It seems that the Nile Basin Initiative (NBI) process will never resolve the dispute regarding the Nile water agreements. So what are the possible parallel lines of action open?
1. International Court of Justice
I have suggested before and here suggest again that the International Court of Justice may be the place to settle this, at least as it comes to the legibility of the old Nile agreements. If any – or better all – of the Upper riparian countries take this to the court, with the aim of declaring the 1929 and 1959 are not binding to Upper Nile countries, progress will be made. I am not suggesting this as a substitute to the NBI process, but rather as a parallel course of action.
Here is some information from the International Court of Justice web site:
Who may submit cases to the Court?
Only States are eligible to appear before the Court in contentious cases. At present, this basically means the 192 United Nations Member States.
The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them with legal counselling or help them in their dealings with the authorities of any State whatever.
However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.
Why are some disputes between States not considered by the Court?
The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute of its own motion. It is not permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.
The States concerned must also have access to the Court and have accepted its jurisdiction, in other words they must consent to the Court’s considering the dispute in question. This is a fundamental principle governing the settlement of international disputes, States being sovereign and free to choose the methods of resolving their disputes.
A State may manifest its consent in three ways:
- A special agreement: two or more States in a dispute on a specific issue may agree to submit it jointly to the Court and conclude an agreement for this purpose;
- A clause in a treaty: over 300 treaties contain clauses (known as compromissory clauses) by which a State party undertakes in advance to accept the jurisdiction of the Court should a dispute arise on the interpretation or application of the treaty with another State party;
- A unilateral declaration: the States parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as binding with respect to any other State also accepting it as binding. This optional clause system, as it is called, has led to the creation of a group of States each having given the Court jurisdiction to settle any dispute that might arise between them in future. In principle, any State in this group is entitled to bring one or more other States in the group before the Court. Declarations may contain reservations limiting their duration or excluding certain categories of dispute. They are deposited by States with the Secretary-General of the United Nations.
Are decisions of the Court binding?
Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter lays down that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party”.
Judgments are final and without appeal. If either of the parties challenges their scope or meaning, it has the option to request an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.
As regards advisory opinions, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not by whatever means are appropriate for them.
2. Ratifying the Convention on the Law of the Non-navigational Uses of International Watercourses:
Meanwhile, the upper riparian countries should seriously consider ratifying the Convention on the Law of the Non-navigational Uses of International Watercourses (1997). Not a single Nile Basin country ratified it
The objectives of the UN Convention on the Law of Non-Navigational Uses of International Watercourses inter alia are to:
- address the problems affecting many international watercourses resulting from, among other things, increasing demands and pollution,
- create a framework convention that will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations
- affirm the importance of international cooperation and good neighbourliness in this field
- raise awareness of the special situation and needs of developing countries.
Following is its annex on Arbitration.
Unless the parties to the dispute otherwise agree, the arbitration pursuant to article 33 of the Convention shall take place in accordance with articles 2 to 14 of the present annex.
The claimant party shall notify the respondent party that it is referring a dispute to arbitration pursuant to article 33 of the Convention. The notification shall state the subject matter of arbitration and include, in particular, the articles of the Convention, the interpretation or application of which are at issue. If the parties do not agree on the subject matter of the dispute, the arbitral tribunal shall determine the subject matter.
- In disputes between two parties, the arbitral tribunal shall consist of three members. Each of the parties to the dispute shall appoint an arbitrator and the two arbitrators so appointed shall designate by common agreement the third arbitrator, who shall be the Chairman of the tribunal. The latter shall not be a national of one of the parties to the dispute or of any riparian State of the watercourse concerned, nor have his or her usual place of residence in the territory of one of these parties or such riparian State, nor have dealt with the case in any other capacity.
- In disputes between more than two parties, parties in the same interest shall appoint one arbitrator jointly by agreement.
- Any vacancy shall be filled in the manner prescribed for the initial appointment.
- If the Chairman of the arbitral tribunal has not been designated within two months of the appointment of the second arbitrator, the President of the International Court of Justice shall, at the request of a party, designate the Chairman within a further two-month period.
- If one of the parties to the dispute does not appoint an arbitrator within two months of receipt of the request, the other party may inform the President of the International Court of Justice, who shall make the designation within a further two-month period.
The arbitral tribunal shall render its decisions in accordance with the provisions of this Convention and international law.
Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own rules of procedure.
The arbitral tribunal may, at the request of one of the parties, recommend essential interim measures of protection.
- The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, using all means at their disposal, shall: (a) Provide it with all relevant documents, information and facilities; and (b) Enable it, when necessary, to call witnesses or experts and receive their evidence.
- The parties and the arbitrators are under an obligation to protect the confidentiality of any information they receive in confidence during the proceedings of the arbitral tribunal.
Unless the arbitral tribunal determines otherwise because of the particular circumstances of the case, the costs of the tribunal shall be borne by the parties to the dispute in equal shares. The tribunal shall keep a record of all its costs, and shall furnish a final statement thereof to the parties.
Any party that has an interest of a legal nature in the subject matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal.
The tribunal may hear and determine counterclaims arising directly out of the subject matter of the dispute.
Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of its members.
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact and law.
- The tribunal shall render its final decision within five months of the date on which it is fully constituted unless it finds it necessary to extend the time limit for a period which should not exceed five more months.
- The final decision of the arbitral tribunal shall be confined to the subject matter of the dispute and shall state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the final decision. Any member of the tribunal may attach a separate or dissenting opinion to the final decision.
- The award shall be binding on the parties to the dispute. It shall be without appeal unless the parties to the dispute have agreed in advance to an appellate procedure.
- Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the final decision may be submitted by either party for decision to the arbitral tribunal whichrendered it.
Even if Egypt and Sudan do not abide by any of these or refuse to give consent, it makes their international position weaker.