Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement

• Citation: Vol. 27 No. 2
• Publication year: 2013

Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement

Mohamed S. Helal

INHERITING INTERNATIONAL RIVERS: STATE SUCCESSION TO TERRITORIAL OBLIGATIONS, SOUTH SUDAN, AND THE 1959 NILE WATERS AGREEMENT^†

Mohamed S. Helal^*

Abstract

South Sudan's independence has increased the number of Nile riparian states to eleven. Unfortunately, the Nile remains without an all-inclusive legal regime to regulate its use and to ensure that this indispensable natural resource is conserved for future generations. What, therefore, are the legal obligations of the newborn Republic of South Sudan regarding the Nile River? Specifically, this Article asks whether the Egyptian-Sudanese Nile Waters Agreement of 1959 has devolved onto South Sudan. This Article looks to the law of state succession to treaties to answer to this question. This is a field of international law that is beset with considerable uncertainty. State practice is inconsistent and scholarly opinion is virtually unanimous that the principal international legal instrument on the matter, the 1978 Convention on State Succession in Respect of Treaties, does not wholly reflect customary international law. To further complicate matters, the process by which South Sudan gained independence makes it difficult to reconcile this case with the structure and logic of the 1978 Convention. Therefore, this Article turns to customary international law to determine the rights and obligations of South Sudan in relation to the Nile River. This Article argues that international law recognizes a special category of treaties that establish territorial obligations. The overwhelming weight of state practice and judicial opinion supports the assertion that these territorial obligations remain unaffected by State

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succession. This Article concludes that, while it is doubtful that South Sudan has succeeded to the 1959 Nile Water Treaty per se, the Nile's newest riparian is bound by the territorial obligations enshrined therein. This, however, is an unsatisfactory state of affairs. The existing treaties relating to the Nile River are inadequate to meet the many environmental, demographic, and developmental challenges facing the drainage basin. The Nile riparians need to overcome their differences and reach agreement on a comprehensive legal regime to govern the utilization of the watercourse.

Introduction..............................................................................................909

I. The Birth of South Sudan.............................................................912
II. The Legal Regulation of the Utilization of the Nile River Waters..............................................................................................914

A. Pre-1959 Agreements on the Utilization of the Nile Waters ......915
B. The 1959 Nile Waters Agreement...............................................923
C. Post-1959 Agreements and Arrangements for the Utilization of The Nile River ......................................................................... 931

III. The Law of State Succession to Treaties..................................934

A. Defining State Succession...........................................................934
B. Theories of State Succession to Treaties .................................... 937

1. The Universal Succession Theory........................................937
2. The Tabula Rasa Theory......................................................938
3. The Politics and Practice of State Succession......................939

C. The 1978 Vienna Convention on State Succession in Respect of Treaties ................................................................................... 943

1. The Structure of the 1978 Convention .................................. 944
2. The Status of South Sudan and the Deleted Draft Article 33(3) of the 1978 Convention...............................................947
3. Does the 1978 Convention Express Customary International Law?...............................................................953

IV. Territorial Obligations, Dispositive Treaties, and State Succession........................................................................................964

A. The Genesis of Territorial Obligations and Dispositive Treaties ....................................................................................... 964
B. State Succession to Territorial Obligations and Dispositive Treaties ....................................................................................... 967
C. The Scope and Content of Obligations Inherited by South Sudan .......................................................................................... 981

Conclusion..................................................................................................984

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Introduction

On July 9, 2011, South Sudan declared independence from the Republic of the Sudan and became the world's newest state.¹ South Sudan also became the eleventh riparian state to share the world's longest river, the Nile.² Emerging from Africa's longest civil war, South Sudan faces immeasurable challenges as it strives to lay the foundations of a peaceful and prosperous nation.³ In addition to boundary disputes with its northern neighbor, conflicts over the use and exploitation of its abundant natural resources, particularly oil and water, could become a serious source of insecurity for the young republic.⁴ Most scholarly and policy interest has centered on the potential for the outbreak of hostilities between Sudan and South Sudan over oil-related disputes.⁵ Relatively lesser attention has been paid to the impact the birth of South Sudan has had on the Nile Basin legal regime.

The Nile is an ancient river. Since time immemorial, glorious civilizations flourished on its banks and lived off its silt.⁶ "The Nile is one of the great natural wonders of the world. . . . It flows through every natural formation from towering mountains and well-watered highlands to the most barren of deserts."⁷ Today, the Nile continues to provide sustenance to millions of people in its eleven riparian states.⁸ Unfortunately, South Sudan entered international life at a time of uncertainty for the Nile. As discussed in Part II of

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this Article, the Nile riparian States have failed to agree on a comprehensive legal framework for the utilization and conservation of the river's resources. This has left the Nile with a fragmented legal regime comprised of antiquated treaties contracted during the colonial era and a series of post-colonial agreements, none of which include all riparian states.

Prior to the independence of South Sudan, the use of the Nile waters by Sudan was regulated by a number of international treaties and basin-wide cooperative arrangements.⁹ The most prominent of these is the Nile Waters Agreement concluded between Egypt and Sudan in 1959.¹⁰ The birth of South Sudan and the absence of an overarching legal regime regulating the use of the Nile waters raises questions about the scope and content of the legal rights and obligations of this new state in relation to the Nile River. Specifically, this Article examines whether South Sudan has inherited the legal obligations of its parent state, Sudan, enshrined in the 1959 Nile Waters Agreement.

Examining the status of the 1959 Agreement is a question that intersects multiple areas of international law and environmental policy that are mired by varying degrees of uncertainty, indeterminacy, and complexity. These areas principally include the law of state succession, which suffers doctrinal uncertainty and confusion;¹¹ international fluvial law, which lacks a coherent set of customary rules to govern the utilization of international watercourses;¹²

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and the field of sustainable water resource management, the complexity of which continues to bedevil experts.¹³

In this Article, I argue that South Sudan has inherited the territorial obligations enshrined in the 1959 Nile Waters Agreement. This conclusion is based on the claim that legal obligations of a territorial nature, such as those relating to the use of international watercourses, are recognized by customary international law as being unaffected by the succession of states. This, however, is no cause for comfort. The Nile River remains without a holistic all-inclusive legal framework to regulate its use, exploitation, and conservation. This situation is untenable. The Nile riparians need to overcome their differences and agree on a legal and institutional regime that enables them to collectively overcome the many environmental, economic, and developmental challenges facing the Nile drainage basin.

There is more to this Article, however, than the specific case study of South Sudan's succession to the 1959 Nile Waters Agreement. The birth of new nations is a matter of great political import and entails immense legal ramifications. As discussed in Part III, once admitted to the family of nations, the law of state succession determines the rights and obligations of new states. Having wrested their independence either from colonial masters or oppressive regimes, many new nations have claimed a right to be freed from obligations contracted on their behalf. Maintaining a degree of stability in global affairs, however, requires preserving confidence in international legal transactions and predictability in the relations among nations.

State succession is the field of law that attempts to strike politically sensible and jurisprudentially sound compromises between these clashing interests. Despite its importance, however, state succession is an unfortunate field of international law. For years, monographs on state succession would languish on law library shelves as a testament to a bygone era. Then, suddenly, the tumults of global politics would thrust state succession to the center of policy debates and to...