The Changing Nile Basin Regime: Does Law Matter?

Harvard International Law Journal, Vol. 43, No. 1, pp. 105-159, 2002

U Toronto, Legal Studies Research

55 Pages Posted: 28 Jul 2008 Last revised: 29 Jul 2008

See all articles by Jutta Brunnée

Jutta Brunnée

University of Toronto, Faculty of Law

Stephen J. Toope

University of Cambridge

Date Written: July, 28 2008

Abstract

The goal of this article is to tease out factors that have contributed to the nascent regime change in the Nile Basin. The article's most controversial argument is that evolving legal norms have influenced this change; but not through the creation of predictable rules and institutional structures, as IR scholars often posit. Throughout the meandering evolution of the Nile Basin regime, legal norms have been influential and have both hindered and promoted cooperation. Building upon a previous description of "contextual regimes," this article will suggest that the evolving normative framework for shared freshwater has helped to redefine both the identities and interests of key state actors in the Nile Basin, moving them more recently toward more cooperative behavior. The article's approach is framed around the interactional legal theory of Lon Fuller. Fuller understood law not as hierarchical ordering but as an ongoing generative activity, oriented toward the construction of relatively stable patterns of practices and normative expectations. Rules are persuasive and legal systems are seen as legitimate to the extent that they are consistent with this background of practices and expectations. Some of the central insights regarding the role of law in the Nile Basin are gleaned from extending the analysis of constructivists such as Kratochwil, Onuf, Ruggie, and Wendt, into the discipline of international law.

Part II of the article briefly reviews the linkages between constructivism and the "interactional theory of international law" that we set out. Part III provides an overview of the hydrological and geographic context of the Nile Basin. Part IV details the social and political context, including the weak legal framework that has fostered the historical evolution of a purely competitive regime of freshwater in the Nile Basin. Part V extends the empirical examination to highlight recent moves toward greater cooperation and canvasses various factors promoting regime change. Part VI connects the empirical investigation of Parts III through V to the theoretical framework of Part II, and posits findings concerning the role of international legal norms in helping to explain significant political change. In so doing, the article assesses the contributions of the historic treaties governing the Nile Basin, of international water law, including the new UN Convention on the Law of Non-Navigational Uses of International Watercourses, and of various informal institutions designed to promote cooperation among Nile riparians.

Suggested Citation

Brunnée, Jutta and Toope, Stephen J., The Changing Nile Basin Regime: Does Law Matter? (July, 28 2008). Harvard International Law Journal, Vol. 43, No. 1, pp. 105-159, 2002 ; U Toronto, Legal Studies Research. Available at SSRN: https://ssrn.com/abstract=1182962

Jutta Brunnée (Contact Author)

University of Toronto, Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-946-7353 (Phone)
416-978-7899 (Fax)

Stephen J. Toope

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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