Here you MAY be able to download the PDF File. I had difficulty and decided to print it in its entirety here on this blog.
Regional Water Intelligence Report
The Nile Basin and the
Southern Sudan Referendum
By Jakob Granit (Team leader), Ana Cascao, Inga Jacobs,
Christina Leb, Andreas Lindström and Mara Tignino
Stockholm, December, 2010
Regional Water Intelligence Reports (RWIR)
The purpose of the Regional Water Intelligence Reports (RWIR) is to provide
regular updates on the political economy of transboundary water resources issues,
management and development. The RWIR focuses on the socio-economic aspects
of water management and highlight the links between water, energy, food and
human security from a regional perspective.
Disclaimer: The analysis and policy recommendations of this Report do not
necessarily reflect the views of the United Nations Development Programme, its
Executive Board, or its Member States. The Report is an independent publication
commissioned by the UNDP. It is the fruit of a collaborative effort by a team of
consultants and advisers managed by SIWI.
Note to the Reader
This Regional Water Intelligence Report (RWIR) examines the current political landscape in the Nile Basin and includes a political and legal analysis of the Southern Sudan independence referendum to be held on 9th January 2011. The objective is to analyze key political events and their potential impact on Nile cooperation, within the framework of the Nile Basin Initiative (NBI), with a specific focus on the referendum in Southern Sudan. Some recommendations are explored that the international community could consider taking in the post referendum process to strengthen development and cooperation. The analysis of political events provides input to further analysis on the political economy of water in the Nile basin. The report does not provide a detailed overview of the NBI process to date which is provided elsewhere. Input to the RWIR is based on public referenced information and confidential interviews.
The Report was commissioned by the UNDP Water Governance Facility (WGF), part of the UNDP Water Governance Programme. The report is an independent study to inform UNDP and other actors interested in strategic decision making on current and future regional and national water programming and sustainable investments.
The WGF would like to thank the authors of the Report and colleagues for their inputs and comments.
For the Water Governance Facility,
Håkan Tropp and Alastair Morrison
For the Water Governance Facility,
Håkan Tropp and Alastair Morrison4
Figure 1. Map of the Nile Basin5
Figure 2. Map of Southern Sudan6
Table of Contents
1 Key Messages and Recommendations ……………………………………………………………………………………………. 8
1.1 Key messages ……………………………………………………………………………………………………………………… 8
1.2 Recommendations linked to the four scenarios ……………………………………………………………………….. 12
2 Overview of the Nile Basin Political Landscape ……………………………………………………………………………….. 13
2.1 National level ……………………………………………………………………………………………………………………… 13
2.2 Regionalisation processes ……………………………………………………………………………………………………. 17
2.2.1 The Tripartite Task Force – EAC, COMESA and SADC ……………………………………………………. 19
2.3 A history of Nile agreements …………………………………………………………………………………………………. 20
2.3.1 Agreement on the Nile River Basin Cooperative Framework (CFA)…………………………………….. 20
3 Political and Legal Analysis of the Upcoming Southern Sudan Referendum 2011 ………………………………… 21
3.1 Administrative structure in the North and South……………………………………………………………………….. 21
3.1.1 Special areas………………………………………………………………………………………………………………. 22
3.2 Content of the Comprehensive Peace Agreement (CPA) ………………………………………………………….. 23
3.2.1 CPA and water ……………………………………………………………………………………………………………. 23
3.2.2 Post-referendum negotiations ……………………………………………………………………………………….. 24
3.3 Other peace agreements ……………………………………………………………………………………………………… 24
3.3.1 Eastern Sudan Peace Agreement………………………………………………………………………………….. 24
3.3.2 Darfur peace process …………………………………………………………………………………………………… 24
3.4 A legal analysis of secession ………………………………………………………………………………………………… 24
3.4.1 Separation of parts of the territory of a State……………………………………………………………………. 25
3.4.2 Principles of international law to be considered in case of secession ………………………………….. 26
3.4.3 Succession to international treaties and transboundary waters ………………………………………….. 26
3.5 Legal implications in case of separation of the Southern Sudan…………………………………………………. 27
3.5.1 Succession/continuation of international treaties………………………………………………………………. 27
3.5.2 Status of the Cooperative Framework Agreement…………………………………………………………….. 28
4 Key drivers in post referendum scenarios……………………………………………………………………………………….. 28
4.1 Land and Resource-related Conflicts……………………………………………………………………………………… 28
4.2 Food (in)security …………………………………………………………………………………………………………………. 29
4.3 Southern Sudan: where oil meets water and hydropower assets ……………………………………………….. 29
4.3.1 Oil assets……………………………………………………………………………………………………………………. 29
4.3.2 Hydropower and regional power markets………………………………………………………………………… 30
4.3.3 The Jonglei diversion canal…………………………………………………………………………………………… 31
4.4 Tribal issues……………………………………………………………………………………………………………………….. 31
5 Hydropolitics and Post Referendum Scenarios………………………………………………………………………………… 32
5.1 Outlook………………………………………………………………………………………………………………………………. 32
5.2 Four scenarios for Southern Sudan ……………………………………………………………………………………….. 33
6 Appendix……………………………………………………………………………………………………………………………………. 36
6.1 A time line of political events…………………………………………………………………………………………………. 36
6.2 Colonial background and treaty time line ………………………………………………………………………………… 37
6.2.1 Treaty timeline…………………………………………………………………………………………………………….. 38
6.3 South Sudan Fact Box- September 2010………………………………………………………………………………… 427
LIST OF ABBREVIATIONS
AANRY Annual Average Natural River Yield
ABC Abyei Boundaries Commission
AEC Assessment and Evaluation Commission
AMCOW African Ministerial Conference on Water
AU African Union
AUHIP African Union High-Level Implementation Panel
COMESA Common Market for Eastern and Southern Africa
CFA Cooperative Framework Agreement
CPA Comprehensive Peace Agreement
DRC Democratic Republic of Congo
EAC East African Community
EAPP East African Power Pool
ECCAS Economic Community of Central African States
ENSAP Eastern Nile Subsidiary Action Programme
EPDRF Ethiopian People‟s Democratic Revolutionary Front
FTA Free Trade Area
GoS Government of Sudan
GoSS Government of Southern Sudan
HEP Hydro Electric Power
ICC International Criminal Court
ICSS Interim Constitution of Southern Sudan
IGAD Intergovernmental Authority on Development
IMF International Monetary Fund
INC Interim National Constitution
LVFO Lake Victoria Fisheries Organization
NBI Nile Basin Initiative
NCP National Congress Party
NDP National Democratic Party
NELSAP Nile Equatorial Lakes Subsidiary Action Programme
NELSB Nile Equatorial Lakes Sub Basin
NEPAD The New Partnership for Africa‟s Development
SAP Strategic Action Programme
OAU Organization of African Unity
PCA Permanent Court of Arbitration
PCP Popular Congress Party
PJTC Permanent Joint Technical Commission
REC Regional Economic Communities
RPF Rwandan Patriotic Front
SACU Southern African Customs Union
SADC Southern African Development Community
SPLA Sudan People’s Liberation Army
SPLM Sudan Peoples’ Liberation Movement
TAC Technical Advisory Committee
TBC Technical Border Committee
UN United Nations
WWII World War II8
1 Key Messages and Recommendations
In a statement on November 16, 2010, the rotating UN Security Council President, “urged the parties
to the Comprehensive Framework Agreement (CPA) to ensure peaceful, credible, timely and free
referenda that would reflect the will of the people of Southern Sudan and Abyei”. The President of the
Council further stated that “the Security Council emphasizes that the situation in Sudan represents
one of the most urgent challenges facing the Council…and encourages the efforts to ensure that the
referenda were held on 9 January 2011”.
In a press statement on 11 December 2010, the African
Union High Level Implementation Panel on Sudan (AUHIP), chaired by former South African
President, Thabo Mbeki, stated that it “…is confident that the CPA partners can reach comprehensive
and constructive agreements on all the post‐ referendum issues, informed by a commitment to the
mutual viability of the North and the South, regardless of the outcome of the South Sudan
The concerns voiced in the quotes above echo the key concerns this report is putting
forward regarding the implications of forced unity versus secession by Southern Sudan from the North
This report is providing an analysis of transboundary water resources issues as they relate to the
upcoming January referendum in Sudan. The report recognizes the cooperative efforts carried out
through the Nile Basin Initiative (NBI) which has since 1999 provided an international platform for
attempting to build trust between the riparians, identify and promote investment projects at the
subsidiary level and support the negotiations on a basin wide compact. This report does not provide a
detail analysis of the NBI since this information is available elsewhere. We are acknowledging good
progress at the level of the subsidiary investment programs in the Nile Equatorial Lakes Region
Subsidiary Action Program (NELSAP), in close partnership with the East African Community (EAC),
and progress towards investment identification in the Eastern Nile Subsidiary Action Program
(ENSAP). The Comprehensive Framework Agreement (CFA) on transboundary water management
has for the time being not achieved an overall ten country compact. Instead, the Nile Equatorial Lakes
Sub Basin (NELSB) countries, with the exception of the Democratic Republic of Congo (DRC), and
Burundi, together with Ethiopia have signed the CFA resulting in political tensions and intensive
diplomatic engagement between the Nile riparians.
The report is intended to inform the international community on the political and economical landscape
in the Nile basin shaping the future of the cooperative processes on water resources management
and development. It recommends possible preventive actions to consider to mitigate the impacts of a
potential post referendum crisis and/or strengthen the positive outcomes of a referendum.
1.1 Key messages
The national and regional political economy in the Nile Basin
1. In the Nile Equatorial Lakes Region national politics are dominated the by EAC integration
efforts and in the Eastern Nile by the high stakes taken by the authoritarian governments to
maintain power. From June 2010 to January 2011, four of the five EAC member countries have
had/will have presidential elections. Rwandan Patriotic Front leader, Paul Kagame was re-elected
as president in August 2010. The withdrawal of the opposition parties from Burundi‟s national
presidential elections in June 2010 resulted in an overwhelming majority vote for President Pierre
Nkurunziza, who has been elected for another five year term. Kenya has been involved in a
referendum which culminated in the promulgation of the new constitution in August 2010.9
Tanzania recently underwent its parliamentary and presidential elections on 31 October 2010,
which saw Jakaya Kikwete sworn in for another five-year term on November 6th. Uganda‟s
presidential elections are expected to take place in January 2011 and maintain the current political
leadership. The DRC‟s presidential elections are expected to take place on 27 November 2011.
The wave of presidential elections, and the retention of old leadership may have positive
implications for institutional development on the Nile in terms of continuity. However, the EAC
integration process has also been affected by the number of national elections interrupting the
In the Eastern Nile region national politics are dominant by authoritarian regimes. In Ethiopia the
Parliamentary Elections this year were a show of absolute power of Ethiopian People‟s
Democratic Revolutionary Front (EPDRF), the ruling party of Prime-Minister Meles Zenawi.
Demands by opposition parties for new elections were rejected by the highest courts in Ethiopia.
Egypt continues to be under a state of Emergency Law. Parliamentary elections are planned for
November/December 2010 with Presidential Elections planned for September 2011. The Muslim
Brotherhood, the major opposition party, hopes to increase its representation in the Parliament
and has agreed not to participate in the Presidential elections. At the international level, the
International Criminal Court (ICC) issued a second warrant of arrest against the President of
Sudan, Omar Hassan Ahmad Al Bashir in July 2010. In April 2010, Sudan had its first presidential
poll in 24 years. The President continues to assure that the Referendum in Southern Sudan would
take place in January 2011, and that a peace agreement for Darfur would be reached soon.
2. The integration agenda in the Nile- region is driven in the Nile Equatorial Lakes Region by
the strengthening of the EAC and at the African wide level by the COMESA-EAC-SADC
Tripartite Task Force. Regional integration provides an avenue for sharing tangible benefits from
transboundary waters cooperation such as agriculture products and electricity from hydropower
generation and intangible benefits such as water quality improvement and flood and drought
management. The regional integration agenda is strong in the Nile Equatorial Lakes region and
provides a forum for cooperation in many aspects including peace and security, trade, transport,
natural resources management, and immigration. At the African level the African Union (AU) is
moving Africa‟s regional integration process. While the AU had displayed an instrumental
commitment to regional integration, the practicalities of this commitment are less clear, particularly
as it relates to institutional overlap. Currently, there are eight Regional Economic Communities
(RECs) recognised by the AU, each established under separate treaties. Along with the AU and
The New Partnership for Africa‟s Development (NEPAD), the African Ministerial Council on Water
(AMCOW) is striving to provide supra-regional coordination on water resources management. In
2008, the Heads of State and Governments of the Common Market for Eastern and Southern
Africa (COMESA), EAC and the Southern African Development Community (SADC) met in
Kampala and called for the establishment of a single Free Trade Area covering the 26 countries of
the three main RECs. While the approval process has met with delays strong progress can be
noted and the Tripartite Free Trade Area (FTA) is set to be launched in January 2012 establishing
a single economic market with a combined population of 527 million and a GDP of $ 625 billion.
3. The progress towards an all encompassing Nile compact on transboundary waters will take
time as history demonstrates. A considerable number of legal instruments that were inter alia
supporting third country interests in the water and in agricultural production of the Nile riparians
were concluded during the colonial period. There exists disagreement among Nile riparian States
with respect to the validity of some of those treaties, as well as with respect to the question
whether the 1959 Egyptian-Sudanese Agreement on the Full Utilization of the Water of the Nile
also binds other riparian States. Bilateral and sub-basin agreements concluded since the 1970s
indicate an increasing trend towards cooperation based on mutually beneficial use of the shared
water resources. The CFA was negotiated in this spirit. For the time being, disagreements 10
concerning the existing legal framework stand in the way of CFA adoption by all Nile riparian
States. It seems of vital importance therefore that the relationships between the Nile riparians,
which have been institutionalized through the NBI so far, are maintained in the future by all means
Focus on Southern Sudan and the upcoming referendum on southern Sudanese selfdetermination
4. Southern Sudan’s economy is entirely dependent on oil. About 98 % of the revenue in the
South is generated in the oil sector. Oil is also a key driver of the entire Sudanese economy which
complicates the relationship between South and North Sudan as many oil fields are located in the
South. Currently the province of Abyei is the place where combined oil and referendum politics
converge. The Abyei province is set to determine through a vote if it is to belong to the North or
South in a separate election the day of the referendum in Southern Sudan.
5. Southern Sudan quickly needs to develop its power generation capacities. The region
currently depends to a large extent on diesel fueled electricity generation. Fuel is supplied by truck
from Khartoum. Southern Sudan has considerable hydropower potential. Feasibility studies show
that the area has the potential of becoming a net exporter of hydropower generated electricity if
the sector is developed. This would enable electricity supplies to Sudan as a whole in addition to
the wider region by interconnecting currently isolated networks. It would provide diversification to
Southern Sudan‟s economy lessening the dependence on oil.
6. Tribal conflicts in Southern Sudan directly or indirectly affect the majority of the people
and impact the stability of the whole country. Tribal conflicts are among key concerns that
might affect the upcoming elections. Tribal related violence has taken on different proportions and
has become more deadly since the signing of the CPA in 2005. This is mainly because a surge in
available small-arms in circulation as well as the withdrawal of troops from the Sudan‟s Peoples
Liberation Movement (SPLM) from rural areas coupled with weak implementation of the CPA in
the South. Tribal identity still outweighs national identity constituting difficulties to promote
common national agendas.
7. The Southern Sudan referendum appears to be on schedule. The Government of Sudan
(GoS) and the SPLM and the SPLA signed the CPA on 9 January 2005. The two parties
confirmed their commitment to six instruments previously agreed upon which were integrated into
the CPA. The 2002 Machakos Protocol provides the general principles of governance between the
national government and Southern Sudan and it states the right to self-determination through
referendum for the people of Southern Sudan. At the end of the six year interim period an
internationally monitored referendum will determine the future status of the people of Southern
Sudan. The referendum appears to be on schedule for 9 January 2011. Delays cannot be
excluded. The political and media campaigns have started, the civic education activities are taking
place in several parts of Southern Sudan, and the registration process of voters was initiated on
15 November. A calendar with set milestones from November to January has been defined by the
Government of Southern Sudan (GoSS).11
8. The issue of the status of the special border areas and borders can be a source of
instability in the post referendum period. The Protocol on the resolution of the Abyei conflict
stipulates that simultaneously with the referendum for Southern Sudan, the residents of the Abyei
area will decide if the Abyei area retains a special status within the North or be part of Southern
Sudan. The confirmation of the 1956 borders between North and South are subject to the results
of the referendum on the Abyei area. The Protocol on the resolution of the Southern Kordofan and
Blue Nile States conflict establishes that a popular consultation will take place in Southern
Kordofan and Blue Nile States. The CPA will be submitted to the people of the two States through
their respective elected legislatures. If the CPA is endorsed through the legislature, then the CPA
becomes the final settlement of the conflict in that State.
9. Status of CPA and water. In 2010, the National Congress Party (NCP) and the SPLM signed a
Memorandum of Understanding on Post-Referendum Issues and Arrangements. A joint
negotiation team composed of members from each side will conduct the negotiations on postreferendum issues facilitated by the African Union and supported by Intergovernmental Authority
on Development (IGAD) and the United Nations (UN). The negotiations address four keyissues:
citizenship; security; financial, economic and natural resources; international treaties and legal
issues. Water is included in the third area. Currently, the national government exercises an
exclusive competence on transboundary waters.
10. Lessons learned from secession. State building and adoption of constitutional laws take usually
from 3 to 4 years. However, each case of secession is special. If the outcome of the 2011
referendum is secession, the fact that Southern Sudan disposes of an interim national constitution
which remains in force until the adoption of a permanent constitution might smooth the process of
setting up the governance structure of an independent State.
11. Four post referendum scenarios and transboundary water implications
Scenario 1 – Unity
In case that the majority outcome of the referendum is Unity, then Sudan remains one country. In
this scenario, Southern Sudan is expected to get a more extended autonomy. Southern Sudan is
likely to strive for more extended responsibilities with respect to infrastructure, oil, energy and
water assets. The interim constitutions of the North and the South might possibly undergo some
change and be replaced with permanent constitutions. Under this scenario North and South
Sudan will likely negotiate an internal allocation of the water share attributed to Sudan under the
1959 agreement. Sources referenced in this report indicate the possibility that Unity is “forced”
upon the South which in that case is likely to be accompanied by civil strife with regional
Scenario 2 – Independence and succession to the 1959 Agreement
If Southern Sudan secedes from North Sudan, it will become the 11
riparian nation of the Nile
Basin located downstream of the Nile Equatorial Lakes region and with strong connections to the
Eastern Nile. The transition period until the State is recognized, functional and a constitution is
adopted might take one or two years at best. If Southern Sudan decides to succeed into rights and
obligations of the 1959 agreement, this would be a clear signal of alignment with the downstream
riparians. This alignment with the downstream riparians is likely to undermine South Sudan‟s
ambitions to join the EAC. The 1959 Agreement provides for the construction of water 12
conservation schemes in Southern Sudan. This is an implicit reference to the controversial Jonglei
canal project. The likelihood of this scenario is therefore considered to be low.
Scenario 3 – Independence without succession to the 1959 Agreement
With respect to succession to international treaties, Southern Sudan has the possibility to adopt a
position similar to the Nyerere Doctrine i.e. reviewing earlier treaties regarding their binding force.
With respect to treaties dating from before 1956, it could claim that it was under colonial rule and
that even after 1956 it continued its struggle for political autonomy and independence. In not
accepting the binding force of the 1959 agreement, a possible sovereign Southern Sudan would
signal alignment with the upstream neighbours. It might further decide to sign and ratify the CFA, a
step that will most likely antagonise Northern Sudan and Egypt in particular if Southern Sudan
becomes the sixth country to ratify. Article 40 in the CFA states that it is “open to signature by all
States in whose territory part of the Nile River Basin is situated”. Should Southern Sudan become
independent there are major benefits for it to join the EAC in the form of increased African trade,
transport and electricity network connections and hard security. Southern Sudan currently has
observer status in both COMESA and the EAC. Voices from the South about joining the EAC
speak in favour of this scenario.
Scenario 4 – Independence and wait-and-see
As the Nile issues are not amongst the most pressing priorities in the post-referendum
negotiations between North and South, the Government of Southern Sudan will not be obliged to
take a public position immediately. This also gives times to the South to see the benefits,
limitations and risks of all the options available. Keeping silent and not compromising to any
positions gives leeway to Southern Sudan, as a new midstream riparian, to opt for aligning
downstream or upstream at a later stage, if at all. In the meantime, Southern Sudan will be able to
observe how the CFA and the NBI processes evolve independently of its own actions. Scenario 4
is the most likely scenario in the short-term.
12. IGAD and AU will play major roles in all the post referendum scenarios. Policy coherence
and coordination between IGAD and the African Union (AU) is critically important in facilitating a
smooth transition during the post-referendum period. IGAD‟s members will likely be the first to
make recommendations regarding Southern Sudan‟s post-referendum status, but the AU‟s
participation in, and ultimate backing of, these recommendations is crucial if an independent South
is to secure maximum legitimacy. The gravitas of the AU and the importance of its recognition
cannot be ignored. The AU High-Level Implementation Panel (AUHIP) can play a leading role in
lining up the Union‟s 53 member states in support of realities on the ground.
1.2 Recommendations linked to the four scenarios
Transboundary waters may not be the most immediate issue to consider in a post-referendum phase
considering the focus on security, citizenship and the management of oil revenue. However, a
possible eleventh riparian state sharing the water resources on the Nile, strategically located in the
middle of the basin and with major hydropower development opportunities and large areas of land that
can be utilized for irrigation, demonstrate the potential of working through the NBI to unlock the
development potential in the region. Southern Sudan is close to the growing market of the EAC from
which major investment is flowing to the region. It is our view that scenarios one (Unity) and two
(independence with succession to the 1959 agreement) are less likely than scenario three and four.
With the EAC states together with Ethiopia (except Burundi) having signed the CFA, scenario three
illustrates the possibility that Southern Sudan could sign the CFA as soon as a sovereign state has 13
been established. Support from regional organizations will be crucial to ensure that a transition to a
sovereign state can be made in a harmonious manner.
The following recommendations can be considered in relation to scenario three and four:
13. Within the framework of the NBI in the short term
a. Ensure close coordination between UN institutions operating in the Nile Basin region and the
African Union on the management and development of transboundary waters. This can
include joint planning, training and investment support work. A stronger role of the AU in
supporting the NBI process could be explored in partnership with AMCOW and NEPAD.
b. Strengthen the negotiation capacity on transboundary water management and development of a
new independent Southern Sudan government during the post-referendum negotiations to
promote effective energy development (oil and hydropower) and sustainable use of the
transboundary water assets.
c. Undertake stakeholder analysis at a local level to understand tribal issues and how it relates to
transboundary and local water management and development. The interrupted Jonglei canal
project clearly illustrates the need to fully understand local needs and expectations.
d. Further the understanding of the development of the RECs, the roles of IGAD and AU in the NBI
with the objective of strengthening regional institutional development through EAC, IGAD, AU
and their roles in supporting the NBI.
e. Work with the NBI Secretariat, NELSAP, ENSAP, Technical Advisory Committee (TAC) and the
Council of Ministers to define a support strategy in support of an independent Southern Sudan
joining the NBI process of cooperation.
14. Within the framework of the NBI in the mid term
a. The infrastructure gaps in Southern Sudan are large. Options to explore benefits from the river
and beyond should be actively explored in partnership with GoSS, the NBI institutions, EAC,
Ethiopia, Northern Sudan and AU. This includes integrated studies in which water, energy,
transport infrastructure, environment and climate change development scenarios are
undertaken. Such studies can be build on the Strategic/Sectoral Social and Environmental
Assessment (SSEA) methodology undertaken in the Nile Equatorial Lakes Region.
b. Specific pre-feasibility and feasibility study support to the NBI and GoSS in assessing the
hydropower development potential, power trading to the South, East and North, development
of irrigated agriculture and environmental management.
c. Engage in long term dialogue with the COMESA-EAC-SADC single Free Trade Area partners to
explore the role of NBI and Southern Sudan it its development.
2 Overview of the Nile Basin Political Landscape
2.1 National level
Burundi. In June 2010 President Pierre Nkurunziza was re-elected for a five year term. Opposition
parties withdraw from the election in protest over what they considered to be an unfair electoral
process. This resulted in an overwhelming majority vote for the CNDD – FDD, obtaining a two-thirds
majority within parliament, in principle changing Burundi‟s political system from multiparty into single 14
Burundi‟s pre-election period experienced civil unrest.
Burundi together with
Rwanda became EAC members in 2007.
Burundi‟s interest in the Nile is vested in the Kagera River on which it is highly dependent for
, particularly hydropower generation. Burundi‟s consumptive water demand is relatively
low and the country claims riparian rights to the Kagera River. Burundi has strategic interests in the
Lake Victoria Basin and could benefit from regional co-operation.
Burundi has in its international
relations been constrained by political instability and internal violence contributing limited institutional
capacity. Burundi has sought support from the NBI to level the playing field in the basin-wide
Democratic Republic of Congo (DRC). The DRC plans for presidential elections on 27 November
. The DRC has only recently expressed interest in the Nile.
It is less dependent on the White
Nile for its development, and as such its consumptive demands in the basin are relatively low.
During the time of President Mobuto Sese Seko, the DRC entertained an Egyptian proposal to build a
transmission line from the Great Inga hydropower station to the Nile basin, which would eventually
lead all the way to Europe.
Currently, the two hydroelectric dams, Inga I and Inga II, operate at low
The DRC contributes significantly to Lake Victoria and Lake Albert flows and has therefore expressed
interest in ascertaining its riparian rights, promoting tourism as well as fishing and shipping rights.
DRC has expressed a newfound interest in co-operating in mutually beneficial basin management
programmes such as on Lake Albert and Edward. The former Executive Director of the NBI was
Congolese. DRC is backing the formation of a future basin-wide agreement.
Ethiopia. Parliamentary elections were held in Ethiopia in June 2010. Contrary to the Parliamentary
elections in 2005
, the Parliamentary Elections this year were a show of absolute power of EPDRF.
The ruling party of Prime-Minister Meles Zenawi won 499 (91%) of the 547 sets, EPRDF-allied parties
won 35 seats, and the opposition or independent candidates won only two seats
. The elections were
highly contested by the opposition, that have demanded new elections, saying the outcomes of the
elections are the end result of campaigns of intimidation, fraud, harassment and violence by the ruling
. Demands by opposition parties for new elections were rejected by the highest courts in
Ethiopia, and results had been officially confirmed in June 2010
The 2010 elections come to confirm the status quo in the Ethiopian political system, dominated by the
ruling party EPDRF and its allies. Optimists see this as positive signal in economic terms, taking into
account that the government of Meles Zenawi had been responsible for the country‟s recent good
economic performance and open up for external investment
. According to the International Monetary
Fund (IMF), Ethiopia’s economy grew 9.9% in 2009 and was expected to grow 7% in 2010
However, without opposition in the Parliament there are fears that the country will be governed in a
more autocratic manner than in the past. At the same time the government is changing from within. A
new Ministry was created merging Water resources and Energy in the same cabinet
, providing an
indication of the priority given to hydropower development in Ethiopia.
The long-lasting border problem between Ethiopia and Eritrea is expected to continue in the regional
agenda during 2010 and 2011. During 1998-2000 the two countries have disputed a border conflict
with political contours.
The highlands of Ethiopia, the source of the Blue Nile and several other main tributaries, contribute
roughly 85 % of its water resources”
. The current hydro-power capacity of Ethiopia is 850 MW.
Ethiopia‟s hydro-power potential is estimated to be 45,000 MW. The last three years electricity
coverage in Ethiopia has increased from 17 to 33 percent”
Egypt. Egypt is under a state of Emergency Law since the assassination of President Anwar Sadat in
. This Law was placed by President Hosni Mubarak when he replaced Sadat as Head of State.
The key concept of this Law is that counter-terrorism operations can be conducted without restrictions
by ordinary legislation. Detention is not limited in accordance with specific legal criteria that regulate its 15
According to observers the Emergency Law has been used by the regime to crack down
any party or movement opposing the current political system
November/December 2010: Parliamentary Elections. The first round of these elections will be held on
November, 28; and the second round in December, 5. Parties will be disputing a total number of 454
seats in the Parliament. During the last elections, in 2005, the National Democratic Party (NPD,
Mubarak‟s party) got the majority of the seats, although the outlawed Muslim Brotherhood was able to
get a good representation in the Parliament, by participating in the elections with independent
. This was made possible through an agreement between the Brotherhood and the ruling
regime in 2005, where the ruling party allow the Brotherhood to participate as independents in the
Parliamentary elections, and in exchange not run for the Presidential elections
. In the upcoming
elections, the same parties will be candidates. However, several of the opposition voices and parties
are calling for a boycott of these elections, accusing the government of manipulating the election
campaign, by arresting and attempting to silence opposition groups
. However the Muslim
Brotherhood, the major opposition party, stated they will run for the next election and hope to increase
its representation in the Parliament from 20% (2005) to 30%.
September 2011: Presidential Elections. The first presidential elections in Egypt were held in 2005 and
President Hosni Mubarak, in power since 1981, was elected with 88.6% of the votes
. Doubts remain
if President Mubarak will be a candidate in the next elections, in particular due to his age (88 years
old) and his failing health conditions
. In the last two to three years, Egyptian and international media
have been publishing rumours about a „family succession‟ or “inheritance power scheme” in Egypt, in
which Gamal Mubarak, son of the President would assume power
. More recently, several names are
being suggested as potential candidates to the Presidential elections although none of them officially
Egypt is the riparian that is the most dependent on the Nile waters for its socio-economic
Despite using 95 per cent of its allocated water for irrigation, it still imports over 50 per
cent of its food grains. Increasing Egyptian demand for food places further pressure on the water
Historically, Egypt has been able to impose solutions to water resources and development
preferred by itself.
The new Executive Director for the NBI is Wael Khairy, an Egyptian.
Kenya. Kenya is planning for presidential elections in December 2012. In August 2010, Kenya
adopted a new constitution. The new constitution is central to political reforms aimed at averting a
repeat of the 2008 post-election violence that also hurt regional trade and blocked petrol, diesel and
heavy oil transport flows to the coastal cities of Mombasa, Kenya and Dar es Salaam in Tanzania. The
international community has deplored the Government of Kenya‟s invitation to Sudanese President
Omar al-Bashir to attend the constitution‟s adoption ceremony, given the International Criminal Court
arrest warrants against President al Bashir
The constitution declares that, “Every person has the right to a clean and healthy environment, which
includes the right to have the environment protected for the benefit of present and future generations
through legislative and other measures and the right to clean water (Art.43 (d)).”
Kenya has major
interests in Lake Victoria, evident in its membership status in all regional co-operative arrangements
regarding the lake. In terms of basin-wide relations Kenya has always seen itself as a “broker” in the
Nile basin and has never exhibited much interest in any binding agreements on water use.
Rwanda. Paul Kagame of the Rwandan Patriotic Front (RPF) won Rwanda’s presidential elections
that took place on 9 August 2010, and was re-elected for a second term on 11 August, 2010.
Internally, opposition and human rights groups said the election lacked credible competition, while
externally, the United Nations and the European Union expressed concerns about the deteriorating
human rights situation in Rwanda ahead of the election.
Rwanda, centrally located between
francophone and Anglophone Africa will gain from regional co-operation and has worked hard to
become a member of the EAC (2007
) and contribute to the integration efforts
Rwanda has similar interests to Burundi. It too, is blessed with high and regular rainfall and it is also
mainly interested in strengthening its hydropower capabilities.
The Kagera River inflow is hugely 16
important to the water balance of Lake Victoria, in which Rwanda is a key riparian player. It is also in
support of a new basin-wide agreement.
Sudan. At the national level, in April 2010, Sudan had its first presidential poll in 24 years
Presidential elections were set up under the 2005 CPA that ended more than two decades of NorthSouth civil war and saw the formation of a power-sharing agreement between the SPLM and the
National Congress Party. President Omar al-Bashir won the elections with 68% of the vote
main opposition parties withdrew their candidates, accusing al-Bashir of widespread vote rigging
the South, Salva Kiir, the leader of the SPLM, won the election in the presidential poll in Sudan’s semiautonomous southern region, with 92.9% of the votes
. The elections in the South were a first test for
the referendum process, whereby Southern Sudan will opt for unity or secession from North Sudan.
The pre-election campaign period had been a political test for Sudan with several delays
the legitimacy of the final results was questioned by some, the fact is that Sudan had it first multi-party
elections since 1986.
President Bashir continues to assure that the Referendum in Southern Sudan
would take place in January 2011, and that a peace agreement for Darfur would be reached soon
According to GoSS officials, Southern Sudan has a comparative advantage in its natural resources,
particularly oil assets, land and water for agriculture. GoSS officials have likened independence of
Southern Sudan to “agricultural independence” And claim that it can become the breadbasket of the
continent and the Middle East.
Sudan is relatively less dependent on the waters of the Nile than Egypt as it has extensive rainfed
areas within its borders.
However it has a large potential for irrigated agriculture drawing water from
. About 60% of the waters of the Nile flow through Sudan with the White Nile (western
branch) and Blue Nile (eastern branch) converging in Khartoum in Northern Sudan. The White Nile
passes through Southern Sudan. The North and the South both claim to have agreed on continued
cooperation on water sharing governed by the agreed quotas in the NBI.
Regarding the role of Egypt, downstream to Sudan, GoSS officials have assured their Egyptian
counterparts that if the South becomes independent, they would first review existing water usage with
the North and operate within Sudan‟s current allocation of 25 per cent of the flow, thus not affecting
the Egypt‟s allocated flow.
GoSS officials have stated their commitment to preventing excessive loss
of water but want Egypt to recognize the development needs of Southern Sudan.
officials have expressed concern that an independent Southern Sudan could join the East African
states and then object to the standing water sharing agreements.
Tanzania. Tanzania held parliamentary and presidential elections on 31 October 2010. President
Jakaya Kikwete was sworn in for another five-year term on 6 November 2010. Tanzania‟s GDP growth
rate is increasing incrementally (estimated at 6.4% in 2010 and 7.1% in 2011 by the Economist
Intelligence Unit) and has a low and stable inflation rate.
Tanzania is a member of the EAC, along
with Kenya and Uganda and is also a SADC member state.
Tanzania is endowed with more transboundary waters than any country in Africa,
international rivers and lakes with other nations.
The institutional framework for water governance in
Tanzania is provided by the National Water Policy (NAWAPO) of July 2002, although Tanzania is
undergoing a review of its policies particularly as it relates to current and future transboundary
challenges including. the falling lake levels of Lake Victoria. In terms of the Nile waters, Tanzania has
stated its needs as: wanting to exercise its riparian rights on Lake Victoria, having great interest in
developing and conserving the resources of the Lake Victoria sub-basin, and having an interest in
developing tourism and agriculture.
It poses a relatively smaller threat to the quantity and the quality
of the Nile River, and would benefit from basin-wide co-operation.
Uganda. Uganda will follow the election trend in the Nile Equatorial Lakes Sub-basin (NELSB) region
with the upcoming presidential elections planned for January 2011. Familiar faces are expected to
stay in power for another term in office. 17
Uganda is a key riparian on the Nile as regards its water contribution.
The abundant rainfall in
Uganda and the characteristics of the hydrology of the Sudd, makes consumptive demands not a
serious threat to downstream users.
According to Uganda‟s National Water Policy of 1999, “it is in Uganda‟s interest to ensure that the
good water quality in the water bodies within the national boundaries is maintained for sustainable
Based on Uganda‟s overall policy objectives of good neighbourliness and promotion of regional
co-operation for optimal use, Uganda‟s policy principles therefore adhere to the various accepted
principles of international law, regional and basin-wide bodies of co-operation such as EAC and its
Lake Victoria Basin Commission, IGAD, Lake Victoria Fisheries Organization (LVFO), etc.
has a strong interest in ensuring its entitlement in future Nile water agreements, and also expects to
benefit from basin-wide co-operation programmes in particularly in hydropower and agriculture
The ongoing 250 MW Bujagali Hydropower scheme (Independent Power Project) on
the main stem of the Nile was developed subsequent to receiving no objection from the NBI
2.2 Regionalisation processes
The AU is the culmination of Africa‟s regional integration mission, which saw the rapid increase in the
number of integration-based institutions in the 1980s through the Lagos Plan of Action and the Final
Act of Lagos. This integration agenda was formalised in the 1990s upon the adoption of the Abuja
Treaty establishing the Regional Economic Communities, and again in the year 2000, which saw the
development of the Constitutive Act establishing the AU. AUs predecessor the Organization of African
Unity (OAU), has been referred to as the “custodian of the norms of international society that
restrictively defined self-determination” and “whose rigid and inflexible adherence to the principles of
international society undermined the maintenance and promotion of peace and security.”
to the OAU‟s stance of non-interference regarding intra-state conflicts. In contrast, the AU and its
Constitutive Act have created a fundamental shift to better address human rights and poor governance
. In terms of water governance, the AU has influenced regional policy frameworks through its
Commissioner for Agriculture and Water, as well as the complete development agenda of the Water
Programme of NEPAD. Along with the AU and NEPAD, the African Ministerial Council on Water
(AMCOW), formed in 2002, also aims to provide supra-regional coordination of water resource
management although it still needs to develop into this role institutionally.
While the AU has displayed an instrumental commitment to regional integration, the practicalities of
this commitment are less clear, particularly as it relates to institutional overlap. Currently, there are
eight RECs recognised by the AU, each established under a separate regional treaty:
the Arab Maghreb Union (UMA)
the Common Market for Eastern and Southern Africa (COMESA)
the Community of Sahel-Saharan States (CEN-SAD)
the East African Community (EAC)
the Economic Community of Central African States (ECCAS)
the Economic Community of West African States (ECOWAS)
the Intergovernmental Authority on Development (IGAD)
the Southern Africa Development Community (SADC)18
All NELSB states are party to more than one of the above-mentioned RECs, which has resulted in a
highly complex institutional landscape of overlapping memberships.
This formed the theme of the
2006 Banjul summit, and at the July 2007 Accra summit the Assembly finally decided to adopt a
Protocol on Relations between the African Union and the Regional Economic Communities.
protocol is intended to facilitate the harmonisation of policies and ensure compliance with the Abuja
Treaty and Lagos Plan of Action t.
Trade policy experts have warned of technical inefficiencies and the high costs of overlapping
Traders have to operate within a number of trade regimes each with its own tariff rates,
rules of origin and procedures. Recent non-tariff barrier disputes between Zambia and Kenya over the
latter‟s exports of cooking oil to Zambia, are noteworthy.
Specifically, Zambia has pleaded to the
COMESA Council of Ministers to send an independent verification committee of experts to Nairobi to
address its concerns over Kenya‟s exports of palm-oil based cooking fat to Zambia. Zambia has long
argued that imports entering its borders of palm-oil based cooking fats from Kenya should be
subjected to extra verification and scrutiny to determine whether or not they comply with COMESA‟s
rules of origin.
These concerns worsen as the risk of trade deflection increases when goods that
have been preferentially imported from country A (a member of REC X) by country B (a member of
both REC X and REC Y) are subsequently preferentially re-exported to country C, which is only a
member of REC Y. The official barriers to trade become very porous in such situations.
The EAC, already a Common Market, has four Member States in COMESA (Burundi, Kenya, Rwanda
and Uganda) and one Member State in SADC (Tanzania). Moreover, five SADC Member States are
also members of the Southern African Customs Union (SACU) (Botswana, Lesotho, Namibia, South
Africa, and Swaziland). There are, therefore, ten countries in the region that are already members of
existing customs unions. However, these ten Member States (as well as the other non-Members to
existing customs unions) have also been involved in negotiations to establish alternative customs
unions to the ones they currently belong to.
COMESA and SADC share seven Member States that
are not part of any customs union but are involved in customs unions preparatory negotiations.
Therefore, of the twenty-six countries that constitute the combined membership of COMESA, EAC and
SADC, seventeen (or almost two-thirds of the total membership) are either in an existing customs
union, or participating in negotiating an alternative customs union to the one they belong to, or are in
the process of negotiating two separate customs unions which would be contrary to WTO rules.
order to resolve these challenges, the three Regional Economic Communities (SADC, EAC, and
COMESA) formed a Tripartite Taskforce with a view to harmonise their trade related programmes, and
to eliminate duplication of efforts. Greater integration within regions as well as between regions has
therefore not only been desirable, but a necessity to grapple with institutional complexity.19
Algeria Iraq Jordan Syria Yemen
Lebanon Saudi Arabia Bahrain UAE
Kuwait Mauritania Morocco Oman
Palestine Qatar Tunisia
Lake Victoria Basin
Nile Basin Initiative
Lake Victoria Fisheries
Commission for the
2.2.1 The Tripartite Task Force – EAC, COMESA and SADC
On the 22 October 2008, the Heads of State and Government of COMESA, EAC and SADC met in
Kampala and called for the establishment of a single Free Trade Area covering the 26 countries of the
three RECs. Currently, draft FTA proposal documents are under review, and it is expected that at the
next Tripartite Summit, the Heads of State and Government will pronounce themselves on the way
forward on the establishment of the single FTA.
The objective of the FTA proposal is to establish the
FTA on a tariff-free, quota-free, exemption-free basis by combining the existing FTAs of COMESA,
EAC and SADC. The Tripartite FTA will focus on building robust infrastructure programs designed to
catalyse the regional market through interconnectivity (facilitated for instance by all modes of
transport, telecommunications and energy interconnections) and to promote competitiveness (for
instance through adequate supplies of energy).
Once the FTA Agreement is signed, Member States
will have until December 2011 (or within 6 months of signing), to get their domestic processes ready
for the ratification of the Agreement, including the establishment of support institutions and through the
adoption of customs procedures and instruments.
While the approval process has met with delays
due to the inability to set an agreeable date for the Tripartite Summit to meet, it is proposed that once
this approval process is confirmed, the Tripartite FTA should be launched in January 2012.
The Tripartite FTA opens up a larger market to its Member States. A single economic space of this
nature will therefore be more attractive to investment and large scale production. The EAC, COMESA
and SADC currently have a combined population of 527 million and combined GDP of $ 625 billion.
Estimates show a growth in exports among the 26 Tripartite countries from USD 7 billion in 2000 to 20
USD 27 billion in 2008, and a growth in imports from USD 9 billion in 2000 to USD 32 billion in 2008.
This trade increase was in large part, a result of the free trade area initiatives of the three
organisations. The Tripartite FTA could therefore address the current challenges of multiple
memberships by advancing harmonisation, integration and coordination initiatives. If successful, the
Tripartite will greatly contribute to Africa‟s economic integration. However, it remains to be seen how
exactly these three REC‟s, each with its own unique historical trajectory, each Member State with its
own political membership agenda, will merge.
2.3 A history of Nile agreements
A brief outline of colonial history of the 10 Nile Basin States is provided in appendix 6.2 to provide a
backdrop to questions concerning termination, continuation and contestation of treaties that form part
of the legal framework of the Nile Basin. Most of the Nile Basin was for a long period of time under
British colonial influence. In the early 1900s, the United Kingdom had become reliant on agricultural
exports from Egypt and the region.
A number of legal instruments that were inter alia supporting
colonial interests in water and in agricultural production have been concluded during this period.
Today, there exists disagreement among a number of Nile riparian States with respect to the binding
force of some of the treaties listed in appendix 6.2.1, most notably with respect to the 1929 and 1959
Claim to completeness of analysis of the legal framework cannot be made; there exist intergovernmental agreements and governmental documents that have never been published
or are not
easily available for other reasons, and yet might be of legal relevance. The analysis is based on a
textual analysis of available legal instruments.
2.3.1 Agreement on the Nile River Basin Cooperative Framework (CFA)
The Agreement on the Nile River Basin CFA is an instrument negotiated by the Nile riparian countries.
The agreement outlines general principles of cooperative water resources management with respect
to protection, utilization, conservation and development of the Nile River System. The principles
according to which the System is to be used are the following; cooperation, sustainable development,
subsidiarity, equitable and reasonable utilization, prevention of the causing of significant harm, the
right of Nile Basin States to use water within their territories, protection and conservation, information
concerning planned measures, community of interest, exchange of data and information,
environmental impact assessment and audits, peaceful resolution of disputes, water as a finite and
vulnerable resource, water has social and economic value, and water security (Article 3). The
agreement envisages the establishment of a permanent joint mechanism, the Nile River Basin
Commission (Article 15), which “shall succeed to all rights, obligations and assets of the Nile Basin
Initiative at entry into force of the CFA (Article 30). Article 14 of the CFA which deals with water
security is incomplete. Paragraph (b) of the article provides that it will be the task of the Nile River
Basin Commission to resolve the text of the provision within six months after its establishment. Annex
on Article 14 (b) to the CFA provides two text options which have been proposed for the paragraph in
question. The CFA is open to signature, ratification or accession “by all States in whose territory part
of the Nile River Basin is situated” (Articles 40 and 41). Thus based on a textual interpretation of the
agreement, the treaty would be open for accession by an independent South Sudan under the
scenario that it eventually becomes an independent State de lege.
The agreement was opened for signature on 14 May 2010 for a period of one year until 13 May
. The text has not been adopted by all negotiating parties. Opening of a treaty for signature
which has not been adopted by all negotiating parties is a situation that occurs on occasion for
example with respect to multilateral conventions.
So far five States – Ethiopia, Kenya, Uganda,
Tanzania and Rwanda – have signed the agreement.
After six States have ratified the agreement,
the latter enters into force on the sixtieth day following the date of deposit of the sixth instrument of 21
or accession with the African Union (Article 42). The African Union is the designated
depository of the treaty. With entry into force of the agreement, the Nile River Basin Commission will
be legally established and succeeds to all rights, obligations and assets of the Nile Basin Initiative
(Articles 15 and 30).
14 May 2010 – 13 May 2011
Open for signature
day after deposit of 6
Entry into force
Upon entry into force Establishment of the Nile River Basin Commission de lege
Binding force of international treaties on third States
With respect to the binding force of treaties on third States the 1969 Vienna Convention on the Law of
Treaties codified the following rules; “A treaty does not create either obligations or rights for a third
State without its consent” (Article 34). “An obligation arises for a third State from a provision of a treaty
if the parties to the treaty intend the provision to be the means of establishing the obligation and the
third State expressly accepts that obligation in writing” (Article 35). While treaties do not apply
retroactively, the 1969 Vienna Convention is widely recognized as codifying customary law and its
provisions have been applied by international courts and tribunals to treaties predating the entry into
force of the Convention. Of the Nile Basin States, DR Congo, Egypt and Rwanda are contracting
parties, Ethiopia and Kenya have signed but not ratified the 1969 Convention.
3 Political and Legal Analysis of the Upcoming Southern Sudan
3.1 Administrative structure in the North and South
Sudan is divided into twenty-five states; fifteen of them are located in northern Sudan and ten in
Southern Sudan. The Sudanese National Assembly adopted the Interim National Constitution (INC) on
6 July 2005.
The INC recognizes the commitment of Sudan to comply with the Cooperative Peace
Agreement (CPA) and to give constitutional support to the Protocol on the resolution of the conflict in
the Abyei and the Protocol on the resolution of the conflict in Southern Kordofan and Blue Nile
A Bill of Rights is included in the INC protecting, inter alia, the right to life and human dignity;
the right to personal liberty; the prohibition of slavery, forced labour and torture; the equality before the
law and the fair trial.
The source of legislation for the Northern States of Sudan is the Sharia.
Southern Sudan is a decentralised State consisting of ten states.
The President of the GoSS, Salva
Kiir Mayardiit, signed the Interim Constitution of Southern Sudan (ICSS) on 5 December 2005.
2005 December Constitution is the supreme law of Southern Sudan.
The Southern Sudan
Constitution provides two scenarios in relation to the outcome of the 2011 referendum. Its Article 208
“(6) Should the outcome of the referendum on self-determination confirm unity, the current system of
governance established under this Constitution shall remain in force and all the institutions established
under it shall continue to function in accordance with the provisions thereof until a permanent
Constitution is promulgated.
(7) If the outcome of the referendum on self-determination favours secession, this Constitution shall
remain in force as the Constitution of a sovereign and independent Southern Sudan, and the parts, 22
chapters, articles, sub-articles and schedules of this Constitution that provide for national institutions,
representation, rights and obligations shall be deemed to have been duly repealed”.
A Bill of Rights has been included in the Interim Constitution.
All international human rights treaties,
covenants and instruments ratified by the Republic of the Sudan are an integral part of the Bill.
first session of the Transitional Southern Sudan Legislative Assembly has taken place in September
3.1.1 Special areas
Abyei area. The Abyei area is located between the North and South of Sudan and is defined by the
CPA as “a bridge between the North and the South, linking the people of Sudan”.
It contains parts of
the Bahr river basin and of the Sudd, one of the world‟s largest wetlands.
The Protocol on the resolution of the Abyei conflict stipulates that simultaneously with the referendum
for Southern Sudan, the residents of the Abyei area will decide if the Abyei area retains a special
status within the North or be part of Southern Sudan.
The “residents of Abyei Area” are defined as
“the Members of Ngok Dinka community and other Sudanese residing in the area.” This Protocol
significantly singles out “the members of Ngok Dinka community,” and merely makes a general
reference to “other Sudanese,” without mentioning any other specific community.
The residents of
the Abyei Area will be called upon to cast their separate ballot irrespective of the outcome of the
referendum in Southern Sudan. The outcome of the latter will be relevant with respect to the
consequences of the choice made by the residents of the Abyei area. Indeed, they may find
themselves north or south of an international boundary if Southern Sudan secedes.
Southern Kordofan and Blue Nile States. The Protocol on the resolution of the Southern Kordofan
and Blue Nile States conflict establishes that a popular consultation will take place in Southern
Kordofan and Blue Nile States. The CPA will be submitted to the people of the two States through
their respective elected legislatures. If the CPA is endorsed through the legislature, then the CPA
becomes the final settlement of the conflict in that State.
Should any of the two legislatures of the
two States, after reviewing the agreement, decide to rectify any shortcomings in the constitutional,
political or administrative arrangement of the CPA, such legislature should engage in negotiations with
the national government with the view to rectifying these shortcomings.
The process of consultation
is behind schedule. The delay is due not only to the difficulty of the task but also because the CPA
requires that the popular consultation be conducted by the elected State legislature. In Southern
Kordofan the elections are expected for February 2011; the Blue Nile State Assembly appointed a
commission that will conduct the consultations over the following months.
The issue of borders. The 1956 borders between North and South are inviolable subject to the
results of the referendum on the Abyei area.
The CPA provides for a Technical ad hoc Border
which was created by Presidential Decree on 29 September 2005.
the TBC did not start working on the mapping of the 1956 border between North and South until
The demarcation between north and south borders has still to be finalized.
fact that borders are still to be demarcated might be a source of instability for Southern Sudan.
The CPA establishes an Abyei Boundaries Commission (ABC) charged with the demarcation of the
Abyei area, which is defined “as the area of the nine Ngok Dinka chiefdoms transferred to Kardofan in
Once the Commission finished its works, the national government and the SPLM did not
agree on whether the ABC Commission exceeded its mandate in the demarcation of the area; they
decided to submit this dispute to an arbitral tribunal established under the rules of the Permanent
Court of Arbitration (PCA) on 7 July 2008.
The award does retain the conclusion of the ABC
Commission in respect to the northern and southern boundary lines of the Abyei area
and found that
the ABC exceeded its mandate in some other locations (eastern and western boundaries).
parties committed themselves to abide by and implement this decision.
One of the five judges of the 23
arbitral Tribunal noted that the demarcation of the Abyei area made by the Tribunal risks endanger the
access of nomadic people, such as the Misseriya, to the waters of the Bahr river.
3.2 Content of the Comprehensive Peace Agreement (CPA)
The arbitral tribunal, already mentioned indicated in its 2009 award on the delimitation of the Abyei
area that the CPA is not an international treaty but an agreement “between the government of a
sovereign state, on the one hand, and, on the other, a political party/movement” which “may – or may
not – govern over a sovereign state in the near future”.
The CPA is part of the constitutional laws of
and Southern Sudan
Agreements concluded between a State and the proponents of the
independence of a territory may become “international agreements” when a new State is created.
The GoS and the SPLM/A signed the CPA on 9 January 2005. The two parties confirmed their
commitment to the following instruments previously agreed upon, which were integrated into the CPA:
the Machakos Protocol of July 22, 2002; the Protocol on Security Arrangements of September 25,
2003; the Protocol on Wealth-Sharing of September 25, 2003; the Protocol on Power- Sharing of May
26, 2004; the Protocol on the Resolution of Conflict in Southern Kordofan and the Blue Nile States of
May 26, 2004; and the Protocol on the Resolution of the Conflict in the Abyei of May 26, 2004.
The 2002 Machakos Protocol provides the general principles of governance between the national
government and Southern Sudan and it states the right to self-determination through referendum for
the people of Southern Sudan.
At the end of the six year interim period an internationally monitored
referendum will determine the future status of the people of Southern Sudan. The referendum will
“confirm the unity of the Sudan by voting to adopt the system of government established under the
Peace Agreement; or … vote for secession”.
The Power-Sharing Protocol contains norms on the
distribution of powers between the national government and the government of Southern Sudan and
includes the obligation to comply with multilateral human rights treaties to which Sudan is or becomes
The 2004 Wealth-Sharing Agreement establishes the principles for an equitable sharing of common
wealth. The CPA creates a National Land Commission and a Southern Sudan Land Commission
charged with the resolution of land disputes.
A National Petroleum Commission is also put in
Oil revenues are shared between the National Government and the Government of Southern
Sudan. Moreover, 2% of oil revenues have to be allocated to the States producing oil.
The CPA also
provides that the SPLM appoints “a limited number of representatives to have access to all existing oil
and the sharing of non-oil revenues such as taxes.
3.2.1 CPA and water
The 2004 Power-Sharing Protocol establishes exclusive competence of the National Government on
“the Nile Water Commission, the management of the Nile Waters, transboundary waters and disputes
arising from the management of interstate waters between Northern states and any dispute between
Northern and Southern states.”
This is reiterated in the INC and in the ICSS.
The CPA lists the powers of the Government of Southern Sudan which include “[t]he co-ordination of
Southern Sudan services or the establishment of minimum Southern Sudan standards or the
establishment of Southern Sudan uniform norms” in a number of areas including provision of water
and waste management services.
The government of Southern Sudan has therefore the
responsibility in the provision of water services. The powers of Southern Sudan further include,
“[d]isputes arising from the management of inter-state waters strictly within Southern Sudan”.
reiterated in the Interim National Constitution of the Republic of Sudan and in the Interim Constitution
of Southern Sudan.
Regarding Southern Kordofan and Blue Nile States, the CPA establishes that 24
the national and state governments have concurrent legislative and executive powers in projects on
water and waste management.
3.2.2 Post-referendum negotiations
On 23 June 2010, the NCP and the SPLM signed a Memorandum of Understanding on PostReferendum Issues and Arrangements.
A joint negotiation team composed of six members from
each side will conduct the negotiations on post-referendum issues.
The negotiations will be
facilitated by the African Union High-Level Implementation Panel (AUHIP) and supported by IGAD, the
IGAD partners‟ forum and the UN.
The negotiations will be further supported by a joint technical
secretariat composed of six members that will coordinate and liaise with the Assessment and
Evaluation Commission (AEC). The AEC will provide administrative support to the joint technical
The parties agreed to cluster the post-referendum negotiations into four working groups:
citizenship; security; financial, economic and natural resources; international treaties and legal
Water is included in the third working group on financial, economic and natural resources.
All working groups will be composed of 3-5 negotiators from each side.
3.3 Other peace agreements
3.3.1 Eastern Sudan Peace Agreement
In addition to the CPA, the government of Sudan signed a peace agreement with the Eastern Sudan
Front Sudan in Asmara on June 19, 2006.
The Eastern Sudanese parties are continuing to accuse
the government of failing its obligations under the agreement; they are complaining that the
government should increase financial support to development in these areas.
conference for rehabilitation and development of East Sudan is scheduled in Kuwait in December.
One of the priorities will be to increase funds in order to improve water and sanitation infrastructure.
3.3.2 Darfur peace process
After months of negotiations and pressure from the international community, the government of Sudan
signed the Darfur peace agreement with a faction of the Sudan Liberation Movement/Army and the
Justice and Equality Movement in Abuja in May 2006. The agreement did not succeed to bring peace
in Darfur and a new negotiation process is taking place. A joint mediation of the AU and the UN Chief
Mediator for Darfur is attempting to ensure an inclusive peace process in Darfur. Two framework
agreements have been signed under the auspices of the AU/UN joint mediation: one agreement has
been signed between the government of Sudan and the Justice and Equality Movement and the other
one has been signed with the Liberation Justice Movement.
The joint mediation is currently
developing a comprehensive peace agreement and pursuing efforts to involve all parties to the
3.4 A legal analysis of secession
Recent experience with the emergence of new States has highlighted that each case of secession has
its specific features. For example, while a referendum on the independence took place in Eritrea and
East Timor, the emergence of Slovakia and the Czech Republic was the result of the dissolution of
Czechoslovakia decided by vote of the federal parliament. In the case of Kosovo, the Serbian
government was of the opinion that the declaration of independence did not produce legal effects
neither in Serbia nor in the international legal order
and it requested an advisory opinion on the 25
legality of the unilateral declaration to the International Court of Justice.
While the Court did not
address the question of statehood of Kosovo, it advised that Kosovo‟s declaration of independence did
not violate any international law.
The drafting process of constitutional laws in States that secede
can take a few years. In Eritrea the referendum on independence was held in May 1993 and the
Constitution was enacted four years later (May 1997).
In East Timor the same process took about
three years (referendum in 1999, constitution enacted in 2002). The dissolution of Czechoslovakia
was the result of three years of negotiations between the constituent republics.
organizations and other regional organizations play an important role in State building where new
States emerge. The UN is often tasked with the organisation and supervision of referenda on
independence (e.g. East Timor, Eritrea). The UN Security Council established the UN Interim
Administration Mission in Kosovo (UNMIK) and the UN Transitional Administration in East Timor
(UNTAET) which exercise(d) legislative and executive functions. In addition, the UN and the African
Union established a mission to monitor the 2000 peace agreement between Eritrea and Ethiopia.
The European Union established an international civil and security presence in Kosovo (known as
3.4.1 Separation of parts of the territory of a State
In the same way as each case of emergence of a new sovereign State is characterized by its own
distinctive features, legal responses and legal doctrine on secession are not uniform. A broad notion of
the term secession includes all forms of separation of States, where the predecessor State continues
to exist with a diminished territory and population.
International doctrine distinguishes between
various categories of separation that can be summarized as three types; secession in a strict sense,
separation with consent and dissolution.
Secession, in a strict sense, “is the creation of a new independent entity through the separation of part
of a territory and population of an existing State, without the consent of the latter”
The predecessor State continues to exist. International law neither encourages nor prohibits peaceful
In cases of separation not linked to former colonies, State practice almost exclusively
precludes secession without the consent of the predecessor State as a legitimate way to statehood.
Bangladesh was probably the only non post-colonial sub-state entity that has been successful in
emerging as a new State without such consent.
In cases of separation of part of a territory with consent, the predecessor State also continues to
(e.g. dismantlement of the Soviet Union with exception of Baltic States, Russia inherited the
treaties and rights of the Soviet Union).
Dissolution takes place when the territory and population of a State splits and two or more new States
are formed. The predecessor State ceases to exist. (e.g. Czechoslovakia as a negotiated dissolution).
Separation of part of a territory of a State happens in general either by unilateral declaration of the
appointed or self-appointed authorities of that territory (e.g. Bangladesh, Kosovo, Abkhazia),
referendum, or based on negotiation (e.g. Czechoslovakia and in the case of the Soviet Union). A key
factor for the emergence of a „newly independent State‟
as a sovereign State and as member of the
international society of States is its recognition by other States. This recognition has constitutive
character with respect to the legal personality of a new State, provided existence at the same time of
all other necessary elements of a State (territory, population, and government in control of the former).
Entities such as Somaliland have the de facto appearance of independent States, but by the fact that
they have not been recognized, they do not constitute States de jure.
Where separation happens based on a negotiated agreement between the predecessor State and
successor State(s), international recognition of the new entity as a State does not pose problems in
practice. A key factor, for example, in the emergence of independent States of the former Soviet
Republics was the mutual consent of the constituent Republics to dismantle the Union.
separation takes place based on unilateral declaration, State practice usually requires consent of the
predecessor State, or as in the special case of Yugoslavia, at a minimum, evidence of the expressed
will of the people to separate
3.4.2 Principles of international law to be considered in case of secession
State sovereignty. A state is considered to be sovereign in legal terms if it has a territory, a
population, and a government in control of the former, and has been accepted by a substantial
number of sovereign States as equal member of the international society of States.
States are equal in rights and de jure independent in the creation of internal (national) and external
(international) law. Sovereignty is the capacity to assert external independence from interference by
third parties in practice and law. Thus a corollary principle of State sovereignty is the principle of noninterference in domestic affairs of another State.
In legal terms, sovereignty describes the scope of
rights and duties of a state as a participant in the international society of states.
Territorial integrity. Territorial integrity is an element of State sovereignty. States must refrain from
the use of force threatening the territory of other States and they are prohibited from acquiring a
territory by force.
The principle of territorial integrity contributes to ensure stability and peace in
and is complemented by the obligation to respect the equality of rights
The principle of uti possidetis juris. The principle of uti possidetis juris originated in Central and
South America and was then applied in Africa. It involves the preservation of boundaries existing
under the colonial regimes.
In Africa, the boundaries of many States were drawn following this
principle with the hope of preventing boundary disputes at and after decolonization. In 1964, the
African Union adopted a resolution affirming the commitment of member States “to respect the
frontiers existing on their achievement of national independence”.
The principle of uti possidetis juris
is a general rule of international law.
It does not prohibit modifications of frontiers that are agreed
The right of people to self-determination. The right to self-determination is one of “the essential
principles of contemporary international law”.
While it is unanimously recognized that the principle of
self-determination has been applied to the creation of new States after colonization and foreign
the relevance of this principle in other contexts is controversial. The existing
international practice illustrates that the principle of self-determination is not recognized as giving rise
to unilateral rights of secession.
It is limited to rights of self-administration and to the right of people
to dispose of natural wealth and resources.
According to Article 1.2 common to the 1966
International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic,
Social and Cultural Rights: “All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence”.
3.4.3 Succession to international treaties and transboundary waters
The doctrine of state succession is characterized by legal uncertainty. A number of academic theories
have been proposed, the content of which remains subject to doctrinal debate (e.g. theory of universal
continuity of treaties versus the theory of tabula rasa). State „succession in law‟ consists of any
change of sovereignty over a certain territory, where the new sovereign succeeds in the legal rights
and obligations of the old sovereign.
State practice with respect to succession is not coherent and
often determined not by legal but political considerations on a case to case basis.27
An international instrument governing succession into legal rights and obligations, the Vienna
Convention on Succession of States in Respect of Treaties, has been adopted on 23 August 1978 and
entered into force in 1996.
Some Nile riparian States have signed (Sudan)
and ratified (Egypt and
this Convention. The dichotomy of the theory of tabula rasa for colonies and that of
universal continuity for all other cases of State succession as stipulated by Vienna Conventions has
not been reflected in subsequent State practice.
The 1978 Vienna Convention contains some rules
of customary international law: rights and obligations relating to the territory, e.g. those establishing
boundaries or boundary regimes are not affected by States‟ succession and they therefore bind
It has been argued that agreements relating to the use of international rivers could be included in the
category of treaties automatically binding successor States as they are considered by some as related
to the territory.
However, newly independent States have often declined to be bound by water
agreements concluded by predecessor States (e.g. Tanzania).
A distinction should be made
between rights and obligations concerning international rivers that are of territorial character and those
rights and obligations that concern the waters flowing in a river in their characteristics as a natural
resource. Established navigation rights are the equivalent to rights of passage over a State‟s territory
taking advantage of the specific surface texture of water; they are inherently linked to territory of a
State and therefore are not affected by succession. Automatic continuity of rights and obligations that
relate to water use as a resource use, such as water supply to non-riparian population would
constitute an ex ante restriction of sovereignty of the new State with respect to its right to dispose of
natural resources on its territory.
With respect to multilateral treaties signed by a large number of Parties continuation of treaty
obligations and succession does not require explicit or implied acceptance by other signatories, but
can be effectuated by notification to the depository. Succession into bilateral or plurilateral
generally requires acceptance by other contracting Parties.
3.5 Legal implications in case of separation of the Southern Sudan
3.5.1 Succession/continuation of international treaties
In case of successful separation and emergence as a new sovereign State, South Sudan will have to
decide on how to proceed on succession with respect to international treaties currently applicable in
the territory; e.g. (a) apply universal continuity by unilateral declaration of succession, or (b) review
each treaty and declare subsequently whether to be bound or not.
It has to be noted that whatever a newly independent State of South Sudan decides on this matter
does not guarantee that this decision is automatically accepted by other contracting Parties to
respective treaties; response to a unilateral declaration of universal continuity of international treaties
can be varied. According to international customary law, rights and obligations relating to territory
remain unaffected by succession. With respect to multilateral conventions, succession poses few
problems. Accession to these treaties can be effectuated by South Sudan by notification to the
depository. Accession is generally not contended by other contracting Parties, since in most cases the
objective of multilateral conventions is to unite as many States as possible under its geographic scope
of application (e.g. international human rights covenants, multilateral environmental agreements).
With respect to bilateral and plurilateral
treaties in force, where they do not include any provision
regarding State succession, a unilateral declaration of succession by South Sudan would need to be
accepted by other contracting Parties. For example, the occasion of the emergence of two new States
after the dissolution of Czechoslovakia has been seized by other contracting Parties as an opportunity
to renegotiate some of the former treaties; the US, Switzerland and Denmark decided on a case by
case basis whether succession into individual treaties was acceptable. Austria considered the tabula
rasa principle as applicable
Membership in international organizations usually requires the deposit 28
of candidature for membership and subsequent acceptance of the new candidate by the organization
(or its existing members).
3.5.2 Status of the Cooperative Framework Agreement
The CFA is open to signature and ratification to South Sudan should it emerge as a new sovereign
State. According to Article 40 the CFA, “open for signature by all States in whose territory part of the
Nile River Basin is situated” (Article 40). The same formula is reiterated in Article 41 on Ratification
and Accession to the treaty.
These provisions indicate an intention of the negotiating Parties that
any riparian State, including a new riparian State of South Sudan, can become a contracting Party of
Concerning membership of South Sudan in the joint management organisation, and before entry into
force of the CFA, membership in the Nile Basin Initiative (NBI) of a new State is conditioned on
acceptance by current NBI member States. After entry into force of the CFA or in case South Sudan
becomes the 6
country ratifying the CFA, membership to Nile River Basin Commission (NBRC) is
determined by the entry into force of the treaty and its legally binding effect on the signatory parties.
According to Article 30, the NBRC becomes the legal successor of the NBI at entry into force of the
CFA. The potential situation where the NBRC is legally established with a smaller membership than
the current NBI is not regulated by the CFA. The CFA leaves a legal void with respect to succession in
NBI rights, obligations and assets of a smaller NBRC. Repartition of NBI rights, obligations and assets
should ideally become subject to negotiations between new NBRC member States and former NBI but
non-NBRC member States.
4 Key drivers in post referendum scenarios
4.1 Land and Resource-related Conflicts
Conflicts in the Horn of Africa are inter-related and engrained in regional and local natural resource
management. Insecurity issues threaten peace-building in the Southern Sudan and spillover into
neighboring states such as Kenya, Uganda, Ethiopia, and Eastern DRC. Communities in Southern
Sudan face multiple types of violence stemming from local, national, or regional tensions.
causal factors for this include: a tense political setting, a highly militarized society in terms of access to
weapons, a low threshold before disputes turn violent, tribalism, religious issues and lack of
institutional capacity to provide security and to prevent, contain and solve conflicts.
Access to water
for pastoralists is also a primary determining factor of conflict. According to the ICG, by providing
pastoralist communities with improved water storage and alternative sources, their need to migrate
seasonally with cattle would be reduced substantially.
Recently, violence involving armed units has
decreased and inter- and intra-communal fighting has grown involving agro-pastoralists, nomads and
Issues related to environmental degradation and climate change have also been
suggested as determining factors of the war in Darfur.
There is confusion over the implications of Sudan People‟s Liberation Movement/Army‟s (SPLM/A)
slogan „land belongs to the people,‟ a principle believed to be in the CPA even though it is vague on
how land is to be administered in Southern Sudan.
The Southern Sudan Land Commission has
been mandated to deal with land issues, but has faced enormous challenges fulfilling this mandate
due to a lack of funding and staff. The passing of the Land Act, 2009 in February has been a positive
development in this regard, but it is generally accepted that it needs further clarification and
Land and natural resource management issues are, however, only one set of factors
of many inter-related processes fuelling local violence in the Southern Sudan. Peace with its potential
for social and economic change and its typical expansion of state capacity increases the demand for
land and may increase the potential for initiating and exacerbating disputes over land and natural 29
resources in the Southern Sudan.
For instance, in the three contested areas of Southern Blue Nile
and Southern Kordofan (Nuba Mountains and Abyei), land grabbing by merchants and other investors
for the purpose of establishing mechanized farming schemes, combined with intensified disputes over
rights to grazing and farming land is one such example of how a context of peace-building and
economic development could increase or perpetuate conflicts of this nature.
4.2 Food (in)security
South Sudan requires irrigation to grow more food, as a huge percentage of its crops are raindependent. Food insecurity plays a direct role in exacerbating conflicts in Jonglei and elsewhere in
Southern Sudan. Due to large-scale shortages in Jonglei, Upper Nile and Warrap states, the World
Food Program recently resorted to air drops. According to the ICG, this is an expensive, unsustainable
response that amounts to return to civil war emergency conditions.
Almost 4,000 metric tons, at a
cost of nearly $6 million, have been delivered to twelve drop zones in Pibor, Pochalla, Akobo, Nyirol,
Wuror, and Ayod counties. This sizeable food deficit could result in greater competition for scarce
resources, and thereby increasing the potential for conflict.
Food insecurity has forced communities
in Akobo and Pibor counties to move beyond their normal territories in search of food. This increased
stress exposes individuals to further attacks. Scant rainfall and weak harvests mean the hunger gap –
the period between depletion of food stores and a new harvest –is extended by several months. When
this coincides with pastoralist migration in search of grazing land, the likelihood of tension increases
as demand for grazing areas increases.
Further strengthening trade routes to EAC appears to be an
ongoing strategy to increase food security including direct trade with countries like South Africa under
particular free trade agreements as determined by the EAC or the EAC-COMESA-SADC tripartite task
4.3 Southern Sudan: where oil meets water and hydropower assets
4.3.1 Oil assets
Oil is vital for Sudan‟s economy. For South Sudan oil makes up 98 % of total revenues in 2010
65 % in Khartoum
. In 2008, according to the International Monetary Fund, oil represented 95 % of
Southern Sudan‟s export revenues
. The rapid economic growth of Sudan the last decade is
exclusively due to oil production and export
. About 75 % of Sudan’s known oil reserves of 6.3
billion barrels lie in the south
. The pipeline that pumps the crude oil to export stations and refineries
run through the north, which leaves the south dependent on the North to sell the oil. It is stated in the
CPA that oil related income should be distributed equally between North and South.
After the end of the first civil war, in the early seventies, opportunities to begin oil exploration in
Southern Sudan became possible. In 1974 the American oil company Chevron was granted a
concession in the south and in 1978 oil was discovered
. According to the peace agreement crafted
in Addis Ababa (1972) peace agreement, the GoS got rights to control oil exploration and production,
however GoSS were entitled to government profits on exports from the region and taxes from private
businesses. In the early eighties Sudanese president Muhammad Jaʿfar Numeiri began to redistribute,
re-draw and manipulate borders and territories in the South in an ongoing effort to side- step
outcomes of the peace agreement. An outcome of this was the Unity Province (referred to by GOSS
as Western Province) established as a shared asset between north and south. This and other
actions spurred animosity between South and North Sudan, catalyzing the formation of the SPLA and
the launch of the South´s armed struggle against the North. Oil fields under foreign operation were
targeted in fighting prompting the suspension of activities by Chevron and other international
companies. Consequently Khartoum focused its effort on securing oil producing areas to avoid similar
situations thus making oil resources central to the conflict as control over these areas provided levers
in subsequent negotiations
Since 1997, U.S. companies and citizens have been barred from conducting business in Sudan, and
Sudanese government assets in the U.S. have been frozen
. In absence of U.S investments other
countries from Asia, the Middle East and Europe have filled the vacuum, especially China. New
investments have enabled the development of Sudan‟s oil industry and related industries. China is
presently the largest investor in the country and more than 60 % of oil exports are destined for
The perceived weaknesses in the implementation of the CPA constitute fuel for conflict related to the
ownership of oil assets. Currently this process is concentrated to the oil rich Abyei region.
Implementation of borders was specifically expressed to be decided immediately as a consequence of
the signing of the CPA but the process was effectively blocked by the NCP
. As have the
establishment of an agreed Abyei Region Referendum Commission (an act signed by President Omar
Al Bashir in December 2009). The armed conflict in the region served as model for the hostilities in
Darfur by use of tribal militias
. Without Abyei’s oil, the south’s ability to economically sustain
independence would be much more difficult. Khartoum is actively seeking to keep control of southern
oil reserves without which the north would face severe economic problems
4.3.2 Hydropower and regional power markets
Power supply in southern Sudan is poor as consequence of neglect from the central government.
Most businesses have to generate their own power supply. Stand-by diesel generators are the most
common solution. Diesel is often transported at a high price from Khartoum by truck to provide for a
More than 80 % of Sudan‟s economically feasible hydropower potential has not been exploited to date
. Southern Sudan has potential for hydropower installations ranging from large to small scale
structures. The greatest hydropower potential along the Nile River in Southern Sudan lies between
Nimule and Juba. The hydropower potential in Southern Sudan has been studied several times.
Assessments have shown that there are several sites that are feasible for hydro electric installations.
A comparably comprehensive feasibility study of South Sudan was carried out during the 1980s
(Bonifica S.p.A 1983) with aim to assess the hydro power potential in the area. The study further
explored the potential to cater to urban centers as well as future agricultural and industrial demands.
The study assessed the Bahr el- Jebel Hydro Electric Power (HEP) system including the sites of Fula,
Bedden Rapids, Lakki, and Shukoli to be developed in a two phased strategy. The HEP potential
estimated in the system was determined to be 1 045 MW with a production capacity of 7 230 GWh
annually. The first phase would involve Lakki dam as main electricity supplier of Juba and connected
towns. The estimated cost to develop a southern integrated energy system according to this approach
was estimated to approximately 2 billion USD, including a 1 400 km long transmission line to
. Besides power generation the dam systems would also yield benefits related to flood
control mitigating flood risk in the Sudd marsh lands with minimum loss to power generating
Assuming the possibility of regulations along the Albert Nile and storage in connections to Ugandan
lakes the second phase could be developed. The additional flow along the Juba/Nimule stretch the
mentioned measures would provide would allow an increase in capacity to approximately 1 525 MW at
an additional cost of 130 million USD
The study concluded that the Juba/Nimule stretch potentially has a surplus of hydropower and supply
widely exceeds southern Sudan demand for the foreseeable future. As such there are concrete
possibilities of the region becoming a local/regional exporter of electricity by interconnecting to other
power grids/pools. The major power transmission routs would then go in a north south direction from
Juba to the North and eventually connecting to the East African Power Pool (EAPP) and Uganda. At
the end of phase two an estimated 1 400 MW could be transmitted. The estimated cost of integrating 31
southern Sudan to the greater regional power market was estimated in the study to 600 million
Potential HEP sites
Large/medium scale HEP installations Capacity MW
Fula approx. 720 MW
Bedden Rapids (Juba) approx. 400 MW
Lakki 210 MW
Shukoli 210 MW
Kinyetti I – IV total of 3.5 MW (combined)
Yei I 3 MW
Sue 12 MW
Others along Kijo and Kaia, Yei and Sue rivers and small
Source: Bonifica S.p.A 1983 and ACRES report 0411
4.3.3 The Jonglei diversion canal
The Sudd, one of the largest wetland areas in the world, has a very high evapotranspiration rate. More
than 50 % of the inflow is evaporated out of the Sudd swamps, resulting in less water availability in
downstream areas. This loss of water has since long been regarded a problem for both Sudan and
Egypt. Consequently Egypt, later joint with Sudan, developed ideas on increasing the flows to downstream areas. Plans for a diversion canal where developed during the decades after WWII and
construction started in 1978 but came to a halt as civil war ravaged Sudan the following decades. By
then 240 km of the planned 360 km had been completed. In 2008 Sudan and Egypt agreed to take up
construction again to finish the canal
While producing potential benefits to primarily Egypt and Northern Sudan the project has been
opposed by Southern Sudan as negative impacts from the project is estimated to affect areas locally
in Southern Sudan
. Local communities living around the canal risk being affected by the great
barrier the canal constitutes and it will potentially affect seasonal cattle migrations and raise new land
ownership issues among southern tribes
. GoSS officials have been stating their reservations
towards the project, calling for a revision of the project plans and greater dialogue between concerned
. The Jonglei canal is mentioned as a contributing factor that ignited the last civil war. The
GoSS position clearly means that it is uncertain whether the project will actually go ahead
4.4 Tribal issues
Southern Sudan has 10 major tribal groups the largest being the Dinka (40%) and the Nuer (20%)
Tribal conflicts are not new among Nilotic
groups and other pastoral and nomadic communities
inhabiting the Nile region. Tribal conflicts in Southern Sudan are caused by competition for scarce
resources (grazing land, drinking water), cattle (used as currency
) and ethnic animosity. The civil
war between the North- and Southern Sudan intensified tribal violence. The war increased the 32
circulation of small arms in the region. The weak implementation of the CPA in the South and the
continued perceived inability of the GoSS
to provide services to different population groups have
kept conflicts going. Several sources
suggest increased and intensified tribal confrontations in
several southern areas, particularly Jonglei, Lakes, Unity, Mvolo, Mundri and East counties in Western
Equatorial and Warrap States. In 2009 approximately 100 separate tribal conflicts were reported
resulting in 400 000 new displaced people
The largest of South Sudan‟s 10 states, Jonglei, is a hot spot for tribal violence. Jonglei with 1.3 million
inhabitants is severely underdeveloped. It houses numerous ethnic groups that migrate in pursuit of
cattle, diminishing water resources and grazing areas. In the past, conflicts were mainly seasonal,
inter‐tribal/clan‐based, and often triggered by competition over resources
. During 2009 however, a
pattern of changes could be detected. Conflict was more prolonged than earlier years and did not
follow typical seasonal cycles
. The aggravated spiral of violence in Jonglei and other regions in the
latest years has several potential reasons. Virtually non-existent infrastructure, pervasive tribalism,
chronic food insecurity, un-resolved land disputes, under- developed justice systems as well as
perceptions of state bias are some of the more common reasons given for conflict
Fears of the North intervening in the tribal conflicts are not considered critical by the UNMIS (United
Nations Missions in Sudan), who consider local factors to be the key drivers behind conflicts.
and tribal identities outweigh national unity in Southern Sudan and the shared vision of an
independent Southern Sudanese state. Tribal identity and loyalty plays a dominant role in all aspects
of political life in the region
Tribal conflicts are also of a crossborder character as exemplified by the Ilemi- triangle. The Ilemi is
about 14,000 square kilometers and claimed by Sudan, Ethiopia and Kenya. The Triangle is home to
five major ethnic groups; the nomadic Turkana in Kenya, the Didinga and Toposa in Sudan, the
Nyangatom, who move between Sudan and Ethiopia, and the Dassenach in Ethiopia
. The potential
presence of oil in the region has exacerbated tensions
.The Ilemi triangle holds potential for
increased instability between countries on the horn of Africa and peace in Southern Sudan is a prerequisite for peace in the triangle itself
5 Hydropolitics and Post Referendum Scenarios
Several scenarios have been developed by think tanks that look into the overall political economy of
referendum and the oil issue
. Our ambition is not to repeat these but instead look at the issue from
the point of view of hydropolitics taking into account the overall socio-economic context. The
transboundary water issues may not be of an immediate concern in the post referendum negotiations
but the link to electricity supply, food, trade and security are critical. A separation of Southern Sudan
from the North in 2011 is very likely to involve violence
. The knock-on effects of renewed largescale conflicts could be considerable for the rest of the Horn of Africa and Kenya, Uganda and Eastern
DRC in particular
Increased regional tensions would translate into more acute political divisions on the continent and
make the African Union‟s governance work more difficult. However, neighbouring countries are also
articulating their support in the media. Kenya’s Prime Minister Raila Odinga, for example, has called
on East African countries to support South Sudan for investment and stability. Kenya, East Africa‟s
biggest economy, is already showing evidence of increased trade and investment in Southern Sudan.
Kenya Commercial Bank has ten branch offices in Southern Sudan, while Equity Bank Ltd., Kenya‟s
top lender by customers, has four. Similarly, East Africa Breweries Ltd., Diageo Plc‟s Kenyan unit,
plans to construct a 700,000-hectoliter (18.5-million gallon) plant in Juba.
Kenya, Uganda, Ethiopia, and Egypt are therefore the most influential regional states, along with
Eritrea and Libya. If the referendum is held successfully, in accordance with the CPA and the Interim 33
National Constitution, and Khartoum endorses the process, recognition of a new Southern state
should prove relatively uncomplicated for the region and CPA signatories.
However, if the process
falters, particularly if the GoS attempts to manipulate, deny or delay the process or its result, regional
states and institutions will need to consider how best to respond to, and how to salvage the CPA and
the right of self-determination and to avoid a renewed conflict.
Representatives of Southern Sudan have also expressed the intention to join the EAC once the
January referendum has been concluded.
Southern Sudan has observer status in both the EAC and
COMESA. Increasing economic and political stability of upstream countries
enable them to develop
their water resources to meet national development needs.
They now have financial support, (from
both their own resources, and external donors such as the World Bank and China), that was not
available a decade ago.
However, several elections in the NELSB countries could affect regional
integration efforts and institutional development. The issue of Nile water has been used in electoral
campaigns in the Nile Equatorial Lakes region, in order to win voters with promises of water rights.
Cross-border trade and the benefits that can be derived between EAC and Southern Sudan are
particularly noteworthy. East African businessmen and potential investors are making preparations for
increased trade by sending food, consumer goods and construction materials into the region every
In the 2009 Ugandan Bureau of Statistics Report, it was reported that Uganda informal crossborder sales alone into Southern Sudan reached more than USD 900 million in 2008, which is double
the 2007 figure and almost double the value of Uganda‟s exports to the European Union.
The fiveyear period of peace in Sudan and the relatively political stability in northern Uganda have been good
for Ugandan traders. The cross-border trade is facilitated by the ongoing re-construction and
development of the road connecting Juba to Uganda and the rest of East Africa. Should Southern
Sudan become independent, an increase in trade between Southern Sudan and Uganda is likely due
to the proximity to the greater EAC market. The driving distance from Juba to Kampala, Uganda, is
785 km while Khartoum, Sudan‟s capital, is almost the double distance.
Apart from the road connecting Juba to Uganda, several major proposed regional projects connecting
East Africa are noteworthy. These include a new sea port in Lamu, on Kenya‟s Indian Ocean coast; a
railway network updating existing lines and connecting Juba to Kenya, Uganda, and Ethiopia
(although the feasibility of this still needs to be ascertained due to the incompatibility of national rail
systems and the cost to change this); as well as an extension of the Trans-African Highway Network
linking South Sudan to Kenya‟s Mombasa port.
A proposal is also being discussed to construct a
1,400-km pipeline from Juba to the Lamu port, which could yield significant dividends and open up
greater Kenyan territory to economic development.
The pipeline is estimated to cost $1.5 billion. A
new pipeline would also offer an alternative to the existing export route, which runs roughly 1,600km to
Sudan‟s Red Sea port (Port Sudan, in the North), and thus reducing Southern Sudan‟s dependence
Socially and culturally, Southern Sudan has closer cultural ties to the EAC group of countries than to
the mostly Muslim Northern Sudan, even though tribal rivalry remains a key issue. The likely catalyst
in the East African region is therefore trade and infrastructural development of roads, trains and
energy development and interconnectors.
5.2 Four scenarios for Southern Sudan
It is our assessment that the referendum will take place on 9 January 2011 with the possibility of
delays. The political and media campaigns have started, the civic education activities are taking place
in several parts of Southern Sudan, and the registration process of voters was initiated on 15
November. A calendar with set milestones from November to January has been defined by the GoSS.
Preventive actions by the development partners to the NBI to mitigate the impacts of a potential post
referendum crisis to strengthen positive outcomes of an independence referendum will be critical
under all scenarios. 34
Security concerns are critical for all key states. Kenya has a strong interest in seeing the CPA
implemented successfully, particularly considering the key role it played in leading the regional
Intergovernmental Authority on Development (IGAD) peace process that resulted in the CPA.
has a large economic stake in Southern Sudan‟s independence and plans to benefit from the
development of a considerable market and major infrastructure development in the South in particular
as a conduit for oil.
Kenya has long managed to support the South without being antagonistic to the
Uganda has been the most vocal and open neighbouring country, about its support for Southern
Sudan‟s independence. This is because of Uganda‟s need for a stable buffer on its northern border, to
keep the Lord‟s Resistance Army (LRA) insurgency at bay and to prevent any encroachment
As previously noted, trade has tripled in recent years with the South, which is now the
largest importer of Ugandan goods
. Although Uganda‟s official policy is to respect the CPA and the
will of the Southern people, some officials in Kampala are privately encouraging independence.
Egypt‟s position is clear in support of unity, for concern that secession could lead to instability in both
North and South Sudan, opening the door for extremist elements that could destabilise the region, just
as Khartoum hosted Osama bin-Laden, al-Qaeda and other extremist groups in the mid- and late-
Given this stance, Egypt opposed the inclusion of self-determination in the CPA talks, rather
opting to promote its own initiative premised on unity. It has redoubled diplomatic efforts to prevent
partition, in part because it fears a new state – and an unstable one at that – could pose a threat both
to regional stability and its supply of Nile water.
Ethiopia has expressed its support of Southern Sudan, but due to the need to balance multiple
interests, it has remained neutral on the South‟s independence.
For example, Ethiopia provided
military support to the SPLM in the 1990s, to counter Islamist elements in Khartoum whose
destabilising activities posed a threat to Ethiopian and regional security.
Regional security still
remains Ethiopia‟s primary concern, largely as a result of the volatile situation in Somalia, the
continued confrontation with Eritrea and its own domestic fragility.
Our four scenarios are illustrated below:
1. Unity 2. Independence
and Wait and see
The 1959 Treaty between Egypt and Sudan is not the only contentious (water) treaty in case of
secession; it has been singled out because we consider it to be one of the major roadblocks with
respect to legal development and to development of the Nile water resources.
Scenario 1 – Unity
In case that the majority outcome of the referendum is Unity, then Sudan remains one country. In this
scenario, Southern Sudan is expected to get a more extended autonomy. Southern Sudan is likely to
strive for more extended responsibilities with respect to infrastructure, oil, energy and water assets.
The interim constitutions of the North and the South might possibly undergo some change and be
replaced with permanent constitutions (see Arts. 226.9 of the INC and 208.6 of the ICSS). Under this
scenario North and South Sudan will likely negotiate an internal allocation of the water share attributed
to Sudan under the 1959 agreement. The likelihood of this scenario is low as the current information
available points towards a referendum outcome that will result in secession. One possibility is that
unity is “forced” upon the South most likely to be accompanied by civil strife and major negative
Scenario 2 – Independence and succession to the 1959 Agreement
If Southern Sudan secedes from North Sudan, it will become the 11
riparian of the Nile Basin. It is
located downstream of the Nile Equatorial Lakes region and has strong connections to the Eastern
Nile. The transition period until a new State is recognized, functional and a constitution is adopted
might take one or two years at best. If independence is accompanied by internal (armed) power
struggles in South Sudan, this period will take longer.
Under this scenario, one of the issues to be tackled is what would be the position of Southern Sudan
towards the 1959 Agreement? If Southern Sudan decides to succeed into rights and obligations of this
agreement, this would be a clear signal of alignment with the downstream riparians. If the North Sudan
and Egypt agree to this succession, water allocations under the agreement would need to be
renegotiated. It is unlikely that Egypt would accept a reduction of its allocated share. North and South
would have to negotiate within the current allocation to Sudan. The Fifth Article of the Agreement,
which requires a unified position in negotiations concerning Nile waters with any other riparian State,
would also apply to South Sudan. The requirement of a unified negotiation position would curtail South
Sudan‟s freedom in engaging in project with its upstream neighbours.
This alignment with the downstream riparians is likely to undermine South Sudan‟s ambitions to join
the EAC. Furthermore, the 1959 Agreement provides for the construction of water conservation
schemes in Southern Sudan. This is an implicit reference to the Jonglei canal project, a project which
is not very popular in the South. The likelihood of this scenario is therefore considered to be low.
Scenario 3 – Independence without succession to the 1959 Agreement
In a similar manner to Scenario 2, the length of the transition period to a functional independent State
will depend on whether the period is marked by international peace or on the intensity of internal
power struggles. With respect to succession to international treaties, Southern Sudan could follow the
Nyerere Doctrine; reviewing earlier treaties regarding their binding force. With respect to treaties
dating from before 1956, it could claim further that it was under colonial rule and that even after 1956 it
continued its struggle for political autonomy and independence.
In not accepting the binding force of the 1959 agreement, a possible sovereign Southern Sudan would
signal alignment with the upstream neighbours. It might further decide to sign and ratify the CFA, a
step that will most likely antagonise Northern Sudan and Egypt in particular if Southern Sudan
becomes the sixth country to ratify. The treaty States states in Article 42 that it shall enter into force
“on the sixtieth day following the date of the deposit of the sixth instrument of ratification or accession
with the African Union”. In order to change this requirement, the treaty text needs to be reopened for
negotiation which is unlikely. The treaty does not limit signature to the ten States listed. Article 40
states that it is “open to signature by all States in whose territory part of the Nile River Basin is
Scenario 4 – Independence and wait-and-see
Scenario 4 is the most likely scenario in the short-term. As the Nile issues are not amongst the most
pressing priorities in the post-referendum negotiations between North and South, the Government of
Southern Sudan will not be obliged to take a public position immediately. This also gives times to the
South to see the benefits, limitations and risks of all the options available. Keeping silent and not
compromising to any positions gives leeway to Southern Sudan, as a new midstream riparian, to opt
for aligning downstream or upstream at a later stage, it at all. In the meantime, Southern Sudan will be
able to observe how the CFA and the NBI processes evolve independently of its own actions.36
6.1 A time line of political events
2005 2006 2007 2008 2009 2010 2011 2012
9 Jan 2005: Comprehensive Peace
Agreement between the Government
of Sudan and the Sudan People’s
Liberation Movement signed.
1 Aug 2005: 9 July – Former southern
rebel leader John Garang is sworn in as
first vice president. South Sudan signs
its Draft Interim Constitution.
1 Aug 2005: Vice president and former
rebel leader John Garang is killed in a
plane crash. He is succeeded by Salva
Sept 2005: Power-sharing government
is formed in Khartoum.
June 2008: IGAD establishes office of
Special Envoy to Sudan on the
Comprehensive Peace Agreement
Oct 2008: Establishment of EACCOMESA-SADC Tripartite Task Force
14 May 2010: Ethiopia, Uganda, Kenya
and Tanzania in agreement on the
opening of the Nile River Basin
Cooperative Framework for signature
for a period of one year until 13th May
28 June 2010: Burundi’s presidential
elections. Nkurunziza is re-elected
unopposed for another five year-term.
1 July 2010: East Africa Common
Market comes into force (signed by
Burundi, Kenya, Rwanda, Tanzania and
4 August 2010 : Kenya held a Constitutional referendum on whether to adopt its new
27 Aug 2010: Kenya promulgates its new Constitution
11 Aug 2010: Rwandan Patriotic Front leader, Paul Kagame
re-elected as president in Rwanda’s presidential elections
that took place on 9 Aug.
31 Oct 2010: Tanzanian and Zanzibar’s
parliamentary and presidential
6 Nov 2010: Tanzania’s Jakaya Kikwete
inaugurated as president for another
Jan 2011: Uganda’s presidential
elections expected to take place
9 Jan 2012: South
27 Nov 2011: DRC’s presidential
elections expected to take place.
Jan 2012: Envisaged Launch of
Dec 2012: Kenya’s presidential
elections expected to take place
Sudan: April 2010
Sudan: Jul 2010- Jan 2011
Post referendum negotiations
Sudan: Jan 2011
Southern Sudan: April
Southern Sudan: June 2010
Memorandum of Understanding NorthSouth
Southern Sudan: Jul 2010- Jan 2011
Post referendum negotiations
Southern Sudan: November/December
Registration of Voters Process
Southern Sudan: January 2011
Southern Sudan ReferendumIndependence?
Southern Sudan: July 2011
End of CPA Interim Period
Egypt: June 2010
Shaura Council Elections
Egypt: November 2010
Egypt: Mid- 2011
Status Quo or
Ethiopia: June 2010
Ethiopia: October 2010
Reshuffle of cabinets
Unresolved issues Eritrea
Specific Events Sudan and Southern Sudan
Nile Region Events37
6.2 Colonial background and treaty time line
Burundi achieved independence on 1 July 1962. The country
came under German East African Administration in 1899 until
it was occupied by Belgian troops in 1916. The League of
Nations mandated the territory of modern day Rwanda and
Burundi (then Ruanda-Urundi) to Belgium, and was turned
into a United Nations Trust Territory under Belgian
administration after World War II.
The area of the Democratic Republic of the Congo was under
Belgian colonial administration since 1885 until its
independence on 30 June 1960.
British occupation and virtual inclusion of Egypt within the
British Empire lasted from 1882 until 1922, when the United
Kingdom unilaterally declared Egyptian independence. British
military and political influence continued until after World War
II, also due to the interest of the British Empire in access and
control over the Suez Canal.
Eritrea was colonized by Italy in 1885, and put under British
military administration in World War II. “In 1952, a UN
resolution federating Eritrea and Ethiopia went into effect.
In 1962, the area was annexed by and integrated into
The country gained independence in 1993.
Ethiopia was an independent monarchy, with the exception of
a five year occupation by Italy (1936-1941) and until the
emperor Haile Selassie was deposed by a military
government (the Derg) in 1974. Opposition movements
ended the Derg government in 1991.
Kenya became independent in 1963. The area formed part of
Britain‟s East African Protectorate established in 1895, and
officially became a British colony in 1920.
Rwanda (as Burundi) achieved independence on 1 July 1962
after a UN General Assembly resolution had terminated
Belgian trusteeship over the territory. Its previous colonial
history is similar to Burundi‟s. The people submitted to
German protectorate in 1899. The German‟s were
overpowered by Belgian troops in 1915. (For remainder of
colonial period see „Burundi‟.)
Sudan achieved independence in 1956. Before then, the
Anglo-Egyptian Sudan was effectively administered as a
British colony (1899-1956). A number of sources cite that
from 1924 to 1956 the British had governed the North and
South of Sudan as two separate entities.
The first NorthSouth civil war (1955-1972) erupted in Sudan on the eve of
independence; because the Khartoum-led government
reneged on promises to establish a federal State structure
and to provide regional autonomy to the South.
Tanzania achieved full independence on 9 December 1961.
Anglo-German agreements from 1886 and 1890 delineated
respective spheres of influence. Colonial control of Germany
over Tanganyika ended after World War I. Most of the
territory passed to British control under a League of Nations
mandate. After World War II, the entire area of Tanganyika
became a UN trust territory under British control.
The country achieved formal independence on 9 October
1962. The area has started to come under British influence in
1888. An Anglo-German agreement of 1890 confirmed British
dominance over Kenya and Uganda; the Kingdom of
Buganda was integrated into the British protectorate in 1894.38
6.2.1 Treaty timeline
Date Parties to
Name of Treaty
1891 Great Britain
Protocol between the Governments of Her Britannic Majesty and of his Majesty the King of Italy
for the Demarcation of their Respective Spheres of Influence in Eastern Africa
The treaty defines the territorial boundaries of the Italian sphere of influence, and enjoins the
Italian Government from initiating irrigation works on the Atbara which may alter the rate of flow
on the Nile.
1902 Great Britain
Treaty between Great Britain and Ethiopia on the Delimitation of the Frontier between Ethiopia
The treaty defines the boundary line between Ethiopia and Anglo-Egyptian Sudan. By this treaty,
Ethiopia accepts the obligation “not to construct and authorize construction of any structures on
the Blue Nile, Lake Tana or Sobat which would have the effect of obstructing the flow of their
waters into the Nile” except with prior agreement of the British and Sudanese Government.
1906 Great Britain
Agreement between Great Britain and the Independent State of the Congo, amending the
agreement signed at Brussels 12 May 1894
The treaty determines the boundary line between Belgian Congo and the Sudan. The
Government of Congo is enjoined to “construct or allow the construction of structures on the
Semliki or the Isango, or nearby, which would reduce the volume of water entering Lake Albert
except with the consent of the Sudanese Government.”
1906 Great Britain
Agreement between Great Britain, France and Italy Concerning Abyssinia
The three States agree to respect their individual interests and their common interest in
maintaining the integrity of Ethiopia. They agree inter alia to safeguard “the interests of Great
Britain and Egypt in the Nile Basin, and more specifically, with regard to the control of the waters
of this river and its tributaries”.
1925 Great Britain
Exchange of Notes between the United Kingdom and Italy Concerning the Obtaining of
Concessions for the Construction of a Dam over Lake Tana and a Railway Line Passing through
Abyssinia from Eritrea to Italian Somaliland
By this Exchange of Notes the United Kingdom and Italy commit to use good offices in
supporting each other‟s requests for concessions from the Ethiopian Government to build inter
alia a dam over Lake Tana to harness water reserves (UK interest) and a railway from Eritrea to
Italian Somalia (Italian interest). The UK, in the case that it obtains permission to build the dam
with the help of Italian good offices, commits to acknowledge “an exclusive Italian economic
influence in the western part of Abyssinia” and promises to support Italy in the process of
seeking such a concession from the Ethiopian government, under the condition that Italy
recognizes the former hydraulic rights of Egypt and the Sudan and does not engage to construct
structures on Nile sources, tributaries and effluents that may significantly change rates of flow on
the main river. This agreement by exchange of notes can be seen as a case of application of the
tripartite agreement of 1906.39
Date Parties to
Name of Treaty
1929 Great Britain
Exchange of Notes between Great Britain and Egypt in regard to the Use of the Waters of the
River Nile for Irrigation
Purposes At the time of conclusion of this agreement, the territories of Sudan, Kenya, Tanzania
and Uganda were under colonial control of Great Britain. The agreement is “essentially directed
towards the regulation of irrigation arrangements on the basin of the  Nile Commission
which forms integral part of the agreement. The 1925 Nile Commission report outlines
seasonal water drawing rights for irrigation in Sudan. In its conclusions the Commissions states
that it “foresees that it will be necessary from time to time review the questions discussed in” its
report, and that it “has endeavoured to find a practical and workable basis for irrigation and to
foresee, and, as far as possible, to provide for any difficulty that may arise in the future.” In
addition to the findings of the Commission Report, the 1929 agreement grants representatives of
the Egyptian Irrigation Service in Sudan the liberty to cooperate with the Resident Engineer at
Sennar Dam to monitor discharges. Furthermore the parties agree that with the exception of prior
consent of the Egyptian Government “no irrigation or power works or measures are to be
constructed or taken on the River Nile and its branches, or on the lakes from which it flows, as
far as all these are in the Sudan or in countries under British administration, which would, in such
manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water
arriving in Egypt, or modify the date of its arrival, or lower its level.” Finally, as already expressed
in a note from 26 January 1925 (included in the 1925 Nile Commission Report), the British
government reconfirms in its response establishing the agreement of 1929 that it “acknowledges
the natural and historic rights of Egypt in the waters of the Nile”.
Upon independence, the Sudan stated that it rejected the continued binding force of the 1929
and so did Tanzania within the two year period it gave itself in order to review the
binding force of colonial treaties by a Note of 4 July 1962
. The reference to the 1929
Agreement in the preamble of the 1959 Agreement between Sudan and Egypt on the full
utilization of the Nile Waters has been interpreted by some as evidence that Sudan has in fact
not renounced to the continued binding force of the 1929.
To the declaration of Tanzania,
Egypt responded that pending conclusion of new arrangements it considered the 1929 Nile
Waters Agreement as valid.
Kenya and Uganda, did not specifically contest the devolution of
the 1929 Agreement; yet, they both adopted declarations upon independence that those colonial
treaties “which cannot be regarded as surviving according to the rules of customary international
law as having terminated” after a period of two years since independence.
binding force of the 1929 Agreement remains until today a subject of discussion and
disagreement in legal doctrine as well as among governments.
Agreement between the United Kingdom and Belgium regarding Water Rights on the Boundary
between Tanganyika and Ruanda-Urundi
The agreement defines water rights and use of rivers and streams which form part of the
boundary between the two territories or which flow from one to the other territory. The agreement
regulates water diversion and water use for mining operations, stipulating that where diversion
occurs, water shall be returned to the natural bed after use without substantial reduction in
volume. Water pollution by poisonous or noxious substances is to be avoided. Traditional fishing,
navigation and water use rights by riparian population of both countries are maintained on
contiguous stretches of the rivers. This agreement lapsed after independence of the territories
Exchange of Notes between the United Kingdom and the Egyptian Government on the
Construction of Owen Falls Dam
The notes from 1949 indicate that the agreement is concluded in the spirit of the Agreement from
1929. The objective of the Owen Falls Dam is to provide hydroelectricity to Uganda and to serve
Egyptian irrigation interests by creating a reservoir at Lake Victoria. Both governments cooperate
in the design and implementation. Tenders are issued by the Ugandan Electricity Corporation;
contracts are awarded after both Governments have communicated their consent. Egypt‟s
interests are represented by an Egyptian engineer present at the worksite during construction,
and an Egyptian resident engineer who controls flow of water once the dam is constructed
together with the Ugandan Electricity Corporation. The Corporation ensures that the operation of
the dam is “not prejudicial to the interests of Egypt in accordance with the 1929 Agreement. A
subsequent exchange of notes from 1952/53 concerns cost sharing arrangements and
compensation with respect to the construction and operation of the Owens Falls Dam.40
Date Parties to
Name of Treaty
Agreement between the Republic of the Sudan and the United Arab Republic on the Full
Utilization of the Waters of the Nile
The agreement was prompted in part by Egyptian construction of the Sudd el Aali Reservoir at
Aswan and by the mutually perceived need of new hydraulic projects in order to make full use of
the Nile Waters. The two States agree that acquired rights up to the date of conclusion of this
agreement consist in 48 bcm per year for Egypt and 4 bcm per year for Sudan (First Article). The
two parties agree that Egypt constructs the Sudd-el-Aali and Sudan shall construct “the Roseires
Dam on the Blue Nile and any other works which the Republic of Sudan considers essential for
the utilization of its share, and including projects for the increase of the River yield (Para 1 and 2
Second Article; Third Article). The annual average natural River yield (AANRY) of water at
Aswan is estimated at 84 bcm (Para 3 Second Article). The two States agree to share the net
benefit from the Sudd el Aali reservoir (Net benefit = AANRY – acquired rights – average loss of
over-year storage) at the ration of 14 ½ for the Sudan and 7 ½ as long as the average river yield
remains in the limits of 84bcm. Paragraph 4 Second Article provides a calculation of what this
means in case the average yield remains at 84bcm and if average storage losses remain equal
to 10bcm; this means that 18.5 bcm shall be for Sudan, and 55.5 bcm for Egypt. If the average
yield increases, the increase is divided between the two in equal shares. In case of low years,
when low levels in the Sudd el Aali reservoir do not permit drawing of full requirements, the
Permanent Joint Technical Commission (PJTC) devises a faire arrangement to be followed by
both parties upon their approval (Para 1 (e) Fourth Article). The agreement between Egypt and
Sudan further provides that the two parties agree on a unified view ahead of any negotiations
with any other Nile riparian States and concerning Nile waters (Para 1 Fifth Article). If such
negotiations result in an agreement to construct works on the river outside of Egyptian and
Sudanese territory, the PJTC shall draw all technical details and supervise implementation of
technical arrangements (Para 1 Fifth Article). Egypt and Sudan also commit to adopt a unified
view in case other riparian States claim a share in the Nile waters; and if this results in the
allocation of water to another Nile riparian State, the allocated amount is deducted in equal parts
from the shares Egypt and Sudan have established by this agreement.
According to media outlets and reports, these provisions as well as questions concerning the
binding force of the 1929 Agreement and whether „acquired rights‟ of Egypt and Sudan should be
accepted by other riparian States have been the subject of disagreements among the Nile Basin
States with respect to Nile cooperation.
Agreement for the Establishment of the Organization for the Management and Development of
the Kagera River Basin
(Organization has been formally dissolved on 7 July 2004)
Agreement on peace and friendship between Ethiopia and Sudan
Agreement between Egypt and Uganda
Several sources cite two additional accords concluded in 1991;
1) Agreement on peace and friendship concluded between Ethiopia and Sudan. The legal nature of
the text is not certain; it has sometimes been qualified as a declaration. Provisions regarding
to the Nile concern the need for establishment of a joint technical commission, recognition of
“equitable entitlements to the uses of the Nile waters without causing appreciable harm to
2) An Agreement between Egypt and Uganda in which the latter supposedly commits itself to
honour colonial agreements.
Date Parties to
Name of Treaty
Framework for General Cooperation between Egypt and Ethiopia
By this agreement the two parties agree that matters relating to the Nile should be discussed in
detail by experts and according to principles of international law. They agree to refrain from
activities related to Nile water which “may cause appreciable harm to the interests of the other
party”. They further agree on conservation and protection of Nile waters, cooperation in mutually
advantageous projects on the Nile, and on endeavouring “towards a framework for effective
cooperation among countries of the Nile basin for the promotion of common interest in the
development of the Basin.”
Protocol for Sustainable Development of Lake Victoria Basin
Agreement between Tanzania, Kenya, Uganda, Rwanda and Burundi, concluded under the
auspices of the East African Community, in which the parties agree to cooperate on sustainable
development and management of the basin based on the concept of IWRM. The agreement
establishes the Lake Victoria Basin Commission.
(2010)*** Agreement on the Nile River Basin Cooperative Framework
See analysis in report.
*Joined the Organization in 1981.
**Treaties referred to in secondary literature, treaty texts not available.
*** Treaty opened for signature on 14 May 2010 until 13 May 2011
, not in force.42