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About this book

The book provides a comprehensive assessment of the law governing the use and management of the Nile and considers, more broadly, how international water law can guide the development of a legal and institutional framework for cooperation over shared freshwater resources. It defines the current state of international water law and discusses the content of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. On this basis, it assesses the Nile water treaties and the 2010 Cooperative Framework Agreement for the Nile, and examines their compliance with international law, with a specific focus on the legal consequences of South Sudan's secession from Sudan. Moreover, the book recommends important amendments to the 2010 Agreement. Building on these recommendations, it addresses the implementation of the principle of equitable and reasonable use regarding the Nile, illustrating the extent to which the principle can provide a conceptual framework for regulating water use. The book is a valuable resource for academics and practitioners alike as it combines legal assessment with a discussion of how international water law principles can be implemented in practice.

“Essential reading for anyone interested in understanding international law related to the Nile River basin, including its evolution, current challenges and future prospects.” - Professor Alistair Rieu-Clarke, Chair in Law, Law School, Northumbria University, Newcastle

“A true must-read for anyone interested in the developing Nile River legal and institutional regime and in how to implement international water law principles and guidance at the transboundary river basin level. Most notably, the book operationalizes the principle of equitable use and applies it to the Nile, pointing the way forward for the cooperative management of the river’s resources.” - Stefano Burchi, Chairman of the Executive Council, International Association for Water Law (AIDA)

Table of Contents

Frontmatter

Chapter 1. Introduction

Abstract
In the face of increasing water scarcity, the protection and sustainable management of transboundary freshwater resources is becoming a key challenge for Nile riparian states as elsewhere. Around 1.2 billion people worldwide live in regions experiencing water scarcity, often dependent upon transboundary freshwater resources. This chapter introduces the global water crisis and the evolution of international water law, as well as the development of the water utilization regime for the Nile. The need for comprehensive rules on the use and management of transboundary freshwater resources is reflected in recent developments within international water law, particularly the United Nations Watercourses Convention, which entered into force in 2014. The Nile Basin is no exception: High population growth will significantly increase water demand, which can only be accommodated by basin-wide cooperative water management. Accordingly, the riparian states created the Nile Basin Initiative in 1999 and negotiated the 2010 Cooperative Framework Agreement for the Nile. The latter has since been signed by six states, despite Egyptian and Sudanese protests over its provisions on current uses and Nile treaties in particular. Since 2010, the political situation along the Nile has changed significantly, providing hope that the riparian states will resume negotiations on the Cooperative Framework Agreement to align it with current international water law and accommodate all riparian states’ interests.
Philine Wehling

Part I

Frontmatter

Chapter 2. Development of International Water Law

Abstract
A fundamental challenge in international water law is reconciling the sovereignty of one state with regard to the use of transboundary water resources within its territory on the one hand, and the territorial integrity of co-riparian states on the other. At its core, this conflict concerns the extent of the restrictions on riparian states regarding the utilization of shared watercourses under international law. This chapter provides an overview of the development and theoretical bases of international water law. At the beginning of the twentieth century, the rules governing the non-navigational uses of transboundary watercourses were still unclear and highly controversial, and the general discourse on the matter was dominated by the two opposing theories of absolute territorial sovereignty and absolute territorial integrity. A balance between these opposing views was eventually found in the theory of limited territorial sovereignty. Current international water law is based on the theories of limited territorial sovereignty and the community of interest, from which the rights and obligations of the riparian states of shared watercourses are derived.
Philine Wehling

Chapter 3. Customary Principles of International Water Law

Abstract
The evolution of customary principles in international water law is ongoing. This chapter presents the current status of customary principles and discusses how these principles are correlated. The relationship between the core substantive principles, equitable and reasonable utilization and the no-harm rule, has been a highly controversial issue in international water law, particularly among Nile riparian states; however, current court and state practice arguably support the primacy of equitable and reasonable use. Both principles are generally recognized, although their detailed normative content, and thus their application, remain difficult to determine precisely. Furthermore, obligations exist to protect international watercourses and their ecosystems, but international water law is still developing with regard to environmental protection in watercourse management and use allocation. Given the general character of these substantive principles, the procedural obligations of cooperation, notification, consultation, and the exchange of data and information are particularly important. The obligation of prior notification includes the obligation to undertake an environmental impact assessment if a planned measure may have a significant adverse impact on shared water resources. These procedural principles ensure that the substantive rights and obligations of the riparian states translate into effective cooperation.
Philine Wehling

Chapter 4. International Agreements on Transboundary Freshwater Resources

Abstract
A particular challenge facing international water law is the diversity of the geographic, climatic, hydrological, and socio-economic conditions along shared watercourses. International water law must accommodate these and provide rules for effective transboundary watercourse cooperation. This chapter shows how treaties approach this challenge at three mutually influential levels: global, regional, and basin-specific. Notably, the 1997 United Nations Watercourses Convention is the only international treaty that was negotiated at the global level on the uses of transboundary watercourses, establishing abstract rules adaptable to particular situations for any watercourse. This chapter presents the Convention’s main provisions and highlights the Nile riparian states’ interventions during its negotiation. Regional agreements can promote the development and harmonization of watercourse agreements within a region, but ultimately watercourse-specific agreements are indispensable for concretizing the principles of international water law and any existing regional water agreements for a particular watercourse. As shown here, the impact of the United Nations Watercourses Convention on treaty practice concerning individual watercourses is noteworthy. The establishment of joint river commissions to manage shared watercourses under such treaties has proven to be exceedingly beneficial.
Philine Wehling

Part II

Frontmatter

Chapter 5. The Nile and Its Catchment Area

Abstract
The diversity of the geographic, climatic, hydrological, and socio-economic conditions along the Nile’s almost 7000-km length is a prime example of the challenges facing transboundary cooperation. This chapter provides an overview of the Nile’s sources, catchment area, and river course, as well as of the diverse climatic conditions in the basin that result in some riparian states having water in abundance while others face water scarcity. It furthermore sketches the population structures and economies in the Nile Basin, the development and uses of the river, and the ebb and flow of political relations between the riparian states. This overview of the framework conditions in the Nile Basin shows that the basin is characterized by the strong heterogeneity of its riparian states’ situations and their interests, a classic situation of international resource competition that is plainly reflected in the hydropolitics of the countries. Particular challenges for the Nile riparian states are high population growth across the entire river basin, increasing water scarcity, environmental degradation, precarious food security, and heightened energy demands.
Philine Wehling

Chapter 6. The Treaty Regime for the Nile

Abstract
The legal effect of several Nile water treaties, particularly those concluded in 1929 and 1959, is highly controversial among the Nile riparian states and impedes consensus on the 2010 Cooperative Framework Agreement for the Nile. This chapter sketches the historical context to the current political and legal landscape before considering which treaties are still binding. In particular, it argues that the Nile water agreements of 1929 and 1959 are only binding upon Egypt and Sudan, especially given that they cannot be considered as territorial treaties. South Sudan has not succeeded to the rights and obligations of Sudan under either agreement after gaining independence in 2011. The chapter also examines the Anglo-Ethiopian Treaty of 1902, in particular its Nile-related Article III requiring Ethiopia to seek Sudanese consent for works that would block the Blue Nile, Lake Tana, or the Sobat River. Finally, it shows that the Exchange of Notes over the Owen Falls Dam from 1949 to 1953 still binds Egypt and Uganda. The other colonial-era Nile treaties are not binding for any of the riparian states.
Philine Wehling

Chapter 7. Regional Cooperation Initiatives

Abstract
Toward the end of the twentieth century, Nile Basin states intensified cooperative efforts, correlating with an increasing number of riparian states worldwide establishing joint institutions for their cooperation in managing and utilizing transboundary watercourses. The Nile riparian states’ attempts at collaboration have faced various challenges and for decades failed to produce a comprehensive management regime. This chapter describes the main regional cooperation initiatives along the Nile and their significance in the basin’s broader context. As such, it briefly addresses Hydromet, the Kagera Basin Organization, Undugu, TECCONILE, the Nile 2002 Conferences, and the Lake Victoria Basin Commission, before concentrating on the Nile Basin Initiative and its institutional structure and programs. This initiative, founded in 1999 as a temporary institution, still represents the fundamental institutional framework for broader and more meaningful cooperation among Nile riparian states. The Initiative has institutionalized cooperation both at a basin-wide level and at the level of the two major Nile sub-basins, facilitating improved cooperation and consensus. This has brought new depth to the cooperation. However, the success of the Initiative will ultimately be determined by whether or not it can enable the conclusion of a framework agreement that includes all riparian states and establishes a more permanent joint Nile Basin commission.
Philine Wehling

Chapter 8. Agreement on the Nile River Basin Cooperative Framework

Abstract
Ever-increasing water scarcity in the Nile Basin requires the riparian states to agree on a permanent form of cooperation and find better means of managing and utilizing the Nile’s water. Accordingly, in 1997 they began negotiations on the Cooperative Framework Agreement aiming to conclude a comprehensive basin-wide treaty on the Nile and to establish a Nile Basin commission as a permanent cooperation vehicle. The Nile Council of Ministers adopted the Agreement in 2009 despite Egyptian-Sudanese protest, although the riparian states were unable to reach consensus on core issues. This chapter examines the Agreement’s drafting process and discusses its provisions and remaining controversial issues, before recommending amendments to its text. While the Agreement adopted key provisions verbatim from the 1997 United Nations Watercourses Convention, and overall provides a sound basis for the joint management and use of the Nile, some amendments would be necessary to reconcile the interests of all the riparian states and align the Agreement with international water law principles. In particular, it is argued that the current Article 14 on water security should be removed from the Agreement, and the use allocation should be guided by the principle of equitable and reasonable utilization without granting current de-facto use levels protected status. Equally important, the Agreement should include an obligation of prior notification for planned measures, together with detailed provisions on the notification procedure.
Philine Wehling

Chapter 9. Implementing the Principle of Equitable and Reasonable Utilization in the Nile Basin

Abstract
International water law requires transboundary watercourses to be utilized in an equitable and reasonable manner, yet to date this principle has seen little concretization. This chapter addresses the principle’s implementation along the Nile, focusing 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. It considers the legal content of relevant factors and circumstances, reviews the respective country data from each riparian state’s perspective, and debates their importance in relation to the Nile. On this basis, the chapter discusses considerations for the weighing and overall assessment of those factors and circumstances. This illustrates the extent to which the principle can provide a conceptual framework for regulating water use: The principle’s application can generally indicate the weight that the relevant factors and circumstances carry along a particular watercourse for the purposes of determining equitable and reasonable use and eventually allocating water uses, as well as their relevance for each riparian state; it does not enable the allocation of either specific amounts of water or specific uses. The discussion also shows that attaining an optimal utilization at a basin-wide scale requires the taking into account of both the manner of use and the potential benefits, in different parts of the basin area. Ultimately, therefore, riparian states must further define their equitable-use regime through negotiations. The principle of equitable utilization functions primarily as structured guidance for such negotiations.
Philine Wehling

Summary and Outlook

Frontmatter

Chapter 10. Toward a Legal and Institutional Framework for Cooperation Along the Nile

Abstract
Cooperation in the management and use of the Nile is becoming indispensable given the demographic challenges ahead. A prerequisite for effective cooperation is the establishment of a legal and institutional framework, which Nile Basin states have yet to agree upon. This chapter presents the overall conclusions of the book and highlights the advantages of close cooperation for all 11 Nile Basin states. After sketching the development and current status of international water law, it summarizes the Nile’s cooperative and treaty regime, noting in particular the limits of application of the 1929 and 1959 Nile water agreements. The 2010 Cooperative Framework Agreement provides a sound basis, but amendments would be necessary to reconcile the interests of all the riparian states and align the Agreement with the principles of current international water law. The principle of equitable use would provide valuable guidance for the countries to negotiate the allocation of uses and benefits of the Nile and build flexibility into the use regime, and it can durably strengthen their coordination and cooperation with regard to the Nile. Overall, this chapter concludes that developments in international water law have already had significant influence on Nile riparian states’ negotiating positions. Yet, it remains for them to find the political will to lay down a legal foundation for basin-wide cooperation along the Nile.
Philine Wehling

Backmatter

Additional information