Tuesday, June 22, 2004

Nile Treaty: more background

Addis Tribune is running a series of articles on the Nile Treaty ... written by Gebre Tsadik Degefu (author of "The Nile: Historical, Legal, and Developmental Perspectives”).

I just read through the first three articles (it's really one article in three parts) ... and golly is it ever detailed (who said what and when). Degefu has a definite point of view ... and I've excerpted some of the points I found interesting.

If you're completely unfamiliar with the discussions surrounding the use of the Nile waters ... I offer this earlier post. Please note that it's my summary of the issues and I don't claim to fully understand this bloody thing.

The Nile Waters: Moving beyond Gridlock (Part I)

The Nile Waters: Moving Beyond Gridlock(Part II)
Thus, the ultimate objective of the 1929 Agreement was to offer British political concessions to Egypt so as to have the latter’s friendship. Consequently, the 1929 Agreement cannot be placed into the category of ‘dispositive’ or ‘territorial’ treaties devolving automatically on all successors under international law. Further, it can also be argued that such treaties are still subject to those factors which would have the effect of vitiating the original treaty such as the principle conventio omnis intelligitur rebus sic stantibus. Briefly, the doctrine of rebus sic stantibus (“things standing thus”) asserts that if circumstances which constituted an essential basis of the consent of the parties to be bound by a treaty undergo such far-reaching changes as to transform radically the nature and scope of obligations still to be performed, the Agreement may be terminated on the initiative of either party. [...]

The doctrine of rebus sic stantibus can be successfully applied to the Sudan and the East African States of Kenya, Tanzania and Uganda because their independence amounted to a vital change of circumstances with regard to the presumptions under which the 1929 Agreement was made in that the Sudan (and the other three) can no longer be regarded as territories whose claim to development could be taken up only once the interests of Egypt, present and potential, have been assured.

[...] Unlike Tanganyika [Tanzania], the states of Kenya and Uganda did not specifically contest the devolution of the 1929 Agreement and the other instruments regarding the Nile concluded during the colonial period on their behalf by the United Kingdom and Egypt. However, the two States might argue that, after the expiry of the two-year grace period [they declared and which took effect upon independence to allow renegotiation of], the 1929 Agreement, having been neither renegotiated nor repudiated, was considered by them as having lapsed automatically on their accession to independence. The conclusion that the 1929 Agreement was not initially intended to be binding in perpetuity in the sense of devolving automatically on successor states, supports the view advanced above. Further, they would maintain that it did not belong to those treaties, which, under the rules of customary international law would be considered as surviving state succession.
The Nile Waters: Moving Beyond Gridlock (Part III)
As already stated, the 1959 Agreement as a bilateral arrangement obligates only Egypt and the Sudan. It has no binding effect on the other eight Nile Basin countries and should be abrogated and replaced by a new treaty. A multilateral treaty binding all riparians will have to be negotiated among the ten riparian states, including Egypt and the Sudan, based on equity and fairness. Egypt’s insistence upon the legal validity of the principle of acquired and historical rights claiming that because it has drawn upon the Nile to sustain its agriculture from time immemorial, it has an historic droit acquis to, or priority of appropriation of, the river’s water that all other riparians must honor, is not supportable under the current international law of rivers.