria and the regulation of its only outflow into the Victoria Nile are controlled by the Owen Falls Dam, where the Nile is also used for hydroelectric power generation. Yet, Uganda has ample alternative water resources that should also be taken into account. For Tanzania, Kenya, Burundi, and Rwanda, dependence on the Nile water and their uses of the watercourse are significantly less essential when compared to those of Egypt and Sudan, thanks partly to abundant rainfall and other alternative water resources. The proportions of the Nile drainage area within their territories are smaller by far than those in Sudan, South Sudan, Ethiopia, Egypt and Uganda. However, like Uganda, they all contribute to the waters of the White Nile. For Eritrea and the DR Congo, the pertinent factors are of little relevance. Overall, these countries are not significantly dependent on the Nile waters and they do not use it to any considerable extent. They have at their disposal alternative water resources and the natural circumstances of the Nile Basin on their national territories are of no significant importance to the uses of the Nile.

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Thus, the application of the principle of equitable use can generally indicate the weight of the individual factors and circumstances pertaining to a particular watercourse as well as their relevance for each riparian state for the purposes of determining equitable and reasonable utilization and eventually allocating water use. However, the above considerations illustrate that the principle in itself would not enable the negotiating countries to directly determine specific amounts of water or particular uses on a country-by-country basis266; in this respect international water law has reached its limits. The riparian states would need to further specify the allocation rules through negotiation and, if so desired, determine specific quantities of water and types of uses based on an assessment of all relevant factors and circumstances as outlined above. The principle of equitable utilization lends itself primarily to serving as structured guidance for such use-allocation negotiations. The above considerations also show that, for attaining an optimal utilization regime, the uses cannot be allocated only with regards to respective quantities, but must also take into account the different manners of water use by the riparian states. On the Nile in particular, the riparian states have in part very different use interests, from irrigated agriculture to hydroelectric power generation, for example. These, too, can only be taken into account in the use allocation and coordinated with one another by way of negotiations. Under the CFA, as stated previously, such negotiations would take place within the Council of Ministers, which examines and makes decisions regarding the determination of equitable and reasonable use.267 The focus should thereby be on sharing the benefits, rather than solely on sharing the resource because, in the case of the Nile, the potential benefits from the entire basin can only be maximized by coordination among the countries. This becomes very clear, for example, when it comes to increasing the flow volume of the Nile, a step which would serve Egypt in particular, but requires measures in the territories of upstream states; in this respect, the possible benefits from cooperation would exceed those that Egypt could hope to achieve from the status quo or any future unilateral action. The principle of equitable utilization should therefore not be understood as relating merely to volumetric water allocation and use allocation, but should also take account of the potential benefits that can be gained from the use of the river from a basin-wide perspective. At the same time, another important feature of the principle of equitable use becomes clear from consideration of these factors: The process involved in implementing the principle as a basis for allocation negotiations can itself yield important benefits. The implementation of the principle of equitable utilization requires close and continuous cooperation and exchange between the riparian states at both the technical and political level. The riparian states are forced to examine and compare the circumstances and interests of all co-riparian states relevant to the use of the common watercourse, in order to determine the equity and reasonableness of all

See also Dellapenna (2003), p. 187: “Any attempt to treat the list of relevant factors as an algorithm simply misses the point.” 267 Art. 24, para. 12 of the CFA. 266

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uses. This promotes mutual understanding of watercourse-related needs and interests between riparian states, which can help build confidence and thereby provide a basis for closer cooperation. These procedural aspects can ultimately strengthen the cooperation of the riparian states more sustainably than the mere determination of allocation results. Lastly, understanding the principle of equitable use as a process, not a static result, requires recurring consultations between the riparian states. This means that it is not sufficient to assess all relevant factors and circumstances once. Rather, whenever there might be relevant changes, the riparian states should consult each other to consider whether a re-assessment is necessary. This also promotes confidence building and cooperation between the riparian states, and it allows for adaptation to changed circumstances. The principle of equitable and reasonable utilization is often criticized for being too vague and indeterminate. However, the above analysis shows that the generality and flexibility of this principle is necessary to encompass all the factors relevant to a watercourse and the different circumstances of its riparian states, thus allowing comprehensive assessment on a case-by-case basis. The more riparian states involved, with their competing interests and sometimes highly divergent circumstances, the more complex it becomes to establish an equitable and reasonable utilization of the water resources. In addition, these relevant factors often overlap. For example, the dependency of the population is directly linked to the availability of alternatives to a water use. It should also be noted that the relevant factors as codified in the UN Watercourses Convention do not constitute an exhaustive list. In the course of their negotiations, the riparian states may well include other factors that they consider to be relevant. In negotiations, the discussion of the factors can help to identify and reconcile the interests and circumstances of the respective riparian states. This is important as these interests and circumstances form the basis for negotiations on watercourse agreements and should all be taken into account therein. The more broadly the relevant factors and circumstances are examined, the more clearly an optimal use allocation will crystallize. The consideration of these factors also explains the standpoints of the Nile riparian states and the conflict potential along the Nile. It reveals the critical significance of the Nile for Egypt and Sudan as well as Ethiopia’s strong interest in increasing its use: This dynamic has given rise to the ongoing conflict over the use of the Blue Nile, a conflict that has thus far impeded agreement on the CFA as a whole. This consideration furthermore explains the comparatively lower level of interest of most upstream countries of the White Nile and Eritrea, which in turn accounts for their predominantly low-profile participation in the basin-wide cooperation efforts and in the negotiations on the Agreement.

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Part III

Summary and Outlook

Chapter 10

Toward a Legal and Institutional Framework for Cooperation Along the Nile

Around the globe, ever-increasing demands for freshwater resources, profligate use, and growing pollution are expected to lead to a sharp increase in water scarcity. Maintaining good neighborly relations between states that share freshwater resources, and ensuring the equitable and reasonable utilization as well as the protection of these resources, are among the greatest challenges for the international community and to international law in this century. The development of international water law reflects the states’ recognition of the increasing necessity for comprehensive rules on the use and management of transboundary water resources. At the beginning of the twentieth century, the rules governing the use of transboundary waters were still unclear, incomplete and controversial. The controversy essentially concerned the extent to which riparian states of a shared watercourse are subject to restrictions on their use of it under international law. This gave rise to the conflict between the theories of absolute territorial sovereignty and of absolute territorial integrity, which later metamorphosed into the dispute over the relationship between the principle of equitable and reasonable utilization and the no-harm rule. Over the course of the twentieth century, customary international rules emerged for the joint management and use of international watercourses. Modern international water law is based on the theories of limited territorial sovereignty and the community of interest. From these theories derive the key principles of water law which in turn determine the rights and obligations of the riparian states of international watercourses. The core principle is that of equitable and reasonable utilization, which is complemented by the no-harm rule, although it should be noted that the relationship between these two is still controversial. Because of the necessarily general character of these substantive principles, the procedural obligations of cooperation, notification, consultation, and data and information exchange are of particular importance. They ensure that the substantive rights and obligations of the riparian states are implemented within the framework of an effective cooperation. In recent decades there has been a tendency in international water law to take greater account of environmental protection aspects in the management of water © Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_10

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resources and to incorporate them into the allocation principles. Thus, international water law is developing toward providing a common framework for both concerns, namely river basin development, including the use of water resources, as well as environmental management. For example, the assessment of an equitable and reasonable utilization must inter alia take into account the protection of the watercourse, and the obligation to notify of planned measures includes the duty to conduct an environmental impact assessment. The first global convention on the use and management of international watercourses, the UN Watercourses Convention, which entered into force in August 2014, codified the customary principles of international water law. It is currently the most important instrument in the field, and is supplemented by the Draft Articles on the Law of Transboundary Aquifers, which were taken note of by the United Nations General Assembly in 2008. The impact of the UN Watercourses Convention on treaty practice concerning individual watercourses is noteworthy. Over the course of the last few decades, its essential provisions have already been adopted wholly or partly verbatim in numerous watercourse agreements worldwide, even before the Convention entered into force. Conceived as a framework convention, the UN Watercourses Convention provides a basis for the development of watercourse-specific agreements. Its provisions do not affect existing watercourse agreements, and they may be adjusted by the riparian states to suit a particular watercourse. The Convention stipulates the customary law principle of equitable and reasonable utilization as the core principle for the allocation of water uses, complemented by the no-harm rule. As watercourses worldwide vary greatly in terms of their geographic, climatic, hydrological, and socio-economic conditions, the Convention can only be of value in establishing general rules. Because of their generality, these rules can and must be further specified and complemented by watercourse-specific agreements. The UN Watercourses Convention emphasizes the importance of institutionalized cooperation among riparian states in the form of river commissions or other river organizations for the sustainable management of watercourses. This is done, however, without establishing binding provisions. To date, no obligation exists under international law to create joint river commissions, nor are there any international legal requirements concerning the structure or possible functions of such commissions. Nonetheless, a large number of these commissions have been created, with numerous positive impacts, which testifies to their importance for effective cooperation between riparian states. Turning to the Nile Basin, it can be noted that the above developments in international water law, and notably the UN Watercourses Convention, have significantly influenced the legal opinions advanced by several Nile riparian states. As long as the conflicting theories of absolute territorial sovereignty and absolute territorial integrity dominated international water law at the beginning of the twentieth century, Ethiopia advanced the former theory, Egypt and Sudan the latter. When the theory of limited territorial sovereignty reconciled these views, the relationship between the principle of equitable and reasonable utilization and the

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no-harm rule remained controversial. During this period of general unclarity in international law about the relationship between the principles, Ethiopia advocated the primacy of the principle of equitable use, whereas Egypt and Sudan favored the no-harm rule. Then, two years after the 1997 UN Watercourses Convention enshrined the principle of equitable utilization as the guiding principle for use allocation, the Nile riparian states agreed, within the framework of the NBI, on an equitable utilization as their cooperation goal, and shortly thereafter adopted the corresponding provisions of the Watercourses Convention in their draft for a cooperative framework agreement for the Nile. Egyptian commentators consider the adoption of the UN Watercourses Convention as a main impetus for the opening of treaty negotiations on such an agreement between the Nile riparian states. Thus, after a century of conflict and unilateral action, those states are now on their way toward establishing a legal foundation for close cooperation in the water management of the Nile. These developments in the Nile regime thus demonstrate the role that international law can play in such processes. At the same time, these hydropolitical and legal developments in the Nile Basin reflect the structural transformation of international water law itself. From the idea of absolute state sovereignty in the use of transboundary freshwater resources, which was influential until well into the twentieth century, international water law has today developed a canon of legal rules that, based on the idea of a community of interest between all riparian states, requires their effective cooperation in basin-wide water management and an equitable use of common water resources. The conflicts of interest that impeded this development and the drafting of the UN Watercourses Convention, however, are still simmering in the negotiations on a framework agreement for the Nile. The attempt to create an inclusive treaty regime on the Nile provides a prime example of the manifold challenges that international water law is facing. As the longest river in the world, the Nile flows through 11 states, whose hydrological, economic and social situations are characterized by a strong heterogeneity. Most recently, its catchment area now includes several regions afflicted by water scarcity. The current management of the Nile is not likely to meet either existing or future challenges, which include high population growth, increasing water scarcity, environmental degradation, precarious food security, and growing energy demands. The treaty regime in the Nile Basin stands in stark contrast to the principles of international water law, more so than almost any other regime for a comparably large international watercourse worldwide. It stems mainly from the colonial period, is fragmented and controversial, and includes only some of the riparian states. The colonial treaties served primarily to ensure British interests in the former colonies Egypt and Sudan and were to guarantee the unhindered flow of the Nile. The latter objective also shaped the only post-colonial Nile agreement, that of 1959 between Egypt and Sudan, in which the interests and rights of other Nile riparian states were not taken into account. While Egypt and Sudan consider the Nile agreements of 1929 and 1959—the most controversial ones—to be binding upon the other riparian states, the others reject them.

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The analysis in this book concludes that the Nile agreements of 1929 and 1959 are only binding upon Egypt and Sudan, but not on other states. The upstream states neither succeeded to the 1929 Nile Waters Agreement upon attaining independence in the early 1960s, nor were they parties to the Egyptian-Sudanese Nile Waters Agreement of 1959. In view of the continuous rejection of the agreements by the upstream states, the “historical rights” that Egypt also claims have no customary character. After its secession in 2011, South Sudan did not succeed to the rights and obligations under the Nile agreements of 1929 and 1959, either by agreement or automatically under succession rules. Of particular relevance here, it is argued that these agreements do not establish territorial regimes that would remain unaffected by state succession. Rather, for South Sudan, the continuity of both agreements was initially presumed following its independence in accordance with most recent state practice in cases of secession. This presumption ended, however, when the country explicitly rejected the agreements in 2013. The question of whether South Sudan is bound by the 1959 Nile Agreement is important for both Egypt and Sudan, among others because the swamp areas of the Sudd—which provide one of the most effective options for increasing the water volume of the Nile—are located on South Sudanese territory. Since the late twentieth century, the Nile riparian states have undertaken several cooperative efforts. Initially, these efforts were limited to undisputed technical issues at the sub-basin level. It was not until the founding of the NBI in 1999 that they created a structure for basin-wide cooperation between all Nile riparian states and a scheme for joint water resources management. The Initiative was conceived as a provisional institution, inter alia with the mandate to develop a framework agreement for cooperation, and was later to be replaced by the more permanent commission created under that agreement. The very act of its establishment can be regarded as a success, as it was the first time that an entity was created in which all Nile riparian states are represented. Under the Initiative, operational procedures and working methods for managing the river basin were developed, and separate bodies for the two major sub-basins of the Nile established, facilitating cooperation and consensus building at the sub-basin level. Under the aegis of the Initiative, numerous joint development projects were implemented. The Initiative also formulated for the first time equitable utilization as the shared objective for the use of the Nile water resources. Ultimately, however, its success will be measured by whether all riparian states can finally agree on a framework agreement for their cooperation on the Nile. The framework agreement developed under the auspices of the NBI was adopted in 2009 by the Nile Council of Ministers and opened for signature in 2010, despite protests from Egypt and Sudan. Since then, six Nile Basin states have signed the CFA.1 In 2013, Ethiopia was the first Nile riparian state to ratify it, followed by Rwanda and Tanzania. The Agreement will enter into force on the 60th day

These are Ethiopia and the five EAC member states Kenya, Rwanda, Tanzania, Uganda, and Burundi.

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following the deposit of the sixth instrument of ratification or accession with the African Union. With the drafting of the CFA, for the first time ever all Nile countries together endeavored to create a framework agreement for their cooperation and the use of the Nile. They thereby moved away from the previous practice of bilateral treaties and unilateral planning. Their negotiations for the first time addressed the equitable and reasonable use of the Nile waters, and thus the question of reallocation, a question they had hitherto avoided because of its divisive and sensitive nature. The negotiations on the Agreement have achieved significant progress. The Agreement is geared toward including the entire drainage area. The Nile riparian states have already agreed upon general principles, rights and obligations for the use and management of the Nile. The provisions of the UN Watercourses Convention on the principle of equitable and reasonable utilization and the no-harm rule were adopted virtually verbatim. The Agreement thus appears to resolve the fundamental controversy between the Nile riparian states on the relationship between these principles in favor of a priority of the equitable use principle. Further recent developments in international environmental law are also reflected in the Agreement. It incorporates not only some environmental protection provisions, but also the principles of subsidiarity and public participation. The Agreement furthermore provides an institutional framework for cooperation among the Nile riparian states. The comprehensive provisions on the structure and functions of the Nile Basin Commission form a central aspect of the Agreement and address all the issues that are essential for establishing a workable river commission. This shows that the riparian states attach great importance to institutionalized cooperation in the management and use of the Nile. Detailed rules for the settlement of disputes concerning the interpretation or application of the Agreement are intended to facilitate cooperation. On the national level, the implementation of an equitable and reasonable utilization will be facilitated by requiring riparian states to keep the status of their water utilization under review in light of substantial changes. These provisions as a whole again show the willingness of the riparian states to implement the Agreement effectively. Nonetheless, the unanimous adoption of the Agreement has so far failed to materialize. One reason is that the riparian states could not reach consensus on the status of the current uses and existing treaties. Egypt and Sudan proposed the incorporation of a clause in Article 14(b) relating to water security that stated Nile Basin countries agree “not to adversely affect the water security and current uses and rights of any other Nile Basin State”. Article 14(b) has been annexed to the Agreement for the future Nile Basin Commission to decide whether to incorporate the version proposed by Egypt and Sudan, or an alternative version supported by the other basin states that would not impact the use allocation. With respect to current uses, the clause proposed by Egypt and Sudan would effectively stipulate an absolute no-harm rule and establish its precedence over the principle of equitable and reasonable utilization. This is in contrast with the precedence of the latter for use allocation as laid out by the UN Watercourses Convention, under which current uses are only one of the relevant factors but do not enjoy

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inherent priority. Consequently, the Egyptian-Sudanese clause would limit the application of the principle of equitable and reasonable utilization to currently unused water resources, which are minimal, or to new water resources generated in the future. A guarantee of current uses would be important for Egypt in particular, as it is already using more water than its quota under the 1959 Agreement. The proposed protection of the “current rights” under the clause would raise the question of whether or not the Nile agreements of 1929 and 1959 established such rights, which would in turn prolong, under the new agreement, the controversy over the binding effect of those treaties. Egypt thus holds to its negotiating line in this respect: Already in the Egyptian-Sudanese negotiations for the 1959 Nile Agreement, it insisted on recognition of its “acquired rights” to the Nile water established under the 1929 Nile Agreement. In following this course, Egypt has also remained consistent with its position advanced during the negotiations on Article 3 of the UN Watercourses Convention in the General Assembly, that the provision of the Convention should not affect existing watercourse agreements. In addition to the above stumbling block, consensus among the Nile riparian states could not be reached on the question of a mandatory notification procedure for planned measures. Egypt and Sudan demanded such a notification procedure for all Nile-related projects planned upstream. The upstream countries, most notably Ethiopia, rejected this, a rejection that still reflects the idea of absolute territorial sovereignty in planning such projects. Consequently, the CFA has not adopted the detailed provisions of Articles 12 to 19 of the UN Watercourses Convention on planned measures and their notification. Instead, Article 8 of the Agreement implicitly requires the Nile Basin Commission to fill this regulatory gap by establishing rules and procedures for the exchange of information concerning planned measures. Thus, the main controversial issues, to wit the status of the current uses and treaties and a mandatory notification procedure for planned measures, have been left open in the Agreement and delegated to the Nile Basin Commission to try to resolve. The example of the Nile demonstrates the practical relevance of Article 3 of the UN Watercourses Convention. That article states that the Convention does not affect the rights or obligations arising from agreements in force, and expressly recognizes that watercourse states may adjust the Convention’s provisions to the characteristics and uses of a particular watercourse. Although they are not party to the Convention, Egypt and Sudan invoke in their reasoning this latitude granted to watercourse states, arguing that the Convention recognizes existing watercourse agreements and allows the protection of existing uses as a matter of priority in watercourse agreements. Ethiopia and the other riparian states, on the other hand, seek a new agreement in line with the allocation rules of the Watercourses Convention, one that adopts the principle of equitable and reasonable utilization as the guiding principle for use allocation, without restrictions. Thus, Article 3 of the UN Watercourses Convention, which was already one of the most controversial articles during its negotiation, provides the Nile riparian states with a new argument for supporting their respective viewpoints. The adoption of the CFA in the Nile Council of Ministers and its subsequent signing by several riparian states despite Egyptian-Sudanese protest has strained

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political relations along the Nile. One consequence has been that Egypt has suspended its participation in the NBI until further notice. Meanwhile, Egypt and Tanzania are both proposing to negotiate amendments to the Agreement so that it can be accepted by all riparian states. Under President Abd al-Fattah al-Sisi, who has been in office since 2014, Egyptian politics are now clearly geared toward rapprochement with the other Nile riparian states. In February 2015, the Egyptian minister responsible for water resources participated with a technical delegation in a meeting of the water ministers of the Nile Basin states for the first time since 2010. He stated that Egypt was in favor of resolving the outstanding issues and amending the Agreement accordingly. The insistence of Egypt on the assurance of a water quota corresponding at least to the extent of its current uses is explained by considering the factors that are decisive for an equitable and reasonable utilization. The dependence of Egypt on the Nile, which in its entirety originates from the upstream countries, makes the question of water allocation for Egypt a matter of vital national security. Under the principle of equitable utilization, unlike a guarantee of the status quo, the allocation of water uses can change over time. If necessary, the allocations to Egypt and Sudan could then be reduced due to changing factors or circumstances, potentially benefitting other basin states by granting them additional water uses. To date, the principle of equitable and reasonable utilization has been little concretized by state practice. According to this principle, equitable and reasonable utilization needs to be determined through a comprehensive assessment of all relevant factors and circumstances specific to a particular watercourse. Article 6 of the UN Watercourses Convention contains a list of factors and circumstances that can be used for application in individual cases, all of which have been adopted in Article 4 of the CFA for the Nile. The consideration of these factors along the Nile in this book suggests that some of them are of particular importance in comparison with others and thus carry more weight for water use allocations between the riparian states. It can be argued that, in view of Egypt’s absolute reliance on the Nile, the factors given the greatest weight should be a population’s dependency on the river, its water-related social and economic needs, and the availability of alternatives to the use of the watercourse. Given the fact that Sudan, and even more so Egypt, have been using the Nile water intensively for millennia, the existing uses should also be accorded considerable weight. In view of the water scarcity common in parts of the Nile Basin, the protection and conservation of the water resources and the development measures that increase the water volume also have some weight in the overall assessment. Lastly, as the CFA emphasizes the importance of the contribution of the individual riparian states to the volume of the Nile’s flow and their respective shares of the drainage area, these factors should also be given weight in the overall assessment. The relevance of these factors differs for each of the states sharing the Nile. In summary, for Egypt most are highly relevant as almost its entire population is dependent to a very high degree on the Nile. Egypt uses Nile water intensively, and its Nile water-related social and economic needs are correspondingly high. For Sudan the situation is by and large similar, and its share of 44% of the Nile drainage

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area also imparts weight to its requirements. For Ethiopia, the facts that it contributes 85–90% of the Nile’s total annual flow, that a significant proportion of the drainage area lies within its territory, and that its planned uses of the Blue Nile are significant, are all important. For South Sudan, its large share of the drainage area of the White Nile and the importance of the Sudd wetlands for the Nile’s water balance and its unique ecosystem are relevant. To be considered for Uganda is the fact that its territory encompasses almost half of the surface area of Lake Victoria, as well as the Owen Falls Dam where the only outflow of the lake into the Victoria Nile is regulated. It is arguable that the relevant factors have less significance for all of Tanzania, Kenya, Burundi, and Rwanda, as they are overall not comparably dependent on the Nile waters and do not use them to a significant extent. Like Uganda, they contribute to the waters of the White Nile, but the proportions of the drainage area within their territories are significantly smaller than those in the aforementioned riparian states. Lastly, for Eritrea and the DR Congo, the factors are of even less relevance, since neither country is dependent on the Nile, nor uses it to any significant extent. Moreover, all of the riparian states upstream on the White Nile as well as Eritrea have at their disposal alternative water resources, although at varying degrees. Hence, the application of the principle of equitable use can generally indicate the weight that the pertinent factors and circumstances carry along a particular watercourse for the purposes of determining equitable and reasonable utilization and eventually allocating water use, as well as their relevance for each riparian state. The principle of equitable use in itself does not, however, directly enable the allocation of either specific amounts of water or specific uses for the respective riparian states. The application of the principle of equitable use to the Nile shows the limits of international water law in regulating the use of transboundary watercourses. It demonstrates that international water law only provides, and can only provide, general principles for the use allocation. These principles allow for a determination and approximate weighing of all relevant factors and their respective importance for the riparian states, but not for concrete allocation decisions. The circumstances to be regulated are too diverse for that purpose. Only through negotiations can the parties further specify the allocation rules and, if so desired, determine specific water quotas and uses. The principle of equitable use is useful primarily as structured guidance for such negotiations. The analysis also shows that water quotas cannot be allocated by mere volume in isolation from the context of use. Rather, allocations must take into account the manner of use as well as the importance of sharing benefits between countries; that is, the principle of equitable utilization should be implemented based on a broader perspective, to also take account of the potential benefits that can be gained from the river’s use in different parts of the basin area. Only through negotiations can the parties adequately take account of the manner and benefits of the different uses, and thereby attain an optimal utilization of the entire basin. Ultimately, therefore, riparian states have to agree, on the basis of an overall assessment of all relevant

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factors and circumstances, on how an equitable and reasonable utilization of their shared watercourse should be designed in concrete terms. Importantly, considering the implementation of the principle of equitable use reveals another central feature of this principle, namely the importance and benefits of the implementation process itself. For implementing the principle of equitable use, all riparian states must cooperate closely and continuously at both the technical and political level. They need to examine and compare the circumstances and interests of all co-riparian states relevant to the use of their shared watercourse, in order to determine the equity and reasonableness of all uses. This process promotes mutual understanding of the watercourse-related needs and interests among riparian states, builds confidence, and thus can provide the basis for closer cooperation. Ultimately, these procedural requirements can strengthen the cooperation of the riparian states more sustainably than the mere determination of allocation results. The future development of the cooperation in the Nile Basin depends substantially on whether the Nile riparian states agree on the CFA as the basis for the management and use of the Nile. While strengthening the NBI could be a next step in the short term, ultimately only a permanent institutional structure and legal framework can provide cooperative stability at the political level and long-term management planning. If the CFA were to be ratified and implemented by only some of the riparian states, it would fall short of their stated goal in commencing the treaty negotiations. This was, as previously discussed, to conclude a comprehensive agreement on the management and use of the Nile and to set up a Nile Basin commission as the permanent cooperation mechanism of all riparian states. Especially for Egypt, which is both the most dependent on the Nile and the most affected by the water uses of its co-riparian states, this would have considerable disadvantages in the long term. The same holds true to a lesser extent for Sudan. Ratification by only some of the countries would undermine the developing trust between the Nile riparian states and ultimately lead to the continuation of the previous practice, where riparian states or groups of riparian states pursue their goals unilaterally. Additionally, ratification by only some riparian states would mean one of two scenarios: either the NBI, as the only institution that includes all riparian states, continues in existence alongside the Nile Basin Commission; or else all have to agree on the distribution of the rights, obligations, and assets under the Initiative. On the other hand, a modification of the CFA along the lines of the amendments proposed in this book and its subsequent ratification by all riparian states would be an important step forward. On the basis of the proposed amendments, the Agreement could create a permanent institutional and legal framework for the effective joint management and use of the Nile, thereby ending the protracted disputes over the binding effect of existing treaties and unilateral planning by the riparian states. Although the Agreement, similar to the UN Watercourses Convention, remains largely abstract and needs further specification before implementation, it would be of crucial importance for the Nile since it would fundamentally change the existing legal regime by securing a clear commitment of all riparian states to the principle of equitable and reasonable utilization for the purposes of use allocation. No less

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importantly, with the inclusion of a mandatory and detailed notification procedure it would create a clear procedure of prior notification and consultation for planned projects basin-wide. The adoption of the Agreement would promote a spirit of shared responsibility and cooperation, bringing benefits to all Nile riparian states. Egypt, as the most downstream country, is most affected by the uses of the others, especially Ethiopia and Sudan. Ethiopia is already building the Grand Ethiopian Renaissance Dam on the Blue Nile and plans further hydro-engineering projects. Egypt depends on timely and comprehensive information and consultation on such projects to advance its interests in an orderly procedure. In addition, due to its rapidly growing population, Egypt assumes that in the near future it will have to seek an increase in its share of Nile water. On the other hand, unilateral development measures on the Nile pose the risk of reducing the total amount of water. A joint framework agreement would not only be in the interests of Egypt, but would similarly entail advantages for the other riparian states. Ethiopia and other upstream states could gain easier access to financing for hydro-engineering projects from international donors and organizations. Some upstream countries already have the financial resources through foreign investments to carry out various development projects along the Nile. This makes it all the more urgent not only to coordinate development projects with one another, but also to plan and implement them together where appropriate. There is also the possibility that Egypt could purchase water from Ethiopia or other riparian states; the economic value of water has been recognized in the CFA. Furthermore, a cooperation agreement should promote positive relations between the countries, including their cooperation beyond the water sector. This could strengthen economic integration in the region and have a positive impact on political stability throughout the Nile Basin and beyond. Therefore, Nile riparian states should return to the negotiations on the CFA and work together in good faith in accordance with their international obligations. They should agree on amendments to the Agreement, for which the UN Watercourses Convention can continue to serve as guidance. In addition, there are many successful models for cooperation on shared water resources worldwide, which can serve as examples and inspiration for the design of the legal and institutional framework. The core of a future Nile agreement will be the regulation of the allocation of water uses. It would be beneficial to base this on the principle of equitable and reasonable utilization, which would ensure continuous review of the use allocations and their adaptation to future developments. This is important not only in view of the demographic developments in the Nile Basin states and the current development projects, but also because of the future development of significant water-use potential in some riparian states, even if this is only vaguely envisaged at the time of writing. The clause proposed by Egypt, which the Agreement has as an attachment to Article 14(b), should therefore not be included in the Agreement, and the provisions on water security should be deleted entirely. This would ensure that the task of resolving the conflict over the existing uses and treaties would not be delegated to the Nile Basin Commission after the entry into force of the Agreement, a delegation which would ultimately only further protract this conflict. It would be important to

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ensure that the Agreement includes an obligation of prior notification for planned measures, together with detailed provisions on the notification procedure, and consultations. Additionally, including more detailed requirements for environmental protection and an obligation to maintain and protect installations, with an associated consultation obligation, would further strengthen the Agreement. On the basis of the Agreement, more specific arrangements could be made for the White and Blue Niles. The framework character of the Agreement facilitates the development of modalities and procedures for implementing and specifying its provisions at a sub-basin level. Given the enormous size of the Nile Basin, the multitude of its riparian states, and the diversity of their particular conditions, sub-basin agreements allow for a more tailored consideration of the respective situations and interests. Such agreements can constitute building blocks or a foundation for a process that can then preempt or resolve larger, basin-wide issues. The design of a joint water management at the sub-basin level has already proved its worth under the NBI. This approach is also an underlying factor that led to the conclusion of the Declaration of Principles on the Grand Ethiopian Renaissance Dam between Ethiopia and Sudan as riparian states of the Blue Nile and Egypt in March 2015. This latest declaration between Egypt, Sudan and Ethiopia indicates a rapprochement in their positions. Unlike the clause of Article 14(b) required by Egypt for the CFA, the 2015 Declaration of Principles does not contain an absolute protection of current uses and rights. This approach could facilitate a consensus on amendments and ultimately adoption of the CFA as well. Developments in international water law have already had significant impacts on the rapprochement of the riparian states’ negotiating positions. What remains is finding the political will to actually take the last step toward a legal foundation for basin-wide cooperation along the Nile.

Annex 1: Agreement Between the Republic of the Sudan and the United Arab Republic for the Full Utilization of the Nile Waters. Signed at Cairo, on 8 November 1959

[TRANSLATION1] AGREEMENT2 BETWEEN THE REPUBLIC OF THE SUDAN AND THE UNITED ARAB REPUBLIC FOR THE FULL UTILIZATION OF THE NILE WATERS. SIGNED AT CAIRO, ON 8 NOVEMBER 1959 As the River Nile needs projects, for its full control and for increasing its yield for the full utilization of its waters by the Republic of the Sudan and the United Arab Republic on technical working arrangements other than those now applied: And as these works require for their execution and administration, full agreement and co-operation between the two Republics in order to regulate their benefits and utilize the waters in a manner which secures the present and future requirements of the two countries: And as the Nile waters Agreement concluded in 19293 provided only for the partial use of the Nile waters and did not extend to include a complete control of the River waters, the two Republics have agreed on the following: First THE PRESENT ACQUIRED RIGHTS 1. That the amount of the Nile waters used by the United Arab Republic until this Agreement is signed shall be her acquired right before obtaining the benefits of the Nile Control Projects and the projects which will increase its yield and which projects are referred to in this Agreement. The total of this acquired right is 48 Milliards of cubic meters per year as measured at Aswan. 2. That the amount of the waters used at present by the Republic of Sudan shall be her acquired right before obtaining the benefits of the projects referred to

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Translation by the Government of the United Arab Republic. Came into force on 12 December 1959, in accordance with Article 7. 3 League of Nations, Treaty Series, Vol. XCIII, p. 43. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1

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above. The total amount of this acquired right is 4 Milliards of cubic meters per year as measured at Aswan. Second THE NILE CONTROL PROJECTS AND THE DIVISION OF THEIR BENEFITS BETWEEN THE TWO REPUBLICS 1. In order to regulate the River waters and control their flow into the sea, the two Republics agree that the United Arab Republic constructs the Sudd el Aali at Aswan as the first link of a series of projects on the Nile for over-year storage. 2. In order to enable the Sudan to utilize its share of the water, the two Republics agree that the Republic of Sudan shall construct the Roseires Dam on the Blue Nile and any other works which the Republic of the Sudan considers essential for the utilization of its share. 3. The net benefit from the Sudd el Aali Reservoir shall be calculated on the basis of the average natural River yield of water at Aswan in the years of this century, which was estimated at about 84 Milliards of cubic meters per year. The acquired rights of the two Republics referred to in Article “First” as measured at Aswan, and the average of losses of over-year storage of the Sudd el Aali Reservoir shall be deducted from this yield, and the balance shall be the net benefit which shall be divided between the two Republics. 4. The net benefit from the Sudd el Aali Reservoir mentioned in the previous item, shall be divided between the two Republics at the ratio of 14½ for the Sudan and 7½ for the United Arab Republic so long as the average river yield remains in future within the limits of the average yield referred to in the previous paragraph. This means that, if the average yield remains the same as the average of the previous years of this century which is estimated at 84 Milliards, and if the losses of over-year storage remain equal to the present estimate of 10 Milliards, the net benefit of the Sudd el Aali Reservoir shall be 22 Milliards of which the share of the Republic of the Sudan shall be 14½ Milliards and the share of the United Arab Republic shall be 7½ Milliards. By adding these shares to their acquired rights, the total share from the net yield of the Nile after the full operation of the Sudd el Aali Reservoir shall be 18½ Milliards for the Republic of the Sudan and 55½ Milliards for the United Arab Republic. But if the average yield increases, the resulting net benefit from this increase shall be divided between the two Republics, in equal shares. 5. As the net benefit from the Sudd el Aali (referred to in item 3 Article Second) is calculated on the basis of the average natural yield of the river at Aswan in the years of this century after the deduction therefrom of the acquired rights of the two Republics and the average losses of over-year storage at the Sudd el Aali Reservoir, it is agreed that this net benefit shall be the subject of revision by the two parties at reasonable intervals to be agreed upon after starting the full operation of the Sudd el Aali Reservoir. 6. The United Arab Republic agrees to pay to the Sudan Republic 15 Million Egyptian Pounds as full compensation for the damage resulting to the Sudanese existing properties as a result of the storage in the Sudd el Aali Reservoir

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up to a reduced level of 182 meters (survey datum). The payment of this compensation shall be affected in accordance with the annexed agreement between the two parties. 7. The Republic of the Sudan undertakes to arrange before July 1963, the final transfer of the population of Halfa and all other Sudanese inhabitants whose lands shall be submerged by the stored water. 8. It is understood that when the Sudd el Aali is fully operated for over-year storage, the United Arab Republic will not require storing any water at Gebel Aulia Dam. And the two contracting parties will in due course, discuss all matters related to this renunciation. Third PROJECTS FOR THE UTILIZATION OF LOST WATERS IN THE NILE BASIN In view of the fact that at present, considerable volumes of the Nile Basin Waters are lost in the swamps of Bahr El Jebel, Bahr El Zeraf, Bahr el Ghazal and the Sobat River, and as it is essential that efforts should be exerted in order to prevent these losses and to increase the yield of the River for use in agricultural expansion in the two Republics, the two Republics agree to the following: 1. The Republic of the Sudan in agreement with the United Arab Republic shall construct projects for the increase of the River yield by preventing losses of waters of the Nile Basin in the swamps of Bahr El Jebel, Bahr el Zeraf, Bahr el Ghazal and its tributaries, the Sobat River and its tributaries and the White Nile Basin. The net yield of these projects shall be divided equally between the two Republics and each of them shall also contribute equally to the costs. The Republic of the Sudan shall finance the above-mentioned projects out of its own funds and the United Arab Republic shall pay its share in the costs in the same ratio of 50% allotted for her in the yield of these projects. 2. If the United Arab Republic, on account of the progress in its planned agricultural expansion should find it necessary to start on any of the increase of the Nile yield projects, referred to in the previous paragraph, after its approval by the two Governments and at a time when the Sudan Republic does not need such project, the United Arab Republic shall notify the Sudan Republic of the time convenient for the former to start the execution of the project. And each of the two Republics shall, within two years after such notification, present a date-phased programme for the utilization of its share of the waters saved by the project, and each of the said programmes shall bind the two parties. The United Arab Republic shall at the expiry of the two years, start the execution of the projects, at its own expense. And when the Republic of Sudan is ready to utilize its share according to the agreed programme, it shall pay to the United Arab Republic a share of all the expenses in the same ratio as the Sudan’s share in benefit is to the total benefit of the project; provided that the share of either Republic shall not exceed one half of the total benefit of the project.

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Fourth TECHNICAL CO-OPERATION BETWEEN THE TWO REPUBLICS 1. In order to ensure the technical co-operation between the Governments of the two Republics, to continue the research and study necessary for the Nile control projects and the increase of its yield and to continue the hydrological survey of its upper reaches, the two Republics agree that immediately after the signing of this Agreement a Permanent Joint Technical Commission shall be formed of an equal number of members from both parties; and its functions shall be: (a) The drawing of the basic outlines of projects for the increase of the Nile yield, and for the supervision of the studies necessary for the finalising of projects, before presentation of the same to the Governments of the two Republics for approval. (b) The supervision of the execution of the projects approved by the two Governments. (c) The drawing up of the working arrangements for any works to be constructed on the Nile, within the boundaries of the Sudan, and also for those to be constructed outside the boundaries of the Sudan, by agreement with the authorities concerned in the countries in which such works are constructed. (d) The supervision of the application of all the working arrangements mentioned in (c) above in connection with works constructed within the boundaries of Sudan and also in connection with the Sudd el Aali Reservoir and Aswan Dam, through official engineers delegated for the purpose by the two Republics; and the supervision of the working of the upper Nile projects, as provided in the agreements concluded with the countries in which such projects are constructed. (e) As it is probable that a series of low years may occur, and a succession of low levels in the Sudd el Aali Reservoir may result to such an extent as not to permit in any one year the drawing of the full requirements of the two Republics, the Technical Commission is charged with the task of devising a fair arrangement for the two Republics to follow. And the recommendations of the Commission shall be presented to the two Governments for approval. 2. In order to enable the Commission to exercise the functions enumerated in the above item, and in order to ensure the continuation of the Nile gauging and to keep observations on all its upper reaches, these duties shall be carried out under the technical supervision of the Commission by the engineers of the Sudan Republic, and the engineers of the United Arab Republic in the Sudan and in the United Arab Republic and in Uganda. 3. The two Governments shall form the Joint Technical Commission, by a joint decree, and shall provide it with its necessary funds from their budgets. The Commission may, according to the requirements of work, hold its meetings in

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Cairo or in Khartoum. The Commission shall, subject to the approval of the two Governments, lay down regulations for the organisation of its meetings and its technical, administrative and financial activities. Fifth GENERAL PROVISIONS 1. If it becomes necessary to hold any negotiations concerning the Nile waters, with any riparian state, outside the boundaries of the two Republics, the Governments of the Sudan Republic and the United Arab Republic shall agree on a unified view after the subject is studied by the said Technical Commission. The said unified view shall be the basis of any negotiations by the Commission with the said states. If the negotiations result in an agreement to construct any works on the river, outside the boundaries of the two Republics, the Joint Technical Commission shall after consulting the authorities in the Governments of the States concerned, draw all the technical execution details and the working and maintenance arrangements. And the Commission shall, after the sanction of the same by the Governments concerned, supervise the carrying out of the said technical agreements. 2. As the riparian states, other than the two Republics, claim a share in the Nile waters, the two Republics have agreed that they shall jointly consider and reach one unified view regarding the said claims. And if the said consideration results in the acceptance of allotting an amount of the Nile water to one or the other of the said states, the accepted amount shall be deducted from the shares of the two Republics in equal parts, as calculated at Aswan. The Technical Commission mentioned in this Agreement shall make the necessary arrangements with the states concerned, in order to ensure that their water consumption shall not exceed the amounts agreed upon. Sixth TRANSITIONAL PERIOD BEFORE BENEFITING FROM THE COMPLETE SUDD EL AALI RESERVOIR As the benefiting of the two Republics from their appointed shares in the net benefit of the Sudd el Aali Reservoir shall not start before the construction and the full utilization of the Reservoir, the two parties shall agree on their agricultural expansion programmes in the transitional period from now up to the completion of the Sudd el Aali, without prejudice to their present water requirements. Seventh This Agreement shall come into force after its sanction by the two contracting parties, provided that either party shall notify the other party of the date of its sanction, through the diplomatic channels. Eighth Annex (1) and Annex (2, A and B) attached to this Agreement shall be considered as an integral part of this Agreement.

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Written in Cairo in two Arabic original copies this 7th day of Gumada El Oula 1379, the 8th day of November 1959. For the Republic of Sudan: (Signed) Lewa Mohammed TALAAT FARID For the United Arab Republic: (Signed) Zakaria MOHIE EL DIN ANNEX 1 A SPECIAL PROVISION FOR THE WATER LOAN REQUIRED BY THE UNITED ARAB REPUBLIC The Republic of the Sudan agrees in principle to give a water loan from the Sudan’s share in the Sudd el Aali waters, to the United Arab Republic, in order to enable the latter to proceed with her planned programmes for Agricultural Expansion. The request of the United Arab Republic for this loan shall be made after it revises its programmes within five years from the date of the signing of this Agreement. And if the revision by United Arab Republic reveals her need for this loan, the Republic of the Sudan shall give it out of its own share a loan not exceeding one and a half Milliards, provided that the utilization of this loan shall cease in November, 1977. ANNEX 2 A To the Head of the Delegation of the Republic of Sudan With reference to Article (Second) paragraph 6 of the Agreement signed this day, concerning the full utilization of the River Nile Waters, compensation amounting to 15 Million Egyptian Pounds in sterling or in a third currency agreed upon by the two parties, and calculated on the basis of a fixed rate of $2.87156 to the Egyptian Pound, shall be paid by the Government of the United Arab Republic, as agreed upon, in instalments in the following manner: £ 3 million on the first of January, 1960 £ 4 million on the first of January, 1961 £ 4 million on the first of January, 1962 £ 4 million on the first of January, 1963 I shall be grateful if you confirm your agreement to the above. With highest consideration. Head of the United Arab Republic Delegation: (Signed) Zakaria MOHIE EL DIN

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B To the Head of the United Arab Republic Delegation I have the honour to acknowledge receipt of your letter dated today and stipulating the following: [See Annex 2, A] I have the honour to confirm the agreement of the Government of the Republic of the Sudan to the contents of the said letter. With highest consideration. Head of the Delegation of the Republic of Sudan: (Signed) Lewa Mohammed TALAAT FARID

Annex 2: Agreement on the Nile River Basin Cooperative Framework

2.1 Signature and Ratification4 State Burundi Ethiopia Kenya Rwanda Tanzania Uganda

Signature 28 Feb 2011 14 May 2010 19 May 2010 14 May 2010 14 May 2010 14 May 2010

Ratification 13 Jun 2013 28 Aug 2013 26 Mar 2015

2.2 Text of the Agreement

Preamble The States of the Nile River Basin, Affirming the importance of the Nile River to the economic and social well-being of the peoples of the States of the Nile River Basin; Motivated by the desire to strengthen their cooperation in relation to the Nile River, a great and vital natural resource which binds them together, and in relation to the sustainable development of the Nile River Basin;

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For the current status of signature and ratification see http://www.nilebasin.org/nbi/ cooperative-framework-agreement (Status: 12 January 2020). © Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1

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Recognizing that the Nile River, its natural resources and environment are assets of immense value to all the riparian countries; Convinced that a framework agreement governing their relations with regard to the Nile River Basin will promote integrated management, sustainable development, and harmonious utilization of the water resources of the Basin, as well as their conservation and protection for the benefit of present and future generations; Convinced also that it is in their mutual interest to establish an organization to assist them in the management and sustainable development of the Nile River Basin for the benefit of all; Mindful of the global initiatives for promoting cooperation on integrated management and sustainable development of water resources; Have agreed as follows: Article 1 Scope of the Present Framework The present Framework applies to the use, development, protection, conservation and management of the Nile River Basin and its resources and establishes an institutional mechanism for cooperation among the Nile Basin States. Article 2 Use of Terms For the purpose of the present Cooperative Framework Agreement: (a) “Nile River Basin” means the geographical area determined by the watershed limits of the Nile River system of waters; this term is used where there is reference to environmental protection, conservation or development; (b) “Nile River system” means the Nile River and the surface waters and groundwaters which are related to the Nile River; this term is used where there is reference to utilization of water; (c) “Framework” means the present Cooperative Framework Agreement; (d) “State of the Nile River Basin”, “Nile Basin State” or “Basin state” means a State party to the present Framework in whose territory part of the Nile River Basin is situated; (e) “The Commission” means the Nile River Basin Commission established under Part III of the present Framework; (f) “Water security” means the right of all Nile Basin States to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment. PART I GENERAL PRINCIPLES Article 3 General Principles The Nile River Basin and the Nile River System shall be protected, used, conserved and developed in accordance with the following general principles:

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1. Cooperation The principle of cooperation between States of the Nile River Basin on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection and conservation of the Nile River Basin and to promote joint efforts to achieve social and economic development. 2. Sustainable development The principle of sustainable development of the Nile River Basin. 3. Subsidiarity The principle of subsidiarity, whereby development and protection of the Nile River Basin water resources is planned and implemented at the lowest appropriate level. 4. Equitable and reasonable utilization The principle of equitable and reasonable utilization of the waters of the Nile River System. 5. Prevention of the causing of significant harm The principle of preventing the causing of significant harm to other States of the Nile River Basin. 6. The right of Nile Basin States to use water within their territories The principle that each Nile Basin State has the right to use, within its territory, the waters of the Nile River System in a manner that is consistent with the other basic principles referred to herein. 7. Protection and conservation The principle that Nile Basin States take all appropriate measures, individually and, where appropriate, jointly, for the protection and conservation of the Nile River Basin and its ecosystems. 8. Information concerning planned measures The principle that the Nile Basin States exchange information on planned measures through the Nile River Basin Commission. 9. Community of interest The principle of the community of interest of the Nile Basin States in the Nile River System. 10. Exchange of data and information The principle of the regular and reciprocal exchange among States of the Nile River Basin of readily available and relevant data and information on existing measures and on the condition of water resources of the Basin, where possible in a form that facilitates its utilization by the States to which it is communicated. 11. Environmental impact assessment and audits The principle of environmental impact assessment and audits. 12. Peaceful resolution of disputes The principle of the peaceful resolution of disputes. 13. Water as a finite and vulnerable resource The principle that fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment, and must be managed in an

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integrated and holistic manner, linking social and economic development with protection and conservation of natural ecosystems. 14. Water has social and economic value The principle that water is a natural resource having social and economic value, whose utilization should give priority to its most economic use, taking into account the satisfaction of basic human needs and the safeguarding of ecosystems. 15. Water security The principle of water security for all Nile Basin States. PART II RIGHTS AND OBLIGATIONS Article 4 Equitable and reasonable utilization 1. Nile Basin States shall in their respective territories utilize the water resources of the Nile River System in an equitable and reasonable manner. In particular, those water resources shall be used and developed by Nile Basin States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the Basin States concerned, consistent with adequate protection of those water resources. Each Basin State is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River System. 2. In ensuring that their utilization of Nile River System water resources is equitable and reasonable, Nile Basin States shall take into account all relevant factors and circumstances, including but not limited to the following: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the Basin States concerned; (c) The population dependent on the water resources in each Basin State; (d) The effects of the use or uses of the water resources in one Basin State on other Basin States; (e) Existing and potential uses of the water resources; (f) Conservation, protection, development and economy of use of the water resources and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use; (h) The contribution of each Basin State to the waters of the Nile River system; (i) The extent and proportion of the drainage area in the territory of each Basin State. 3. In the application of paragraphs 1 and 2 above, the Nile Basin States concerned shall, when the need arises, enter into consultations in a spirit of cooperation. 4. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a

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reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. 5. Nile Basin States shall, in their respective territories, according to their national laws and regulations, keep the status of their water utilization under review in light of substantial changes in relevant factors and circumstances. 6. Nile Basin States shall observe the rules and procedures established by the Nile River Basin Commission for the effective implementation of equitable and reasonable utilization. Article 5 Obligation not to cause significant harm 1. Nile Basin States shall, in utilizing Nile River System water resources in their territories, take all appropriate measures to prevent the causing of significant harm to other Basin States. 2. Where significant harm nevertheless is caused to another Nile Basin State, the State, whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard to the provisions of Article 4 above, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation. Article 6 Protection and conservation of the Nile River Basin and its ecosystems 1. Nile Basin States shall take all appropriate measures, individually and, where appropriate, jointly, to protect, conserve and, where necessary, rehabilitate the Nile River Basin and its ecosystems, in particular, by: (a) protecting and improving water quality within the Nile River Basin; (b) preventing the introduction of species, alien or new, into the Nile River system which may have effects detrimental to the ecosystems of the Nile River Basin; (c) protecting and conserving biological diversity within the Nile River Basin; (d) protecting and conserving wetlands within the Nile River Basin; and (e) restoring and rehabilitating the degraded natural resource base. 2. Nile Basin States shall, through the Nile River Basin Commission, take steps to harmonize their policies in relation to the provisions of this article. Article 7 Regular exchange of data and information 1. In pursuance of their cooperation concerning the use, development and protection of the Nile River Basin and its water resources, Nile Basin States shall on a regular basis exchange readily available and relevant data and information on existing measures and on the condition of water resources of the Basin, where possible in a form that facilitates its utilization by the States to which it is communicated. 2. If a Nile Basin State is requested by another Basin State to provide data or information that is not readily available, it shall employ its best efforts to comply with the request but may condition its compliance upon payment by

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the requesting State of the reasonable costs of collecting and, where appropriate, processing such data or information. 3. In the implementation of their obligations under Paragraph 1 and 2, Nile Basin States agree to observe procedures to be developed by the Nile River Basin Commission. Article 8 Planned measures 1. Nile Basin States agree to exchange information through the Nile River Basin Commission. 2. Nile Basin States shall observe the rules and procedures established by the Nile River Basin Commission for exchanging information concerning planned measures. Article 9 Environmental impact assessment and audits 1. For planned measures that may have significant adverse environmental impacts, Nile Basin States shall, at an early stage, undertake a comprehensive assessment of those impacts with regard to their own territories and the territories of other Nile Basin States. 2. The criteria and procedures for determining whether an activity is likely to have significant adverse environmental impacts shall be developed by the Nile River Basin Commission. 3. Where circumstances so warrant, according to criteria to be developed by the Nile River Basin Commission, a Nile Basin State that has implemented measures of the kind referred to in paragraph 1 shall conduct an audit of the environmental impacts of those measures. That State shall enter into consultations relating to the audit with Nile Basin States affected by the measures on their request. 4. The Commission, taking into account national legislation of the Nile Basin States, shall adopt criteria for carrying out audits of measures existing at the date of the entry into force of this Framework. 5. Nile Basin States shall carry out audits of measures existing at the date of the entry into force of this Framework in accordance with national legislation and under criteria adopted under this Framework. Article 10 Subsidiarity in the development and protection of the Nile River Basin In planning and implementing a project pursuant to the principle of subsidiarity set forth in Article 3(3), Nile Basin States shall: (a) allow all those within a State who will or may be affected by the project in that State to participate in an appropriate way in the planning and implementation process; (b) make every effort to ensure that the project and any related agreement is consistent with the basin-wide framework.

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Article 11 Prevention and mitigation of harmful conditions Nile Basin States shall, individually and, where appropriate, jointly through costsharing by the Nile Basin State or States that may be affected, make every effort to take all appropriate measures to prevent or mitigate conditions related to the Nile River System that may be harmful to other Nile Basin States, whether resulting from human conduct or natural causes, such as flood conditions, invasive water weeds, water-borne diseases, siltation, erosion, drought or desertification. In implementing this provision, Nile Basin States shall take into account guidelines to be developed by the Nile River Basin Commission. Article 12 Emergency Situations 1. For the purposes of this provision, “emergency” means a situation that causes, or poses an imminent threat of causing, serious harm to Nile Basin States or other States and that results suddenly from natural causes, such as floods, landslides or earthquakes, or from human conduct, such as industrial accidents. 2. A Nile Basin State shall, without delay and by the most expeditious means available, notify other potentially affected States and competent international organizations of any emergency originating in its territory. 3. A Nile Basin State within whose territory an emergency originates shall, in cooperation with potentially affected States and, where appropriate, competent international organizations, immediately take all practicable measures necessitated by the circumstances to prevent, mitigate and eliminate harmful effects of the emergency. 4. When necessary, Nile Basin States shall jointly develop contingency plans for responding to emergencies, in cooperation, where appropriate, with other potentially affected States and competent international organizations. Article 13 Protection of the Nile River Basin and related installations in time of armed conflict The Nile River System and related installations, facilities and other works, as well as installations containing dangerous forces in the Nile River Basin, shall enjoy the protection accorded by the principles and rules of international law applicable in international and non-international armed conflict, in particular rules of international humanitarian law, and shall not be used in violation of those principles and rules. Article 14 Water Security Having due regard to the provisions of Articles 4 and 5, Nile Basin States recognize the vital importance of water security to each of them. The States also recognize that the cooperation, management and development of waters of the Nile River System will facilitate achievement of water security and other benefits. Nile Basin States therefore agree, in a spirit of cooperation:

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(a) to work together to ensure that all states achieve and sustain water security; (b)  . . .  The unresolved Article 14(b) is attached to this agreement and it will be resolved by the Nile River Basin Commission within six months of its establishment as per decision of the Extra Ordinary Nile-COM Meeting held in May 2009 in Kinshasa, DR Congo. PART III. INSTITUTIONAL STRUCTURE SECTION A. THE NILE RIVER BASIN COMMISSION Article 15 Establishment The Nile River Basin Commission is hereby established by the Nile River Basin States. Article 16 Purpose and Objective The purpose and objective of the Commission is: (a) To promote and facilitate the implementation of the principles, rights and obligations provided for in the present Framework; (b) To serve as an institutional framework for cooperation among Nile Basin States in the use, development, protection, conservation and management of the Nile River Basin and its waters; (c) To facilitate closer cooperation among the States and peoples of the Nile River Basin in the social, economic and cultural fields. Article 17 Organs The Commission is comprised of: (a) (b) (c) (d) (e)

Conference of Heads of State and Government Council of Ministers Technical Advisory Committee Sectoral Advisory Committees Secretariat

Article 18 Headquarters The headquarters of the Commission shall be situated at Entebbe, Uganda. Article 19 Legal Status 1. The Commission is established as an intergovernmental organization and shall enjoy international legal personality, with such legal capacity as may be necessary for the performance of its functions, in particular, the capacity to enter into agreements, to incur obligations, to receive donations, and to sue and be sued in its own name.

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2. The Commission and its officials shall, in the territory of each Nile Basin State, enjoy such privileges and immunities as are necessary for the performance of their functions under this Framework. 3. The privileges and immunities referred to under this article shall be provided for in detail in a Protocol to this Framework. SECTION B. THE CONFERENCE OF HEADS OF STATE AND GOVERNMENT Article 20 Structure and Procedures 1. The Conference of Heads of State and Government (“the Conference”) shall be composed of Heads of State and Government of Nile Basin States. 2. The Conference shall establish its own rules and procedures. Article 21 Functions The Conference shall be the supreme policy-making organ of the Commission. SECTION C. THE COUNCIL OF MINISTERS Article 22 Structure The Council of Ministers (the “Council”) shall be composed of the Ministers responsible for water affairs of the Nile Basin States and other ministers depending on the agenda of the Commission. Article 23 Procedures 1. Except as otherwise provided, the Council shall establish its own rules and procedures. 2. The Council shall convene once a year in regular session and in special session at the request of any Nile Basin State. 3. Unless the Council decides otherwise, the venue of regular sessions shall rotate among the Nile Basin States in alphabetical order, in English. The venue of a special session shall be the same as that of the preceding regular session. 4. A regular session shall be chaired by the Nile Basin State in which it is held. A special session shall be chaired by the State that chaired the next preceding regular session. 5. Decisions of the Council shall be taken by consensus. 6. Decisions of the Council are binding on all Nile Basin States. Article 24 Functions 1. The Council is the governing body of the Commission. It may refer matters to the Conference of Heads of State for decision. 2. The Council serves as a forum for discussion of matters within the scope of its functions and the Framework. 3. The Council oversees the effective implementation of the Framework.

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4. The Council may establish, and assign responsibilities to any ad hoc committees it considers to be necessary for the proper fulfillment of its functions. 5. The Council adopts, keeps under review and revises as necessary, plans for the coordinated, integrated, and sustainable management and development of the Nile River Basin. 6. The Council approves the annual work programs of the Commission. 7. The Council ensures the financial sustainability of the Commission. 8. The Council approves rules and procedures governing the operations of the Technical Advisory Committee, Sectoral Advisory Committees, and the Secretariat, as well as its work program and financial and staff regulations. 9. The Council appoints the Executive Secretary and other senior staff of the Commission. 10. The Council makes determinations concerning the staffing and organizational structure of the Secretariat. 11. The Council adopts, keeps under review and revises as necessary, rules, procedures, guidelines and criteria for the implementation of the provisions of this Framework. 12. The Council examines and makes decisions regarding the determination of equitable and reasonable use of water in each riparian country taking into consideration the factors provided in Article 4, paragraph 2. 13. At the request of the States concerned, the Council addresses questions and differences that may arise between Nile Basin States concerning the interpretation or application of the Framework. It may make recommendations to the States concerned with regard to such questions and differences. 14. The Council promotes the full and effective application of the Framework. 15. The Council decides upon a sliding scale of contributions of Nile Basin States for the financing of the budget of the Commission, and approves the budget of the Commission. 16. Where appropriate, the Council decides upon formulas for cost and benefit sharing by Nile Basin States in respect of particular joint projects within the Nile River Basin. 17. The Council performs such other functions in the effectuation of the purposes of the Commission as it may decide. SECTION D. THE TECHNICAL ADVISORY COMMITTEE Article 25 Structure and Procedures 1. The Technical Advisory Committee (the “TAC”) shall be composed of two members from each Nile Basin State who shall be senior officials. Delegates may bring other experts to meetings of the TAC as necessary to deal with special questions. 2. The TAC may establish specialized Working Groups to deal with matters within its competence.

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3. The TAC shall convene twice a year in regular session, and in special session if and as the Council, through its Chair, so requests. Unless otherwise decided, the venue for sessions shall be the headquarters of the Commission. 4. The TAC shall propose, for the approval of the Council, its own rules and procedures. Article 26 Functions 1. The TAC shall prepare for the consideration of the Council cooperative programs for the integrated and sustainable management and development of the Nile River Basin. 2. On the basis of reports from the Secretariat, the TAC shall make recommendations to the Council concerning annual work programs and budget of the Commission. 3. The TAC shall propose to the Council rules, procedures, guidelines and criteria provided for in this Framework. 4. The TAC shall make recommendations to the Council on the implementation of the provisions of this Framework. 5. The TAC shall make recommendations to the Council on decisions regarding the determination of equitable and reasonable use of water in each riparian country taking into consideration the factors provided in Article 4, paragraph 2. 6. The TAC shall advise the Council on technical matters relating to the use, development, protection, conservation and management of the Nile River Basin and the Nile River System, including protection from drought and floods. 7. The TAC shall make proposals to the council concerning appointment of the Executive Secretary and senior technical staff of the Secretariat, and supervises the Secretariat. 8. The TAC shall make recommendations to the Council concerning rules and procedures governing the operations of the Secretariat, as well as its work program. 9. When directed to do so by the Council, the TAC shall make recommendations to the Council concerning the modification of the Framework or the elaboration of protocols. 10. The TAC shall perform such other functions as may from time to time be assigned to it by the Council. SECTION E. SECTORAL ADVISORY COMMITTEES Article 27 Structure and Procedures 1. Sectoral Advisory Committees (“SACs”) may be established by the Council to deal with specific sectoral matters within the competence of the Commission. 2. Unless the Council decides otherwise, a SAC shall be composed of one member from each Nile Basin State who is an expert in the field of activity of the SAC in question.

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3. SACs shall be governed by the rules and procedures applicable to the TAC, mutatis mutandis. 4. The Council may establish a SAC charged with establishing linkage between sub-basin organizations and the Commission. Article 28 Functions SACs shall discharge the tasks assigned to them by the Council. SECTION F. THE SECRETARIAT Article 29 Structure 1. The Secretariat shall be headed by an Executive Secretary who shall be appointed for a three year term by the Council. 2. The Executive Secretary shall be accountable to the Council through the TAC. 3. The Executive Secretary and the officials of the Secretariat shall enjoy in Nile Basin States the privileges and immunities necessary for the performance of their functions. 4. The staff and structure of the Secretariat shall be determined by the Council on the recommendations of the TAC, taking into account the principle of geographic distribution. 5. The office of the Secretariat shall be situated at the Headquarters of the Commission. Article 30 Functions 1. The Executive Secretary shall represent the Commission in matters specified in the rules and procedures governing its operations and in particular in its relations with international and bilateral assistance institutions and with any Nile sub-basin institutions or arrangements. 2. The Secretariat shall serve as the secretariat for meetings of all organs of the Commission. 3. The Executive Secretary shall be responsible for the administration and finances of the Commission. 4. The Executive Secretary shall prepare, taking into account any information provided by National Nile Focal Point Institutions, and shall submit reports to the TAC concerning the annual work programs of the Commission. 5. The Executive Secretary shall prepare a proposed budget of the Commission and submit it to the TAC. 6. The Executive Secretary shall be responsible for the carrying out of studies and the performance of other activities proposed by the TAC and authorized by the Council. The Executive Secretary may engage consultants with the approval of the TAC to assist in the performance of these functions. 7. The Secretariat shall assist the TAC with the preparation of a plan for the coordinated, integrated, and sustainable management and development of the Nile River Basin.

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8. The Secretariat shall provide other assistance to all organs of the Commission, on their request, concerning matters related to the discharge of their functions. 9. The Secretariat shall compile available data and information and coordinate the monitoring of information relating to the Nile Basin, including information concerning water resources, the environment and socio-economic matters, review and synthesize the information with a view to integrating it into basin-wide databases and establishing standards, and develop mechanisms for the regular exchange of information where needed. 10. The Secretariat shall receive reports from sub-basin organizations and transmits the reports to TAC for its consideration. 11. The Secretariat shall perform any other functions assigned to it by the TAC. SECTION G. SUCCESSION OF THE NILE COMMISSION TO THE NILE BASIN INITIATIVE

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Article 31 Succession Upon the entry into force of this Framework the Commission shall succeed to all rights, obligations and assets of the Nile Basin Initiative (NBI). PART IV. SUBSIDIARY INSTITUTIONS Article 32 Sub-Basin organizations and arrangement 1. Nile Basin States shall recognize the utility of sub-basin organizations and arrangements. 2. The parties to the Framework that are also members of sub-basin organizations or arrangements shall undertake to ensure that the purposes, functions and activities of such organizations and arrangements are consistent with those of the Nile River Basin Commission and with the principles and rules set out in, or adopted under, the Framework. 3. The parties to the Framework that are also members of sub-basin organizations or arrangements further undertake to ensure that such organizations or arrangements work in close cooperation with the Nile River Basin Commission. 4. The Nile River Basin Commission shall maintain regular contact, and shall cooperate closely, with any sub-basin organization or arrangement. Article 33 National Nile Focal Point Institutions 1. Each Nile Basin State shall establish or designate a National Nile Focal Point Institution and notify the Commission thereof. 2. The function of National Nile Focal Point Institutions shall serve as national focal points for the Commission with regard to matters within the competence of the Commission.

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PART V. MISCELLANEOUS PROVISIONS Article 34 Settlement of disputes 1. In the event of a dispute between two or more Nile Basin States concerning the interpretation or application of the present Framework, the States concerned shall, in the absence of an applicable agreement between them, seek a settlement of the dispute by peaceful means in accordance with the following provisions: (a) If the States concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek good offices, or request mediation or conciliation by, the Nile River Basin Commission or other third party, or agree to submit the dispute to arbitration, in accordance with procedures to be adopted by the Council, or to the International Court of Justice. (b) If after six months from the time of the request for negotiations referred to in paragraph 2, the States concerned have not been able to settle their dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance with the Annex on the factfinding Commission, unless the States concerned otherwise agree. Article 35 Supplementary instruments 1. Nile Basin States may adopt bilateral or multilateral instruments that supplement the present Framework, concerning portions of the Nile River Basin or the Nile River system, such as sub-basins and tributaries, or concerning individual projects or programs relating to the Nile River Basin or the Nile River system, or portions thereof. 2. The supplementary instruments referred to in paragraph 1 shall apply the principles of the present Framework to the subject matter of those instruments. 3. Any other instruments or arrangements entered into by the Nile Basin States shall not be inconsistent with the provisions of the present Framework. 4. Supplementary instruments may be adopted as Protocols to the present Framework by consensus of Nile Basin States. PART VI. FINAL CLAUSES Article 36 Amendment of the Framework or Protocols 1. Amendments to this Framework may be proposed by any State Party. Amendments to any protocol may be proposed by any State to that protocol. 2. Amendments to this Framework shall be adopted at a meeting of the State Parties. Amendments to any protocol shall be adopted at a meeting of the State Parties to the Protocol in question. 3. Articles 1, 2, 3, 4, 5, 8, 9, 14, 23, 24, 34, 35, 36 and 37 of the present Framework may be amended only by consensus. As to proposed amendments to other articles or to any protocol, the Parties shall make every effort to reach agreement by consensus. If all efforts at consensus have been exhausted, and

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no agreement has been reached, the amendment shall as a last resort be adopted by a two-thirds majority vote of the State Parties to the instrument in question present and voting at the meeting, and shall be submitted by the Depositary to all State Parties for ratification, acceptance or approval. Article 37 Adoption and Amendment of Annexes 1. The annexes to this Framework or to any protocol shall form an integral part of the Framework or of such protocol, as the case may be, and, unless expressly provided otherwise, a reference to this Framework or its protocols shall constitute at the same time a reference to any annexes thereto. Such annexes shall be restricted to procedural, scientific, technical and administrative matters agreed upon by the parties. 2. Except as may be otherwise provided in any protocol with respect to its annexes, the following procedure shall apply to the proposal, adoption and entry into force of additional annexes to this Framework or of annexes to any protocol: (a) Annexes to this Framework or to any protocol shall be proposed and adopted according to the procedure laid down in Article 36. In particular, any annex relating to one of the articles listed in paragraph 3 of Article 36, which may be amended only by consensus, must be adopted by consensus; (b) Any Party that is unable to approve an additional annex to this Framework or an annex to any protocol to which it is Party shall so notify the Depositary, in writing, within one year from the date of the communication of the adoption by the Depositary. The Depositary shall without delay notify all Parties of any such declaration of objection received. A Party may at any time withdraw a previous declaration of objection and the annexes shall thereupon enter into force for that Party subject to subparagraph (c) below; (c) On the expiry of one year from the date of the communication of the adoption by the Depositary, the annex shall enter into force for all Parties to this Framework or to any protocol concerned which have not submitted a notification in accordance with the provisions of subparagraph (b) above. 3. The proposal, adoption and entry into force of amendments to annexes to this Framework or to any protocol shall be subject to the same procedure as for the proposal, adoption and entry into force of annexes to the Framework or annexes to any protocol. 4. If an additional annex or an amendment to an annex is related to an amendment to this Framework or to any protocol, the additional annex or amendment shall not enter into force until such time as the amendment to the Framework or to the protocol concerned enters into force. Article 38 Relationship between this Framework and Its Protocols 1. A State may not become a party to a protocol to this Framework unless it is, or becomes at the same time, a party to this Framework.

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2. Decisions under any protocol shall be taken only by the Parties to the protocol concerned. Any Nile Basin State that has not ratified a protocol may participate as an observer in any meeting of the parties to that protocol. Article 39 Reservations No reservations may be made to this Framework. Article 40 Withdrawal 1. At any time after two years from the date on which this Framework has entered into force for a State Party, that State Party may withdraw from the Framework by giving written notification to the Depositary. 2. Any such withdrawal shall take place upon expiry of one year after the date of its receipt by the Depositary, or on such later date as may be specified in the notification of the withdrawal, during which period the notifying State shall continue to be bound by the Framework. 3. Any State Party which withdraws from this Framework shall be considered as also having withdrawn from any protocol and annex to which it is party. 4. Any State Party which withdraws from this Framework shall, before withdrawing, settle its outstanding obligations thereunder. 5. The provisions of this article shall apply to withdrawal from protocols to the Framework. Article 41 Signature The present Framework shall be open for signature by all States in whose territory part of the Nile River Basin is situated, from 14th May 2010 to 13th May 2011 at Entebbe, Uganda. Article 42 Ratification or Accession The present Framework is subject to ratification or accession by all States in whose territory part of the Nile River Basin is situated. The instruments of ratification or accession shall be deposited with the African Union. Article 43 Entry into Force The present Framework shall enter into force on the sixtieth day following the date of the deposit of the sixth instrument of ratification or accession with the African Union. Article 44 Authentic Texts, Depositary The original of the present Framework, of which the English and French texts are equally authentic, shall be deposited with the African Union, which shall send certified true copies thereof to the State Parties.

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Article 45 Functions of the Depositary The Depositary shall, in particular, inform the State Parties: (a) Of the deposit of instruments of ratification or accession, or of any other information, declarations or other instruments provided for in the present Framework. (b) Of the date of the entry into force of the present Framework. Annex 1 Fact-Finding Commission 1. A Fact-finding Commission shall be established, composed of one member nominated by each State concerned and in addition a member not having the nationality of any of the States concerned chosen by the nominated members who shall serve as Chairman. 2. If the members nominated by the States are unable to agree on a Chairman within three months of the request for the establishment of the Commission, any State concerned my request the Chairperson of the Commission of the African Union (AU) to appoint the Chairman who shall not have the nationality of any of the parties to the dispute or of any of the Nile Basin States concerned. If one of the States fails to nominate a member within three months of the initial request pursuant to paragraph 2 of Article 33 above, any other State concerned my request the Chairperson of the AU Commission to appoint three persons who shall not have the nationality of any of the parties to the dispute or of any of the Nile Basin States concerned. 3. The Commission shall determine its own procedure. 4. The States concerned have the obligation to provide the Commission with such information as it may require and, on request, to permit the Commission to have access to their respective territory and to inspect any facilities, plant, equipment, construction or natural feature relevant for the purpose of its inquiry. 5. The Commission shall adopt its report by a majority vote and shall submit that report to the States concerned setting forth its findings and the reasons therefore and such recommendations as it deems appropriate for an equitable solution of the dispute, which the States concerned shall consider in good faith. 6. The expenses of the Commission shall be borne equally by the States concerned. [Article 14b]: Attachment At the end of the negotiations, no consensus was reached on Article 14(b) which reads as follows: “not to significantly affect the water security of any other Nile Basin States”. All countries [Burundi, DR Congo, Ethiopia, Kenya, Rwanda, Tanzania and Uganda] agreed to this proposal except Egypt and Sudan. To this effect, Egypt proposed that Article 14(b) should be replaced by the following wording:

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“not to adversely affect the water security and current uses and rights of any other Nile Basin State”.

The Extraordinary Meeting of the Nile Council of Ministers held in Kinshasa, the Democratic Republic of Congo, on 22 May 2009 resolved that the issue on the Article 14(b) be annexed and resolved by the Nile River Basin Commission within six months of its establishment.

Index

A Abbay River, see Blue Nile Absolute territorial integrity Egypt, 24, 189, 211, 268 state practice, 24 Sudan, 189, 268 theory, 23–24, 28 Absolute territorial sovereignty Ethiopia, 22–23, 71, 189, 211, 268 Harmon Doctrine, 21–23 (see also Harmon Doctrine) state practice, 22 theory, 21, 28 African Great Lakes, 95–97 Agenda 21 adoption of, 20 chapter 18, 73 freshwater resources, 20 public participation, 73 subsidiarity principle, 73 sustainable development, 20 UN Watercourses Convention (1997), 195–196 Agenda for Sustainable Development 2030, 2 Albert Nile, 96 Aquifers confined aquifers, 62, 74 Draft Articles on the Law of Transboundary Aquifers, 74, 75 (see also Draft Articles on the Law of Transboundary Aquifers) Nile Aquifer, 251 Nubian Sandstone Aquifer, 251, 252 transboundary aquifers, 74, 75 Umm Ruwaba Aquifer, 252, 253 Arbitral awards

Gut Dam, 37 Island of Palmas, 110 Lake Lanoux, 37, 47, 49, 235 Trail Smelter, 37 Aswan High Dam, 97 equitable utilization, and, 244–246, 250 evaporation, 246 Grand Ethiopian Renaissance Dam, effects of, 232 Nile Waters Agreement (1959), Art. 2, 149 uses, 233 Atbara River Anglo-Italian Protocol (1891), 108, 114–115 Eastern Nile sub-basin, as part of, 97 Halfa el Jadida irrigation project, 236 Khashm el-Girba Dam, 236 sources, 222 Tekeze Dam, 238 tributary of the Nile, as, 97 water contribution, 97

B Bahr al-Ghazal River, 96, 150, 248 Bahr al-Jabal Nile Waters Agreement (1959), 150 water losses, 96, 248 water volume, 96 Beles Hydroelectric Power Plant, 238 Benefit sharing concept, 193–194 Cooperative Framework Agreement for the Nile (2010), 193–195 equitable utilization, 194

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1

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306 Benefit sharing (cont.) international water law, 194 treaty practice, 194 Berlin Conference of 1884–1885, 105 Berlin Rules (2004) adoption of, 19 controversy, 19 public participation, 199 Blue Nile Anglo-Ethiopian Treaty (1902), 118–119, 121, 128 Anglo-Italian Exchange of Notes (1925), 130–131 Beles Hydroelectric Power Plant, 238 Eastern Nile sub-basin, as part of, 97 effects of uses, 232–233 Finchaa Power Station, 238 Grand Ethiopian Renaissance Dam, 5, 238 (see also Grand Ethiopian Renaissance Dam) hydroelectric power generation, Ethiopia, 238 hydroelectric power generation, Sudan, 236 hydroelectric power potential, Ethiopia, 240 irrigated agriculture, Sudan, 227, 236 Koga Dam, 238 Roseires Dam, 236 seasonal fluctuations, 97 Sennar Dam, 236 sources, 96, 222 tributaries, 96 uses, Ethiopia, 237–238 uses, Sudan, 236 water contribution, 96–97 Boundary Waters Treaty (1909), 86 Burundi agriculture, 230 Anglo-Belgian Agreement (1934), succession to, 144, 145 available alternatives to Nile use, 254 climate, 224 colonial administration, 106 contribution to Nile waters, 224 Cooperative Framework Agreement for the Nile (2010), signature, 181 demand for electricity, 99–100 demand for water, 230 effects of Nile uses, 232 existing uses of the Nile, 242–243 Hydromet, 168 Kagera Basin Organization, 169 Lake Tanganyika Convention (2003), 194 Lake Victoria Basin Commission, 172

Index Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), binding effect, 144 Nyerere Doctrine, 145 (see also Nyerere Doctrine) population, 230 potential uses of the Nile, 243 proportion of Nile Basin area, 224 social and economic needs, Nile waterrelated, 227 UN Watercourses Convention (1997), non-signatory, 58 Undugu, 170 use interests in the Nile, 99–100 water resources, 254

C Climate change Nile Basin, 98 Community of interest Cooperative Framework Agreement for the Nile (2010), 188, 189, 195, 212 equitable and reasonable participation, 65 Gabčíkovo-Nagymaros Project case, 28 River Oder case, 28 state practice, 27 theory, 27, 28 Comprehensive Peace Agreement (2005), 153, 154 Congo Free State, 128–130 Consultation, obligation of Cooperative Framework Agreement for the Nile (2010), 197 customary international law, 48–50 equitable utilization, 49 Lake Lanoux arbitration, 49–50 planned measures, 48–50 Cooperation, obligation of content, 46 Cooperative Framework Agreement for the Nile (2010), 188 customary international law, 45 Gabčíkovo-Nagymaros Project case, 45 Mekong River Agreement (1995), 83 UN Watercourses Convention (1997), 70 Cooperative Framework Agreement for the Nile (2010) adoption of, 184 Art. 14(b), controversy, 202, 204 benefit sharing, 193–195 community of interest (Art. 3), 189

Index consultation, obligation of, 197 controversial issues, 184–185 current uses, reservation of, 202–203 dispute settlement, 188, 209 environmental impact assessment (Art. 9), 196 environmental protection, 195–197 equitable utilization, principle (Art. 4), 189–190 existing uses, priority of, 191 information exchange (Art. 8), 197 integrated water resources management, 195 kinds of use, 191 Nile River Basin Commission (Part III), 204–208 (see also Nile River Basin Commission) no-harm rule and Art. 14(b), 192 planned measures, 197–198 prior notification, 197–198 public participation, 198 public participation, replacement for notification, 199–200 scope (Art. 1), 187–188 sub-basin organizations and arrangements, 208, 277 subsidiarity principle (Art. 3, 10), 198 sustainable development, 195 UN Watercourses Convention (1997), alignment with, 188–192, 196, 209 water security, Art. 14(b), 200–202 water security, normative content, 201–202

D Data exchange, obligation of Cooperative Framework Agreement for the Nile (2010), 188, 197 customary international law, 50 equitable utilization, and, 50 UN Watercourses Convention (1997), 70 UNECE Water Convention (1992), 77 Declaration of Principles on the Grand Ethiopian Renaissance Dam (2015), 9, 120, 277 Demand for water Egypt, 5 industrialization, 18 Nile Basin, 5 rise in, 18 Dispute settlement Cooperative Framework Agreement for the Nile (2010), 188, 209 fact-finding commission, 74, 209 international river commissions, 87

307 UN Watercourses Convention (1997), 74 Donauversinkung case equitable utilization, 33 no-harm principle, 38 DR Congo Agreement between the United Kingdom and the Congo Free State (1906), succession to, 128–130 available alternatives to Nile use, 255 climate, 224 colonial administration, 106 contribution to Nile waters, 224 demand for electricity, 99–100 effects of Nile uses, 232 existing uses of the Nile, 243 Lake Tanganyika Convention (2003), 194 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), binding effect, 144 population, 231 potential uses of the Nile, 243 proportion of Nile Basin area, 224 social and economic needs, Nile waterrelated, 227 UN Watercourses Convention (1997), non-signatory, 58 Undugu, 169 use interests in the Nile, 99–100 water resources, 255 Draft Articles on the Law of Transboundary Aquifers legal status, 75 provisions, 75 UN Watercourses Convention (1997), relationship, 74–75 Drainage basin approach Cooperative Framework Agreement for the Nile (2010), 187 Helsinki Rules (1966), 61–62 UN Watercourses Convention (1997), 61 Due diligence obligation equitable utilization, 36 no-harm rule, 38, 67, 192 pollution control, 72

E East African Community (EAC), 101, 172, 173 Ecosystems Cooperative Framework Agreement for the Nile (2010), 188, 195, 196 customary international water law, 42–45 integrated water resources management, 195

308 Ecosystems (cont.) integrity of, 43 Mekong River Agreement (1995), 83 precautionary principle, 42–43 protection, 42–45 SADC Revised Protocol (2000), 79 UN Watercourses Convention (1997), 72 watercourse agreements, 80, 81 Egypt absolute territorial integrity, 24, 189, 211, 268 (see also Absolute territorial integrity) acquired and historical rights, claim of, 6, 35, 107, 202 Anglo-Egyptian Exchange of Notes (19491953), 146 Anglo-Ethiopian Treaty (1902), succession to, 123 Anglo-Italian Exchange of Notes (1925), 130 Aswan High Dam, 245–246 available alternatives to Nile use, 250 climate, 222 colonial administration, 105 contribution to Nile waters, 222 Cooperative Framework Agreement for the Nile (2010), Art. 14(b), 202, 204 Declaration of Principles on the Grand Ethiopian Renaissance Dam (2015), 9, 277 demand for water, 5 effects of Nile uses, 232 existing uses of the Nile, 233–235 hydroelectric power generation, 99, 233 Hydromet, 167 irrigation, 233 land-reclamation projects, 233–234 Nile Basin Initiative (NBI), 173, 273 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), 132–136, 144 Nile Waters Agreement (1959), 148, 159 no-harm rule, priority of, 40, 269 population, 228 prior notification, 184, 212 proportion of Nile Basin area, 222 protection and development measures, 245 reuse of water, 247–248 social and economic needs, Nile waterrelated, 226 TECCONILE, 170 UN Watercourses Convention (1997), Art. 3, 64–65

Index UN Watercourses Convention (1997), Art. 5-7, 68 UN Watercourses Convention (1997), Art. 10, 66–67 UN Watercourses Convention (1997), Art. 12-17, 71 UN Watercourses Convention (1997), non-signatory, 58 Undugu, 169 virtual water, import of, 252 water diversions, 233–234 water extraction, 233 water losses, 246–247 water pollution, 98 water resources, 250 El Salam Canal, 234 Ellegirini Dam, 241 Environmental impact assessment Cooperative Framework Agreement for the Nile (2010), 188, 196 customary international obligation, 47–48 Luso-Spanish River Basins Convention (1998), 82 prior notification, 47–48 Pulp Mills case, 48 Tripartite Interim Agreement for Incomati and Maputo Watercourses (2002), 83 UN Watercourses Convention (1997), 71 Environmental protection Cooperative Framework Agreement for the Nile (2010), 195–197, 214 customary international obligation, 42–43 equitable utilization, in, 249 Gabčíkovo-Nagymaros Project case, 43 international water law, in, 42–43, 51 Mekong River Agreement (1995), 83 Nile Basin Initiative (NBI), 176 precautionary principle, 42–43 Trail Smelter arbitration, 37 UNECE Water Convention (1992), 77 UN Watercourses Convention (1997), 72 Equality of rights Nile water treaties, 159 River Oder case, 28 Equitable allocation environmental protection, and, 43 equitable utilization, and, 32, 34 (see also Equitable utilization) no-harm rule, and, 37, 42 (see also No-harm rule) UN Watercourses Convention (1997), 77 Equitable utilization availability of alternatives, 250

Index benefit sharing, 194 conservation, protection, development, economy, costs of measures, 245 consultation, obligation of, 49 Cooperative Framework Agreement for the Nile (2010), 188–193 Cooperative Framework Agreement for the Nile (2010), Art. 14(b), 202–203 Cooperative Framework Agreement for the Nile (2010) negotiations, 183 customary international law, 32 data exchange, 50 dependent population, 228 Draft Articles on the Law of Transboundary Aquifers, 75 effects of uses, 231–232 Egypt, 68, 93 environmental protection, 32, 249 Ethiopia, 68–69 existing and potential uses, 233 existing uses, priority of, 35–36 factors of a natural character, 221 future water needs, 227 Gabčíkovo-Nagymaros Project case, 33 guiding principle, as, 40–41 Helsinki Rules (1966), 33, 34 implementation, 220 kinds of uses, priority, 66–67 legal injury, 41 limited territorial sovereignty, 33 Luso-Spanish River Basins Convention (1998), 82 Mekong River Agreement (1995), 83 new uses, objections, 234–235 Nile Basin Initiative (NBI), 7, 174 Nile water treaties, 159 no-harm rule, relationship, 40–42 normative content, 34–35 potential uses, criteria, 239 prior appropriation, 35 process, as, 36–37 Pulp Mills case, 32, 33 relevant factors, 34–35 reuse of wastewater, 247–248 SADC Revised Protocol (2000), 79 social and economic needs, 225–226 stage of economic development, 226 UNECE Water Convention (1992), 77 UN Watercourses Convention (1997), 34, 65–66 virtual water, 251 vital human needs, 66

309 water diversions, 226, 235, 244 (see also Water diversions) water losses, 246–247 water-use efficiency, 246–247 water-use potential, 239–240 Eritrea agriculture, 229 available alternatives to Nile use, 253 climate, 223 colonial administration, 105 contribution to Nile waters, 223 effects of Nile uses, 232 existing uses of the Nile, 240 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), binding effect, 144 population, 229 potential uses of the Nile, 240 social and economic needs, Nile waterrelated, 227 UN Watercourses Convention (1997), non-signatory, 58 water resources, 253 Ethiopia absolute territorial sovereignty, 22–23, 71, 189, 211, 268 (see also absolute territorial sovereignty) agriculture, 237 Anglo-Ethiopian Treaty (1902), 115–122, 125–128 Anglo-Italian Exchange of Notes (1925), 130–131 Anglo-Italian Protocol (1891), succession to, 111–115 available alternatives to Nile use, 252 climate, 222 contribution to Nile waters, 222 Cooperative Framework Agreement for the Nile (2010), ratification, 7, 181 Cooperative Framework Agreement for the Nile (2010), signature, 185 Declaration of Principles on the Grand Ethiopian Renaissance Dam (2015), 9, 277 development measures, 248 effects of Nile uses, 232 equitable utilization, priority of, 40, 269 existing uses of the Nile, 237–238 Grand Ethiopian Renaissance Dam, 5, 8–9, 232, 248 (see also Grand Ethiopian Renaissance Dam)

310 Ethiopia (cont.) hydroelectric power generation, 238 Hydromet, 168 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), binding effect, 144 Nile Waters Agreement (1959), protest, 148 population, 229 potential uses of the Nile, 238–240 prior notification, 47, 183, 198 proportion of Nile Basin area, 222 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Treaty of Uccialli (1889), 109–111 Undugu, 170 UN Watercourses Convention (1997), Art. 3, 64–65 UN Watercourses Convention (1997), Art. 5-7, 68–69 UN Watercourses Convention (1997), Art. 10, 67 UN Watercourses Convention (1997), Art. 12-17, 71 UN Watercourses Convention (1997), non-signatory, 58 water resources, 252

F Finchaa Power Station, 238 Fundamental change of circumstances Anglo-Ethiopian Treaty (1902), 125–127 conditions, 125 customary principle, 125 Iranian-Iraqi Boundary Treaty and Protocol Concerning the Schatt-al-Arab Waterway (1937), 140 Nile Waters Agreement (1929), 138–142 state succession, 139–141 territorial treaties, 126, 139 treaties establishing a boundary, 125, 139 Vienna Convention on the Law of Treaties (1969), codification, 125

G Gabčíkovo-Nagymaros Project case background, 156 community of interest, 28, 189 cooperation of riparian states, 45 environmental norms and standards, 43

Index environmental protection, 43 equitable utilization, 33, 41, 220 state succession to treaties, 147, 155 territorial regime, 147, 155 Vienna Convention on Succession of States in respect of Treaties (1978), Art. 12, 147, 155 Gezira Scheme, 236 Grand Ethiopian Renaissance Dam construction, 8–9, 238 Declaration of Principles on the Grand Ethiopian Renaissance Dam (2015), 9, 120, 277 equitable utilization, and, 239, 248 political tensions, 8–9 Groundwater Cooperative Framework Agreement for the Nile (2010), 187 Draft Articles on the Law of Transboundary Aquifers, 74, 75 (see also Draft Articles on the Law of Transboundary Aquifers) treaty practice, 20 UNECE Water Convention (1992), 76 UN Watercourses Convention (1997), 62–63, 74 water resources, 1 Gut Dam arbitration, 37

H Harmon Doctrine absolute territorial sovereignty, 21 (see also Absolute territorial sovereignty) background, 21–22 doctrine, 21 repudiation of, 23 Helsinki Rules (1966) adoption of, 18 Cooperative Framework Agreement for the Nile (2010), and, 187, 190 drainage basin approach, 61–62 equitable utilization, 19, 33, 34 existing uses, 203–204 scope (Art. II), 61–62 significance of, 18–19 Historical rights controversy, 107 Cooperative Framework Agreement for the Nile (2010), Art. 14(b), 202 Cooperative Framework Agreement for the Nile (2010) negotiations, 182–185 customary rights, 270

Index Egypt, 66, 107, 182–185, 202 Nile Waters Agreement (1929), 107, 132 Sudan, 107, 182, 183, 202 Human right to water and sanitation, 66

I International Court of Justice (ICJ) community of interest, 28, 189 (see also Community of interest) cooperation of riparian states, 45 environmental impact assessment, 48, 71 environmental norms and standards, 43 equitable utilization, 33, 40–41 equitable utilization and environmental protection, 32 Gabčíkovo-Nagymaros Project case, 28, 33, 41, 43, 45, 147, 155, 189, 220 joint mechanisms for cooperation, 84 prevention principle, 43 Pulp Mills case, 32, 33, 40–41, 43, 48, 71, 84 (see also Pulp Mills case) referrals to, 74, 209 San Juan River case, 48, 71 Statute, Art. 38, 31 territorial regimes, 147, 155 Vienna Convention on Succession of States in respect of Treaties (1978), Art. 12, 147, 155 International environmental law definition, 15 International Law Association (ILA) Helsinki Rules (1966), 18–19 (see also Helsinki Rules (1966)) International Law Commission (ILC) confined aquifers, 62 Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, 58 Draft Articles on the Law of Transboundary Aquifers, 74, 75 (see also Draft Articles on the Law of Transboundary Aquifers) influence of, 76, 81 territorial treaties, 113 watercourse, definition of, 62 International river commissions customary international law, 46, 84 functions, 84 importance of, 83 International Joint Commission, 86 Mekong River Commission, 86 Nile River Basin Commission, 204–207 (see also Nile River Basin Commission)

311 Pulp Mills case, 84 state practice, 84 UNECE Water Convention (1992), 78 UN Watercourses Convention (1997), 70 International watercourses common terminus, 61 definition, 61 groundwater, 62–63 UN Watercourses Convention (1997), 61 (see also UN Watercourses Convention (1997)) International water law definition, 15 Interpretation of treaties Anglo-Ethiopian Treaty (1902), 118–121 contextual, 119 dynamic, 118 evolutionary, 120 subsequent interpretive agreement or practice, 119–120 textual, 118–119 Isango River Agreement between the United Kingdom and the Congo Free State (1906), 128–130 Isimba Hydropower Plant, 241

J Jebel Aulia Dam, 236, 248 Jonglei Canal construction, 150 equitable utilization and, 248–249 Nile Waters Agreement (1959), 150 project, 150 resistance, 151 Sudanese civil war, 151

K Kagera Basin Organization, 168, 169 Kagera River Anglo-Belgian Agreement (1934), 145 headstream of the White Nile, as, 95 Kagera Basin Organization, 169 Regional Rusumo Falls Hydroelectric Project, 242 sources, 95 water contribution, 224 Karuma Hydroelectric Power Station, 241 Kenya agriculture, 230 available alternatives to Nile use, 254

312 Kenya (cont.) climate, 223 colonial administration, 105 contribution to Nile waters, 223 Cooperative Framework Agreement for the Nile (2010), signature, 181, 185 demand for electricity, 99–100 effects of Nile uses, 232 existing uses of the Nile, 241–242 Hydromet, 167 Lake Victoria Basin Commission, 172 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), succession to, 136–138, 144 Nyerere Doctrine, 136–137 (see also Nyerere Doctrine) population, 230 potential uses of the Nile, 242 proportion of Nile Basin area, 223 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Undugu, 170 UN Watercourses Convention (1997), non-signatory, 58 use interests in the Nile, 99–100 water resources, 254 Khashm el-Girba Dam, 236, 237 Koga Dam, 238 Krishna Water Disputes Tribunal, 226

L Lake Albert, 96, 128 Lake Kyoga, 96 Lake Lanoux arbitration consultation, obligation of, 49–50 hydraulic projects, 235 limited territorial sovereignty, 25–26 (see also Limited territorial sovereignty) no-harm rule, 37 (see also No-harm rule) prior notification, 47 Lake Nasser, 97, 234, 246 Lake Nubia, 97 Lake Tana Anglo-Ethiopian Treaty (1902), 118–119, 121, 128 Blue Nile headwaters, 96 Lake Victoria Anglo-Egyptian Exchange of Notes (19491953), 146 evaporation, 96

Index fishing, 240, 242, 244 Lake Victoria Basin Commission, 172–173 outflow regulation, 249 riparian states, 95 surface area, 95 uses, Kenya, 242 uses, Tanzania, 242 uses, Uganda, 240 water contribution, 96 water reservoir of the White Nile, as, 95, 223 Lake Victoria Basin Commission, 172–173 Limited territorial sovereignty Lake Lanoux arbitration, 25–26 state practice, 25 support for, 25–26 theory, 25, 26, 28, 32

M Mekelle Memorandum of Understanding on Post-Referendum Issues and Arrangements, 154 Mekong River Agreement (1995) environmental protection, 83 equitable utilization, 83 Mekong River Commission, 86 Mereb River, 237 Merowe Dam, 237 Million and a Half Feddan Project, 234

N Navigation Cooperative Framework Agreement for the Nile (2010), 188 freedom of, 18 Helsinki Rules (1966), 18 international river commissions, 84, 85 River Oder case, 28 watercourse agreements, 80 Nile Aswan High Dam, 233 Blue Nile (see Blue Nile) catchment area, 95 climate change, 98 colonization, 105–106 Cooperative Framework Agreement for the Nile (2010) (see Cooperative Framework Agreement for the Nile (2010)) diversion of water, 233–234 Merowe Dam, 237

Index Nile Basin Initiative (NBI) (see Nile Basin Initiative (NBI)) political tensions, 100–101 pollution, 98 riparian states, 4 river course, 95–97 sources, 95, 96 sub-basins, 97 tributaries, 95 uses, 99–100, 233–244 water abstraction, 99 water scarcity, 4–5 White Nile (see White Nile) Nile 2002 Conferences, 171–172 Nile Basin Initiative (NBI) Cooperative Framework Agreement for the Nile (2010), development of, 181 D3 Project, 177 Eastern Nile Technical Regional Office (ENTRO), 175–176 establishment, 173 financing, 176 member states, 173 Nile Equatorial Lakes Subsidiary Action Program Coordination Unit (NELSAPCU), 176 Nile River Basin Commission, replacement by, 204 Nile River Basin Commission, succession, 208–209 objectives, 173–174 Shared Vision Program, 176–177 Subsidiary Action Program, 177–178 Nile River Basin Commission decision-making, 206–207 functions, 205–206 legal status, 205 Nile Basin Initiative (NBI), succession to, 208–209 objectives, 205 No-harm rule applicable threshold, 39–40 causation, 40 Cooperative Framework Agreement for the Nile (2010), 192 criteria, 38–40 customary international law, 37–40 Draft Articles on the Law of Transboundary Aquifers, 75 due diligence obligation, 38 Egypt, 68 environmental protection, 37 equitable utilization, relationship, 40–42

313 Ethiopia, 68–69 factual harm, 39 Gut Dam arbitration, 37 harm, 39 Lake Lanoux arbitration, 37 legal injury, 39 Mekong River Agreement (1995), 83 SADC Revised Protocol (2000), 79 Trail Smelter arbitration, 37 UN Watercourses Convention (1997), 67–68 use allocation, 37 Non-navigational use Cooperative Framework Agreement for the Nile (2010), 188 Gabčíkovo-Nagymaros Project case, 28 Helsinki Rules (1966), 18 international river commissions, 84 UN Watercourses Convention (1997), 61 Northern Sinai Development Project, 234 Nyerere Doctrine African states, 137 Burundi, 145 doctrine, 136–137 Kenya, 137 Tanganyika, 136 Uganda, 137, 146

O Owen Falls Dam Anglo-Egyptian Exchange of Notes (19491953), 146 construction, 240–241 equitable utilization, and, 249 Lake Victoria, water level, 98

P Pacta tertiis principle Anglo-Italian Exchange of Notes (1925), 131 customary international law, 131 Nile Waters Agreement (1929), 144 Nile Waters Agreement (1959), 152 Permanent Court of International Justice (PCIJ) community of interest, 28, 189 (see also community of interest) River Oder case, 28 Permanent Joint Technical Commission (PJTC) Comprehensive Peace Agreement (2005), 153 establishment, 151

314 Permanent Joint Technical Commission (PJTC) (cont.) Hydromet, 168 member states, 86 Nile Waters Agreement (1959), 151 work, 152 Pollution control of, 42 harm, 39 international river commissions, 85 precautionary principle, 72 prevention of, 42 UNECE Water Convention (1992), 76, 77 UN Watercourses Convention (1997), 72 (see also UN Watercourses Convention (1997)) watercourse agreements, 80, 81 Precautionary principle customary international water law, 43 UNECE Water Convention (1992), 77 UN Watercourses Convention (1997), 44, 72 Prior appropriation Cooperative Framework Agreement for the Nile (2010), 203 doctrine, 35 Nile Waters Agreement (1959), 149 Prior notification Cooperative Framework Agreement for the Nile (2010), 197–198, 213–214 Cooperative Framework Agreement for the Nile (2010) negotiations, 183, 184 Egypt, 184, 212 environmental impact assessment, 47–48, 71 Ethiopia, 47, 71, 183 importance of, 198 Lake Lanoux arbitration, 47 Sudan, 184, 212 UN Watercourses Convention (1997), 59, 70–71 Procedural obligations importance of, 45 Public participation Agenda 21, 73–74 Berlin Rules (2004), 199 Cooperative Framework Agreement for the Nile (2010), 198 definition, 73 EU Water Framework Directive, 199 integrated water resources management, 73 international environmental law, 73–74 international water law, 198–199

Index notification procedure, replacement of, 199–200 UN Watercourses Convention (1997), 73 Pulp Mills case environmental impact assessment, 48, 71 environmental protection, 32 equitable utilization, 32, 33, 41 joint mechanisms for cooperation, 84 prevention principle, 43

R Rahad River Rahad Irrigation Project, 236 Ramsar Convention (1971), 249 rebus sic stantibus principle, see Fundamental change of circumstances Regional Rusumo Falls Hydroelectric Project, 242, 243 Res inter alios acta principle, see Pacta tertiis principle Rhine International Commission for the Protection of the Rhine, 206, 207 River Oder case community of interest, 28 navigation, 28 Roseires Dam, 236, 248 Roseires Reservoir, 149 Rwanda agriculture, 231 Anglo-Belgian Agreement (1934), succession to, 145, 146 available alternatives to Nile use, 255 climate, 224 colonial administration, 106 contribution to Nile waters, 224 Cooperative Framework Agreement for the Nile (2010), ratification, 7, 181 Cooperative Framework Agreement for the Nile (2010), signature, 185 demand for electricity, 99–100 effects of Nile uses, 232 existing uses of the Nile, 243 Hydromet, 168 Kagera Basin Organization, 169 Lake Victoria Basin Commission, 172 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), binding effect, 144 population, 231 proportion of Nile Basin area, 224

Index proportion of territory within Nile Basin, 63 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Undugu, 170 UN Watercourses Convention (1997), groundwater, 63 UN Watercourses Convention (1997), non-signatory, 58 use interests in the Nile, 99–100 water resources, 255

S SADC Revised Protocol (2000) ecosystem protection, 79 equitable utilization, 79 framework character, 78 influence of, 79 no-harm rule, 79 planned measures, 79 UN Watercourses Convention (1997), influence of, 79 Semliki River Agreement between the United Kingdom and the Congo Free State (1906), 128–130 DR Congo, development in, 243 Sennar Dam, 148, 236 Setit River, see Tekeze River Sobat River Anglo-Ethiopian Treaty (1902), 118–119, 121, 124, 128 Anglo-Italian Exchange of Notes (1925), 130, 131 Eastern Nile sub-basin, as part of, 97 Nile Waters Agreement (1959), 150 sources, 222 water contribution, 96 Sondu Miriu Hydroelectric Power Station, 242 South Sudan agriculture, 229 Anglo-Ethiopian Treaty (1902), succession to, 124–125 available alternatives to Nile use, 253 climate, 223 colonial administration, 106 Comprehensive Peace Agreement (2005), 153 conservation of Sudd wetlands, 248, 250 contribution to Nile waters, 223 Cooperative Framework Agreement for the Nile (2010), support for, 8, 186 effects of Nile uses, 232 environmental protection, 248, 250

315 existing uses of the Nile, 240 independence referendum, 154 Jonglei Canal, 248 Legal Handbook, 153 Nile Basin Initiative (NBI) admittance, 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), succession to, 143–144, 158 Nile Waters Agreement (1959), rejection of, 8, 157 Nile Waters Agreement (1959), succession to, 153 population, 229 potential uses of the Nile, 240 proportion of Nile Basin area, 223 proportion of territory within Nile Basin, 63 separation, 124 social and economic needs, Nile waterrelated, 227 UN Watercourses Convention (1997), non-signatory, 58 water resources, 253 Southern African Development Community (SADC) SADC Protocol (1995), 27 SADC Revised Protocol (2000), 78–79 (see also SADC Revised Protocol (2000)) Tripartite Interim Agreement for Incomati and Maputo Watercourses (2002), 82 South Valley Development Project, 234 State succession to treaties Agreement between the United Kingdom and the Congo Free State (1906), 128–130 Anglo-Belgian Agreement (1934), 145 Anglo-Egyptian Exchange of Notes (19491953), 146 Anglo-Ethiopian Treaty (1902), Egypt, 123 Anglo-Ethiopian Treaty (1902), South Sudan, 124–125 Anglo-Ethiopian Treaty (1902), Sudan, 122–124 Anglo-Italian Protocol (1891), 111–115 clean-slate theory, 111–112 continuity theory, 111 continuity, presumption of, 157 Gabčíkovo-Nagymaros Project case, 147, 155 newly independent states, 112 Nile Waters Agreement (1929), South Sudan, 143–144, 158 Nile Waters Agreement (1929), Tanzania, Kenya, Uganda, 136–138 Nile Waters Agreement (1959), 153

316 State succession to treaties (cont.) Nyerere Doctrine, 136–137 protectorates, 111 separate consideration of treaty provisions, 114 separation, 124, 155 tabula rasa theory, 111–112 territorial treaties, 112–114, 123, 147, 155 (see also Territorial treaties) treaties concerning water rights, 113 unilateral declaration, 153 universal succession theory, 111 Vienna Convention on Succession of States in respect of Treaties (1978), 112, 147, 155 (see also Vienna Convention on Succession of States in respect of Treaties (1978)) Subsidiarity principle Agenda 21, 73–74 Cooperative Framework Agreement for the Nile (2010), 188, 198 definition, 73 international environmental law, 73–74 UN Watercourses Convention (1997), 73–74 Successive treaties, application of, 135–136 Sudan absolute territorial integrity, 189, 268 (see also Absolute territorial integrity) acquired and historical rights, claim of, 6, 35, 107, 202 Agreement between the United Kingdom and the Congo Free State (1906), 128–130 agriculture, 101, 227 Anglo-Ethiopian Treaty (1902), succession to, 122–124 Anglo-Italian Exchange of Notes (1925), 130 available alternatives to Nile use, 252 climate, 222 colonial administration, 106 Comprehensive Peace Agreement (2005), 153 contribution to Nile waters, 222 Cooperative Framework Agreement for the Nile (2010), Art. 14(b), 202, 204 Declaration of Principles on the Grand Ethiopian Renaissance Dam (2015), 9, 277 effects of Nile uses, 232 existing uses of the Nile, 235–237 hydroelectric power generation, 99, 235–237 Hydromet, 167

Index irrigation, 235–237 Jebel Aulia Dam, 248 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), 132–136, 143, 144 Nile Waters Agreement (1959), 148, 159 no-harm rule, priority of, 269 population, 229 potential uses of the Nile, 237 prior notification, 184, 212 proportion of Nile Basin area, 222 proportion of territory within Nile Basin, 63 protection and development measures, 248 Roseires Dam, 248 separation of South Sudan, 124 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Undugu, 169 UN Watercourses Convention (1997), non-signatory, 58 water losses, 248 water resources, 252 Sudd Cooperative Framework Agreement for the Nile (2010), Art. 6, 196 environmental protection, 249 equitable utilization, and, 248–249 Jonglei Canal, 151 main wetlands, 96 Nile Waters Agreement (1959), 150 Ramsar Convention (1971), 249 surface area, 96 water conservation measures, 248 water losses, 96 wetland of international importance, recognized, 249 Suez Canal, 106, 138, 234 Sustainable development Agenda 21, 20 Agenda for Sustainable Development 2030, 2 Cooperative Framework Agreement for the Nile (2010), 188 Tripartite Interim Agreement for Incomati and Maputo Watercourses (2002), 83

T Tanzania agriculture, 230 Anglo-Belgian Agreement (1934), succession to, 145 available alternatives to Nile use, 254

Index climate, 224 colonial administration, 106 contribution to Nile waters, 224 Cooperative Framework Agreement for the Nile (2010), ratification, 7, 181 Cooperative Framework Agreement for the Nile (2010), signature, 185 demand for electricity, 99–100 effects of Nile uses, 232 existing uses of the Nile, 242 Hydromet, 167 Kagera Basin Organization, 169 Lake Tanganyika Convention (2003), 194 Lake Victoria Basin Commission, 172 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), succession to, 136–138, 144 Nyerere Doctrine, 136–137 (see also Nyerere Doctrine) population, 230 potential uses of the Nile, 242 proportion of Nile Basin area, 224 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Undugu, 170 UN Watercourses Convention (1997), non-signatory, 58 use interests in the Nile, 99–100 water resources, 254 TECCONILE D3 Project, 171 initiative, 170–171 Nile River Basin Action Plan, 171 Tekeze Dam, 238 Tekeze River, 97, 238 Territorial treaties Anglo-Belgian Agreement (1934), 145 Anglo-Egyptian Exchange of Notes (19491953), 147 Anglo-Ethiopian Treaty (1902), 123–125 Anglo-Italian Protocol (1891), 114–115 continuity, 112–113 definition, 112–113 Gabčíkovo-Nagymaros Project case, 155 International Court of Justice (ICJ), 155 International Law Commission (ILC), 113 Nile Waters Agreement (1929), 138 Nile Waters Agreement (1959), 156 rebus sic stantibus principle, applicability, 125–126, 138–139

317 Vienna Convention on Succession of States in respect of Treaties (1978), 113 Toshka Project, 234 Trail Smelter arbitration, 37 Treaties providing for obligations for third states Anglo-Italian Exchange of Notes (1925), 131–132 Nile Waters Agreement (1929), 144 Nile Waters Agreement (1959), 152 Treaty of Uccialli (1889), 108–111

U Uganda agriculture, 230 Anglo-Egyptian Exchange of Notes (1949–1953), succession to, 146 available alternatives to Nile use, 253 climate, 223 colonial administration, 105 contribution to Nile waters, 223 Cooperative Framework Agreement for the Nile (2010), signature, 181, 185 demand for electricity, 99–100 effects of Nile uses, 232 existing uses of the Nile, 240–241 hydroelectric power generation, 240–241 Hydromet, 168 Kagera Basin Organization, 169 Lake Victoria Basin Commission, 172 Nile Basin Initiative (NBI), 173 (see also Nile Basin Initiative (NBI)) Nile Waters Agreement (1929), succession to, 136–138, 144 Nyerere Doctrine, 136–137, 146 (see also Nyerere Doctrine) Owen Falls Dam, 249 population, 230 potential uses of the Nile, 241 proportion of Nile Basin area, 223 proportion of territory within Nile Basin, 63 protection and development measures, 249 social and economic needs, Nile waterrelated, 227 TECCONILE, 170 Undugu, 169 UN Watercourses Convention (1997), non-signatory, 58 use interests in the Nile, 99–100 water resources, 253 Undugu, 169–170

318 UNECE Water Convention (1992) bilateral and multilateral agreements (Art. 9), 77–78 data exchange, 77 environmental protection, 77 framework character, 76–77 Guide to Implementing the Convention, 77 polluter-pays principle, 77 precautionary principle, 77 scope, 76–77 technology standard, 77 UN Watercourses Convention (1997) adoption of, 58 cooperation (Art. 8), 70 dispute settlement, 74 environmental impact assessment, 71 environmental protection, 72 equitable participation (Art. 5), 65 equitable utilization (Art. 5, 6), 65–66 framework character, 56 groundwater, 62–63 influence of, 59–60, 81–83 kinds of use (Art. 10), 66 no-harm rule (Art. 7), 67–68 non-discrimination, 73 notification principle (Art. 12), 70–71 notification procedure (Art. 13–17), 71 precautionary principle, 72 public participation, 73–74 scope (Art. 1), 61–63 watercourse agreements (Art. 3), 63–64 watercourse, definition of, 61 Unequal treaties, 121–122

V Victoria Nile, 96, 240, 241 Vienna Convention on Succession of States in respect of Treaties (1978) newly independent states, 112 state succession in cases of separation (Art. 34, 35), 154 territorial regimes (Art. 12), 112–113, 147, 155 territorial treaties, 112–113 Vienna Convention on the Law of Treaties (1969) fraud (Art. 49), 110 fundamental change of circumstances (Art. 62), 125 interpretation of treaties (Art. 31, 32), 121 interpretation of treaties (Art. 33), 118 state succession (Art. 73), 139

Index successive treaties (Art. 30), 136 termination by conclusion of later treaty (Art. 59), 133 third states (Art. 34), 131 Virtual water, 251, 255 Vital human needs, 66

W Water diversions Egypt, 233–234 equitable utilization, and, 235, 244 Krishna Water Disputes Tribunal, 226 Lake Lanoux arbitration, 47 prior notification, 47 Sudd swamps, 151, 248 Water scarcity Egypt, 5 growing demand, 1–2 inefficient utilization, 2 Nile Basin, 4–5, 269 virtual water, 251 Water security concept, 201 Cooperative Framework Agreement for the Nile (2010), 188, 200–202, 213 Cooperative Framework Agreement for the Nile (2010) negotiations, 183–184 Watercourse common terminus, 61 definition, 61 groundwater, 62–63 international watercourses (see International watercourses) UN Watercourses Convention (1997), 61 (see also UN Watercourses Convention (1997)) West Delta Irrigation Project, 234 White Nile Agreement between the United Kingdom and the Congo Free State (1906), 128–130 Anglo-Italian Exchange of Notes (1925), 130–131 effects of uses, 232 hydroelectric power generation, Uganda, 240–241 irrigated agriculture, Sudan, 236 Jebel Aulia Dam, 236 Jonglei Canal, 150 Kagera Basin Organization, 169 Kagera River, 95 Kiira Power Station, 241

Index Lake Victoria, 95 Nile Waters Agreement (1959), Art. 3, 150 Owen Falls Dam, 240 riparian states, 232 river course, 95–96

319 sources, 95 steady flow, 96 Sudd swamps, 96 water contribution, 96 water losses, 248