Image: Kuol Abraham Tong.
By Kuol Tong, 18/06/2020 (RB) — In 1929, an agreement was signed between Egypt and Great Britain regarding the Utilization of the waters of the Nile- Britain was representing its colonies(Uganda, Kenya Tanganyika [now Tanzania]) in the River Basin.
This agreement tackled many issues related to the Nile River and its tributaries. The present discussion is that the Nile water agreements gave Egypt an annual water allocation of 48 billion cubic meters and Sudan 4 billion cubic meters out of an estimated average of annual yield of 84 billion cubic meters. The 1929 agreement according to Brookings website, the agreement granted Egypt veto power over construction projects on the Nile River or any of tributaries in an effort to minimize any interference with flow of water into the Nile.
According to Arthur Okoth-Owiro, The Egyptian-Sudanese Pact (the 1959 Treaty). In 1959 Egypt and Sudan signed an agreement, (“The 1959 Agreement for the Full Utilisation of Nile Waters”) which guaranteed that 55.5 billion cubic meters per year would flow into Egypt without any hindrance from Sudan. The agreement also allowed Egypt to construct the Aswan Dam for “long term” water needs. Most importantly, the agreement was a pact between the two countries to act together, and against the upper riparian states of the Nile. Article V, in purporting to recognise the rights and interests of these other co- riparians provided.
The legal status of the agreement.
What is the legal status of the abovementioned Nile water treaties-in particular the international legal regime set up over the Nile through agreements with other powers which are still operational and binding on the Nile basin countries between Britain and Egypt? The solution to this question is central to the issue of rights and responsibilities over waters of the Nile.
If the Nile Waters Treaties are valid and binding, they legitimize the colonial period legal order that gave pre-eminence to Egypt in controlling the Nile and the basin developments.
This would seriously restrict the efforts and opportunities for development of higher riparian states. However, if the Treaty on Nile Waters is not binding, control and use of Nile Waters is governed by customary International Water Law principles. It will also mean that in a basin-wide agreement, the Nile is searching for a new legal regime. This would allow plenty of room for negotiation between riparian states. It could help develop a more sustainable and equitable use regime for South Sudan, Kenya, Tanganyika and Uganda.
Succession to Treaties
The effect of sovereignty changes on treaties does not reflect some general principles or rule of succession, but instead refers to treaty law and interpretation (O’Connell, 1956). When new states arise it is, under a theory of state succession, not bound by the treaties of the sovereign predecessor.
A new entity, an ex-hypothesis, a non-party, can not necessarily be bound by a treaty, and all parties to a treaty are therefore unconditional in the recognition by statute of a new party (Brownlie 1990:668).
The rule of non-transmissibility is applied both by the union or dissolution of the states to the secession of newly independent States and to other new states. There are some exceptions to the general rule of non-communications (the doctrine of the “clean state”). The clear examples are:
i) law-making treaties or treaties evidencing rules of general international law
ii) boundary treaties
It is held by some writers that a third category of treaties, which they call “dispositive,” “localized” or “real,” are also an exception to the general rule of non- transmissibility (O’Connell, 1956; McNair, 1938). Proponents of the doctrine of dispositive treaties divide all treaties into two main categories, viz, personal treaties and impersonal or dispositive treaties. Personal treaties are those dealing with political, administrative or economic relations; they are, therefore, basically contractual in character in that they are personal to the parties. A personal treaty is said to be fundamentally a contract and, therefore, dependent on the continued existence of the parties. If any of the parties to such a treaty disappears in relation to a part of its territory, it ceases to be able to fulfil the obligations undertaken as a sovereign power over that territory.
Dispositive treaties, on the other hand, are those which create “real” rights and obligations i.e. rights and obligations in rem in territory. As such, dispositive treaties are immune to the change of sovereignty and remain with the land like the easement of English Common law or the servitudes of Roman law. Examples of such treaties are said to include river treaties, boundary treaties and treaties of peace and neutrality. The idea of dispositive treaties is unconvincing. Lester (1963) discusses it at length and finds first, that it is impossible to define the difference between localised and non-localised treaties, and second, that British state practice does not appear to recognise a special category of localised (dispositive) treaties for purposes of state succession.
In his opinion, both in theory and according to British and Commonwealth practice, localised treaties are no exception to the general rule that bilateral treaties do not devolve upon successor states, and this opinion accords with the position in international law. Where rights in rem are recognised by new states, recognition is explained otherwise than an account of the automatic descent of treaties.
A similar conclusion is reached by Brownlie (1990) when he says; “The present writer, in company with others, considers that there is insufficient evidence in either principle or practice for the existence of this exception to the general rule. First, much of the practice is equivocal and may rest on acquiescence. Secondly, the category is very difficult to define and it is not clear why treaties apparently included should be treated in a special way. Supporters of the alleged exception lean on materials, which are commonly cited as evidence of an independent concept of state servitude”
Kas.de. 2020. [online] Available at: https://www.kas.de/documents/252038/253252/7_dokument_dok_pdf_6306_1.pdf/03f3b3a7-47bc-a01d-0e28-300afddd3939?version=1.0&t=1539666155083 [Accessed 18 June 2020].
So now that South Sudan succeeded in 2011 and became a sovereign state, why would the Republic of South Sudan defend Egypt in this case yet they do not want riparian states to have equal share of waters in the Nile?
I was appalled when Ateny Wek Ateny, pres. Salva Kiir’s spokesperson said “ this is not the right time for South Sudan to claim the right over the River Nile” published on 16th, June 2020 by Juba tv. In this modern world, there is never going to be a right time to claim what belongs to you. Ateny wek Ateny should find time to educate himself about this reality of current affairs.
South Sudanese didn’t ask for their rights or their share of Nile waters, though we are bound to do so, they asked their government not to involve a country that has seen a lot of blood shed before and after its independence in a selfish war of Egypt with Ethiopia. We are asking for neutrality of our government and not to allow Egypt to build any military base in the country. After all, we are not bound by the agreements of 1929 and 1959.
The military base comes with its problems like; the girls and women are raped by these soldiers, the good example is,some of the UN soldiers and workers rape innocent, young civilians every year in the refugee camps and yet we want to bring in more rapists instead of doing away with the currents. Cultural integration, sovereignty and change of government will be scrutinized by Egypt as they intend to advance their influence in the country.
Our government should rethink that deal.
Kuol Abraham Tong.
Law student at university of Nairobi and a concerned citizen.
(The views expressed here are Kuol Tong’s and do not represent Ramciel Broadcastings)