Archive for the ‘Africa’ Category

Botswana Court Awards Kalahari Bushmen Water Rights

Friday, January 28th, 2011

After eight years of litigation, on January 27, 2011, the Kalahari Bushmen of Botswana won the right to access borehole water in their ancestral lands located in the Central Kalahari Game Reserve. The victory came when a court of appeals unanimously struck down a lower court ruling that had previously denied the Bushmen access to the borehole (Court’s Decision).

Although the decision was not predicated on a human right to water, the court referred to General Comment 15 of the U.N. Economic and Social Council (here), and the 2010 UN Human Rights Council Resolution on Human Rights and Access to Safe Drinking Water and Sanitation (here) (which the court misidentified as a UN General Assembly document) to address the Botswana constitutional issue of whether the Bushmen had been “subjected … to inhuman or degrading punishment or other treatment” as a result of the denial of access to the borehole. The court ruled that by prohibiting the Bushmen from using, at their own expense, borehole water for domestic purposes, the Botswana government had violated the Bushmen’s constitutionally protected rights.

Accordingly, the court ordered that the Bushmen have a right at their own expense to re-commission the contested borehole and to sink new boreholes in the Reserve so long as the water is used for domestic purposes.

The full text of the final appellate judgement can be found here.

Accord or Discord on the Nile? – Part II

Monday, July 26th, 2010

Before giving my assessment of the Agreement on the Nile River Basin Cooperative Framework (CFA), a brief caveat. As you will see from the copy I procured, the document has some formatting defects (e.g., different font sizes, a few color changes, non-consecutive numbering, variations in indentation spaces, etc.). While I (and my sources) cannot vouch that this is the final edition of the agreement that was opened for signature on 14 may 2010, it appears to be a near final version. Accordingly, you should consider my comments with a grain of salt.

Overall, the CFA appears to be in line with some of the more comprehensive transboundary waters agreements, spelling out in some detail the legal bases upon which the region’s hydro-relationship is to be forged and articulating the rights and obligations of the parties. To that extent, it is a valiant and meaningful effort at achieving a functional and worthwhile accord. Those of you who would prefer hard numbers and provisions on allocations, though, may be disappointed – the agreement is fundamentally about principles.

The most noteworthy aspect of the agreement is Part III, which creates the Nile River Basin Commission. The significance of this section is that it establishes a mechanism for facilitating cooperation and preventing disputes, one of the core objectives of the CFA. Moreover, and possibly most important, it creates space for discussing sensitive issues outside the political realm thereby minimizing the hyperbole and gridlock that often plagues international politics. And the Nile River Basin is no stranger to political hyperbole and gridlock …

Of course, the creation of a supranational institutional apparatus will not guarantee harmony on the Nile. Its success will greatly depend on whether the parties to the CFA implement the provisions for its creation and operation, as well as the degree to which they place their trust in it. Nevertheless, the design of the institution is somewhat similar to that of the Organization for the Development of the Senegal River, known by its French acronym OMVS (Organisation pour la Mise en Valeur du Fleuve Sénégal), a rather successful transboundary water management mechanism. Indeed, if the countries of the Nile Basin actually follow the OMVS paradigm for cooperation, there could be a very bright future for the region.

Other sections of the CFA that deserve mention include Part II and III, which articulate the legal principles underpinning the agreement and the relationships of the riparians as they pertain to the management of the Nile River. While the extent to which these doctrines are defined or explained varies in the agreement, having an established core set of values and rules bolsters the likelihood of the CFA’s success.

Of the principles presented, most are well recognized under international water law, including those of cooperation, equitable and reasonable utilization, no significant harm, and exchange of data and information. The CFA, however, proffers a number of legal doctrines that are not in the mainstream. For example, while the notion of subsidiarity often appears in other contexts, it has rarely been invoked explicitly in the framework of transboundary water management and regulation. Article 3(3) briefly defines the principle as “development and protection of the Nile River Basin water resources [that] is planned and implemented at the lowest appropriate level.” Furthermore, Article 10(a) elaborates on this notion by emphasizing that State Parties to the CFA “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.” Given the disparate geographies, climatic conditions, economics, and other factors that are found along the length of the Nile and its tributaries, this is a welcomed progressive addition that enhances participation and democratizes the management of the River.

Possibly the most interesting, and certainly the most controversial, provision of the CFA is contained in Article 14, which recognizes “the vital importance of water security” to each of the Nile’s riparians and acknowledges the achievement of such security through “the cooperation management and development of waters of the Nile River System.” Under Article 2(f), “water security” is defined 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.” As such, it implicates a legal right, held by each of the riparians, to an amount of water that is adequate to fulfill the needs of all of these sectors. Read in isolation, such a right might seem quite reasonable, possibly even noble. However, given the degree of water scarcity that is typically of the region, this ideal must recede in the face of reality. What remains is an aspirational goal that must be balanced against the availability of water in the watercourse. Certainly, Article 14(a) creates a relatively lose obligation that requires Nile Basin States “to work together to ensure that all states achieve and sustain water security.” That provisions, though, does not impose individual liability or dictate reductions of water withdrawals in relation to the achievement of this goal. That possibility was left to Article 14(b).

As might be imagined, Egypt and Sudan objected to such a mechanism. As originally drafted, Article 14(b) had Nile Basins States agreeing “not to significantly affect the water security of any other Nile Basin State.” If implemented, this provision might have been used to find states individually responsible for its violation and, thereby, affect those states’ withdrawals. In sharp contrast, Egypt proposed (with Sudan as its lone supporter) that the Nile’s riparians be bound “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” In other words, Egypt sought to modify the notion of water security in relation to states’ current uses and withdrawals, certainly in relation to its own historical claims [see my prior posting on this issue].

In a surprising move, the members of the Nile Basin Initiative – the partnership composed of the nine Nile riparians that drafted the CFA – decided to move ahead with the CFA minus Article 14(b). In its stead, they put a placeholder indicating that “the issue on the Article 14(b) be annexed and resolved by the Nile River Basin Commission within six months of its establishment.” This is rather an amazing procedure given the importance of the issue for all of the Nile’s riparians, especially for Egypt and Sudan, and because it implicates that the latter two countries would join the accord in order to revisit the dispute. If it wasn’t for the two lower riparians’ subsequent refusal to sign the agreement and their rather strong language in objecting to its implementation by the river’s upper riparians, you might think that peace had reigned over this troubled region. Still, recent reports (e.g., here and here) suggest that the two dissenters are willing to continue negotiating over the provision and the agreement in general. Hence, hope remains.

Ultimately, though, if it wasn’t for the encouragement and support (including financial) by international institutions and western nations, it is unlikely that the initiative would have progressed this far. The United States, Europe, the World Bank and other entities must become more engaged in advancing this effort. The nations of the Nile River have made considerable progress in drafting the CFA. It would be a real shame if they could not finalize the accord and realize its potential. It would be an even bigger shame if the breakdown in negotiations escalated tensions in the region.

Accord or Discord on the Nile? – Part I

Monday, July 26th, 2010

Its always a good day when nations come to terms over shared fresh water resources, especially in the more parched regions of the world. Hence, it was a wonderful turn of events when various news agencies (e.g., here, here, here, here, and here) reported recently that the nations of the Nile River Basin had reached an accord over the waters of one of the most disputed rivers in the world. On 14 May 2010, the countries of Ethiopia, Rwanda, Tanzania and Uganda signed the Agreement on the Nile River Basin Cooperative Framework (CFA); Kenya added its signature five days later.

To read it in the news release of the Nile Basin Initiative, a partnership created in 1999 among all of the Nile riparians minus Eritrea (which has observer status at the Initiative) to seek this very accord, readers might think that all serious controversies had been resolved by the nations that share the waters of the Nile (the five that signed the CFA plus Burundi, D.R. Congo, Egypt, Eritrea, and Sudan). Behind the veneer, though, the achievement remains hamstrung by the ages-old controversy plaguing many riverine nations on transboundary watercourses – the upstream-downstream dispute. As reported, though possibly understated, by some of the news agencies, the most downstream riparians on the Nile River are refusing to join their upstream neighbors in the agreement. Both Egypt and Sudan, who have already allocated around 90% of the Nile’s waters between themselves under a 1959 treaty (Egypt also claims a veto right over upstream hydro projects under a 1929 agreement with Britain, the region’s former colonial overseer), have raised serious objections to the new agreement.

Sudan and especially Egypt have long claimed historical rights to the waters of the Nile River based on their dozens of centuries of use and reliance on the watercourse. Their argument is grounded in the notion that older, established rights are superior to more recent claims and is akin to the prior appropriation system used in most of the western United States. Moreover, both countries are highly dependent on the Nile’s waters for maintaining their development and living standards and Egypt has raised the specter of national security as justification for defending its claims.

The difficulty with this position, at least from the perspective of the upper riparians, is that because Egypt and Sudan have made claims to the vast majority of the Nile’s waters, little is left for the peoples of the other eight nations. Moreover, international water law has tended to shun absolute claims of right and has opted for more flexible principles, such as equitable and reasonable use, which allow the possibility that nations’ rights to shared waters may be adjusted in response to changing circumstances.

Egypt, however, has also raised a more novel argument by differentiating between the Nile River and the Nile Basin. While the former carries between 90-100 billion cubic meters of water down the watercourse, the latter actually receives some 1,660 billion cubic meters of rainfall, 85 percent of which falls on the Ethiopian high plateau and the rest over the other upstream nations. Those upstream riparians, Egypt contends, should focus their efforts and claims on developing the vast volume of untapped waters that are otherwise lost to evaporation and infiltration. Notably, Egypt has offered to cooperate on and assist with such water development projects.

As it stands, five nations have signed the CFA and Burundi and DR Congo have indicated they may add their marks in the near future. Actual ratification, though, is the gold standard in international law and the CFA requires six ratifications before it can come into force. To date, none of the Nile riaprians have ratified the accord.

And, what about the accord itself?  Surprisingly, it is nowhere to be found. An extensive online search for the CFA found no direct or indirect hits (other than the news stories about the agreement). It also revealed that even the upstream nations who signed the agreement have not provided its text on their official websites. Moreover, queries to colleagues and contacts around the world, some of whom are well placed, produced nothing (well, almost – see my next IWLP blog posting).

Why would countries sign on to a new treaty, announce the event in a very public process, and then neglect to provide the text of what they agreed to? It seems a rather strange set of circumstances. Of course, this merely may be a pardonable oversight. Moreover, it may be that the text of the CFA is available elsewhere (though, none of my contacts can figure out where). Nonetheless, in this modern information age where public access is often defined by availability on the Internet (even in Africa), and where nearly every bit of text produced on Earth that is fit to print appears first on the Internet, the CFA is conspicuously absent.

The exclusion of the CFA from the public, though, is likely a function of the ongoing upstream-downstream discord that remains among the Nile’s riparians pitting Egypt and Sudan on one side and the remaining riparians on the other. Maybe the Nile Basin nations want to present a more harmonious front when revealing the treaty, or maybe they fear scrutiny of the agreement before it is finalized. Yet, agreements forged behind closed doors, even those that merely give the appearance of secrecy, often falter because of the lack of public support. And since it is the people of the Nile that are at the core of this agreement and who stand to benefit from a more cooperative sharing of the watercourse, the agreement should be made public even though it has yet to be endorsed by all of the Nile Basin governments.

To date, with one exception (by Business Daily Africa.com, which, for a business-oriented publication, offered a surprisingly rosy assessment of the accord), there has been no review or assessment of the rights and obligations that would be created under this new arrangement. Having finally procured a copy of my own, here is my brief take on the CFA.