International Water Rights on the White Nile of the New State of South Sudan

By Wendl, Andreas K. | Boston College International and Comparative Law Review, January 1, 2016 | Go to article overview

International Water Rights on the White Nile of the New State of South Sudan


Wendl, Andreas K., Boston College International and Comparative Law Review


INTRODUCTION

The Nile River Basin expands from the rainforest of Lake Victoria over the wet highlands of Ethiopia to the deserts of Sudan and Egypt until it empties its waters into the Mediterranean Sea.1 The roughly 300 million inhabitants of the riparian states-the states situated on the banks of the Nile River-claim the Nile waters as their own.2 Since the 19th century, these inhabitants have disputed the allotment of the ancient Nile River.3 In fact, the river still lacks an international binding water agreement that includes and satisfies all the riparian states.4 Consequently, every riparian state has undertaken the unilateral effort to use as much water as possible.5 South Sudan is the eleventh riparian state to the Nile River claiming its share of the river's flow.6

Hydro-politics within the Nile Basin can be characterized by a strong rivalry between downstream-predominantly Arab countries-and upper riparian states-the East-African and equatorial lake states. Despite Egypt's and Sudan's disadvantageous location as downstream states of the Nile River, they have benefitted from an established colonial treaty setup, namely the 1929 Nile Agreement between Britain, on behalf of its colonies, and Egypt and the 1959 Nile Agreement between Sudan and Egypt, which incorporated the main provisions of the 1929 Nile Agreement.7 The treaties essentially grant most of the Nile's water to Egypt and a much smaller share to Sudan.8 Accordingly, Egypt has often stated that its right to control the Nile is based on "international law."9 Most of the upstream riparian states, however, find it extremely difficult to identify international law validating Egypt's claim. Upon their independence, several East African states persistently refused to be bound by these treaties, which they had been forced into under colonial rule.10 Moreover, they were and are still not party to the 1959 Nile Agreement.11 Egypt, however, continues to insist on the validity of the colonial treaties and threatens-sometimes implicitly and sometimes explicitly-to use force against water projects of riparian states.12

On July 9, 2011, the new state of South Sudan was born after an internationally recognized referendum was held, in which almost 99% of South Sudanese voted for secession from Sudan.13 South Sudan falls geographically and politically directly in the demarcation zone of the rivalry between the downstream and upstream states. South Sudanese feel a strong link to their African neighbors from the equatorial lakes, but are historically bound to Sudan and Egypt.14

In 1999, the Nile Basin Initiative (NBI) was launched by all riparian states to create a forum to foster cooperation and to frame an agreement for the equitable use and development of the Nile's resources.15 In 2010, the NBI presented its Cooperative Framework Agreement (CFA), which has been signed by six upstream states: Ethiopia, Rwanda, Tanzania, Uganda, Kenya, and Burundi.16 The CFA's forty-five articles incorporate the principles of equitable water use by all riparian states and no-harm rules to other riparian states.17 The CFA aims to finally supplement the unbalanced colonial treaties of the 20th century with modern principles of international water law.18 Nevertheless, the CFA has not entered into force because it lacks sufficient ratifications.19 The CFA treaty offers a chance to manage the Nile coherently for the future.

The Nile River Basin faces many challenges that call for a common approach. Demographic projections forecast that the population living at the Nile will double to 600 million people within the next twenty-five years.20 A higher per-capita use may lead to water shortages as water demand could exceed supply, especially in dry seasons.21 Moreover, the effects of climate change in the Nile Basin could lead to less rainfall and more extreme weather phenomena overall.22

Given this situation, South Sudan's decision regarding whether to accede to the CFA is of particular significance for the entire Nile Basin. …

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