18 - Law and the River Nile: emerging international rules and the Sharia'h

Summary

Introduction

The law governing the Nile waters can be assessed against a background of several legal traditions, including the domestic laws of individual riparians, documented decisions of federal courts in countries like Australia, Germany or the United States, existing regional arrangements on international rivers, Nile-specific agreements between the basin states, as well as customary law, particularly among the peoples of the basin. There is a vast literature on the subject, and the purpose of this chapter is not to review the subject overall but is much more modest in scope. Discussion will be limited to two traditions which could be of particular relevance to the subject of the Nile: the present reassessment and formulation of international watercourse systems law, and the Islamic legal tradition and some of its possible bearing on the law of water.

As for public international law, a survey of some recent developments is based on a comparison between the draft text established in the course of the 1980s by the International Law Commission, and the Restatement of the International Law Association in 1966, known as the Helsinki Rules. The factor-analysis approach, which is at the root of the international law experts' philosophy in both instances, will be assessed in the light of the Nile case. This is followed by an appraisal of some strands of the legal tradition offered by selected texts of the sharī'a, with particular emphasis on their possible contribution to a comprehensive legal agreement on the management of the Nile resources.