Water Resources in the Sudan North-South Peace Process and
the Potential Implications of the 2011 Referendum
Salman M. A. Salman
Former Lead Counsel and Water Law Adviser, Environmental and International Law Unit, Legal Vice Presidency, The World Bank; currently a consultant on water law and policy.
1 For the full text of the CPA, see:
http://www.sudanarchive.net/cgi-bin/sudan?a=q&fqc=and&f...f=TX&fqv=CPA&txq=CPA.
2 For the full text of “The Addis Ababa Agreement on the Problem of Southern Sudan” see:
http://www.splamilitary.net/documents/THE%20ADDIS%20ABABA%20AGREEMENT.pdf. The Agreement was concluded on March 12, 1972, between the Government of the Democratic Republic of the Sudan, and the Southern Sudan Liberation Movement.
I. Introduction
On January 9, 2005, the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (SPLM/SPLA or SPLM/A) signed, after lengthy and complex negotiations, the Comprehensive Peace Agreement (CPA).1 The negotiations process that led to the conclusion of the CPA started in 2002, and lasted for close to three years. During those years a series of separate protocols and agreements were incrementally and painstakingly negotiated, and gradually agreed upon. They were later consolidated and signed as the CPA.
The conclusion of the CPA is, no doubt, a watershed and a defining moment in the history of the Sudan. It brought to an end a devastating civil war that started in August 1955, a few months before the Sudan became independent in January 1956, and it put in place radical political structures for the division of power and wealth between the two parts of the country. More importantly, and indeed significantly, the CPA recognized, for the first time, the right of the people of Southern Sudan to self-determination. Although an earlier agreement to end the civil war was concluded in 1972 in Addis Ababa, Ethiopia, that agreement granted the South limited regional autonomy only.2 Implementation of the agreement faced a number of difficulties, as well as major and successive breaches by the government in Khartoum, which led to its final collapse in 1983. The SPLM/A was established that year and led the renewed civil war, and thereafter the negotiations process that culminated in the conclusion of the CPA in 2005.
The CPA, as its name indicates, is a fairly wide-ranging agreement. It consists of a Chapeau, six separate protocols and agreements, and two annexures, and spans over close to 250 pages. It even includes a table of contents and more than five pages of a list of abbreviations. The CPA was signed by the then First Vice President of the Republic of the Sudan, and the Chairman of the SPLM/A. It was witnessed by envoys of fourteen countries and organizations including the then presidents of Kenya and Uganda, and representatives of Egypt, Italy, the Netherlands, Norway, the United Kingdom, the United States of America, as well as the African Union, the European Union, the Inter-Governmental Authority on Development (IGAD),3 the Arab League, and the United Nations. This wide range of participation in the process testifies to the importance the world community has ascribed to the CPA and to the peaceful resolution of the conflict in the Sudan. It should also be added that the main undertakings under the different protocols and agreements of the CPA have been duly reflected in the Interim National Constitution of the Republic of the Sudan (Interim Constitution) that was adopted on July 6, 2005, six months after conclusion of the CPA.4
3 IGAD is a regional organization consisting of the East African countries of Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and Uganda. The vision of IGAD is to achieve peace, prosperity and regional integration in the IGAD region. For more details about IGAD, see:
http://www.igad.org/.
4 For a copy of the Interim National Constitution of the Republic of the Sudan 2005 see:
http://www.mpil.de/shared/data/pdf/inc_official_electronic_version.pdf.
This chapter will briefly review the main aspects of each of the different protocols and agreements under the CPA, and discuss how water resources have been addressed by the CPA. The chapter will describe the political geography of Southern Sudan and the Nile, examine past experience with the development of the Nile waters there, and analyze the likely implications of the 2011 referendum on the sharing and management of the Nile waters, particularly in light of the recent developments in the Nile Basin.
II. Protocols and Agreements under the CPA
As indicated earlier, the CPA consists of the Chapeau, six protocols and agreements, and two annexures, one on the implementation modalities of the ceasefire, and the other on the implementation modalities of the other five agreements.
The Chapeau of the CPA recorded the long and continuous negotiations process that went on between May 2002 and December 2004 in Karen, Machakos, Nairobi, Nakuru, Nanyuki and
Naivasha,5 all in Kenya, under the auspices of the IGAD Peace Process.6 It indicated that the conflict in the Sudan was the longest running conflict in Africa, and that it has caused tragic loss of life, destroyed the infrastructure of the country, eroded its economic resources and caused suffering to the people of the Sudan. It confirmed that peace, stability and development are aspirations shared by all the people of the Sudan. The Chapeau underscored that the successful implementation of the CPA would provide a model for good governance, and would help make unity attractive. It stressed the need for full adherence to the letter and spirit of the CPA to guarantee lasting peace, security for all, and justice and equality in the Sudan.
5 Aside from the Machakos Protocol, the remaining five main agreements of the CPA were concluded at Naivasha, although the negotiations might have been carried out at another location. That is why the CPA is usually referred to as the “Naivasha Agreement.”
6 Kenya played a major role in the negotiations process. It appointed General Lazaro Sumbeiywo as a mediator under the IGAD Peace Process. For a description of the negotiations process in each of these venues and the role of General Sumbeiywo, see Waithaka Waihenya, The Mediator – Gen. Lazaro Sumbeiywo and the Southern Sudan Peace Process (Kenway Publications 2006).
7 According to Article 226 of the Interim Constitution, the interim period would start on July 9, 2005. The period falling between the signature of the CPA and the beginning of the interim period (i.e. between January and July 2005) is called “the pre-interim period.” Adoption of the Interim Constitution was the main task accomplished during the pre-interim period.
8 See paragraph 2.5 of the Machakos Protocol.
The first agreement under the CPA was concluded on July 20, 2002, and is entitled “The Machakos Protocol.” The Protocol started by stating in Paragraph 1.1 that “The unity of the Sudan, based on the free will of its people democratic governance, accountability, equality, respect, and justice for all citizens of the Sudan is and shall be the priority of the Parties and that it is possible to redress the grievances of the people of South Sudan and to meet their aspirations within such a framework.” Yet, paragraph 1.3 hastened to aver “that the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.” The Protocol went further and indicated that at the end of the six year interim period,7 “there shall be an internationally-monitored referendum, organized jointly by the Government of the Sudan and the SPLM/A, for the people of the South Sudan to confirm: the unity of the Sudan by voting to adopt the system of government established under the CPA, or to vote for secession.”8
The conclusion of this Protocol was a remarkable breakthrough, and its adoption paved the way for the continuation of the negotiations process and the conclusion of the subsequent agreements. A separate part on “Southern Sudan Right to Self-Determination,” reflecting this Protocol, is included in the Interim Constitution. In addition, the Interim Constitution requires
the National Legislature to issue the Southern Sudan Referendum Act by the beginning of the third year of the interim period, and to subsequently establish the Southern Sudan Referendum Commission.9 Furthermore, it states that the referendum shall take place six months before the end of the six year interim period; that is on January 9, 2011.10 As a result, the Protocol has set in motion an extensive national debate over the unity of the country or secession of Southern Sudan; a debate that would dominate the entire interim period of six years.
9 See Article 220 of the Interim Constitution. Article 221 deals with the establishment of an Independent Assessment and Evaluation Commission to monitor implementation of the CPA during the interim period.
10 See Article 222 of the Interim Constitution.
The second Agreement was concluded on September 25, 2003, more than a year after the Machakos Protocol, and dealt with “Security Arrangements.” The Agreement confirmed the existence of two separate and equal armed forces during the interim period: the Sudanese Armed Forces (SAF), and the Sudan People’s Liberation Army (SPLA); with both forces considered and treated equally as the Sudan’s National Armed Forces. It included detailed provisions on an internationally-monitored ceasefire between the two forces which would come into effect upon the signature of the CPA. It is worth adding that a de facto ceasefire gradually evolved some months after the conclusion of the Machakos Protocol which the Agreement on Security Arrangements confirmed, elaborated and codified. The Agreement also included detailed provisions on the disengagement, redeployment, and mission and mandate of each of the two forces, and the composition and authority of the joint integrated units established from within the two forces of SAF and SPLA.
On January 7, 2004, a year and half after the Machakos Protocol, and four months after the Agreement on the Security Arrangements, the two parties concluded the third agreement under the CPA on “Wealth Sharing.” The main areas addressed under this Agreement are land and natural resources, and oil resources. The Agreement included detailed provisions on the establishment and mandate of a National Land Commission, a Southern Sudan Land Commission, a National Petroleum Commission, a Fiscal and Financial Allocation and Monitoring Commission, and an Oil Revenue Stabilization Account. Other areas addressed under this Agreement included guiding principles for sharing oil revenues and non-oil revenues. The Agreement specified a fixed percentage of the revenue from the oil in Southern Sudan for each of the National Government, the Government of Southern Sudan, and the oil producing
states in the South.11 The Agreement also dealt with monetary policy, banking, currency and borrowing, and the establishment and operation of the multi-donor trust funds.
11 The Wealth Sharing Agreement stipulates that the revenue from the oil in Southern Sudan would be divided equally between the National Government and the Government of Southern Sudan, after deduction of a certain amount for the Oil Revenue Stabilization Account, and 2% for the oil producing states or regions.
12 In December 2005, the Government of Southern Sudan adopted “The Interim Constitution of Southern Sudan 2005.” For a copy of this Constitution, see:
http://www.chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf.
It is worth mentioning that the Agreement on Wealth Sharing does not address water resources, despite the detailed provisions on land and natural resources. Water resources are briefly addressed under the fourth agreement on “Power Sharing” concluded on May 26, 2004. The Power Sharing Agreement laid down in detail basic principles on governance and human rights and fundamental freedoms, including freedom of thought, conscience and religion, and freedom of expression, assembly and association. The Agreement called for a decentralized system of government with significant devolution of powers to Southern Sudan, the states and local level governments, and set forth the structure and institutions of the government at the national and Southern Sudan levels, as well as the state level. The Agreement included four schedules dealing respectively with the National Powers, Powers of the Government of Southern Sudan, Powers of States, and Concurrent Powers.12
Paragraph 33 of Schedule A of the Power Sharing Agreement on national powers, which is reiterated as paragraph 33 of Schedule A of the Interim Constitution, deals with the Nile and other transboundary waters. It places exclusive competency of the National Government on “Nile Water Commission, the management of the Nile Waters, transboundary waters and disputes arising from the management of interstates waters between Northern states and any dispute between Northern and Southern states.” Paragraph 9 of Schedule B of the Power Sharing Agreement which is also reiterated as paragraph 9 of Schedule B of the Interim Constitution lists the powers of the Government of Southern Sudan. These powers include the co-ordination of Southern Sudan services or the establishment of minimum standards or uniform norms in a number of areas including provision of water and waste management services. The powers also include natural resources and forestry, as well as disputes arising from the management of inter-state waters strictly within Southern Sudan. As such, competency over the Nile and other transboundary waters is placed within the national government, while local water management matters are decentralized and placed under the responsibility of the Southern Sudan government.
Two more agreements were concluded on May 26, 2004. The first one dealt with “The Resolution of the Conflict in the Two States of Southern Kordofan and Blue Nile.” Those two states are geographically part of Northern Sudan, but are inhabited by people who identify culturally and ethnically more with Southern Sudan than with the North. The Agreement stated that the diverse cultural heritage and local languages of the population of these states shall be developed and protected. It underscored the need for the development of human resources and infrastructure of the two states, and it set up special local structures, with large powers devolved to them, for achieving these objectives.
The other agreement concluded on May 26, 2004 dealt with “The Resolution of the Abyei Conflict.” This is the third agreement to be concluded on that date, and the sixth one under the CPA. The agreement is also known as the Abyei Protocol. Abyei is an area that was transferred from Southern Sudan to the North. The Protocol sets forth arrangements for delimiting the boundaries of the area and for a referendum for determining its future, as will be discussed in Part VI of this Chapter.
On December 31, 2004, two annexures on the implementation modalities of those six agreements were concluded. The first of the two annexures dealt with “Permanent Ceasefire and Security Arrangements Implementation Modalities and Appendices,” and the other with “Implementation Modalities and Global Implementation Matrix and Appendices” for the other five agreements. Each of them laid down detailed provisions on the implementation arrangements, including the timing, executing body/authority, composition of such body, funding sources, and procedures and process. The adoption of these two annexures brought to a successful conclusion the arduous and lengthy negotiations process that spanned for almost three years, and paved the way for the signature of the CPA on January 9, 2005, less than ten days later. As indicated earlier, the Interim Constitution of the Republic of the Sudan was adopted in July 2005, six months later, to reflect and incorporate the basic undertakings under the CPA, replacing the 1998 Constitution. Indeed Article 225 of the Interim Constitution itself states that “The Comprehensive Peace Agreement is deemed to have been duly incorporated in this Constitution; any provisions of the Comprehensive Peace Agreement which are not expressly incorporated herein shall be considered as part of this Constitution.” This Article of the Constitution attests clearly to the comprehensiveness and authority of the CPA, and comes very close to recognizing the supremacy of the CPA over the Interim Constitution.
Thus, the CPA and the Interim Constitution have covered, aside from the right of self-determination for the people of Southern Sudan, wide and extensive areas of governance, security, as well as power and wealth sharing principles. Water resources were left out of the Wealth Sharing Agreement, and were instead dealt with in the Power Sharing Agreement. Competency over the Nile waters which are really the only transboundary waters in Southern Sudan, are placed exclusively under the jurisdiction of the national government. The linkages between Southern Sudan and the Nile, and this issue will be discussed further in the next parts of this chapter.
III. Political Geography of Southern Sudan and the Nile Basin
Southern Sudan covers an area of about 640,000 square kilometres (sq. km.), or about 26% of the total area of the Sudan of about 2.5 million sq. km. However, one should hasten to add that there are disputes over large border areas between the North and the South, and that at the time of completing this chapter in July 2010 the borders between the two parts of the country had not yet been officially demarcated. Most of those border areas actually involve some of the tributaries of the Nile River, such as Bahr el Arab and Bahr el Ghazal, and thus relate to water resources. The major complicating factor is the grazing and water rights of some of the tribal communities in those areas, particularly in the North.13 It should also be added that the decision as to which part of the country the Abyei area (about 10,500 sq. Km.) will belong, will take place through a referendum, to be held together with the Southern Sudan referendum, as will be discussed later. The Abyei dispute is intrinsically about water and grazing rights.
13 In addition to the North-South unsettled border issues, there are border disputes with some of the countries bordering Southern Sudan. The Ilimi Triangle which is currently under Kenyan administration is a disputed territory between Kenya, Ethiopia and the Sudan. Some border areas between Sudan and Uganda are also in dispute.
According to the Fifth National Census of the Sudan held in November 2009, the population of Southern Sudan is 8.2 million, or 21% of the total population of the Sudan of 39.1 million. Again, this figure is contested by the SPLM who believe the Southern Sudanese have been grossly undercounted during this census, and that refugees are still steadily returning to Southern Sudan.
As indicated earlier, the CPA and the Interim Constitution have set forth a clear division of responsibilities over water resources between the National Government and the Government of Southern Sudan. All of the issues related to the Nile waters are placed within the exclusive
jurisdiction of the National Government. This is notwithstanding the fact that a large part of the Nile falls within Southern Sudan. Indeed, almost all of the important tributaries of the White Nile, including the Sobat River, either originate, or join the river there.
After exiting from Lake Victoria in Uganda, and passing though Lake Kyoga and Lake Albert, the river enters Southern Sudan at Nimule and is called Bahr el Jebel. The city of Juba, the capital of Southern Sudan, falls on this river. After passing through the city of Bor, the river spreads itself into the large swamps called the Sudd (barrier), and branches into Bahr el Jebel and Bahr el Zaraf, to be joined by a number of tributaries flowing from the west and the southwest. The river Bahr el Arab originates in the border areas of the Sudan with the Central African Republic, and flows eastward. It is fed by a number of tributaries including the Lol, Yei, Jur, Tonj, and Naam rivers. The city of Wau, the capital of Western Bahr el Ghazal State, is situated on the Jur River. The Jur and Bahr el Arab merge to form Bahr el Ghazal, and after joining Bahr el Jebel at Lake No, the river is called the White Nile. The river Bahr el Zaraf which branches off Bahr el Jebel joins the White Nile a few kilometers after Lake No. The White Nile then flows eastward to the city of Malakal, the capital of Upper Nile State, where it is joined by the Sobat River. The White Nile contributes about 11.5 Billion Cubic Meters (BCM), or about 14%, of the total flow of the Nile River of 84 BCM.
The Sobat River originates in Ethiopia as the Baro and Akobo rivers which merge inside Southern Sudan. It is joined by the Pibor River which originates within Southern Sudan. The Sobat River thereafter flows through the Machar/Sobat marches before joining the White Nile near the city of Malakal. The combined river continues with the name “the White Nile,”14 and flows for a considerable distance within Southern Sudan before entering Northern Sudan, and later on merging with the Blue Nile at the city of Khartoum, the capital of the Sudan.
14 Some of the books and maps consider the White Nile as starting after the confluence with the Sobat River. Others call the entire river from Lake Victoria to Khartoum “the White Nile,” while a third group considers the White Nile as starting after the confluence of Bahr el Ghazal and Bahr el Jebel. The latter approach, which the author subscribes to, comports with most of the literature on the Nile and helps in distinguishing the White Nile with its Equatorial Lakes origin, and the Sobat River that flows from Ethiopia. Yet, the author also subscribes to the use of the name “White Nile” to describe in a generic sense the whole river from Lake Victoria to Khartoum.
15 For a detailed account of the political geography of the Nile, see Robert Collins, The Nile (Yale University Press 2002).
The Blue Nile and its tributaries, including the Rahad and Dinder rivers, rise in the Ethiopian highlands. Upon their confluence at Khartoum, the White Nile and the Blue Nile form the Nile River.15 The Nile River is joined after that, still in Northern Sudan, by the Atbara River
which also originates in the Ethiopian highlands. The Atbara River is the last tributary to join the Nile, which thereafter flows through Northern Sudan and Egypt before emptying into the Mediterranean Sea.
The Sobat River also contributes the same amount of water as that of the White Nile, i.e. about 11.5 BCM, or 14% of the Nile waters. This brings the total flow of the White Nile when it crosses Southern Sudan into Northern Sudan to about 23 BCM or 28% of the total Nile waters. Large amount of water is lost to evaporation and seepage in the swamps of Southern Sudan, namely the Sudd which extends over Bahr el Jebel and Bahr el Zaraf, the Bhr el Ghazal swamps in the western part of the river, and the Sobat/Machar swamps in the east. It is estimated that about 20 billion cubic meters of water can be realized from those swamps and added to the flow of the White Nile, almost doubling its flow. About 20% of the Nile Basin area falls in Southern Sudan, and more than 90% of Southern Sudan is part of the Nile Basin. As indicated earlier, the three main cities in Southern Sudan – Juba, Malakal and Wau - are situated on the White Nile, or one of its tributaries.
The remaining 72% of the flow of the Nile (about 62 BCM) comes from the Blue Nile (59%), and the Atbara River (13%).16 Accordingly, the Ethiopian plateaus are the origin of about 86% of the waters of the Nile (73.5 BCM), while the Equatorial Lakes contribute about 14% (11.5 BCM) of the total flow of the Nile River of 84 BCM.17 It should be clarified, however, that despite the high contribution of the Blue Nile, its peak flow is largely seasonal, concentrated mostly in the months of June through September. On the other hand, the relatively smaller contribution of the White Nile is mostly steady throughout the year, and accordingly provides the critical water needs of Sudan and Egypt during the low flow period of the Blue Nile. Thus, the two rivers, through their unique flow synergies, actually complement each other, and provide for a perennial river in Sudan and Egypt. It should also be added that the Blue Nile is quite heavy with silt that it carries over from the Ethiopian highlands, whereas the White Nile is almost silt-free.
16 For these figures and more details on the Nile, see John Waterbury, The Nile Basin – National Determinants for Collective Action, 128 (Yale University Press 2002).
17 The total annual Nile flow measured at Aswan of 84 billion cubic meters (BCM) is indicated in the 1959 Agreement between Egypt and Sudan (see infra n. 18).
In addition to the four riparians mentioned above - Uganda, Ethiopia, Sudan and Egypt - the Nile is shared by six more states. Tanzania and Kenya share Lake Victoria with Uganda,
while the highlands of Burundi and Rwanda are the origins of the Kagera Rivera which is the major river flowing in Lake Victoria. The Democratic Republic of Congo (DRC) shares the Semliki River which flows into Lake Albert, as well as Lake Albert itself, with Uganda. As indicated earlier, Lake Albert is one of the sources of the White Nile. On the other hand, Eritrea shares portions of the Setit River, which is a tributary of the Atbara River, with Ethiopia. Thus, Tanzania, Kenya, Burundi, Rwanda, Democratic Republic of Congo, and Eritrea are also riparians to the Nile River. The stakes and interests of Egypt, Sudan and Ethiopia are classified as very high, while those of Uganda are high. Tanzania, Kenya, Burundi and Rwanda stakes and interests are moderate, while those of Eritrea and the DRC are low.
Despite this wide range of riparians’ interests and stakes, and contributions to the river flows, Egypt, and to some extent Sudan have, for a long time, dominated the Nile River. Egypt and Sudan concluded an Agreement for the full utilization of the Nile waters in November 1959.18 The Agreement established the total annual flow of the Nile measured at Aswan as 84 Billion Cubic Meters (BCM) and allocated 55.5 BCM to Egypt, and 18.5 BCM to the Sudan. The remaining ten BCM represent the evaporation losses at the large reservoir extending below the Aswan High Dam in southern Egypt and northern Sudan. Thus, the two countries allocated the entire flow of the Nile at Aswan to themselves. The Agreement sanctioned the construction of the Aswan High Dam in Egypt, and the Roseiris Dam on the Blue Nile in the Sudan. To ensure technical co-operation in carrying out the necessary studies and research in connection with projects for the Nile control, for increase of its supply and for the continuation of hydrological survey work of the Nile in its upper reaches, the Agreement established the Permanent Joint Technical Committee composed of an equal number of members from both countries.19
18 See Agreement between the Republic of Sudan and the United Arab Republic for the Full Utilization of the Nile Waters, signed on November 8, 1959, 453 U.N.T.S. 64 (1963).
19 As a follow-up to the 1959 Agreement, the two parties signed on January 17, 1960, the “Protocol Concerning the Establishment of the Permanent Joint Technical Committee.” See U.N.L.S. B/12 (International Rivers), at 143.
The Agreement recognized the claims of the other riparians to a share of the waters of the Nile. However, it subjected this right to a study by Egypt and the Sudan, as well as agreement between them as to how much water, if any, would be allocated to any such riparian. Essentially, the Agreement gives Egypt and Sudan the ultimate decision on whether any riparian would get any amount of water from the Nile River; a position that is totally rejected by the other riparians. This position seems to stem from, and be based on, the 1929 Nile Agreement concluded between
Egypt and Great Britain which gave Egypt veto power over any project in any of the then British colonies (Uganda, Kenya, Tanzania and the Sudan) that would adversely affect Egypt. This Agreement is also rejected by the three equatorial countries who claim that they were not parties to this treaty as it was concluded with Great Britain during the colonial era.20
20 These countries also invoke the Nyerere Doctrine (named after Julius Nyerere, the first Prime Minister and later President of Tanzania) which gave the treaties concluded during the colonial era two years during which such treaties are either re-negotiated or they lapse. For more on the Nyerere Doctrine see Yilma Makonnen, The Nyerere Doctrine of State Succession and the New States of East Africa (Eastern Africa Publications Limited, Arusha, Tanzania, 1984). Egypt, on the other hand, invokes the principle of state succession for its claim that the 1929 Agreement is valid and binding.
21 Some maps and books on the Nile consider the Bahr el Ghazal swamps as part of the Sudd. This chapter followed the approach that distinguishes between the two swamps based on the source of their waters.
The 1959 Agreement included provisions on the water losses in the vast swamps and flood areas of the Sudd of Southern Sudan extending around Bahr el Jebel and Bahr el Zeraf, and also the Bahr el Ghazal swamps,21 as well as the Sobat/Machar marches, and the need for conservation and use of such waters. As indicated earlier, because of these swamps, a large amount of water from these rivers does not reach the main river, and is lost to evaporation and transpiration. Under the Agreement, the two parties would carry out projects for bypassing these swamps and conveying the water straight to the main river, for the purpose of increasing the flow of the Nile, and making such waters available for their use. The benefits and costs of such projects would be shared equally between the two parties. The Agreement gave Egypt the right to undertake the works by itself if it is determined that it needs such water before the Sudan does. When the Sudan is ready to make use of its share according to the agreed program, the Sudan shall then reimburse Egypt of its share in the cost of such works. Thus, as will be discussed in more details later, the Sudd and other swamps and marches of Southern Sudan have been viewed by Egypt and Northern Sudan as one major source for additional waters to the Nile River for their use.
IV. Southern Sudan, the Nile Basin and the CPA
Given the size of the Nile Basin in Southern Sudan and the fact that most of the projects that would augment the flow of the Nile fall there, questions were raised as to why the SPLM decided not to have an explicit and active role under the CPA in the sharing and management of the Nile water resources with the National Government during the interim period, as happened with oil, land and other natural resources. Similarly, questions were raised as to why the SPLM did not demand representation in the Nile Permanent Technical Joint Committee, or at least a say
in its proposed projects in Southern Sudan. In my view there are two main reasons for this decision.
The first and main reason relates to the controversies and disagreements which surround the Nile Basin. The 1959 Agreement, as discussed earlier, is a bilateral agreement which allocated the entire flow of the Nile waters at Aswan to Egypt and Sudan, thus effectively excluding all the other eight Nile riparians. This Agreement has been vehemently opposed and criticized by those riparians. Egypt and Sudan continuously stress their historic and existing uses and rights, and aver that those uses and rights are protected under international law, and are not negotiable. The other riparians, on the other hand, assert their claims to an equitable and reasonable share of the Nile waters, and also invoke international law to support their claims. They emphasize that almost the entire flow of the Nile originates within their territories and that they are entitled to use part of that flow. Colonial era treaties, particularly the 1929 Agreement, are other thorny issues, defended and avowed by Egypt, while the other riparians have declared that they are not bound by them because they were not parties to such treaties in the first place.22
22 For further discussion of these issues, see The Nile Basin, in The Law of International Drainage Basins, (A. H. Garretson, R. D. Hayton & C. J. Olmstead (eds.)), 270 (Oceana Publications 1967).
23 The NBI was established by the Nile Council of Ministers of Water Affairs in 1999, bringing together for the first time the ten riparian states. It is guided by a shared vision “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources.” For more on the NBI, and the status of the Nile Cooperative Framework Agreement, see:
http://www.nilebasin.org/index.php?option=com_content&task=view&id=13.
24 The Agreement will remain open for signature for one year (until May 13, 2011). It requires six instruments of ratification to enter into force and effect.
The complexity of the Nile situation manifests itself in the failure of the Nile riparians to reach an agreement on an inclusive Cooperative Framework Agreement, more than ten years after the start of the facilitative efforts under the Nile Basin Initiative (NBI) in 1999.23 Despite one year of intense discussions, major differences remained on the issues of colonial treaties and acquired rights which Egypt and Sudan declared were not negotiable, as well as on notification and the manner in which the Agreement can be amended (majority or consensus). Four of the ten riparians, namely, Ethiopia, Tanzania, Uganda, and Rwanda signed the Cooperative Framework Agreement on May 14, 2010, and they were followed by Kenya on May 19, 2010. Although Burundi and DRC had earlier indicated their intention to sign the Agreement, they had not yet done so, nor have they publicly stated their position.24 Egypt and Sudan oppose vehemently the
Agreement, and Eritrea maintains its position as an observer, with little or no interest in the process. Consequently, a major rift has ensued within the ten riparians of the Nile Basin.
The leaders of the Southern Sudan must have been keenly aware of these acute problems and controversies.25 They must have realized that the right of self-determination which the SPLM has gained could be at risk if it were to be jumbled with the Nile politics because of the wariness of the other riparians of the emergence of an eleventh riparian for the Nile Basin. They were also aware that Southern Sudan occupies a considerable area of the Basin, and that the projects which would augment the flow of the Nile, all fall in Southern Sudan.
25 As will be discussed in the next part of this chapter, the late Dr. John Garang, the leader of the SPLM/A, wrote his doctorate dissertation on the Jonglei Canal, with a lengthy discussion of the Nile; see infra n. 41. One of Garang’s closest advisers, Dr. Mansour Khalid, also wrote his doctorate dissertation on Le regime international des eaux du Nil (These, Paris Universite, Faculte de droit et des sciences economiques, 1966).
The birth of a new riparian state would be seen by some riparians as another complicating factor to the already complex situation within the Nile Basin, and thus may not be welcomed by some of the Nile riparians. The Organization of African Unity (OAU), as well as its successor, the African Union (AU), have both opposed secessionist movements within the Continent, and have repeatedly called for respect and deference to the colonial boundaries. Injection of international waters in the Sudan North-South intricate negotiations in the early 2000s would have most likely complicated the situation for the SPLM/A with the other Nile riparians. Given these pressing circumstances, it would have been unwise for the SPLM to inject itself in the Nile controversies by demanding a share of the Nile waters, or by asking for representation in one of its institutions. Demanding one or the other could be interpreted by the other riparians, particularly Egypt who was closely involved with the negotiations, as a sign of determination by the Southern Sudan to play a role in the Nile, even before secession. Perhaps because of those concerns, the SPLM decided not only to leave the Nile waters out of its mandate, but to make it explicit in the CPA that the Nile waters fall within the exclusive responsibilities of the National Government. By following this approach, the SPLM had allayed the fears of the other Nile riparians and made it less difficult for them not to oppose self-determination for Southern Sudan.
The second reason relates to the absence of any irrigation projects in Southern Sudan that would require abstraction of the Nile waters. In fact, the large projects that use a good part of Sudan’s share of the Nile waters under the 1959 Agreement are all in the North. The Gezira Scheme in central Sudan is the largest user of the Nile waters, averaging annually about 8 BCM,
or about 40% of Sudan’s share. Other projects include the Rahad Project, the New Halfa Scheme, the Suki Scheme, the White Nile and Blue Nile Pumps Schemes, and the Kenana Sugar Scheme. Despite the large number and size of these projects, the Sudan has still not used all its share of 18.5 BCM allocated under the 1959 Agreement. Its average use has ranged between 14 and 15 BCM annually. On the other hand, the few agricultural projects in Southern Sudan such as the Nzara (or Anzara) Agro-industrial Project, Tonj Kenaf factory, Melutt and Mongalla Sugar projects, Wau Brewery factory and Malakal Pulp and Paper project were either not completed, or are in need of major rehabilitation.26 Hence, due to the unequal development of the two parts of the country, the water needs of Southern Sudan are currently quite limited. As a result, there has been no need to invoke the second part of paragraph 33 of Schedule A to each of the CPA and the Interim Constitution vesting the National Government with authority over “…… transboundary waters and disputes arising from the management of interstates waters between Northern states and any dispute between Northern and Southern states.” It should also be added that, even if the incomplete and non-performing projects in the South were to be completed and/or rehabilitated during the interim period, there could still be available Nile waters from the Sudan’s share for these projects. Moreover, the June to October heavy rain helps, for the time being, in sustaining the limited subsistence agro-pastoral activities by the local communities in the South during that period.
26 For a discussion of the problems affecting those projects, see Benaiah Yongo-Bure, Economic Development of Southern Sudan, Chapters 3 and 4 (University Press of America 2007).
These are perhaps some of the reasons as to why the SPLM left responsibility for the Nile waters during the interim period to the National Government. However, armed by the fact that water resources are one of the subjects for negotiations prior to the 2011 referendum, as will be discussed later, the Government of Southern Sudan has gradually started to assert itself on the issues of the Nile, as discussed below.
V. The Jonglei Canal Project
Describing the Sudd of Southern Sudan, Alan Moorehead wrote: “There is no more formidable swamp in the world than the Sudd. The Nile loses itself in a vast sea of papyrus ferns and rotting vegetation… This region is neither land nor water. Year by year, the current keeps bringing down more floating vegetation and packs it into solid chunks perhaps twenty feet thick and strong enough for an elephant to walk on. But then this debris breaks away in islands and forms
again in another place, and this is repeated in a thousand indistinguishable patterns and goes on forever.”27
27 See Alan Moorehead, The White Nile, 88-89 (HarperCollins 2000).
28 See, by way of example, Sir Samuel White Baker, The Albert N’yanza Great Basin of the Nile And Explorations of the Nile Sources, 47-49 (The Narrative Press 2002). Samuel Baker passed through the Sudd in the 1860s.
29 see Terje Tvedt, The River Nile in the Age of the British – Political Ecology and the Quest for Economic Power, 21 (I.B.Tauris 2004). Note in particular the author’s statement that “British banks supported increased cotton exports in order to buttress Egypt’s ability to repay its debts. In 1882 Egypt’s foreign debt had risen to £100 million, and annual debt service to £5 million, of which a large proportion went to Britain. The Lancashire textile industry wished to reduce its dependence on American cotton by increasing supplies of cheaper cotton from Egypt.”
30 See Sir William Garstin, Report Upon the Basin of the Upper Nile with Proposals for Improvement of the River (Cairo National Printing Department 1904).
The Sudd area varies in size between 30,000 to 40,000 square kilometers, and could extend to double that size during the wet season, making it one of the largest wetlands in the world. As discussed earlier, large quantities of water in the Sudd are lost to evaporation and transpiration. Furthermore, and as a result of these thick and huge vegetations over vastly spreading swamps, navigation through the Sudd area has been quite difficult. The explorers of the White Nile during the second half of the nineteenth century suffered enormously when passing through the Sudd region looking for the sources of the Nile. They left behind detailed accounts about the Sudd which the Anglo-Egyptian colonial administration of the Sudan that established itself in 1898, took note of.28 Consequently, the issue of the Sudd became one of the early concerns of the colonial administration. The Sudd area has been viewed from the early years as one of the components for maximizing the flow of the Nile for expanding cotton production in Egypt to meet the growing needs of the textile industry in Lancashire.29 Hence, the search commenced immediately after the conquest of the Sudan for the best ways to bypass those swamps and deliver the water to the White Nile without diminution of its quantity, for augmenting the flow of the Nile.
In 1904, less than six years after the conquest of the Sudan, Sir William Garstin, the Under-Secretary of State for Public Works in Egypt, completed and published his famous, voluminous and influential report on the Basin of the Upper Nile.30 The report included a thorough investigation of the White Nile and its tributaries. With regard to the Sudd, Garstin recommended excavating an entirely new channel of about 340 kilometers, being the shortest and most direct route, to bring down the water from the upper Nile (Bahr el Jebel) at Bor, directly to the junction of the White Nile with the Sobat River, thus bypassing the Sudd. This proposal, which came to be known as “the Garstin Cut,” continued to dominate the discussion on
the Sudd. Indeed, the proposal became the genesis of what is now known as the Jonglei Canal project. The Canal would start from the Jonglei village, not far from Bor, and would extend for about 360 kilometers to the confluence of the White Nile and the Sobat River, following more or less the same route suggested by Garstin.31
31 Jonglei is now a state within Southern Sudan, and the canal would fall entirely within this state.
32 See Arthur Gaitskell, Gezira – A Story of Development in the Sudan, 113 (Faber and Faber1959).
33 See Paul Howell, Michael Lock & Stephen Cobb (ed.), The Jonglei Canal – Impact and Opportunity, 37-42 (Cambridge University Press 1988).
34 As a result of the inundation of their homes by the Aswan High Dam, more than 50,000 Nubian Sudanese living in the border town of Wadi Halfa and the surrounding villages had to be relocated to a new set of villages in Northeastern Sudan close to the Atbara River called New Halfa. For the story of the uprooting and resettlement of those people see Hassan Dafalla, The Nubian Exodus (C. Hurst and Company, London 1975).
The proposal for this canal was considered again in the 1920s, but was shelved following the deterioration in relations between Britain and Egypt as a result of the assassination of the Governor General of Sudan, Sir Lee Stack, in Cairo in 1924.32 Studies of this proposal were revived in the mid-1930s, and again in 1946 when the colonial administration in the Sudan established the Jonglei Investigation Team. The Team issued a series of studies culminating in its 1953 report.33 But by that time the attention of Egypt had shifted mainly to the Aswan High Dam, and the Jonglei Canal project took a back seat.
As discussed earlier, the 1959 Nile Waters Agreement between Egypt and Sudan included detailed provisions on projects for preserving the waters of the swamps of Southern Sudan. However, it was only in 1974 that Egypt and Sudan took the decision to start construction of the Jonglei Canal, following the conclusion in 1972 of the Addis Ababa Agreement that ended the war for awhile in the South. The new design of the project was based on the earlier designs that were derived from the Garstin proposal. The project consisted of construction of a 360 kilometer canal for conveyance of water from Bahr el Jebel at Jonglei village, to the junction of the White Nile with the Sobat River, and eventually to Northern Sudan and Egypt. The project also included some development components for the project area. Those components consisted of plans for a large scale irrigation scheme for sugar growing and processing, as well as linking of the area by all-year river and road traffic and bridges, in addition to education and health services. It is worth noting in this connection that under the 1959 Nile Waters Agreement Egypt agreed to the payment of 15 million Egyptian pounds to the Sudan as full compensation for the damage to Sudanese property resulting from the storage of water behind the Aswan High Dam, and inundation of Sudanese territory.34 However, the Agreement did not include any reference
for compensation to the local people who may be adversely affected by the works in the swamps of Southern Sudan.
The National Council for the Development of the Jonglei Canal Area was established in 1974, with the Jonglei Executive Organ as its implementing entity. Nonetheless, the Permanent Joint Technical Committee established under the 1959 Nile Waters Agreement continued to have the overall supervisory responsibilities over the project. The total cost of the project was estimated as $260 million. When completed, the Jonglei Canal was expected to add close to 5 BCM to the flow of the White Nile. The cost and benefits were to be divided equally between Sudan and Egypt. An equal amount of water is also expected from the Jonglei Canal 2 which would drain a large part of the remaining swamps of the Sudd area of Behr el Jebel and Bahr el Zeraf. The studies also indicate that a similar amount of water can be drained from each of the Bahr el Ghazal swamps, and the Machar/Sobat marches. The four projects together, if ever implemented, could almost double the flow of the White Nile.35
35 For more discussion of those four proposals and the amount of water to be realized, see Waterbury, supra n. 16, at 144.
36 A French battalion, under the leadership of Marchand, arrived in the Fashoda area of the White Nile in Southern Sudan in July 1898. Following conquest of the Sudan by the Anglo-Egyptian army in September 1898, Kitchener was ordered to move immediately to Fashoda to confront the French battalion. The incident represented the epic of the scramble for Africa generally, and for the Nile in particular, by the European colonial powers. After a brief encounter, and frenzy communications between London and Paris, the French withdrew from Fashoda, resulting in the White Nile coming under the full control of the British. Fashoda, the village where that incident took place, was subsequently renamed “Kodok;” perhaps as a gesture of conciliation with the French. The ICC camp was erected a few miles south of that village. For a detailed account of the Fashoda incident, see Terje Tvedt, supra n. 29, at 44-50.
The contract for the Jonglei Canal was awarded to the French consortium Compagnie de Constructions Internationales (CCI) which had excavated a similar project before - the Jhelum-Indus link canal in Pakistan. Its huge excavator was dismantled and brought by land and sea to the proposed canal site where it was re-assembled; an extremely demanding job in terms of labor, time and cost. A number of engineers and technicians mainly from France, Pakistan and Sudan, in addition to local laborers, were employed in the project, and the foreign staff lived in a camp erected in the northern point of the Canal close to the junction of the White Nile and the Sobat River. It was quite ironic that the French returned, eighty years later, as contractors to the same area of the White Nile from which Marchand and his troops were forced out as invaders by Kitchener, at the famous Fashoda incident in 1898.36
The Jonglei Canal project was, however, faced from the start with major opposition in Southern Sudan because it was seen as basically serving the interests and needs of Northern Sudan and Egypt. There were also concerns, voiced by local as well as international groups and individuals, about the negative impact of the Canal on the ecosystem and ecological integrity of the Sudd, as well as its adverse effects on the livelihood of the local people. Concerns about adverse effects included drinking water, pasture, fisheries and the access to either side of the Canal for the pastoral communities and their herds, as well as for wildlife.37 The opposition was also fuelled by rumors about the impending settlement of two million Egyptian farmers in the Canal area. Students in a number of cities in Southern Sudan rioted against the project, and three people were shot and killed during those riots. The situation gradually quieted, and implementation of the project started in 1978.38
37 For a discussion of some of the complaints against the project, see Yongo-Bure, supra n. 26, chapter 10.
38 For a description of the developments concerning the Jonglei Canal project, see Collins, supra n. 15, at 195-212. See also Abel Alier, Southern Sudan – Too Many Agreements Dishonored, 193-214 (Ithaca Press 1990). Abel Alier was the President of the High Executive Council of Southern Sudan when those developments took place. He was a strong supporter of the Jonglei Canal project, and was quoted as saying in response to the protests against the project “If we have to drive our people to paradise with sticks, we will do so for their own good and the good of those who come after us.” See Collins, supra n. 15, at 204.
The work proceeded slowly due to difficulties with the soil, weather and the supply of fuel, but it gradually picked up. By November 1983, about 260 kilometers out of the total length of the Canal of 360 kilometers were completed. However, in that month, half a year after its establishment, the SPLM/A attacked the Canal site, bringing the project to a temporary halt, and then to a total halt in February 1984. The dreams of peace and development promised by the Addis Ababa Agreement were shattered, and the hard and costly work on the Jonglei Canal came to an abrupt end. The reality of the renewed devastating civil war, led by the SPLM/A, dawned on the Sudan again. In addition to the Canal project, the SPLM/A was able to halt the oil operations of Chevron, also in the South, as well as the work on the modernization and expansion of the airport at Juba, the capital of Southern Sudan.
As a result of the SPLM/A attack on the Canal site, a dispute ensued between the Government of the Sudan and CCI regarding the obligations of the parties under the contract, and the matter was referred for arbitration before the International Chamber of Commerce in 1988. The arbitration proceedings indicated that the SPLA carried out three attacks on the Jonglei Canal site starting on November 16, 1983, then on February 6, 1984, with the final attack
that brought the project to a complete halt on February 10, 1984.39 Since that time the huge excavator sat idle and rusting in the middle of the Sudd swamps about one hundred kilometers north of Jonglei village. The completed portion of the Canal had turned into a large ditch where wildlife could easily get trapped to death, and impeding the movement of people and animals in that region.
39 See International Council for Commercial Arbitration, Yearbook of Commercial Arbitration, Volume XIII, 1988 at 69 (Kluwer 1988).
40 See Letters from Joseph Oduho, Chairman of the Political and Foreign Affairs Committee of the SPLM, dated November, 30, 1983, and December 7, 1983; 54 Horn of Africa, Volume 8, No. 1 (1984), at 52.
41 See John Garang de Mabior, Identifying, Selecting and Implementing Rural Development Strategies for Socio-Economic Development in the Jonglei Project Area, Southern Region, Sudan, 7 (Unpublished Dissertation Submitted to the Graduate Faculty in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy, Iowa State University, Ames, Iowa, 1981).
The main complaint the SPLM/A had against the project was that the work concentrated on the excavation of the Canal, and all the socio-economic development components of the project–irrigated agriculture, the road, bridges, schools and hospitals–were not even started in 1983, although they were presented as an integral part of the project in 1974.40 In other words, the SPLM/A saw the project as having simply turned into one for conveying the waters of the Sudd to Northern Sudan and Egypt.
As mentioned before, the late Dr. John Garang, leader of the SPLM/A, completed his doctorate dissertation on the Jonglei Canal in 1981. One of the specific objectives of his study was: “To provide a framework for examining rural development strategies for socio-economic development in the JPA (Jonglei Development Project Area) by focusing on: (a) the goals of socio-economic development in the JPA as they relate to national goals, and (b) the resource potential of the JPA in terms of the area’s contribution to regional and national goals.”41 The thesis argued that the Jonglei Canal project as planned and executed would simply perpetuate poverty and underdevelopment of the inhabitants of the area. Hence, the leader of the SPLM/A himself had thorough knowledge of and major concerns about the project.
It should be observed that the environmental and social standards, particularly for water infrastructure projects, are now far more strict and elaborate than when the project was planned in the early 1970s. Local, regional and international civil society organizations concerned with the environment and ecosystem of the Sudd and the rights of the tribal and local groups there are certain to be keeping a close eye on any plans for the revival of the Jonglei Canal project. To boost the cause of these environmentalists, the Sudd area was officially designated on November
1, 2006 as “Wetlands of International Importance” under the Ramsar Convention on Wetlands, 1971.42 The Sudd would be the third largest Ramsar site in the world after the Okavango Delta in Botswana, and the Queen Maud Gulf in Canada. Article 4(1) of the Convention obliges each contracting party to promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and to provide adequately for their wardening.”
42 For the Ramsar Convention and Ramsar List of Wetlands of International Importance, see:
http://www.ramsar.org/key_sitelist.htm. Article 2(2) of the Convention states that: “wetlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology.” Sudan became a party to the Ramsar Convention on May 7, 2005; see:
http://www.ramsar.org/cda/ramsar/display/main/main.jsp?...6-123^23808_4000_0__.
43 An article dated August 7, 2009, cited reservations expressed by the Minister of Irrigation of the Government of Southern Sudan on the Jonglei Canal project, concerning the political, economic, social and environmental effects. The Minister indicated that the project needs a new feasibility study that should be carried out by his Ministry. See:
http://www.sudaneseonline.com/spip.php?article32062.
44 This statement was made repeatedly by the President of the Government of Southern Sudan in an interview in Arabic on May 2nd, 2010, available at:
http://www.sudaneseonline.com/index.php?option=com_content&vi...0-16-11-36&Itemid=67.
45 See Deteriorating security in parts of South Sudan hampers refugee returns, available at:
http://www.alertnet.org/thenews/newsdesk/UNHCR/556774f3...e8ae1bbda0f94c4d.htm.
As discussed earlier, the CPA and the Interim Constitution have placed the management of the Nile waters as well as the Nile Water Commission under the jurisdiction of the national government. As such, a decision on the resumption of the work on the Jonglei canal would fall under this category of activities, and would be undertaken and managed by the national government. However, the Government of Southern Sudan has gradually asserted itself in this area. It has initially raised concerns about the political, economic, social and environmental effects of the Jonglei Canal Project.43 This year, a few months before the referendum, the Government of Southern Sudan has made it abundantly clear that the Jonglei Canal Project is not one of its priorities.44 It should also be added in this connection that the security situation in the Jonglei State, as well as other areas in the South, has been steadily deteriorating. Inter-tribal fights, food shortages and military clashes have been regularly reported since early 2009.45
Reallocation of the waters of the Nile has been the main contentious issue during the recent fury among the Nile Basin countries. With the increasing assertiveness by some of the Nile riparians of their right to an equitable and reasonable utilization of the Nile waters, the issue of the preservation and use of the waters of the Sudd and of the Machar/Sobat marches of Southern Sudan may be viewed as a wider Nile Basin issue, and not simply a Sudanese-Egyptian
project. The question that may be posed by some of the Nile riparian states in this connection is: whose water is it anyway? As mentioned earlier, the origin of Bahr el Jebel is Lake Victoria, and the Sobat River flows from Ethiopia.
Aside from the Jonglei Canal Project, the Abyei territorial dispute between the North and the South is, in my view, another main area that is related to water resources and the Nile Basin, as discussed below.
VI. The Abyei Dispute: Land, Oil or Water?
The Abyei Protocol concluded on May 26, 2004, as mentioned in part II of this Chapter, dealt with “The Resolution of the Abyei Conflict.”46 This is a border area where grazing and water rights of the local communities, particularly some northern tribes who move southward during the dry season, are in dispute. Although this area is governed by a certain protocol, and as discussed below, by a decision from the Permanent Court of Arbitration, there are other border areas with similar claims waiting to be demarcated. With the competition over water and grazing rights becoming increasingly fierce, demarcation of those borders before the referendum is going to be quite challenging.
46 The main principles for the Abyei Protocol were proposed by the then US Special Envoy to the Sudan, Senator John Danforth and his staff, following the impasse on the matter. The proposed principles which were presented to the two parties in March 2004, were accepted by them, and signed as the Abyei Protocol. See footnote to the Abyei Protocol, supra n. 1, at 65.
47 Kordofan has been divided into two states, Northern Kordofan and Southern Kordofan. Similarly, Bahr el Ghazal has been divided into Northern Bahr el Ghazal, Western Bahr el Ghazal, Warrap and Lakes states. The issues regarding the Abyei area now concern the states of Southern Kordofan and Northern Bahr el Ghazal. For more on the history and developments on the Abyei dispute, see Salman M. A. Salman, The Abyei Territorial Dispute and its Resolution Course – Implications for the Sudan-North South Peace Process, in Land and Post-Conflict Peacebuilding (Jon Unruh and Rhodri Williams, editors, Environmental Law Institute, Washington DC, forthcoming 2011).
48 According to Article 51 of the Interim Constitution, the Presidency consists of the President and the two Vice Presidents.
The Abyei area is defined under this Protocol “as the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905.” Kordofan is a state in Northern Sudan bordering the state of Bahr el Ghazal in Southern Sudan from which the nine chiefdoms were transferred.47 The Protocol placed the Abyei area during the interim period under the Presidency,48 and stated that the area would be administered by a local executive council elected by the residents of the Abyei area. Pending the election of the council, its initial members would be appointed by the Presidency. The residents of the Abyei area would be citizens of both Kordofan and Bahr el Ghazal.
Agreement on the boundaries of those nine chiefdoms has proven quite difficult and challenging for the two parties. This is because, following demarcation of the boundaries, the people of this area, according to the Abyei Protocol, will have the right to choose, through a referendum to be carried out simultaneously with the referendum of Southern Sudan self-determination in January 2011, between retaining their special administrative status in Northern Sudan, or becoming part of Bahr el Ghazal in Southern Sudan.49 If they choose to become part of Bahr el Ghazal, this would mean that the Abyei area could become part of the independent Southern Sudan, if the latter chooses to secede in the referendum. In essence, this could mean that what is part of the Northern state of Kordofan, and now has a special status in the North, could be seceded to the Southern state of Bahr el Ghazal. The discovery of oil resources in and around the Abyei area has no doubt been another complicating factor. The Abyei Protocol included detailed provisions on the sharing of the net-oil revenue from the oil produced in the Abyei area during the interim period.50 It should also be added in this connection that in addition to the National Government and the SPLM/A, the dispute also involves the Southern tribe of the Ngok Dinka and the Northern tribe of the Misseriya who share large parts of, and have conflicting grazing and water rights claims on, the Abyei area.51
49 Most of the provisions of the Abyei Protocol, including the referendum, are reflected and incorporated in Article 183 of the Interim Constitution.
50 The Abyei Protocol sets the following percentages for the sharing of the net revenue from the oil produced within the Abyei area: 50% for the National Government, 42% for the Government of Southern Sudan, and 2% for each of Bahr el Ghazal, Kordofan, the Ngok Dinka and the Misseriya.
51 For the extent of the claims of each of the Ngok Dinka and the Misseriya, see infra, n. 52 & n. 53.
52 For composition, description and analysis of the work of the ABC, see Donald Petterson, Abyei Unresolved: A Threat to the North-South Agreement, in Implementing Sudan’s Comprehensive Peace Agreement – Prospects and Challenges (Woodrow Wilson International Center for Scholars – Africa Program, May 2008) at 22-23.
53 For the Abyei Boundaries Commission Report see:
http://www.sudanarchive.net/cgi-bin/sudan?a=d&d=Dl1d18.
Because the two parties were unable from the start of the negotiations to agree on the boundaries of the Abyei area, they decided to include in the Protocol provisions for referring the matter for a decision to the Abyei Boundaries Commission (ABC).52 This was finally done in March 2005, and the ABC commenced its work soon after. The five international experts of the ABC (the Experts) issued their Report in July 2005, delimiting the Abyei area in a way close to the claims of the SPLM/A. The Experts’ Report placed the legitimate dominant claims of the Ngok Dinka well into Kordofan to the north. It delimited large areas to Abyei in the east, and some areas to the west.53 It also established a “shared secondary rights” area for the Ngok Dinka
and the Misseriya north of the dominant claims area, and divided it between the two parties. Thus, large areas of Kordofan were delimited as the Abyei area by the Experts’ Report.
The Report was accepted by the SPLM. However, it was immediately rejected by the Government of the Sudan who alleged that the Experts had exceeded their mandate. The dispute continued to be a thorny and difficult one for the next three years. It remained without a resolution until July 2008 when the two parties agreed, following major clashes in Abyei city, to refer the dispute to the Permanent Court of Arbitration (PCA).
The Arbitral Tribunal of the PCA was constituted in October 2008,54 and it issued its Award on July 22, 2009.55 It decided that the Experts did not exceed their mandate with regard to the legitimate dominant claims of the Ngok Dinka on the northern boundary, but they exceeded that mandate with regard to the eastern and western boundaries, and with regard to the “shared secondary rights” above the northern boundary. The Award reduced the Abyei area delimited by the Experts substantially on the eastern part, and slightly on the western part. As a result of the reduction in the eastern part, some major oil fields reverted to Northern Sudan.56 On the other hand, the Award has resulted in Bahr el Arab (the Kiir River), which is the main river in the area, together with most of its major tributaries, falling largely within the newly delimited area of Abyei.57 The grazing and other traditional rights of the Misseriya and Ngok Dinka north and south of the Abyei area have been confirmed by both the Experts’ Report and the PCA Award. In this connection, the Award stated that: “The exercise of established traditional rights within or in the vicinity of the Abyei Area, particularly the right (guaranteed by Section 1.1.3 of the Abyei Protocol) of the Misseriya and other nomadic peoples to graze cattle and move across the Abyei Area (as defined in this Award) remains unaffected.”58 The Award went further and indicated that under international law traditional rights are not extinguished by boundary delimitations. Thus, the Ngok Dinka and the SPLM/A got land and water, while the Government of the Sudan
54 The Government of Sudan appointed Judge Awn Al-Khasawneh and Professor Gerhard Hafner. The SPLM appointed Professor Michael Reisman and Judge Stephen Schwebel. The Secretary-General of the PCA appointed Professor Pierre-Marie Dupuy as the Presiding Arbitrator.
55 For a copy of the Arbitral Tribunal Award see:
http://www.pca-cpa.org/upload/files/Abyei%20Final%20Award.pdf.
56 The Government of the Sudan announced immediately after the PCA decision that the Government of Southern Sudan (GoSS) would no longer receive any of the revenue from the oil in those fields, now that they are no longer in the Abyei area. The GoSS responded by stating that the GoSS would still claim those oilfields as part of Southern Sudan when the process of delimiting the entire borders between the North and the South commences.
57 For the map of the Abyei area as delimited by the PCA Arbitral Tribunal see:
http://www.pca-cpa.org/upload/files/Abyei%20Award%20Appendix%201.pdf.
58 See Arbitral Tribunal Award, supra n. 55, paragraph 770 (e) 2, at 268.
got most of the oil fields around the area, and the Misseriya got their grazing rights in and around the Abyei area confirmed.
The PCA Award is, without doubt, a balanced and well argued and presented decision. It was accepted by both parties; and the United Nations, IGAD, the European Union and the United States welcomed it. Even the strong and harsh dissenting opinion by one of the arbitrators did not dilute the wide welcome it received, nor affect what was seen as its value and positive contribution to the peace process in the Sudan.59
59 Judge Al-Khasawaneh dissented and issued a separate dissenting opinion; supra n. 55
60 See Paragraph 203 of Judge Al-Khasawneh’s dissenting opinion, supra n. 55.
61 For discussion of oil in the Abyei area, its quantity and likely depletion dates, see International Crisis Group, Sudan: Breaking the Abyei Deadlock, available at:
http://www.crisisgroup.org/home/index.cfm?id=5122.
62See Sudan parliament adopts Abyei referendum law amid Messeriya protest, available at:
http://www.sudaneseonline.com/spip.php?article33635 63See Abyei: Messeriya militia attack kills 5 Policemen, injure 2, July 6, 2010, available at:
http://www.sudaneseonline.com/spip.php?article35589 Although the Abyei dispute, on the face of it, is about land, it is really oil and water that are actually the real aspects of the dispute. The grazing rights of the nomad communities in the area are basically about rights to water resources. This point was highlighted by the dissenting opinion of Judge Al-Khasawneh when he asked: who “gave the Experts or the Tribunal the right to reduce the Misseriya to second class citizens in their own land and to create conditions which may deny them access to water.”60 With the oil in this area expected to run out soon,61 water springs out as the actual, and indeed, the pivotal element of the dispute.
At the time of completion of this chapter in July 2010, the borders of the Abyei area were still to be demarcated. And although the Abyei Referendum Act was adopted by the national legislature, the Referendum commission had not been established. Moreover, the Referendum Act was denounced by the Misseriya because it failed to mention them by name with the Ngok Dinka as residents of the Abyei area who are entitled to participate in the Abyei referendum.62 Military clashes between the Misseriya and the SPLM have been repeatedly reported since last year.63 If the Abyei residents vote for joining the South, and if the South opts for secession, and if the Misseriya water and grazing rights are not settled to their satisfaction, then the prospects for peaceful co-existence between the two tribes, and indeed between the North and the South, could suffer a major setback.
VII. The 2011 Referendum and its Potential Implications
Article 220 of the Interim Constitution of the Sudan, as mentioned earlier, requires the national legislature to issue the Southern Sudan Referendum Act by the beginning of the third year of the interim period -that is by July 2007- and to subsequently establish the Southern Sudan Referendum Commission. However, the Act was only adopted on December 29, 2009, almost two and half years after the due date. The Commission was established in June 2010, about seven months before the referendum date of January 9, 2011. Major differences dominated the debate between the national government and the SPLM on the main elements of the Act, such as the percentage of voters required for declaring the referendum valid, as well as the percentage of voters required for declaring a decision on secession binding. It was finally agreed that a voter turnout of 60%, and a simple majority (50% of the 60%, plus one vote) are required for Southern Sudan to achieve independence. Those percentages were far lower than what the National Government initially demanded, and, barring the unforeseen, brings secession of Southern Sudan to an easy reach.
The Abyei Referendum Act was adopted on December 30, 2009, but no commission has been established by July 2010 because of the disagreements on its composition. Differences over those two Acts were some of the many contentious issues that dominated the interim period, and the time it took to reach an agreement on the two Acts underscores the challenges facing implementation of the CPA. Other differences included the census, Abyei dispute, the borders, the recent elections that were held in April 2010, as well as the Darfur conflict. Indeed, it became gradually apparent during the latter part of the interim period that problems between the two parties were multiplying by the day, and that unity of the country is not really an attractive option for a large segment of the Southern Sudanese. Consequently, most of the people in the Sudan, both in the North and the South, as well as most observers, believe that Southern Sudan is poised for independence, and the new state of Southern Sudan will be born as the result of the referendum on January 9, 2011.
The Southern Sudan Referendum Act lists a number of matters which the two parties are required to discuss and agree on before the referendum.64 Water Resources is one of those issues,
64 Article 67 of the Southern Sudan Referendum Act lists the following subject matters: nationality, currency, public service, the Joint Integrated Units, international treaties, debts and assets, oil production and transport, oil contracts, water resources, and any other matter the two parties may agree on. The border issue was not included in Article 67 because a Borders Committee had already been established and had started its work when the Act was adopted. On
June 26, 2010, the two parties signed, in the Ethiopian city of Mekele, a Memorandum of Understanding (MOU) on Post-referendum Arrangements. The MOU dealt with modalities and structures for future discussions on the post-referendum issues. See
http://www.sudaneseonline.com/spip.php?article35494.
65 Some academics have raised the point that any amount of water to be allotted to Southern Sudan out of the waters of the Nile, after secession, could arguably fall under Article 5(2) of the 1959 Nile Waters Agreement. That Article reads “Since other riparian countries on the Nile besides the Republic of Sudan and the United Arab Republic claim a share in the Nile waters, both Republics agree to study together these claims and adopt a unified view thereon. If such studies result in the possibility of allotting an amount of the Nile water to one or the other of these territories, then the value of this amount as at Aswan shall be deducted in equal shares from the share of each of the two Republics.” See supra n. 18.
and the discussion will concentrate on allocation of waters for Southern Sudan from the Sudan share under the 1959 Agreement.65 The needs of Southern Sudan for Nile waters are currently limited, but as discussed earlier, such needs are likely to increase as Southerners are returning in large numbers to the South, and existing projects are being rehabilitated and completed. Plans for the Bedden Dam on Bahr el Jebel, about 30 kilometers South of Juba, are already underway.
An agreement on the amount of water to be allocated to the South would be easier to reach before, than after the referendum, given that the South will most likely opt for secession. Negotiations between two parts of the same country are apt to be easier than between two states, particularly if secession is not achieved peacefully. Moreover, negotiations between two states are likely to be complicated by the overall contentious situation in the Nile Basin, and the calls by the lower riparians for a reallocation of the Nile waters.
As discussed earlier, decisions on the Jonglei canal and other projects for conservation of the waters of the swamps of Southern Sudan are now, for all practical purpose, in the hands of the Government of Southern Sudan notwithstanding the CPA and the Interim Constitution. If the South opts for independence, then the chances for completion of the Jonglei canal or starting a new project, would be far less than if the Sudan stays as one country. Similarly, most of the border areas which need to be demarcated, including the Abyei area, involve disputed grazing and water rights between the local communities there. The emergence of a new state, with borders, border guards and a full-fledged army will make resolution of such grazing and water rights more difficult than it would be within one state.
Moreover, if the South opts for secession, an eleventh riparian of the Nile would be born, and this would happen at a time of tense relations, polarization, and deep divisions among the riparian countries. Will the new state align itself with the equatorial lakes countries, as is widely
expected, based on common interests on the White Nile, ethnicity, geography and history? Will Egypt claim that the new state is bound by the 1929 Nile Agreement based on the same reasoning raised for Kenya, Tanzania, Uganda and the Sudan, and demand Egypt’s prior agreement to any project in Southern Sudan? Will Sudan and Egypt claim that Southern Sudan is bound by the 1959 Agreement, particularly with regard to construction of the water conservation projects specified in that Agreement? If they make that claim, can they enforce it? These are some of the questions that may be posed soon, and the answers will depend on the outcome of the referendum and the developments thereafter.
VIII. Conclusion
Since the decolonization process started in Africa more than fifty years ago, the right of self-determination materialized in only one case, that of Eritrea. The case and history of Eritrea may be special, warranting the granting and exercise of such a right. The case of Southern Sudan might have been different had Northern Sudan kept its promises to Southern Sudan of federation and regional autonomy, repeatedly made since 1947,66 and actually epitomized in the 1972 Addis Ababa Agreement. The demand for self-determination started evolving following the establishment of the SPLM/A in 1983, and was formalized in the early 1990s,67 and a decade later became the cornerstone of the CPA in 2002.68 Its evolution was a direct result of the failure of the successive governments in Khartoum to honor their agreements with the South. In addition to the Addis Ababa Agreement, the Jonglei Canal project was another example of such failure.69 The concerns and sentiments of those who opposed the Canal in the 1970s turned out to be true in the 1980s; and what was started by the students’ demonstrations in 1974 was picked up by the SPLM/A in 1983. Water proved to be a galvanizing factor in both instances.
66 The first North-South meeting to discuss the future relations between the two parts of the country took place in Juba in 1947. For more on the Juba Conference see Dunstan Wai, The Southern Sudan: The Problem of National Integration, 185 (Frank Cass, 1973).
67 The SPLM/A meeting held in the town of Torit in Southern Sudan on September 6 to 13, 1991, decided, inter alia, that any future negotiations with the North on the relationship between the two parts of the country would be based either on a unitary democratic and secular system, or a confederal system of government, or on the right of self-determination for the people of Southern Sudan. For the minutes of the Torit meeting, see, Abdel Magid Bob, Southern Sudan – the Debate of Unity and Secession (in Arabic), Annex 24, at 358 (University of Khartoum 2009). This was the first time that the options of self-determination and confederation were officially adopted by the SPLM/A.
68 It is worth noting that the title of each of the agreements under the CPA, except the Machakos Protocol, indicates what that agreement would be dealing with (such as wealth, power, security and Abyei). Instead, that Protocol has been given the title “Machakos Protocol” rather than “Self-Determination” which is what the Protocol is about. The reason for this could be that the parties did not want to over-publicize self-determination and make it a title of the first agreement reached by them, knowing very well the domestic and regional concerns over the issue.
69 See generally Alier, Southern Sudan – Too Many Agreements Dishonored, supra n. 38.
The CPA raised both the dream of the peaceful unity of the Sudan as a priority and a possibility, as well as the right of secession for the people of Southern Sudan. After more than five years of a difficult and contentious interim period, most observers are realizing that Southern Sudan is poised for secession. With the short period of time left between now and January 2011, it is quite unlikely that an agreement will be reached on all the complex issues specified in the Referendum Act. Negotiations on allocation of a share of the Nile waters for Southern Sudan, demarcation of the borders across some of the tributaries of the Nile, resolving the grazing and water rights of the border communities, implementation of the PCA decision on Abyei area peacefully and to the satisfaction of the Ngok Dinka and the Misseriya tribes, could continue beyond January 9, 2011. If that does happen, and a new state is born out of the referendum that day, then the negotiations on these issues between two independent states are likely to be more intricate and challenging. Indeed, the birth of the new state will add to the contentious situation already developing across the Nile Basin.
أسامة عبد الجليل
فيس بوك
تويتر
انستقرام
يوتيوب
بنتيريست