Why Must Sudan Join UN Watercourses Treaty?
12 August, 2014By: Dr. Salman Mohamed Ahmed Salman
KHARTOUM (SUDANOW.info.sd)—We posted on May 25, 2014 on a number of electronic websites an article titled “Denotation of Enforcement of the UN Treaty on International Watercourses”, indicating that Vietnam became on May 24 the 35th nation to join the Treaty thus completing the number of endorsement required for the Treaty to come into force. The Treaty will therefore be effective as of August 17, 2014, that is, 90 days after lodging the 35th endorsement, acceptance or approval, as provided for in Article 36 of the Treaty.
In this article we will explain that the UN International Watercourses Treaty (UNIWCT) is a balanced framework agreement and why the Sudan should as soon as possible join the civilized nations which have enlisted to the Treaty.
We have explained in the previous article the the International Law Committee began work on the UNIWCT in early 1971, a few weeks after a resolution by the UN General Assembly on 8 December 1970 in which the international body asked the Committee to commence with studying a law relevant to using international watercourses for non-navigational purposes with an eye to gradual development and documentation of that law.
We have also indicated that the mission was extremely difficult and complicated, requiring 23 years, five rapportuers and 15 reports to be prepared before the Committee was able to reach agreement on the final draft of the provisions of the Treaty in 1994 and submit it the the UN General Assembly in the same year. The Committee named the agreement as “the UN Treaty on utilization of the international watercourses for non-navigational purposes” which we refer to in this series of articles as “the UN Treaty on International Watercourses (UNTIWC).
Three years had elapsed since the International Committee was through with its task in 1999 before the UN General Assembly passed the UNTIWC on 21 May 1997. After protracted deliberations on the draft that was submitted by the Committee and amended by the working team, the UN General Assembly adopted Resolution No. 51/229 passed the UNTIWC with 103 nations (including Sudan) voting for the Treaty, three nations (Burundi, Turkey and China)against it and 27 nations abstaining.
Another 17 years elapsed before the completion of the number of approvals required for the UNTIWC coming into force.
We have enumerated the nations which have become party to the UNTIWC which were (from Europe): Finland Norway, Hungary, Sweden Holland, France, Denmark, Luxemburg, Portugal, Germany, Spain, Greece, Italy, Monte Negro, UK and Ireland, (from Africa): South Africa, Namibia, Guinea Bissau, Burkina Faso, Nigeria, Niger, Benin, Chad and Ivory Coast, (from the Middle East): Syria, Lebanon, Iraq, Libya, Tunisia, Qatar and Morocco, (from Asia): Uzbekistan and Vietnam.
We are mentioning hereunder the reasons we believe why the Sudan must join the UNTIWC and catch up with the nation which have done so.
First: The Treaty is the cream of human experiences in the law of the international watercourses. The International Law Committee studied, over 23 years under five rapportuers, the rules and resolutions issued by the International Law Society (including the Helsinki Rules of 1966)and went through the rules which were issued by the International Law Institute. It also scrutinized all agreements on the international watercourses, the resolutions of the courts (including the national courts in federal nations where disputes over water are multiple)and resolutions of arbitration councils. Moreover, the Committee considered the outcome of the UN meeting on the resources (Mardle Plata Conference of 1977) and Rio Conference on Environment of 1992. The UNTWC preamble made reference to all those studies, reports and rules, noting that took into consideration the valuable contributions offered by the international organizations, both government and non-government, to the gradual development and documentation of the international law.
The UNTIWC was an outcome of a tremendous effort characterized by accuracy, patience, endurance, research, scrutiny and investigation granting much concern to every issue, whether tiny or colossal.
Second: The UNTIWC was based on the principle of cooperation among the lateral nations of a common watercourse and emphasized that the international watercourses law is a law for cooperation. The word ‘cooperation’ and its derivatives appeared 15 times in the Treaty. And Article 8 of it stresses that the cooperation will be based on equality of sovereignty and territorial integrity, mutual benefits and good-faith for achieving optimum benefits from the international watercourse and providing adequate protection of it.
Third: The basic principle of the UNTIWC is “the fair and rational benefitting and sharing.” Article 5 secures the right of each lateral nation the right to benefitting, each in its region, from the international watercourse in a fair and rational way. But this article also obligates those nations to use this watercourse and develop it for benefitting from it in an ideal and sustainable manner, acquiring benefits from it in observance of the other lateral nations and also obligates those nations to make the benefits in return for providing sufficient protection for the watercourse. The Treaty also imposes responsibilities towards the other lateral nation and towards the watercourse itself.
Fourth: The 1996 Helsinki rules established the elements which define the principle of fair and rational benefits. The Treaty was based on those elements with minor amendments called for by relevant legal experiences, including the agreements and resolutions of the courts and arbitrary councils since 1966. Article 6 details specific elements and circumstances that must be taken into consideration for definition of the concept of fair and rational benefits and stipulates that benefitting from the watercourse in a fair and rational way require taking into consideration all of the relevant elements and circumstances which include the following:
(1) The geographic, hydrological, environmental, ecological and other natural factors.
(2) The social and economic needs of the concerned watercourse lateral nations.
(3) The populations which depend on the watercourse in each one of
the lateral nations.
(4) The impact of the utilization of the watercourse in one nation on the other lateral nations.
(5) The current and future utilization of the watercourse.
(6) Preservation, protection, development and economical utilization of the water resources of the watercourse and meeting the costs of the arrangement required for those purposes.
(7) The likelihood of finding alternatives of a relative value for present or planned utilization.
Article 6 also provides that the importance of each one of those factors is determined in comparison with the importance of the other factors.
Although the fair and rational benefits principle is the mainstay of the UNITWC (also the International Water Law), the UNTIWC also contains the principle of not causing a significant harm to other nations of the watercourse. However, it subjugated the no-harm principle to the fair and rational benefits one which grants each member nation its right in light of the above-mentioned factors. It must be emphasized that those factors are much in favor of the Sudan in any negotiations on the Nile water.
Fifth: The UNRTIWC also contained basic principles in the International Water Law, such as an advance notification to the other member nations of the Basin on projects and programmes a member nation is planning to carry out and regular exchange of information and data on the condition of the joint Basin. It also included provisions on the environmental protection of the Basin and pacific solutions to disputes.
As regards the advance notification, the Treaty stipulates that, before one lateral nation commences or permits commencement of arrangements which may be of significant harm to other lateral nations, that nation must send the notification in an appropriate time accompanied by the available technical data and information, including the outcome of any process for evaluation of the environmental impact so as to enable the notified nations to evaluate the likely effects of the planned arrangements. It must be pointed out that commitment to the advance notification applies to all nations, whether in the upper or lower part of the watercourse. This provides full protection to the Sudan from the nations on both parts of the Basin.
Sixth: The UNTIWC was warmly welcomed by all legal organizations in the world and was adopted by the International Court of Justice less than four months after approval by the UN General Assembly in the Slovak-Hungary dispute over the Danube River. The Court made reference to the Treaty and expanded the implications of main principles contained in it, as in that Danube dispute it made emphasis on the fair and rational benefits concept when it ruled that “the multi-purpose programme be implemented in the form of a concerted separate unit for utilization, development and protection in a fair and rational way.” The International Court of Justice also stressed that each nation enjoys a basic right in the common watercourse. It did not make reference to the commitment of not causing harm as a separate principle, implying emphasis by the Court on the International Water Law being based on the principle of fair and rational benefits.
The Treaty was also supported by the International Council for Water and the International Water Partnership and has begun to be studied in faculties of law around the globe because it was regarded as documentation and development of the International Water Law. Moreover, the Treaty will become the main reference to all tribunals and committees of arbitration for resolving disputes over common water.
Seventh: The Treaty was joined by 16 European nations despite the fact that those nations have their own agreements on the international watercourses. They have joined the UNTIWC so as to stress the importance of the principles of the Treaty which does not differ from the European Watercourses agreement because it is based on cooperation. The South African Nations Group for Development amended their protocol on common watercourses to include the UNTIWC principles. The Mekong River nations adopted the advance notification rules which were quite different from UNTIWC rules. All of this demonstrates an extensive international acceptance of the Treaty.
Eighth: The UNTIWC is considered a framework agreement which is aimed at guaranteeing utilization, development, management and preservation of the international watercourses and ensure their ideal and sustained utilization by the present and future generations. It is regarded a framework agreement because it covers some of the basic procedural aspects and a few objective aspects and it leaves the details for the lateral nations to complete in inter-nation agreements that take in consideration the specific properties of the concerned watercourse. Those agreements can adopt or adapt the provisions of the UN Treaty which, therefore, provides the lateral nations a broad margin in the negotiation details of their agreements.
As we have mentioned above, the UN Treaty contains no allocations and does not include provisions on water tariffs or details on sale and purchase of the water as some Sudanese experts allege.
Ninth: Some former Sudanese consultants of the Ministry of Irrigation and Water Resources allege that the watercourse definition saying that “a regional economic integration organization which one or more of its member nations hosts a part of an international watercourse”, offers Israel the right to becoming a Nile Basin member state in its capacity as a member of a number of regional economic integration organizations which may become party to UNTIWC. This is absurdity which we were not intending to discuss if not for the likelihood of raising it once more. The UN Treaty defines the regional economic integration organization as “an organization formed by sovereign nations of a certain regional zone and its member nations transfer to it the jurisdiction concerning the issues which are regulated by this Treaty and permit it, according to its internal regulations, to sign, accept, endorse and join it.” The regional organization is dealt with, in accordance with the Treaty, as a single legal personality, not the individual nations. This text was added to enable the organizations of the European Union to assume this role.
The State of Israel is strongly opposed to the UNTIWC because it is based on the principle of fair and rational benefits while Israel occupies the water of the Palestinians and sells it to them and does not respect the principles of the international law, particularly those related to the international water resources. It should also be brought to mind that the UN Treaty was joined by eight Arab nations, including Jordan and Lebanon whose water rights in the Jordan and Litany rivers are threatened by Israel. Those Arab nations also include Iraq and Syria with whom, according to this crooked logic will share the Tigris and Euphrates rivers.
Several years ago, a number of Egyptian technicians adopted this astonishing theory but later on retracted from it after they were ridiculed by international experts in a number of international water conferences. But the former Sudanese consultants who did not take parts in those conferences still repeat this Egyptian opinion which was dropped by Egypt itself.
Tenth: The Sudan voted in favor of the Treaty on 21 May 1997 and commended I in writing to one of its committees, but after returning home its delegation began to get confused and at a loss and failed to recommend the signing of the UNTIWC by the Sudan and take a criticizing position against it, showing incomprehension of the fundamental aspects of the Treaty.
Eleventh: It took about 17 years for the UNTIWC to come into force but many nations are now preparing to join it, something which occurs in the case of most, if not all, the international agreements, as the nations at first show hesitance but soon after the agreement becomes valid, most of them race to join, fearing international isolation. There are usually numerous parents for success but failure is always orphaned. The Sudan will in a few years find itself isolated beside few nations which fail to join the UNTIWC.
As we have indicated earlier, the UNTIWC is a framework agreement which is aimed at guaranteeing preservation, development, protection, management and utilization of the international watercourse in an ideal and sustained manner by the present and upcoming generations. The nations which have joined the Treaty have shown their belief in the importance of cooperation with regards to the international watercourses to protect and manage them in cooperation. The Sudan must foster this belief by joining the UNTIWC.
Salmanmasalman@gmail.com
www.salmanmasalman.org
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