The Nile water controversy, Uganda and the position of international law

By Asa Mugenyi

A number of articles have been written on the controversy on the equitable use of River Nile by the River States especially in respect of the recent outburst by Egypt.

The source of the Blue Nile and the White Nile are in Ethiopia and Uganda respectively. Lake Victoria contributes about 70% of the waters of the White Nile.

 The River Nile basin is shared by 10 riparian States which are Uganda, Egypt, Sudan, Ethiopia, Burundi, Congo, Eritrea, Rwanda, Tanzania and Kenya. Though the River Nile may not flow through some of the above States they feed the River Nile with water from their lakes and tributaries. The question is can the Nile River States use the river without taking into consideration the interests of other river users? States have traditionally argued that they have a sovereign right to utilise resources in their boundaries in any way they chose.

However, the use of shared resources by one State may affect others. International law provides for the use of shared water and transboundary resources. The legal obligations of river States can be found in international conventions or treaties, general principles of international law and customary rules of international law.

The starting point in the current system of international law is based on the concept of sovereignty of States. The most important tenet of international law is that States have exclusive control over their territories, the air, water and the living things that inhabit them.

In addition, States have exclusive control over their territories, which gives them rights to regulate how the air, water, land and other resources are used by individuals. However, the concept of sovereignty is not absolute but relative, restrained by the rights of other States determined by international obligations.

The obligations of the River Nile States on its use can be found in a number of treaties. As stated by Minister Richard Todwong in his article ‘AU should clean the colonial mess on the Nile Water usage’ in the New Vision of June 25, 2013 these include: the treaty between Britain and Ethiopia of May 15, 1902; the agreement between Britain and independent Congo of May 9,1906; the Tripartite (British- France- Italy) treaty of December 13, 1906; the Anglo- Egyptian Sudan Agreement of May 7, 1929 and the 1959 Nile Agreement between the Sudan and Egypt for full utilisation of the Nile Water. Some of the Nile River States were not party to the agreements signed by the other States. Hence the obligations and rights may vary. Some of the agreements were signed by the then colonial power – Britain on behalf of her colonies.

The Nile Treaty of 1929 was signed between Egypt and Britain on behalf of Sudan and the East African States holding Lake Victoria. It was done by Exchange of Notes. The main objective of the treaty was to increase the volume of water going to Egypt – increase the yield from the swamps in Southern Sudan, increase flood control, over year storage.

The said agreement had a clause where Britain undertook not to construct any irrigation or power works on the Nile or associated lakes in the territories under its administration (including the Uganda Protectorate) without the consent of Egypt, if such constructions would have the effect of reducing or delaying the water destined for Egypt. It cannot be denied that the said agreement was tilted in favour of Egypt hence denying the other States an opportunity to fully harness the Nile waters for their own uses such as irrigation.  

As to whether the later independent countries can be bound by a treaty signed by their former colonial master the case of the Passage of India by Portugal is helpful. In the said dispute it was found that India was liable for an arrangement by its former colonial master that gave Portugal a right of passage of its soldiers over territory held by India. However, it is stated that Egypt and Sudan replaced the treaty of 1929 with the Agreement for the full utilisation of the Nile Waters in 1959.

The Owen Falls Agreement for the construction of the Owen Dam was also done by Exchange of Notes between Egypt and Britain acting for Uganda in 1949. The Agreement had two objectives: 1) to control the flow of the Nile and, therefore, create storage head; 2) to produce hydroelectric power for Uganda. “The Egyptian government saw a need for research, observation and recording of meteorological and hydrological data for the basin of the East African lakes including Lake Victoria.”

Two other agreements were signed by Britain and Egypt relating to the construction of the Owen Falls Dam: the Agreement on Approving the Contract for the Owen Falls Dam of December 5, 1949 and the Agreement on the Financial Arrangements of January 5, 1953. In the latter agreement “Egypt paid the Uganda Protectorate to raise the Dam by 1.3 metres above the originally intended level to allow additional storage of water to be released to her.” Egypt also agreed to pay Uganda Electricity Board for “consequential loss of hydro-electric power and recognition of unspecified damage below Owen Fall Dam” which it allegedly never did. The Agreement did not provide for water quality standards for the two parties.

The Kagera Basin Organisation was established in 1977 by the governments of Burundi, Rwanda, Tanzania and Uganda. The main objective was to promote the co-operation among member States through the joint efforts in the development and the management of the Kagera River Basin.  The Agreement aimed at integrated conservation and development of natural resources and the environment of the basin States. The above organisation had set backs due to the political instability within the basin States at that time.

 In respect of international conventions, under Article 287 of the Constitution, Uganda is bound by treaties made before the coming in force of the Constitution. On the other hand, Objective XXVII of the Constitution provides that the utilisation of the natural resources of Uganda shall be managed in such a way as to meet the development and environment needs of the present and future generations of Uganda. It was argued and held by an Indian Court that the objectives stated in a constitution constituted a contract between a state and its people. Hence the Government of Uganda has the task of balancing the need to make optimal utilisation of the environment including the use of River Nile on the one hand and respecting international treaties entered into by it on the other.

 In the event the River Nile States dispute the treaties entered into on their behalf, international law makes provision for the use of general principles of international law and customary law.  As regards their use of resources, Principle 21 of the Stockholm Declaration provides:

“States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign rights to exploit their own resources pursuant to their environment policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Principle 21 of the Rio Declaration on Environment and Development states that

“States have the sovereign right to exploit their own resources but a responsibility to ensure that activities within their jurisdiction… do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.”

Though the above principles are soft law, their legal effect cannot be underestimated. These principles are expressed by reference to the maxim “Sic utere tuo, ut alienum non leadus” or the principle of good neighbourliness. The maxim is restated as to use what which belongs to you not to injure others. Almost all the principles of international environment law, whether in treaties, custom or general principles concerning state liability for transboundary environment damage appear to founded on the said maxim. It reminds one of the biblical commandment, treat your neighbour as you would like to be treated, or more precisely “love your neighbour as yourself.” The principle of neighbourliness has become essential in international law because environmental resources including air, water and wildlife cannot be confined within a State’s boundaries. Therefore the River Nile States should be good neighbours.

The principle of prior notification requires a State planning an activity involving the use of a shared natural resource to transmit to potentially affected States all relevant information to enable the affected State address any potential damage and to enter into consultation with the acting State. Two further principles the “Polluter Pay” principle and the principle of “Equal Access and Non-discrimination” have become of increasing significance in the development of international environment law

Customary international law forms the key body of the international legal rules and principles that govern the access to, and use of international courses. A state which appropriates a water use for a river shared by more than one, or two or more States asserts a right to that use. The right of all riparian States cannot be denied. Likewise upper riparian States cannot deny lower riparian States good quality water by polluting it. In this respect Ethiopia and Uganda cannot deny the other users of River Nile the use of its water. The leading case on the customary rule on state liability for transboundary environmental damage is the Trial Smelter Arbitration case where it was stated “no state has a right to use or permit the use of its territory in such a manner as to cause injury by fumes in or the territory of another.” Hence if the use of River Nile by one of the riparian States causes injury to another the latter State would be entitled to damage.

There are five doctrines in international law that are used or have been used to regulate the use of shared water resources by riparian States.

The first doctrine is that of absolute territorial sovereignty. This doctrine holds that States have the right to do anything within their own borders regardless of their effects on other States. This doctrine is also known as the Harmon Doctrine, named after the US Attorney General who defended the United States diversion of the Rio Grande River in a dispute with Mexico around 1894. Mexico complained that the diversion of the Rio Grande water for irrigation threatened its water supply. The Attorney General argued that that “… the possible consequences of the right asserted by Mexico show that its recognition is entirely inconsistent with the sovereignty of the United States over its natural domain.” The dispute was eventually settled by an international convention between the United States and Mexico.

If Ethiopia and Uganda were to argue that since the River Nile originates from them, they are entitled to absolute use of it, they would be living in the Stone Age or rather the Harmon era. International law has since moved on. The concept of absolute territorial sovereignty was rejected in the Lake Lanoux arbitration between France and Spain where it was stated that “… the upstream state, has according to the rules of good faith, the obligation to take into consideration the different interests at stake, to strive to give them all satisfaction compatible with the pursuit of its own interests, and to demonstrate that on this subject, it has real solicitude to reconcile the interests of the other riparian with its own.” The principle of sic utere tuo rejects the absolute view of territorial sovereignty and requires each state to put into consideration the rights of others while conducting its domestic affairs.

The second theory is that of absolute territorial integrity which is based on the concept that those States lower down the river have a right to an unrestricted and unadulterated flow of water. The theory is stated as follows: “Every State must allow rivers over which it does not exercise unrestricted territorial sovereignty… to follow their natural course; it may not divert the water to the detriment of one or more of the other States with rights to the river, interrupt, artificially increase or diminish its flow.” This theory has also been discarded.

 The third and fourth doctrines of limited territorial sovereignty and limited territorial integrity respectively are in practice observed together, thereby imposing corresponding rights and responsibilities on riparian States. Limited territorial integrity gives the lower riparian States the right to a full flow of natural quality. Any interference with the flow of natural water by the upstream States would thus, require the consent of the lower riparian. International practice indicates that upstream States are not obliged only to act with the consent of the lower riparian States, but are bound to notify and consult with other riparian States.

The last doctrine is that of community of interests.  “Under this principle the sovereignty of a state over portions of an international water course within its jurisdiction is qualified by recognition of the equal and correlative rights of other States”. Such water courses are thus, shared resources subject to equitable utilisation by all riparian States. This principle favours a community of interests over international water courses and entails a balance of such interests.

In 1929, the Permanent Court of Justice in a case concerning the International Commission on the River Oder concluded that riparian States shared a “natural community of interest” and, therefore, a “common legal right” in the equal use of both contiguous and successive rivers. The Helsinki Rules on the Use of Waters of International Rivers embodied this concept and adopted the notion of equitable utilisation. Chapter 2 of the Rules dealing with the equitable utilisation of the waters on an international drainage basin states in Article IV that “Every basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial use of the waters of an international drainage basin.”

The Helsinki Rules have been superseded by the recently adopted 1997 Convention on Non-navigational Uses of International Watercourses. Article 5 of the Convention states:

“1. Watercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of watercourse States concerned, consistent with adequate protection of the watercourse.

2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner, such participation includes both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.”

Hence it cannot be denied that all riparian States have a right to an equitable and reasonable use of a watercourse. One country cannot deny another from enjoying an international watercourse.

An issue arises as to whether a riparian state can build a dam or divert a river despite objections from another riparian state. Reference is made to the Lac Lanoux case, already mentioned. In that case France proposed to divert water from River Carol through a channel to a hydro-electric power plant and then return the same amount of water to the river to a point prior to its use by farmers in Spain. Spain alleged the proposal by France would adversely affect the former’s rights and interest contrary to a treaty the parties had entered into. The Tribunal held that the proposal by France did not constitute an infringement of Spain’s rights under the earlier Treaties. The case acknowledged that a State has a right to utilise, unilaterally, that part of a river which runs through its territory as long as the utilisation does not affect adversely another state, If it only causes a limited amount of damage, a minimum of inconvenience as accepted in the principle of good neighbourliness.

Therefore, in order for the Nile River States resolve any dispute peacefully, they should engage each other in mutual talks taking into consideration the already established and accepted rules of international law in respect of share water resources. The States should not behave like the ostrich that buries its head in the sand. A State should notify the other users of its intended projects. If Egypt, Sudan, Uganda and Ethiopia cannot behave like good neighbours and enjoy the fruits of River Nile peacefully they can refer any dispute to the International Court of Justice which has the mandate under the United Nations Charter to listen to such disputes.

The writer is an expert on international law and environmental law which he taught at University level for over five years.