The Hydro-Challenges of the New State of South Sudan in the Nile Basin

May 6th, 2011

Dr. Salman M.A. Salman has just published an article in Water International on “The New State of South Sudan and the Hydro-politics of the Nile Basin” (see article). He has graciously provided the IWLP Blog with the following guest post. Dr. Salman is an academic researcher and consultant on water law and policy, and can be reached at Salmanmasalman [at] gmail.com.

On January 9, 2011, and for the next six days, the people of South Sudan exercised their right of self determination and voted overwhelmingly to secede from the Sudan and establish their own independent state. The right of self determination was the major outcome of the negotiations process between the Sudan government and the Sudan People’s Liberation Movement/Army (SPLM/A) which represent the people of South Sudan.  The official results of the referendum were announced on February 7, 2011, and the government of the Sudan formally accepted of the results of the referendum on that day. The new state of South Sudan will formally come into existence on July 9, 2011, following the end of the interim period on July 8, as the 193rd member of the global family of nations, and as the 54th African state. As a result, the Sudan will lose, among many other things, one of its main defining characteristics as the largest country in Africa.

The Southern Sudan Referendum Act that was adopted in December 2009, listed a number of issues that need to be resolved by the two parties. Among other issues, these include: nationality; currency; public service; position of joint integrated units; international agreements and treaties; debts and assets; oil fields, production and transport; oil contracts; water resources; and property. These issues are in addition to disputes on a number of border areas between Northern and Southern Sudan (which extend for more than 2.000 kilometers), as well as the Abyei dispute that was adjudicated before the Permanent Court of Arbitration (PCA), but still remains unresolved (see Dr. Salman’s article on the Abyei Territorial Dispute).

Thus, water resources are one of the more contentious area between the Sudan and the new state of South Sudan.  There are three issues involved and need resolution in this area:

  • First: reallocation between the two states of the 18.5 Billion cubic meters of water allotted to the Sudan under the 1959 Nile Waters Agreement between Sudan and Egypt. The demands of the Sudan and South Sudan are expected to be far more than the 18.5 billion. Sudan will lose  50% of the revenues of oil of Southern Sudan that it was getting during the interim period as per the Comprehensive Peace Agreement that was signed between Sudan and SPLM/A in 2005. As a result, Sudan would have to rely more heavily on irrigated agriculture to make up for the lost revenues from South Sudan oil. On the other hand, South Sudan is claiming that it has a good number of irrigation, water supply, and hydro-power projects that would need large amounts of Nile waters too. Thus, negotiations on this issue are not expected to be easy.
  • Second: The huge swamps of Southern Sudan, including the Sudd, where water losses are tremendous, are viewed by both Egypt and Sudan as a source for additional waters to the Nile. This additional water would be in the range of 20 billion cubic meters for the Nile, almost one fourth of the total amount of the Nile flow of 84 billion cubic meters measured at Aswan. The aborted experience of the Jonglei canal is a clear indication of the difficult issues surrounding the conservation of the waters of the swamps of Southern Sudan for adding more water to the Nile (see Dr. Salman’s article on Water Resources in the Sudan North-South Peace Process).  Whether South Sudan would be willing to allow construction of any such canal would depend on a host of factors including the incentives it may receive, the views and positions of the affected communities and NGOs, and the security situation in the swamps areas. The other Nile riparian countries may well have their views on the matter and may ask to be part of the process. After all, the question may be posed as to whose water is it any way?
  • Third: The new state of South Sudan is expected to have a major role to play in the current Nile dispute. The Nile Basin Cooperative Framework Agreement (CFA) has been a divisive issue. Sudan and Egypt have vehemently opposed it, while the other Nile riparian states are pushing for its adoption and entry into force. Thus far six countries (Ethiopia, Kenya, Tanzania, Uganda, Rwanda, and Burundi), out of the Nile ten riparian countries have signed the CFA. It needs six instruments of ratification to enter into force, but thus far none of the six states has ratified the CFA. Thus, if South Sudan joins as a party to the CFA, it would provide a cushion in case one of the other six changes its mind or delays its ratification. Whether South Sudan would side with the equatorial states based on ethnicity, geography and history, or would be wooed by Sudan and Egypt to refrain from joining the CFA remains to be seen.

The centrality of water resources in the issues that must be addressed in post-conflict situations has been reconfirmed by the emergence of South Sudan as an independent nation. In this case, the issues go well beyond the Sudan and the new state of South Sudan, and extend to the other riparian states of the Nile Basin.

For additional insight into and details on this fascinating topic, you can find Dr. Salman’s Article here.

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

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 …

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

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

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!

Conference on the Guarani Aquifer Agreement

February 14th, 2011

The signing of the Agreement on the Guarani Aquifer [Spanish] [Portuguese] on August 2, 2010, evidenced the continued progress being made in the pursuit of greater harmony in global hydro diplomacy (see my review of the agreement). True, South America is not lacking in fresh water resources. Yet, the effort by the overlying nations (Argentine, Brazil, Paraguay, and Uruguay) is laudable for its peaceful and cooperative approach. The four countries are now involved in the ratification process and in  negotiations over  institutional aspects, including discussions regarding an annex to the Agreement on arbitration procedures. How will these nations implement this agreement? What additional steps should they take?

Francesco Sindico, currently at the University of Surrey, Guildford, United Kingdom, along with colleagues Ricardo Hirata of the Centro de Pesquisas de Água Subterrânea–Instituto de Geociências da Universidade de São Paulo (CEPAS – IGc/USP) and Geroncio Rocha of the Secretaria do Meio Ambiente do Estado de São Paulo, is organizing a conference – “The Management of the Guarani Aquifer System: An Example of Cooperation” – in São Paulo, Brazil 21-23 September 2011. The deadline for abstract submission is 30 April 2011. Three conference sessions will address:

  1. An assessment of the scientific knowledge on the GAS
  2. Current use and protection of the Guarani Aquifer System
  3. The GAS and regional cooperation

For further information please see the full call for papers at:

IWLP is Back on Track

February 14th, 2011

The IWLP Blog is back on track. We have overcome the spam infestation (see prior posting) and installed new security measures. Now, back to more important and interesting issues …

IWLP Blog has been spammed

February 9th, 2011

As is often the case on the Internet, when you create an email account or build a website, you risk being spammed. Regretfully, the IWLP Blog has been infiltrated by spammers who are diverting visitors to various websites hocking pharmaceuticals and other irrelevant items. This corruption appears to be benign in the sense that it only affected the IWLP blog and does not infect computers of blog visitors. Please accept our sincere apologies for this inconvenience. We are working diligently to rid the blog of this scourge

Botswana Court Awards Kalahari Bushmen Water Rights

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.

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

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.