1. Principles and Evolution of International Law regarding Transboundary Water Sources

With increasing numbers of previous colonies gaining independence coupled with the increase in global population numbers, we see a heightened interest in governance and international laws over transboundary water sources, a major source of sustenance for humans. In this post, I would like to briefly illustrate the few major developments in international law regarding transboundary water sources, notwithstanding if it is linked to the River Nile.

The emergence over a need for international law over water bodies came about in the 1815 Vienna Conference, which was solely focused on the role of navigation over the Danube River. However, with increasing population growth and dependency on water sources for irrigation as well as the use of dams, there is a scream for a wider scope of international law protecting transboundary water sources. The Harmon Doctrine was also introduced, defining sovereignty of water resources particularly along the Rio Grande in a bid to resolve conflict between USA and Mexico. The term ‘absolute sovereignty’ was also then first introduced to the global context. Despite these attempts at creating a form of international law over transboundary water sources, they were not cemented nor followed at that time hence they only appeal as attempts and nothing more (McCaffrey, 1996).

However, the aforementioned attempts prove as vital first steps towards the generation and evolution of a more comprehensive and received international law over water. The 1966 Helsinki Rules on waters of international rivers was a vital changing point. It is agreed to be applicable to most drainage basins that cross over national borders, with the exempt of those with had previous agreements already present. Most importantly, it asserts a form of ‘equitable sharing’, noted “equity does not mean distribution by equal share, but by fair shares…” The Helsinki Rules also introduced the term of ‘International Drainage Basins’, which drew the boundaries of rivers to that of watersheds. This proved key in the definition of specific water sources but also as a point of conflict. In specific terms to the Nile, the Nile basin was previously seen to stretch to the Suez Canal, however, with that definition put in place, the Suez Canal is not the boundary as it is artificial. Hence, the Nile basin would seemingly stretch eastwards to the Sinai mountain range, bringing in new parties and issues of contention to the already contentious Nile (McCaffrey, 1999). Also, with it being the first global international law over water, there was no form of mechanisms in placethat strictly enforced that nations followed that rule (Browne, 2003). In addition, it can be depicted as an extreme top-down approach by the then “first-world” countries in trying to assert a form of rule on the world, regardless of signatories. In relation to the Nile, it must also be noted that no riparian states along the Nile actually sign nor agree explicitly to the Helsinki Rules, despite many of them claiming that previous agreements such as the 1929 and 1959 agreement nullified for misrepresentation by previous Colonial power, UK. Despite everything, it is still classified as a pioneering step towards establishing an international law over water (Raj and Salman, 1999).

From the 1966 Helsinki Rules, it became prevalent that it is difficult to establish a general set of laws applicable to ALL international rivers in particular due to each river having different characteristics. In addition, the Helsinki Rules shows a form of rejection of pre-existing theories of absolute sovereignty (Harmon Doctrine).

In the latter part of the 20^th century, there were more evolutions in relation to international laws surrounding transboundary waters. In this part, I would like to briefly introduce a few evolutions of the 1966 Helsinki Rules as well as specific laws focused on the Nile.

In 1997, there was the Convention on the law of non-navigational uses of international watercourses. Its focus was to consider sustainable utilisation of watercourses for future generations. It is comparable to that of the Helsinki Rules; however, the same issues arose, with it only being ratified by only 36 states (of which none from the Nile basin). In addition, the language used was contentious, questioning the actual definition of “obligation to do no harm” in article 7 of the document, as there are times where upper riparian states have legitimate claims and utilisation over watercourses which may inevitably negatively affect lower riparian states (McCaffrey 1998).

In more recent times, the Berlin Rules on Water Resources in 2004 was created which supercedes the 1966 Helsinki Rules. This further promotes more equitable sharing of water resources. Also, it saw the merging of different international laws such that they cover the loopholes of one another, such as the 1997 Convention used to supplement the Berlin Rules (McCaffrey, 1999). This saw an attempt to ultimately create an international law that applies to the world, but at the same time ensuring that there are no loopholes for nations to exploit. Also, the Berlin Rules on Water Resources saw the focus of weighing the needs of the people depending on the water resource. The water resources are equitably shared with relation to the dependency ratio which brought about a more fair allocation of water as well as more just claims to rights over certain quantities of water (Dellapema, 2008).

More specific to the Nile, the 1968 Ecological Convention for preservation of NaturalResources from the Organisation of African Unity (OAU) Summit Conference at Algiers aimed to promote cooperation and communication between nations to study and resolve problems arising with respect to the Nile. This proved as a good enough first step of the riparian states of the Nile to acknowledge that more work and cooperation has to be put into allocating the waters of the Nile. This could also see as the prelude to that of the Nile Basin Initiative, which we would discuss in detail in the next post. 

References:

Dellapenna, J. (2008). International water law in a climate of disruption. Mich. St. U. Coll. LJ Int'l L., 17, 43.

McCaffrey, S. (1998). The UN Convention on the Law of the Non-Navigational Uses of International Watercourses: prospects and pitfalls. World Bank Technical Paper, 17-28.

McCaffrey, S. (1999). International groundwater law: evolution and context. World Bank Technical Paper, 139-162.

McCaffrey, S. C. (1996). Harmon doctrine one hundred years later: Buried, not praised, the. Nat. Resources J., 36, 965.

McCaffrey, S. C., & Sinjela, M. (1998). The 1997 United Nations Convention on International Watercourses. The American Journal of International Law, 92(1), 97-107.

Raj, K., & Salman, S. M. A. (1999). International groundwater law and the World Bank policy for projects on transboundary groundwater. In Groundwater: Legal and Policy Perspectives: Proceedings of a World Bank Seminar. Washington, DC: World Bank Publications.