Water and the law: Towards Sustainability edited by Michael Kidd, Loretta Feris, Tumai Murombo and Alejandro Iza Published by Edward Elgar, 2014, 416 pp., £103.50, hardback.

• DOI: http://doi.org/10.1111/reel.12312
• Published date: 01 November 2019
• Date: 01 November 2019
• Author: Otto Spijkers

    

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BOOK REVIE WS

DOI: 10 .1111/reel .12312

WATER AND THE LAW: TOWARDS

SUSTAINABILITY edited by Michael Kidd, Llorett a

Feris, Tumai Murombo and Alejandro Iza

Published by Ed ward Elgar, 2014, 416 pp., £103.50, har dback.

In 2011, the IUCN Acad emy of Environment al Law convened it s

Annual Collo quium in Mpekwe ni, South Afri ca. This book is o ne of

the lasting res ults of that meet ing. Partic ipants felt tha t there was

a ‘water crisis’ and t hat lawyers ha d a role to play in respo nding to

that crisis.

Water and the Law is divid ed into three parts. T he first part deals

with internatio nal water law, the secon d part with do mestic water

law and governance, a nd the third is a bit of a mix: it deals wit h the

right of access to water a t both the internat ional and the domestic

levels, althou gh it focuses more on the l atter than on the form er. The

main theme of the b ook is sustainability. In all thre e parts, the spe‐

cific legal wate r framework is assessed on h ow well it has embraced

or absorbed ‘sustainability’.

After the edito rial introduction (Cha pter 1), the keynote speaker

at the Colloquiu m, Patricia Wouters, stresse s the importance of in‐

ternational cooperation in the management of shared transbound‐

ary water reso urces (Chapter 2). She persuasive ly argues that all of

international l aw is ultimately about get ting sovereign State s to work

together to jointl y tackle globa l challenges, an d that internati onal

water law is no exceptio n. Quite the opposite: because w ater does

not respect sove reign boundar ies, States are ob ligated to jointl y

manage the watercourse that they share.

The next two ch apters relate to th e Nile, a very po pular case

study among int ernational wate r lawyers. Th e story is fami liar. In

2011, Ethiopia began th e construction of a gig antic hydropower dam

on the Blue Nile, t he Grand Ethiop ian Renaissance D am (GERD).

Ethiopia consider s the dam essent ial for its long‐ter m future eco‐

nomic development. The ambition was to complete the construction

of the dam by the end of 2018 , but for various reasons th is deadline

was not met. Befor e the dam can be pu t into operation , its reser‐

voir needs to be fil led with freshwa ter. The filling of the res ervoir

will take many year s. Most of the terr itory of downst ream Egypt

consists of unin habitable desert. In t he middle of the country flows

the Nile. It sta rts small, but when it get s closer to the sea, it widens

into an impressive d elta. Most of t he people in Eg ypt live near the

Nile and are highl y dependent on it . Egypt use s the Nile for drink‐

ing water, sanitatio n, irrigation, tourism, el ectricity (think of Egy pt’s

Aswan Dam) and ma ny other purposes. The E gyptian Nile gets mos t

of its water from the Ethiopian Blue Nile (about 60 percent). On the

one hand, Egy pt fears that th e construct ion of the Ethiopian d am

will significa ntly decrease t he amount of water fl owing into the

Egyptian Nil e. It fears that it can no lon ger guarantee water secur ity

to its populati on once the dam is fi lled and subseq uently put into

operation. D ue to climate change an d population gr owth, the Nile

in its current s tate – that is, before the dam is compl eted – already

fails to provide su fficient wate r to meet the Egy ptian populati on’s

immediate water ne eds. On the oth er hand, Ethiopia b elieves that

the dam will not sign ificantly affec t the flow of the water in the Nile ,

at least not afte r the reservoirs of th e dam are fully filled . The slower

the reservo irs are filled, the less dras tic the decrease in flow of the

Nile will be. Ethiop ia believes that during the filli ng period, but also

afterward s, sufficient quantiti es of freshwater will flow throu gh the

Egyptian Nile.

Habtamu Alebachew discusses international legal perspectives

on the utilization of transboundary rivers, testing these perspectives

on the Ethiopian dam (Chapter 3). His optimistic and forward‐looking

chapter argue s that both Ethiopia a nd Egypt can b enefit from th e

Nile, even from the G ERD. Emmanuel Ka simbazi paints a g loomier

picture (Chapt er 4). He looks into th e complexities of d eveloping a

transboundary water resources management agreement applica‐

ble to the Nile. He de scribes the m any effort s of Ethiopia, Egy pt,

Sudan and Sout h Sudan to come to an un derstandi ng relating to

the joint managem ent of the Nile. Variou s colonial treat ies had a

bearing on the N ile, such as the Treaty b etween Ethiopia a nd the

United Kingdom , relative to the fro ntiers betwe en Sudan, Ethio pia

and Eritrea (1902); the E xchange of Notes bet ween the United

Kingdom and Eg ypt in Regard to the Use of the Waters of t he River

Nile for Irrigat ion Purposes (1929); and the A greement be tween

the United Ara b Republic (Egy pt) and the Repub lic of the Sudan

for the Full Utilizat ion of the Nile Waters (1959). But the focu s of

Kasimbazi’s anal ysis is on the Agre ement on the Nile R iver Basin

Cooperative Fr amework, which w as concluded in 2010 be tween

Ethiopia, Rwand a, Tanzania, Uganda , with Kenya and Buru ndi join‐

ing soon after. Egy pt, Sudan and S outh Sudan, h owever, did not

sign this agreem ent, and the agreement has yet to ent er into force.

Many things have hap pened since the book was publish ed in 2014.

Most impor tantly, on 23 March 2015, Eg ypt, Sudan a nd Ethiopia

concluded a Dec laration of Principles o n the GERD. This declaratio n

restates the ge neral princi ples of internati onal water law and gov‐

ernance – for instance, equitable and reasonable use, prohibition to

cause transb oundary harm an d duty to cooperate – and a ffirms their

applicabili ty to the GERD. At the s ame time, ther e are reasons to

conclude that pl us ça change, plus c’est la même c hose.

The next chapt er by Adrien Bodar t takes us from Afric a to Europe

(Chapter 5). It compa res the Arti cles on the Law of Transbo undary

Aquifers, ado pted by the Interna tional Law Comm ission (ILC) at its

sixtieth ses sion in 2008 , with directi ves relating to (tra nsbound‐

ary) aquifer s of the European Union. This is the o nly chapter in the

book that focuse s on the link between internatio nal and regional –

European – law.

The second par t of the book begi ns with a chapter by Do uglas

Fisher on domes tic water law (Chapt er 6). Applying a com parative