State Succession in International Transboundary Water Obligations: South Sudan and the Nile Water Agreements

Author:Abiy Chelkeba Worku
Position:Abiy Chelkeba Worku, LL.B (MU), M.A (MU), LL.M (AAU). Lecturer of Law, Postgraduate Programs Coordinator, School of Law, Mekele University. This article has used part of the author's concept note titled 'Succession of Southern Sudan to the 1929 and 1959 Nile Water Agreements and its Implication' that was written in March 2011.
Pages:100-125
SUMMARY

South Sudan’s independence has raised the number of Nile riparian states to eleven, and the questions of state succession and international law discourse on the issue are expected to arise in relation to South Sudan. Some of the international legal issues that may be raised in relation to Nile agreements are: whether the new state of South Sudan (in its utilization of the Nile waters) is under an ... (see full summary)

 
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State Succession in International
Transboundary Water Obligations:
South Sudan and the Nile Water Agreements
Abiy Chelkeba Worku
Abstract
South Sudan’s independence has raised the number of Nile riparian states to
eleven, and the questions of state succession and international law discourse on the
issue are expected to arise in relation to South Sudan. Some of the international
legal issues that may be raised in relation to Nile agreements are: whether the new
state of South Sudan (in its utilization of the Nile waters) is under an international
legal obligation to respect and honor the 1929 and 1959 Nile agreements made by
Sudan with Egypt. The article addresses this issue in light of the law of state
succession to treaties. Based on several theories of international law relating to
state succession with respect to treaties, I argue that South Sudan is not bound by
the 1929 and 1959 Nile waters agreements. More specifically, it is argued that the
1929 and 1959 agreements between Egypt and Sudan governing trans-boundary
water resources do not fall within the boundary exceptional clause, and South
Sudan can nullify the agreements at any time.
Key terms
South Sudan; State Succession; 1929 and 1959 Nile Water Agreements;
International Water Transboundary Obligations; International Water Law
DOI http://dx.doi.org/10.4314/mlr.v10i1.4
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Introduction
The people of South Sudan have struggled for more than five decades against all
post independence government s in Sudan.1 More importantly, in 2005, a
comprehensive peace agreement2 was signed that gave the right to secession of
Abiy Chelkeba Worku, LL.B (MU), M.A (MU), LL.M (AAU). Lecturer of Law,
Postgraduate Programs Coordinator, School of Law, Mekele University. This article has
used part of the author’s concept no te titled “Succession of Southern Sud an to the 1929
and 1959 Nile Water Agreements an d its Implication” that was written in March 2011.
1 Samuel Assefa (2009), Post Referendum Prospects and Challenges the case of Southern
Sudan, a paper presented on a panel discussion organized by inter-African Group, Addis
Ababa, Ethiopia, 2009, p.8.
2 The Comprehensive Peace Agreement (CPA) between Sudan and South Sudan did not
include an agreement on South Sudan’s rights to the Nile after independence even though
both parties rely on the Nile as their principal water source. At the time or writing this
State Succession in Int’l Transboundary Water Obligations: South Sudan … 101
South Sudan by referendum, which was conducted on January 2011.3 This led to
the birth of the youngest African state.4 As South Sudan seceded from Sudan, it
has become the 11th riparian state5 of the Nile Basin.6 It is located downstream
of the Nile Equatorial Lakes region and has strong connections to the Eastern
Nile.7 With the emergence of South Sudan, international law issues8 are bound
to arise9 and the question of state succession is expected to ensue. The author
believes that greater attention will be paid to the impact of the birth of South
Sudan that will have a potential impact on the Nile legal regime. 10
The scope of the article does not allow detailed analysis of issues on state
succession situations, including the political factor which could lead the
different states to different political decisions regarding the Ni le water
agreement. It is sufficient for our purposes to limit the scope of the study to the
legal state succession scenarios of South Sudan to the 1929 and 1959 Nile water
Agreements. It is to be noted that the issue of state succession and the political
development of South Sudan are very dynamic and it is often influenced by non-
legal issues. As result, this article cannot claim to be exhaustive.
Various studies have been made on state succession and majority of them
focus on impact of succession in the former Soviet bloc, impact of
decolonization in the new states of Africa after decolonization and its impact on
territorial obligation, debt liabilities, state responsibility and the like. However,
article , South Sudan has neither signed nor en tered into any agreement, whether pre-or
post- independence, concerning its use of Nile.
3 See, South Sudan’s Flag Raised at Independe nce Ceremony, BBC NEWS (July, 2011),
<http:// www.bbc.co.uk/news/world.africa.14092375>
4 Ibid.
5 Riparian means “ of, relating to, or located on the banks of a river or a stream.” Blacks
Law Dictionary 1141 (9th ed. 2009). A Riparian right is “the right of a landowner whose
property borders on a body of watercourse”. Id., at 1441.
6 The Nile riparian states are; Burundi, the Democratic Republic of the Congo, Egypt,
Sudan, Ethiopia, Kenya, South Sudan, Rwanda, Tanzania, Uganda and Eritrea, available at
http://www.nilebasin.org/ (Accessed 23/12/2015).
7 International Crisis Group (2006), Sudan Comprehensive Peace Agreement; the Long
Road Ahead, Africa Report, No 106, Nairobi, Kenya, 2006(a), p.10.
8 It shall be noted that South Sudan has entered international life at a time of uncertainty for
the Nile. The agreement and utilization of the Nile River is a fragmented legal regime
without an all-inclusive arrangement.
9 Brenthurst Foundation (2010), Everything at Zero, Beyond the Referendum – Drivers and
Choices for Development in Southern S udan, E Oppenheimer & Son Publishing Ltd,
Marshalltown, South Africa, 2010, PP.18 Online, Available HTTP,
<www.thebrenthurstfoundation.org,> (Accessed: 31/10/2010).
10 As the fledging new nation looks to the Nile as an indispensable natural resource in its
quest to achieve sustainable development, it will inevitably needs to consult with all its
co-riparian on waterworks that it plans to construct on the water course.

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