Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement

79 Pages Posted: 9 Jun 2015

See all articles by Mohamed Helal

Mohamed Helal

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 8, 2015

Abstract

South Sudan’s independence has increased the number of Nile riparian states to eleven. Unfortunately, the Nile remains without an all-inclusive legal regime to regulate its use and to ensure that this indispensable natural resource is conserved for future generations. What, therefore, are the legal obligations of the newborn Republic of South Sudan regarding the Nile River? Specifically, this Article asks whether the Egyptian-Sudanese Nile Waters Agreement of 1959 has devolved onto South Sudan. This Article looks to the law of state succession to treaties to answer to this question.

This is a field of international law that is beset with considerable uncertainty. State practice is inconsistent and scholarly opinion is virtually unanimous that the principal international legal instrument on the matter, the 1978 Convention on State Succession in Respect of Treaties, does not wholly reflect customary international law. To further complicate matters, the process by which South Sudan gained independence makes it difficult to reconcile this case with the structure and logic of the 1978 Convention. Therefore, this Article turns to customary international law to determine the rights and obligations of South Sudan in relation to the Nile River. This Article argues that international law recognizes a special category of treaties that establish territorial obligations. The overwhelming weight of state practice and judicial opinion supports the assertion that these territorial obligations remain unaffected by State succession.

This Article concludes that, while it is doubtful that South Sudan has succeeded to the 1959 Nile Water Treaty per se, the Nile’s newest riparian is bound by the territorial obligations enshrined therein. This, however, is an unsatisfactory state of affairs. The existing treaties relating to the Nile River are inadequate to meet the many environmental, demographic, and developmental challenges facing the drainage basin. The Nile riparians need to overcome their differences and reach agreement on a comprehensive legal regime to govern the utilization of the watercourse.

Keywords: State succession, Law of Treaties, riparian law

Suggested Citation

Helal, Mohamed, Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement (June 8, 2015). Emory International Law Review, Vol. 27, No. 2, 2013. Available at SSRN: https://ssrn.com/abstract=2616113

Mohamed Helal (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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