This paper appeared in Volume 44 (2013) of the Georgetown Journal of International Law. The author, Charles L. Katz, is a 2013 graduate of the Georgetown University Law Center.
One might argue that South Sudan has bigger fish to fry at this moment but its access to Nile River water looms large in its future - whatever that future might be. So, despite current events, Katz's paper is important. And what with the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile, the future in the Nile River Basin will be 'interesting'.
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Abstract
This Note will examine and analyze the legal implications of South Sudanese independence on the Nile Basin’s legal regime governing use of the Nile’s water. South Sudan has three options with respect to usage of the Nile: (1) acceding to the 1959 Nile Waters Agreement; (2) signing and ratifying the Cooperative Framework Agreement; or (3) pursuing an independent, alternative course based on preexisting international water law. This Note will first provide a general overview of South Sudanese independence and of the Nile Basin as a whole. It will argue that South Sudan is not bound by the 1959 Nile Waters Agreement according to several theories of international law relating to state succession with respect to treaties. It will then explore the legal impact of a hypothetical South Sudanese decision to accede to the 1959 Nile Waters Agreement, and discuss what portions of the treaty will need to be renegotiated or altered to reflect a third country becoming party to the treaty. After a discussion of the 1959 Nile Waters Agreement, the Note will then discuss the treaty’s relationship with the Cooperative Framework Agreement. It also will elaborate on South Sudanese legal rights under the Cooperative Framework Agreement if South Sudan decides to ratify the CFA. The final subsection of the Note provides an overview of current theories of international water, and proposes a third option for South Sudan to exercise its Nile water rights based off these theories, that of unaffiliated equitable utilization.
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“The Republic of South Sudan does not belong to a particular tribe—it belongs to all tribes of South Sudan; those who think so should think coherently. The truth is, tribalism kills and destroys.” - Duop Chak Wuol
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