TABLE OF CONTENTS I. INTRODUCTION II. SOUTH SUDANESE INDEPENDENCE ADDS TO THE ALREADY COMPLEX SITUATION FOR NILE WATER RIGHTS III. THE 1959 NILE WATERS AGREEMENT A. History and Origins of the 1959 Nile Waters Agreement B. State Succession Under International Law in Respect to Treaties C. The Legal Impact of Acceding to the 1959 Nile Waters Agreement IV. THE COOPERATIVE FRAMEWORK AGREEMENT A. History and Origins of the Cooperative Framework Agreement B. The 1959 Nile Waters Agreement and the CFA C. South Sudan's Legal Rights Under the CFA V. ALTERNATIVE OPTIONS A. International Water Law Doctrine B. Unaffiliated Equitable and Reasonable Utilization VI. CONCLUSION I. INTRODUCTION
Frequent newspaper headlines tell of the ongoing strife between South Sudan and Sudan concerning border disputes, control over oil producing territory, and the rate for which South Sudan will be charged for shipping oil through Sudanese pipelines to reach Red Sea ports and the global oil market. Rarely discussed, however, is that rights to oil were not the only natural resource rights left unresolved when South Sudan and Sudan split in July 2011. The Comprehensive Peace Agreement (CPA) between Sudan and South Sudan did not include an agreement on South Sudan's rights to the Nile after independence even though both parties rely on the Nile as their principal water source.
South Sudan's independence from Sudan in July 2011 directly impacts the water-scarce Nile Basin's legal framework. Prior to independence, Nile usage by South Sudan, through Sudan, was governed by the 1959 Nile Waters Agreement that split the Nile between Egypt and Sudan, the downstream riparians. (1) The 1959 Agreement is a fixed allocation treaty that relies on the theory of limited territorial sovereignty as its legal doctrinal framework. The 1959 Agreement lacks a state succession provision, and international law governing state succession in respect to treaties is limited to customary international law, which holds that the successor state must accept treaty obligations for them to remain binding. As South Sudan has not accepted the 1959 Agreement, the 1959 Agreement does not bind South Sudan. The Comprehensive Framework Agreement (CFA), an alternative to the 1959 Agreement, is an equitable utilization agreement that included all Nile Basin riparians in negotiations, but has only been signed (so far) by six upstream riparians. The CFA is not yet in force, but only requires six ratifications to bind members. South Sudan's third legal option is to pursue an independent claim to the Nile founded on one of the traditional international water doctrines.
Despite the river's legendary length, the Nile lacks the water volume possessed by other major rivers. (2) That the Nile River Basin consists of ten riparian users with various levels of dependencies on the river's scarce water offerings makes it an area especially prone to water disputes. The Nile Basin comprises the riparian states of the Nile: Burundi, the Democratic Republic of the Congo (DRC), Egypt, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania, and Uganda. Historically, the Nile Basin's split between downstream and upstream riparians mirrored the ethnic, socio-cultural, and religious divide. Islamic and Arab-influenced Egypt and Sudan comprise the downstream Nile riparians, whereas the other seven countries comprising the upstream riparians are Christianized, East African states. South Sudan's emergence as an independent nation and its unique geographical position along the Nile, however, alters this hydropolitical rift. South Sudan is a lower riparian with respect to the East African states along the upper White Nile, but the country lacks the Islamic and Arab influences of Egypt and Sudan. South Sudan can also be considered an upstream nation because several White Nile tributaries originate within its borders. In the case of the Nile Basin, an independent South Sudan represents more than just a new constituent; it represents another cup at the Nile's crowded spigot.
SOUTH SUDANESE INDEPENDENCE ADDS TO THE ALREADY COMPLEX SITUATION FOR NILE WATER RIGHTS
The Comprehensive Peace Agreement (CPA) formally ended the two-decade long Second Sudanese Civil War between the Government of the Republic of the Sudan and the Sudan People's Liberation Movement/Sudan People's Liberation Army. The Second Sudanese Civil War was a long and bitterly fought war that began barely a decade after the conclusion of another fifteen year conflict between many of the same partisan groups that aligned largely along religious and ethnic cleavages that mirrored the geographical and topographical divide between the arid deserts of the North and the swamps and savannahs of the South. Provisions for South Sudanese access to the Nile were not included in the Comprehensive Peace Agreement, which provided the roadmap for the eventual breakup of Sudan and was adopted by the Government of the Republic of the Sudan and the Sudan People's Liberation Movement/Sudan People's Liberation Army on January 7, 2005.
The CPA is a compilation of five individual protocols and agreements. (3) The Agreement detailed comprehensive provisions relating to South Sudanese self-determination, (4) governmental rules and regulations in the interim period before the vote of self-determination, (5) usage and ownership of oil and petroleum resources, (6) and the ceasefire between the Sudanese Armed Forces and the Sudan People's Liberation Army (SPLA). (7) The CPA proved to be less than comprehensive, however, in the realm of water rights--which only merited passing inclusion in the Schedules of the Protocol on Power Sharing. (8) During the six-year "Interim Period" between the adoption of the CPA and the 2011 South Sudanese vote for independence, (9) issues concerning the Nile and other rivers crossing the border between the northern and southern regions belonged solely to the Government of the Republic of the Sudan in Khartoum. (10) No provision of the CPA discussed the division of Nile water rights in the event that the people of South Sudan decided to vote in favor of independence, (11) and at the time of writing, South Sudan has neither signed nor entered into any agreement, whether pre- or post-independence, concerning its use of the Nile.
The lack of agreement governing South Sudanese use of the Nile adds another layer of complexity to the uncertainty of the Nile Basin's legal regime. Prior to the creation of South Sudan, there were already nine countries with riparian rights to Nile water. As the Nile is the largest and most significant river basin in the world without a comprehensive agreement binding all riparian parties, (12) the riparians historically viewed use and rights to the river as a zero-sum game, leading to frequent disputes (13) and a general atmosphere of suspicion and distrust. (14) In 1999, riparians tried to resolve some of the legal uncertainty by forming the Nile Basin Initiative (NBI). (15) In 2009, NBI members attempted to formally bind Nile riparians with the Agreement on the Nile Basin Cooperative Framework, commonly known as the Cooperative Framework Agreement (CFA), but did not achieve unanimity because Egypt and Sudan refused to sign in a dispute over the words used in a provision dealing with water security. (16) Six NBI members, however, have signed the CFA, (17) which is the minimum required for the Agreement to enter into force once all signatories ratify. (18) Sudan and Egypt, though, remain bound by the terms of the controversial 1959 Agreement for the Full Utilization of the Nile Waters (1959 Nile Waters Agreement) dividing the Nile solely between the two parties. (19) Thus, the current state of the Nile's legal regime is that of one treaty binding two major parties which directly conflicts with a signed-but-not-ratified agreement binding other Nile riparians, and a newly independent South Sudan that has yet to declare its own intentions.
On March 28, 2011, the President of South Sudan, Salva Kiir appeared to reveal South Sudan's intentions regarding the Nile when he declared to Egyptian Prime Minister Essam Sharaf that South Sudan would honor and respect the existing Nile water treaties. (20) In reference to a specific water project, Kiir told Sharaf that the water would come from the existing Sudanese allocation under the 1959 Nile Waters Agreement, respecting the Egyptian allocation. (21) Kiir's statement, however, is insufficient to bind South Sudan to the terms of the treaty, and does not equate to an accession to the Agreement. (22) Furthermore, it may not necessarily be in South Sudan's best interest to accede to the 1959 Nile Waters Agreement in place of signing and ratifying the CFA or pursuing a third, alternative course based on preexisting international water law.
THE 1959 NILE WATERS AGREEMENT
The 1959 Nile Waters Agreement is a polarizing document that benefits the downstream Nile riparians at the expense of upstream riparians. While Egypt and Sudan cling to the fixed water allotments granted to them in the treaty, upstream riparians like Ethiopia, Kenya, Tanzania, and Uganda detest the document and call for its abandonment. The 1959 Nile Waters Agreement itself originated from the renegotiation of a predecessor document, the 1929 Exchange of Notes Regarding the Use of the Nile for irrigation, which remains valid when not replaced by the 1959 treaty. Determining whether South Sudan is party (and thus bound) to the 1959 Nile Waters Agreement requires the examination of three different theories of state succession. Under current international law, South Sudan is not bound by the terms of the 1959 Nile Waters Agreement, though it could accede to the 1959 Treaty. Were South Sudan to pursue accession, several portions of the 1959 Nile Waters Agreement would need to be renegotiated and rewritten.
History and Origins of the 1959 Nile Waters Agreement
Just as the CFA would later emerge, in part, from...