Archive for the ‘International Water Law’ Category

In Memoriam of Professor Julio A. Barberis

Tuesday, July 26th, 2011

Professor Julio A. BarberisA few months ago, one of the pillars of international water law – Professor Julio A. Barberis of Argentina – passed away. María Querol, an international law consultant and colleague of Professor Barberis, offered the following memorial.

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On March 7th of this year, the international legal community lost one of its greatest contributors. Julio Barberis was singular for his deep knowledge of international legal theory. This knowledge, together with his extensive professional expertise enabled him to address any topic of International Law with ease. International water law was no exception.

Professor Barberis has indeed made a significant contribution to the development of international water law and to the protection of international natural resources. Whether it was at the academic or the professional level, in every capacity he acted, he left an indelible mark.

Both Africa and Latin America witnessed his legacy to the international cooperation among states sharing international watercourses. Professor Barberis took part in the drafting of the 1973 Treaty of the Rio de la Plata and its Maritime Boundary, the Legal Statute of the River Uruguay, and the Treaty of Yaciretá. Furthermore, he had a key role in the conclusion of the treaty between Argentina, Brazil and Paraguay regarding their shared part of the Parana River, also known as the Tripartite Agreement. In addition, as legal adviser for UN Food and Agriculture Organization, Professor Barberis actively collaborated to the development of the Gambia River Basin. In every case, he took into special consideration the different uses made by states of the rivers in question, which enriched the further specification of the concept of equitable utilization of transboundary water resources.

Those who were privileged to attend the 1972 UN Conference on Human Environment in Stockholm and the 1977 UN Water Conference held in Mar del Plata would attest to his unforgettable participation as an Argentine representative.

As the Permanent Representative to the Joint Commission of the Parana River, he adopted an interdisciplinary approach to international water law. This is certainly a trait that is present in all of his work. Professor Barberis was convinced that in order to identify the legal norms applicable to water resources, it is crucial to first understand the technical and scientific aspects of their hydrological specificity. He believed that the legal order cannot disregard reality. For this reason, he always worked in close collaboration with engineers and geologists.

Professor Barberis published profusely on different topics of international law in Spanish, English, French, and German. His constant curiosity urged him never to stop researching. His book Shared Natural Resources and International Law, which he published in Spanish as early as 1979, advanced a legal notion of natural resources in general and of international watercourses in particular, that took into special account their specificity as provided by nature. The same proposition is found in his definition of international aquifers introduced in his study, International Groundwater Resources Law, published in 1986 as part of FAO Legislative Series.

His work in many international tribunals is also noteworthy. His activity as judge of the Inter-American Court of Human Rights, of the International Administrative Tribunal of the International Labour Organization, as a member of the Permanent Court of Arbitration or as arbitrator of the Yaciretá and Salto Grande international arbitral tribunals is characterized above all by his acute legal argumentation and moral integrity. In this regard, his separate opinion on the arbitration concerning the Maritime Delimitation between Guinea Bissau and Senegal reveals his coherency and highly developed logical reasoning.

From an academic standpoint, Professor Barberis was co-director with Professor Robert Hayton of the 1990 session of the Research Centre of the Hague Academy of International Law on the “Rights and Duties of Riparian States in International Rivers.” He taught international law at the University of Buenos Aires, the Catholic University of Argentina, and Austral University, and later was named Emeritus Professor at Austral University. As a teacher, he patiently tried to foster the understanding of legal norms in general and those regulating the management and environmental protection of shared natural resources in particular. In so doing, he sought to provide examples from everyday life to explain legal concepts. Professor Barberis’ passion for international law was contagious. So much so, that it was gratifying to see his students’ transformation during the academic year: from utter indifference to eager passion for this field. Above all, Professor Barberis was always willing to listen to reasoned arguments and new ideas regardless of the speaker.

Apart from his more than forty years of exemplary accomplishments in the field of international water law, what characterized Professor Barberis most was his humanity. His untiring perseverance, his generous heart and his enormous humility gained him the respect and admiration of all those who had the chance to know him. It is above all, for these qualities – virtues seldom found in individuals of similar greatness – that he is all the more missed.

UNDP/GEF Publish Review of Legal and Institutional Frameworks for Transboundary Waters

Thursday, May 5th, 2011

If you haven’t seen this report, its very interesting and timely. The UN Development Programme (UNDP) and Global Environmental Facility (GEF) have just published a global review of legal and institutional frameworks for 28 transboundary surface water, groundwater and marine water systems covering the Americas, Europe, Africa and Asia (full report can be found here). The report was spearheaded by Richard Kyle Paisley, Director for the Global Transboundary International Waters Research Initiative at the University of British Columbia. Here is an excerpt from the description:

The project, with a life-cycle of three years, seeks to facilitate good governance and effective decision making in international waters through the identification, collection, adaptation and replication of beneficial practices and lessons learned from a wide range of experiences. The project focuses on institutional harmonization and strengthening, capacity building in regard to integrated water management, and forecasting the hydrological impacts from climate change and the anticipated responses to these changes.

The report’s analysis is organized by a common set of 18 criteria and is intended to provide information that can be used to support further research and analysis, with the ultimate goal of identifying a set of common elements of good governance for transboundary freshwater and marine water bodies as well as groundwater systems. This report is based on primary materials that establish legal and institutional frameworks, such as international agreements including treaties and conventions, where applicable, protocols or action plans.

The full report can be downloaded here.

1997 Watercourse Convention – 23 Ratifications, and Counting …

Wednesday, March 23rd, 2011

On 22 March 2011, Burkina Faso acceded to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. There are now 23 parties to that instrument (see Status of the Convention). This comes on the heel of France’s accession just last month (see my post on this here), as well as the accessions/ratifications by Greece, Guinea-Bissau, and Nigeria in 2010.

According to Article 36(1) of the Watercourses Convention, it “shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.” That day may be coming soon.

And France Makes 22

Monday, February 28th, 2011

On 24 February 2011, France acceded to the 1997 UN Convention on the Non-navigational Uses of International Watercourses making it the 22nd party to the instrument (see Status of the Convention). This is a remarkable development since, just a few years ago, some had thought that the treaty was on the verge of expiring given the lackluster support it garnered since its inception.

Adopted by the UN General Assembly in 1997, the Convention appeared set for ratification as 103 nations voted in favor of it, while the instrument needs only 35 parties for it to come in force. That vote, however, masked long-standing disagreements over how transboundary fresh water resources should be allocated and managed. The most notable is the dispute between many upper riparians who favor the principle of equitable and reasonable use, and most lower riparians who prefer the doctrine of no significant harm (for a detailed analysis of the UNGA vote on the Convention, as well as the various interests, see my article).

Notwithstanding, over the past two years, six nations (Greece, Guinea-Bissau, Nigeria, Spain, Tunisia, and now France) have joined the ranks of parties to the Convention. And Convention-watchers suggest more may be on their way, notably Belarus, Italy, Germany, Slovakia, Switzerland and Ukraine.

It is noteworthy that the resurging interest in the Convention is due, in no small part, to the efforts of the World Wildlife Fund , which has taken promotion and ratification of the treaty as one of its missions. Its work has certainly born  fruit.

Burundi Signs New Nile River Agreement

Monday, February 28th, 2011

Timing is everything! In the wake of the turmoil in Egypt (and probably the secession of South Sudan), Burundi has taken the rather bold step of becoming the sixth signatory to the Agreement on the Nile River Basin Cooperative Framework (CFA), a new treaty intended to realign the colonial era water rights and usage regime on the Nile River that has existed for more than a half-century (see Bloomberg Business Week report).  The significance of this step relates to Egypt’s vehement opposition to the CFA (mostly notably, Article 14), as well as the threats that the hegemon has made over the years with regard to any changes in the existing allocation framework.

Burundi’s signature brings the total number of signatories to six, which is the minimum number of States needed for the Agreement to come into force. All that is needed now is that the signatories ratify the CFA in accordance with their own domestic procedures. The other five signatories are Ethiopia, Kenya, Rwanda, Tanzania, and Uganda. The Democratic Republic of Congo, which had taken a lead role in promoting the Agreement, is expected to sign soon, possibly later this year. Eritrea was not involved in the process leading to the CFA.

Once ratified, the CFA will undermine Egypt and Sudan’s long-standing claims that the Nile has already been apportioned according to a 1959 treaty in which the two nations allocated around 90% of the river’s waters to themselves. It would also contravene Egypt’s persistence that it holds a veto right over all upstream hydro projects under a 1929 agreement with Britain (the region’s former colonial overseer). See my prior postings discussing this in more detail here and here.

Taken in light of the ongoing disorder in the Middle East, Burundi’s action may be viewed in the spirit of freedom and emerging societal participation and an effort to democratize the management of the Nile River. It may also be viewed as opportunistic now that both Egypt and Sudan are in transition. Regardless, as anyone in politics will attest: timing is everything!

Costa Rica Institutes Proceedings in ICJ against Nicaragua Over Río San Juan Conflict

Sunday, November 21st, 2010

On 18 November, Costa Rica instituted proceedings in the International Court of Justice [ICJ press release] against Nicaragua alleging unlawful “incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica” under a number of international treaties and conventions. The complaint focuses on the incursion of Nicaragua armed forces across the Río San Juan into territory that Costa Rica claims as its own.

According to Nicaraguan President, Daniel Ortega, Nicaragua is merely seeking to restore what is rightfully theirs. As reported in the Tico Times [here], Ortega stated: “In the 1600s and 1700s, the river covered an enormous amount of territory at its delta. And as the zone has dried, the river has moved and (Costa Rica) has continued to advance and take possession of terrain that doesn’t belong to it. The way things are going, if the San Juan River continues to move north and join with the Río Grande of Matagalpa (in the northern zone), that’s how far (Costa Rica) would claim its territory extended.” Ortega further asserted that “Nicaragua has the right to dredge the San Juan River to recover the flow of waters that existed in 1858, even if that affects the flow of water of other current recipients, such as the Colorado River.”The dispute, in fact, can be traced back more than 150 years to the 1858 Treaty on the Boundaries between Nicaragua and Costa Rica, which delimited the border along the Río San Juan. According to the treaty, while the southern bank of the river was declared Costa Rican territory, the river itself was given to Nicaragua. Costa Rica, however, was afforded the right to use the river for commerce.

Following disagreement over the interpretation of the treaty, the two countries agreed to have U.S. President Grover Cleveland arbitrate the dispute. In 1888, President Cleveland concluded (English and Spanish) that the border at the mouth of the Río San Juan lies at Punta de Castilla. Cleveland’s determination was later delineated more precisely in 1897 in the First award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the demarcation of the boundary between the two Republics.

Despite these rulings, the two countries continued to quarrel over both the location of the border between the two nations and the rights each enjoyed with respect to the use of the Río San Juan. In 2005, the dispute again came to the fore again when Costa Rica instituted proceedings in the ICJ [here] claiming that Nicaragua had unlawfully restricted Costa Rica’s right to navigate and access the Río San Juan by requiring passengers and tourists on Costa Rican vessels sailing on the river to obtain Nicaraguan visas. The ICJ ruled [here] against Nicaragua.

That decision, however, did not prevent Nicaragua from continuing to assert its claims to the river. In recent years, Nicaragua has been dredging older channels of the Río San Juan asserting that the border should follow the river as it flowed back in 1858 when the original Treaty on the Boundaries between Nicaragua and Costa Rica was adopted. Hence, the latest dispute. Interestingly enough, Nicaragua has also been working on a canal to link the Río San Juan and a nearby lagoon, which, at least one new source [Haaretz article] suggests is part of a larger, more ambitious plan by Venezuela, Iran and Nicaragua to create a “Nicaragua Canal” linking the Atlantic and Pacific oceans that would rival the existing Panama Canal.

Notwithstanding, if Costa Rica has its way, the ICJ will focus solely on Nicaragua’s incursion, both its military and engineering activities, on Costa Rica soil. Considering President Ortega’s statements and Nicaragua’s claim to the watercourse as it flowed back in the 1850s, though, Nicaragua will likely challenge Costa Rica’s claim to sovereignty over the territory in question. That challenge will depend, in part, on the interpretation of the relevant treaties and prior determinations. However, taking President Ortega’s statements at face value, international law pertaining to migrating rivers also may be relevant.

Under international law, avulsive changes to a watercourse channel (abrupt changes due to storms and other natural phenomena) do not move a river-based boundary. The international frontier remains in the original channel, even if it no longer carries any water. In other words, countries neither gain nor lose territory when a river marking an international boundary changes its course due to avulsion. In contrast, gradual and natural changes to a watercourse’s channel, such as those produced by natural river flow and scouring, can impact a nation’s geographic range. Under international law, accretive changes can legally increase or decrease a state’s territory, notwithstanding the geographic location of an original river-based boundary. In essence, countries can gain or lose territory when the channel of a river marking an international boundary migrates due to accretion. The river channel, in its new or modified channel, remains the official boundary.

So, is Nicaragua entitled to the river as it flowed in the 1850s? Might they be legally entitled to the land they allegedly invaded? If the ICJ determines that the Río San Juan constitutes the official border, and that the main channel of the river has migrated from its 1858 location, and if the Court concludes that the river moved as a result of avulsion, then Nicaragua’s may have an argument. That, however, will not be easy to establish. Over 150 years have passed since the 1858 treaty. While Nicaragua may be able to produce maps and charts evidencing the channel’s location in the 1850s, establishing that its migration was due solely or predominantly to avulsion is another matter. Over the past decade alone, the region has suffered a number of hurricanes and earthquakes, each of which could have caused the river to move. Yet, over the past 150 years, the region has also experienced more typical climatic condition that could have caused the river channel to migrate in a more gradual fashion. If the river did in fact move from its 1850s location, the reality is that this migration was due to both accretive and avulsive phenomena. Nicaragua certainly has its work cut out. Of course, Costa Rica will have to be ready to disprove Nicaragua’s claims.

You can find additional information on this dispute, including a variety of charts and maps, as well as a discussion of the role that Google Earth has played in stoking the controversy, at Ogle Earth.

Dr. Salman on downstream riparians harming upstream riparians

Monday, September 13th, 2010

You may have heard the old adage that water will flow uphill toward money. It comes from the cynical political perspective that believes physics and gravity irrelevant in the management and allocation of fresh water resources. Putting that cynicism aside, water and all of its benefits and impacts have long been accepted to be at the total mercy of gravity and topography. In other words, absent artificial inducement, water will always descend to the lowest possible elevation. In an upstream-downstream relationship, this suggests that the upstream riparian always holds all of the cards and has effective control of the water. It also suggests that harm on the river could only be caused by an upstream riparian to a lower riparian. If it were only so clear-cut …

Dr. Salman M.A. Salman, formerly a legal advisor to The World Bank, just published a fascinating analysis on the harm that downstream riparians can inflict on their upstream neighbors through the concept of foreclosure of future uses. The article – Downstream riparians can also harm upstream riparians: the concept of foreclosure of future uses – appears in the latest issue of Water International, the official journal of the International Water Resources Association, and can be accessed free-of-charge here. In short, by claiming and enforcing water rights secured prior to those claimed by upper riparians, the downstream riparian can attempt to legally foreclose all possible future uses by its upstream neighbors. According to Dr. Salman, however, such foreclosure can constitute harm in violation of the “no significant harm” rule widely recognized as a cornerstone principle of international water law (and, more broadly, of international environmental law).

Dr. Salman article is likely to be highly controversial. Downstream riparians – such as Egypt, India, and Pakistan – have long championed the “no significant harm” rule and used it as their bulwark against claims by upstream neighbors aspiring to develop and exploit their riparian character. Now, such advocacy could become a two-edged sword. Nevertheless, Dr. Salman’s argument is straight-forward and erudite and is supported by pertinent case studies and scholarly pronouncements, including examples from the Nile and Ganges Rivers, the 1997 Gabčikovo–Nagymaros case (International Court of Justice), and the Baardhere Dam and Water Infrastructure Project on the Juba River in Somalia. Hence, there is no need to rehash his argument here. It merely suffices to say: downstream riparians, beware.

Disclosure: I am on the Executive Board of the International Water Resources Association.

The Greening of Water Law

Wednesday, September 8th, 2010

The United Nations Environmental Programme just launched a new publication The Greening of Water Law: Managing Freshwater Resources for People and the Environment at the Stockholm World Water Week. I served as lead author on the project while Stefano Burchi, Maaria Curlier, Richard Paisley, and Raya Stephan provided important contributions. UNEP has a news article on the release of the book here. And you can download the complete book here. The following excerpt provides a good overview of the content.

The principal challenge facing nations today is how to ensure that both people and the natural environment have adequate freshwater to sustain and nourish their existence. In many parts of the world, communities actually compete with nature for dwindling supplies, to the detriment of both. Most often, though, water for the environment is a secondary or even non-priority in water management practices, the result of which has gravely impacted the natural environment, especially the aquatic environment.

Water is an inseparable component of life, both human and environmental. It forms a relationship based on the intricacies of both the hydrologic cycle and the interdependencies of all life on Earth. When water resources are degraded, they can impact every form of life, including human life. The challenge, therefore, is to overcome the need for competition and to find ways to harmonize the water requirements of people with those of the natural environment.

Potentially, the most effective means for achieving such harmonization is to integrate environmental concerns into national and international water laws and policies. The goal of such integration is to ensure that the water needs of both people and the natural environment are considered collectively and balanced in a way that will further the sustainable use of freshwater resources while maintaining ecosystem integrity.

The greening of water law is both a theoretical and practical effort to implement that harmony through modification of the legal regime governing the management and allocation of freshwater resources. It is based on the recognition that the life and wellbeing of people and the natural environment are interrelated and even interdependent and that the coordination of the needs of these two water-dependent stakeholders will further the sustainable use of freshwater resources for both. It is also founded on the notion that by ensuring adequate supplies of clean freshwater for the environment, people, communities, and nations, the human condition can be enhanced through improved health and more sustainable resource exploitation and economic development.

Special thanks to Lara Ognibene, Arnold Kreilhuber, and Sarah Muchiri at UNEP for the wonderful opportunity to work on this project, and for their support throughout the process.

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.