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Philine Wehling

Nile Water
Rights
An International Law Perspective
Nile Water Rights
Philine Wehling

Nile Water Rights

An International Law Perspective
Philine Wehling
International Institute for the Unification of Private Law (UNIDROIT)
Rome, Italy

ISBN 978-3-662-60795-4 ISBN 978-3-662-60796-1 (eBook)

https://doi.org/10.1007/978-3-662-60796-1

Expanded text, based on the translation from the German language edition: Wasserrechte am Nil by
Philine Wehling, © Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2018. Published
by Springer Berlin Heidelberg. All Rights Reserved.

© Springer-Verlag GmbH Germany, part of Springer Nature 2020

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the
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Preface

Countries worldwide are placing ever-increasing demands on finite freshwater

resources. The 11 states of the Nile Basin are no exception to this, and the high
population growth throughout the basin will continuously increase their demand for
the use of Nile water. In order to accommodate their competing usage interests while
protecting the river and its ecosystem, effective cooperation between the Nile Basin
states on the use and sustainable management of the river’s water is indispensable,
and will become even more so in the future. International experience has shown that
effective cooperation between states sharing a watercourse requires a sound legal
and institutional framework. Establishing such a framework with the participation of
all the Nile’s riparian states is a major hydro-political challenge—as is the case for
riparian states of many other transboundary watercourses around the globe.
International water law, and especially the 1997 United Nations Convention on
the Law of the Non-Navigational Uses of International Watercourses, provides
guidance for establishing cooperative frameworks for individual transboundary
watercourses by laying down substantive and procedural principles on the joint
management and use of such watercourses. The challenge for riparian states today
is to specify and complement those principles and adapt them to the circumstances of
their particular context.
This book examines how this guidance at the international level can contribute to
establishing a legal and institutional framework for cooperation for the Nile. Accord-
ingly, the book provides a comprehensive legal assessment of the treaty law
governing the utilization and management of the Nile, against the backdrop of the
current international legal framework for designing watercourse-specific agree-
ments. On this basis, it assesses the 2010 Agreement on the Nile River Basin
Cooperative Framework, which has not yet entered into force, and recommends
amendments to reconcile the interests of all the riparian states and align the Agree-
ment with the principles of international water law. Building on these recommen-
dations, the book addresses the implementation of the core principle of customary
international water law, namely equitable and reasonable utilization, and shows how

v
vi Preface

it could be used as guidance by the riparian states of the Nile for regulating the use of
Nile water.
The second aim of the book is to take a broader view of the topic from an
international law perspective. Using the example of the Nile, it illustrates how
international water law, and most notably the 1997 United Nations Watercourses
Convention, can significantly impact and guide the negotiation and development of
a treaty regime for the use and management of a given transboundary watercourse.
Most significantly, the book examines in what manner and to what extent the
principle of equitable and reasonable utilization can provide a conceptual frame-
work for regulating water use. The focus thereby lies on the process of
implementing the principle in practice, along with the factors to consider when
determining what constitutes equitable and reasonable use of water in each riparian
state.
This book builds upon previous research I conducted on the subject published in
German under the title Wasserrechte am Nil – Der Einfluss des internationalen
Wasserrechts auf die Entwicklung eines Vertragsregimes zur Nutzungsverteilung
und gemeinsamen Wasserwirtschaft am Beispiel des Nils (Nile Water Rights – The
impact of international water law on the development of a treaty regime for allocat-
ing water use and joint water management using the example of the Nile) for the
Max-Planck-Institute for Comparative Public Law and International Law Series in
2017. That book was awarded the Margot-und-Friedrich-Becke Prize for outstand-
ing research in 2018, which generous support has facilitated work toward this further
publication.
My research in this field greatly benefitted from my experience as a Legal
Specialist with the Development Law Service of the Food and Agriculture Organi-
zation of the United Nations, which has frequently taken me to the Middle East,
North Africa, and beyond. Participation in water governance consultations as well as
my work in advising governments in legislative assistance projects related to
freshwater resources have contributed particularly valuable experience of the mul-
tifaceted practical aspects and complexities of the topic.
Many people contributed in various ways to the genesis of this book, and I am
deeply grateful to them. First of all, I am particularly thankful to Professor Emeritus
Rüdiger Wolfrum, University of Heidelberg, for giving his time, steadfast support
and precious advice, from which this work has benefitted immensely. Numerous
colleagues have further enriched my understanding of this topic by sharing their own
knowledge and experience; here I owe special thanks to Professor Patricia Wouters,
Professor Alistair Rieu-Clarke, Mohamed Bazza, and Pasquale Steduto. Invaluable
input and thoughtful comments on the manuscript were provided by Professor Ute
Mager, Michael Marx, Bill Garthwaite, Michael van der Valk, and Graham Hamley,
and are greatly appreciated. I also wish to send a heartfelt thank you to Andreas
Knobelsdorf for his exceptional library support as this book reached fruition.
Preface vii

Last but not least, I wish to express my deepest gratitude to my parents Uta and
Gerd for their loving support throughout my entire academic journey, to my little
sunshine Lilia for bringing so much joy and tenderness to our lives, and to my love
Mamoun for his warm support, humor, and inspiration.

Rome, Italy Philine Wehling

January 2020
Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Water Scarcity and Global Water Resources . . . . . . . . . . . . . . . . 1
1.2 Responses from Within International Water Law . . . . . . . . . . . . . 3
1.3 Water Scarcity in the Nile Basin . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 The Legal Regime for Utilization of the Nile’s Waters . . . . . . . . 6
1.5 Objectives and Structure of the Book . . . . . . . . . . . . . . . . . . . . . 10
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Part I International Water Law

2 Development of International Water Law . . . . . . . . . . . . . . . . . . . . 17
2.1 Beginnings and Development . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Theoretical Bases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.2.1 Absolute Territorial Sovereignty . . . . . . . . . . . . . . . . . . 21
2.2.2 Absolute Territorial Integrity . . . . . . . . . . . . . . . . . . . . . 23
2.2.3 Limited Territorial Sovereignty . . . . . . . . . . . . . . . . . . . 25
2.2.4 Community of Interest . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3 Customary Principles of International Water Law . . . . . . . . . . . . . 31
3.1 Substantive Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.1.1 Principle of Equitable and Reasonable Utilization . . . . . . 32
3.1.2 Obligation Not to Cause Significant Harm . . . . . . . . . . . 37
3.1.3 Obligation to Protect International Watercourses and Their
Ecosystems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.2 Procedural Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.2.1 General Obligation to Cooperate . . . . . . . . . . . . . . . . . . 45
3.2.2 Obligation of Notification and Related Obligations . . . . . 46
3.2.3 Obligation to Consult . . . . . . . . . . . . . . . . . . . . . . . . . . 48

ix
x Contents

3.2.4 Obligation to Exchange Data and Information . . . . . . . . 50

3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4 International Agreements on Transboundary Freshwater
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.1 Global Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.1.1 Convention on the Law of the Non-Navigational Uses
of International Watercourses of 1997 . . . . . . . . . . . . . . 57
4.1.2 Draft Articles on the Law of Transboundary Aquifers . . . 74
4.2 Regional Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
4.3 Watercourse Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.3.1 Regulatory Content . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.3.2 Alignment of Watercourse-Specific Agreements
with Global and Regional Water Agreements . . . . . . . . . 81
4.4 International River Commissions . . . . . . . . . . . . . . . . . . . . . . . . 83
4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Part II The Nile

5 The Nile and Its Catchment Area . . . . . . . . . . . . . . . . . . . . . . . . . . 95
5.1 Sources, Catchment Area, and River Course . . . . . . . . . . . . . . . . 95
5.2 Climate and Water Scarcity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
5.3 Population Structures and Economies in the Nile Basin . . . . . . . . 98
5.4 Development and Uses of the Nile . . . . . . . . . . . . . . . . . . . . . . . 99
5.5 Political Relations Between the Nile Riparian States . . . . . . . . . . 100
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
6 The Treaty Regime for the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
6.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
6.2 Agreements on the Use of the Nile . . . . . . . . . . . . . . . . . . . . . . . 107
6.2.1 Anglo-Italian Protocol of 1891 . . . . . . . . . . . . . . . . . . . 108
6.2.2 Anglo-Ethiopian Treaty of 1902 . . . . . . . . . . . . . . . . . . 115
6.2.3 Agreement Between the United Kingdom and
the Congo Free State of 1906 . . . . . . . . . . . . . . . . . . . . 128
6.2.4 Anglo-Italian Exchange of Notes of 1925 . . . . . . . . . . . 130
6.2.5 Anglo-Egyptian Nile Waters Agreement of 1929 . . . . . . 132
6.2.6 Anglo-Belgian Agreement of 1934 . . . . . . . . . . . . . . . . 145
6.2.7 Anglo-Egyptian Exchange of Notes from
1949 to 1953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
6.2.8 Egyptian-Sudanese Nile Waters Agreement of 1959 . . . . 148
6.2.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Contents xi

7 Regional Cooperation Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

7.1 Hydromet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
7.2 Kagera Basin Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
7.3 Undugu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
7.4 TECCONILE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
7.5 Nile 2002 Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
7.6 Lake Victoria Basin Commission . . . . . . . . . . . . . . . . . . . . . . . . 172
7.7 Nile Basin Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
7.7.1 Institutional Structure and Financing . . . . . . . . . . . . . . . 174
7.7.2 Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
7.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
8 Agreement on the Nile River Basin Cooperative Framework . . . . . 181
8.1 Drafting and Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
8.2 Treaty Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
8.2.1 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
8.2.2 General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
8.2.3 Community of Interest . . . . . . . . . . . . . . . . . . . . . . . . . 189
8.2.4 Principle of Equitable and Reasonable Utilization
and No-Harm Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
8.2.5 Benefit Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
8.2.6 Environmental Protection . . . . . . . . . . . . . . . . . . . . . . . 195
8.2.7 Planned Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
8.2.8 Water Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
8.2.9 Existing Treaties and Current Uses . . . . . . . . . . . . . . . . 202
8.2.10 Institutional Structure . . . . . . . . . . . . . . . . . . . . . . . . . . 204
8.2.11 Rights, Obligations, and Assets of the Nile Basin
Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
8.2.12 Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
8.2.13 Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
8.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
9 Implementing the Principle of Equitable and Reasonable
Utilization in the Nile Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
9.1 Consideration of Relevant Factors and Circumstances
Along the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
9.1.1 Factors of a Natural Character . . . . . . . . . . . . . . . . . . . . 221
9.1.2 Social and Economic Needs . . . . . . . . . . . . . . . . . . . . . 225
9.1.3 Population Dependent on the Watercourse . . . . . . . . . . . 228
9.1.4 Effects of Uses on Other Watercourse States . . . . . . . . . 231
9.1.5 Existing and Potential Uses . . . . . . . . . . . . . . . . . . . . . . 233
9.1.6 Conservation, Protection, Development, Economy,
Costs of Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
xii Contents

9.1.7 Availability of Alternatives . . . . . . . . . . . . . . . . . . . . . . 250

9.2 Overall Assessment and Conclusion . . . . . . . . . . . . . . . . . . . . . . 256
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

Part III Summary and Outlook

10 Toward a Legal and Institutional Framework for Cooperation
Along the Nile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Annex 1: Agreement Between the Republic of the Sudan and

the United Arab Republic for the Full Utilization of the Nile
Waters. Signed at Cairo, on 8 November 1959 . . . . . . . . . . . . . . . . . . . . 279
Annex 2: Agreement on the Nile River Basin Cooperative
Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
2.1 Signature and Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
2.2 Text of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
About the Author

Philine Wehling is a Legal Officer at the International Institute for the Unification
of Private Law (UNIDROIT) in Rome. Previously, she worked as a Legal Specialist at
the Legal Office of the United Nations Food and Agriculture Organization (FAO) in
Rome, providing legal advice and legislative assistance to governments on freshwa-
ter resources and agriculture. She further served as a Legal Advisor at the German
Federal Ministry of Justice and Consumer Protection in Berlin. Wehling received her
doctoral degree in law from the University of Heidelberg. Her doctoral dissertation
on international water law was published in the Max-Planck-Institute for Compar-
ative Public Law and International Law Series and received the Margot-und-Frie-
drich-Becke Prize in 2018.

xiii
Abbreviations and Acronyms

AJIL American Journal of International Law

ASEAN Association of Southeast Asian Nations
BFSP British and Foreign State Papers
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the
German Federal Constitutional Court)
CFA Agreement on the Nile River Basin Cooperative Framework
CIA Central Intelligence Agency
CPA Comprehensive Peace Agreement between the Government of the
Republic of the Sudan and the Sudan People’s Liberation
Movement/Sudan People’s Liberation Army
CTS Consolidated Treaty Series
EAC East African Community
FAO Food and Agriculture Organization of the United Nations
GAOR General Assembly Official Records
ICC International Criminal Court
ICJ International Court of Justice
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
IPCC Intergovernmental Panel on Climate Change
ITLOS International Tribunal for the Law of the Sea
IUCN International Union for Conservation of Nature
LNTS League of Nations Treaty Series
MENA Middle East and North Africa
NBI Nile Basin Initiative
OECD Organisation for Economic Co-operation and Development
OJ L Official Journal of the European Union, Legislation
PCIJ Permanent Court of International Justice
PJTC Permanent Joint Technical Commission

xv
xvi Abbreviations and Acronyms

RECIEL Review of European, Comparative and International Environmental

Law
RGZ Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of
the German Imperial Court of Justice in civil cases)
RIAA Reports of International Arbitral Awards
SPLA Sudan People’s Liberation Army
TECCONILE Technical Cooperation Committee for the Promotion of the
Development and Environmental Protection of the Nile
UN United Nations
UN Doc. United Nations Document
UNECE United Nations Economic Commission for Europe
UN GA United Nations General Assembly
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNLS United Nations Legislative Series
UNTS United Nations Treaty Series
YBILC Yearbook of the International Law Commission
Chapter 1
Introduction

1.1 Water Scarcity and Global Water Resources

Around 1.2 billion people, that is almost one in six worldwide, are living in areas
affected by water scarcity, where there is insufficient fresh water to satisfy demand.1
Looking ahead, the 2019 United Nations World Water Development Report warns
of a sharp increase in water scarcity, generated by ever-increasing demands for
freshwater resources, profligate use, and growing pollution.2 If current levels of
population growth are sustained, an estimated 3.9 billion people—that is, more than
40% of the global population—will live under water-scarcity conditions by the year
2050, with the Middle East, North Africa, South Asia, and China forecast to be
particularly impacted.3
In the face of increasing scarcity of water, the protection and sustainable man-
agement of freshwater resources is becoming one of the greatest challenges
confronting the international community in the twenty-first century.4 Of all the
Earth’s water, 97.5% is salt water and only 2.5% is fresh water. Some 68.6% of
this fresh water is frozen in glaciers and the ice caps, 30.1% is groundwater, and only

1
The measure for the water availability of a given country is the amount of renewable freshwater
resources, which consist of precipitation and water inflows, measured per capita per year. When this
per capita figure is between 1000 and 1700 cubic meters, it indicates “water stress”, and if the per
capita figure drops below 1000 cubic meters, the population faces “water scarcity”. UN-Water
(2015), p. 12, Fig. 1.1. On the different dimensions of water scarcity, see UN-Water and FAO
(2007), p. 4.
2
UN-Water (2019), pp. 1 and 13–15; as did UN-Water (2015), pp. 10–13.
3
UN-Water (2014), p. 24; see also UN-Water (2019), p. 21.
4
See Brown Weiss (2007), p. 177; McCaffrey (2007), p. 65; Boisson de Chazournes (2005),
pp. 4–5.

© Springer-Verlag GmbH Germany, part of Springer Nature 2020 1

P. Wehling, Nile Water Rights, https://doi.org/10.1007/978-3-662-60796-1_1
2 1 Introduction

1.3% is surface and other fresh water, including lake and river water.5 Meanwhile,
demand for these freshwater resources is growing as a consequence of population
growth, urbanization, industrialization, and increases in production and
consumption.6
The largest user of freshwater resources is the agricultural sector. Globally, 70%
of water is abstracted for agriculture, 19% for industrial purposes, and 11% for
private households.7 Other water uses such as energy production, navigation, fish-
eries, mining, and recreation have relatively low levels of net water consumption.8
However, the picture is more complex at the country and local levels: Many
countries experiencing water stress are especially reliant on irrigated agriculture to
provide livelihoods and employment for their citizens, and that sector is especially
vulnerable to the impacts of water scarcity.9
Nevertheless, the global water crisis is one of governance, more than of the actual
availability of the resource.10 Thus, while growing demand is a major cause of
increasing water scarcity, the situation is frequently made significantly worse by the
inefficient utilization of available water resources. This inefficiency is often exacer-
bated by inadequate legal and institutional frameworks for water management, an
area that faces additional challenges when it comes to transboundary basins.
Transboundary basins encompass over 60% of all freshwater flows, cover almost
half of the Earth’s land surface, and approximately 40% of the global population
lives in these transboundary basins.11
Against this backdrop of increasing water scarcity, it is thus becoming ever more
important to establish effective rules for the sustainable utilization and protection of
international watercourses. Indeed, ensuring good neighborly relations between
states that share freshwater resources presents one of the most significant challenges
for international law in the present era.12 Thus, the 2030 Agenda for Sustainable
Development stresses the importance of transboundary cooperation in the manage-
ment of water resources to ensure broad access to water and sanitation. Accordingly,
by 2030 the stated target is “to implement integrated water resources management at

5
FAO Aquastat (2019b). This other fresh water further includes ice and snow, soil moisture,
swamps and marshes, atmospheric water, and biological water. For comprehensive information
on international freshwater resources, see UNEP (2002).
6
UN-Water (2015), pp. 10–11.
7
FAO Aquastat (2019c).
8
These non-consumptive uses of water are therefore not included in the calculation of water
abstraction, FAO (2005), p. 24. However, energy production is one of the most important economic
uses of water resources and some 19% of global energy production is based on hydropower, see
Boisson de Chazournes (2013), p. 115.
9
FAO (2012), p. IX.
10
See UN-Water (2015), p. 7.
11
UNEP (2012), p. 125.
12
McCaffrey (2007), p. 65.
1.2 Responses from Within International Water Law 3

all levels, including through transboundary cooperation as appropriate”.13 And a

prerequisite for achieving this efficient and sustainable management of
transboundary watercourses is a sound legal and institutional framework for coop-
eration between the riparian states of a given watercourse.

1.2 Responses from Within International Water Law

Recent developments in international water law reflect the growing need for rules
governing cooperation in the management and use of transboundary bodies of fresh
water. At the international level, the Convention on the Law of the Non-Navigational
Uses of International Watercourses (UN Watercourses Convention)14 entered into
force on 17 August 2014 as the first global convention for the protection of
international watercourses.15 It was adopted by the United Nations General Assem-
bly in 1997 after more than 20 years of groundwork by the United Nations Interna-
tional Law Commission (ILC).16 The UN Watercourses Convention codifies several
customary principles which already existed in international water law, such as the
principle of equitable and reasonable utilization, the no-harm rule, and the obligation
to notify planned measures. The Convention’s entry into force strengthens the
customary norms of international water law and reflects the countries’ belief that
the management of shared freshwater resources requires the cooperation of all
riparian states.17
Supplementing the UN Watercourses Convention, the General Assembly of the
United Nations adopted a resolution in 2008 taking note of the Draft Articles on the
Law of Transboundary Aquifers which had been compiled by the ILC.18 The draft
articles are intended to complement the Watercourses Convention by making rec-
ommendations for designing treaties on transboundary groundwater resources; how-
ever, the draft articles have not yet been given a legally binding form.19

13
Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by
the General Assembly on 25 September 2015, UN Doc. A/RES/70/1, p. 18/35, Goal 6.5.
14
UN Doc. A/RES/51/869, 21 May 1997, ILM 36 (1997), p. 700.
15
For the current status of ratification see https://treaties.un.org/pages/ViewDetails.aspx?
src¼TREATY&mtdsg_no¼XXVII-12&chapter¼27&clang¼_en (accessed 28 June 2019).
Pursuant to Art. 36, para. 1 of the UN Watercourses Convention, 35 ratifications were required
for the entry into force of the Convention.
16
See ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses
and commentaries thereto adopted by the Drafting Committee on second reading, YBILC 1994,
Vol. II, Pt. 2, p. 89.
17
See Wolfrum and Kirschner (2013), p. 18.
18
UN GA, A/RES/63/124, 11 December 2008.
19
See UN GA, A/RES/68/118, 19 December 2013. See also UN GA, Sixth Committee (Legal), 71st
session, The law of transboundary aquifers (Agenda item 86), 2016, https://www.un.org/en/ga/
sixth/71/transboundary_aquifers.shtml (accessed 25 June 2019).
4 1 Introduction

The UN Watercourses Convention, the Draft Articles on the Law of

Transboundary Aquifers, and the customary rules of international water law,
together provide a general background framework for basin-specific agreements.
However, these provisions do not go so far as to cover issues such as settling water
allocation between riparian states for purposes of consumption in individual cases.
The framework they provide must therefore be specified and complemented by
treaties and institutional mechanisms for particular watercourses in order to meet
the requirements of the prevailing conditions in each specific river basin.20 While
international norms may serve as a basis upon which to construct a water-use regime
for a given watercourse, ultimately the onus is on the parties involved to reach a
solution appropriate for the local situation.
Across the world, riparian states have already signed a large number of water-
course agreements with each other.21 Nevertheless, more than half of the world’s
263 transboundary water basins are still not covered by a framework between their
riparian states that regulates cooperation in water management.22 In the Middle
East,23 despite the limited nature of the region’s freshwater resources, none of the
important transboundary watercourses, namely the Nile, the Jordan, the Tigris or the
Euphrates, is covered by a basin-wide treaty.

1.3 Water Scarcity in the Nile Basin

One important area affected by water scarcity is the Nile Basin.24 As the longest river
in the world, the Nile flows through 11 riparian states from its most distant sources,
in Burundi and Rwanda, until it reaches the Mediterranean Sea.25 Its catchment area
encompasses roughly one-tenth of the African continent.26 The Nile Basin is
experiencing pressure from limited water availability and high levels of population

20
See also Boisson de Chazournes (2005), pp. 23–24; Bulto (2009), p. 292. For an understanding of
the UN Watercourses Convention in this sense, see for example among Egyptian commentators
‘Abd al-‘Āl (2010), p. 111; and among Sudanese commentators ‘Alī Ṭāhā (2005), pp. 192–193.
21
The FAO Index of International Water Resources Treaties, Declarations, Acts and Cases contains
over 2000 water agreements between states. See FAO (1978, 1984). Recent agreements are
included in the International Freshwater Treaties Database of the Oregon State University at
https://transboundarywaters.science.oregonstate.edu/content/international-freshwater-treaties-data
base (accessed 23 June 2019).
22
UN-Water (2015), p. 11.
23
The term “Middle East” covers the following countries: Bahrain, Cyprus, Egypt, Iraq, Iran, Israel,
Jordan, Kuwait, Lebanon, Oman, Palestinian Territories, Qatar, Saudi Arabia, Syria, Turkey,
United Arab Emirates, and Yemen.
24
See Fig. 1.1 at UN-Water (2015), p. 12.
25
Burundi, DR Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania,
and Uganda.
26
FAO (2005), p. 21, Table 5.
1.3 Water Scarcity in the Nile Basin 5

growth.27 Currently, it is home to more than 257 million people—or approximately

20% of Africa’s entire population; estimates suggest that this population figure will
nearly double by the year 2030.28
Such steep population growth will entail a correspondingly steep rise in demand
for water for agriculture, industry, and domestic uses. Egypt will be particularly
seriously affected as it possesses no other sources of water.29 Egypt estimates that
demand for water in the country will exceed available supply within the next few
years.30 The fast-growing population in the Nile Basin will significantly increase
competition for access to the Nile’s limited freshwater supply. This competition can
ultimately only be accommodated by comprehensive, integrated water management
of the entire basin.31
However, the Nile riparian states have thus far been unable to agree on any
permanent form of cooperative water management. While international water law
stresses the obligation of the riparian states to cooperate with each other over shared
watercourses, the water politics of the countries sharing the Nile themselves have
been characterized by unilateral measures and the one-sided pursuit of interests.32 To
date, the downstream states Egypt and Sudan have been almost the sole users of the
Nile’s water.33 However, the upstream states are increasingly seeking utilization of
this water, and as the source of 85–90% of the Nile’s total annual flow of 84 billion
cubic meters, Ethiopia has been leading the way.34 Despite strong protests from
Egypt, Ethiopia in 2011 began constructing the Grand Ethiopian Renaissance Dam
on the upper reaches of the Blue Nile, one of the two major tributaries to the Nile,
where it is seeking to construct Africa’s largest hydroelectric power station. Egypt is
concerned that the Ethiopian dam project will lead to a significant reduction in the
volume of water reaching its territory.35

27
See the data on population growth in the Nile riparian states in CIA (2019).
28
NBI (2016), pp. 171 and 198.
29
FAO Aquastat (2019a).
30
The Egyptian Cabinet Information and Decision Support Center (2009), p. 3.
31
Swain (2008), pp. 202 and 207; Abseno (2009), p. 87; ‘Abd al-‘Āl (2010), p. 80.
32
Conflicts over water distribution have often been at the fore of simmering tensions. As late as the
1970s, Egypt and Ethiopia exchanged threats over the use of Nile water. The then Egyptian
President, Anwar as-Sadat, stated in 1979: “The only matter that could take Egypt to war again is
water.” Quoted at Swain (1997), p. 687. In 1988, the then Egyptian Foreign Minister, Boutros
Boutros-Ghali, declared that the next war in the Middle East would be about the waters of the Nile,
see Brunnée and Toope (2002), p. 106.
33
Arsano (2006), p. 324; Ward and Roach (2012), p. 53.
34
NBI (2012), p. 36.
35
State Information Service (2019c). For Egypt, an annual reduction in this volume of around
20 billion cubic meters is expected, as well as, during the planned 6-year filling of the reservoir, a
reduction in hydropower production, a significant reduction in the water level of Lake Nasser,
temporary water shortages, and a deterioration in water quality.
6 1 Introduction

1.4 The Legal Regime for Utilization of the Nile’s Waters

The way the water utilization regime for the Nile has been constructed serves as a
pertinent example for both the success and failure of efforts to achieve the effective
management of a shared watercourse.36 Arguably, no other treaty regime for a
comparably large international watercourse stands in such stark contrast to the
principles of international water law as that for the Nile.37 To date, there has never
been a Nile treaty that includes all of the Nile riparian states. The legal structures
covering the Nile consist for the most part of two treaties: the 1929 Exchange of
Notes Between his Majesty’s Government in the United Kingdom and the Egyptian
Government in regard to the Use of the Waters of the River Nile for Irrigation
Purposes;38 and the 1959 Agreement between the Republic of the Sudan and the
United Arab Republic for the Full Utilization of the Nile Waters.39 These treaties are
supported by Egypt and Sudan,40 but are rejected by the other nine riparian states.41
Egypt and Sudan take the view that they have “acquired and historical rights”
(Arabic: ḥuqūq mukassaba wa-tārīḫīya)42 to given shares of Nile water, based on
existing use and confirmed in the Nile water treaties.43 The upstream states contest
this viewpoint and are demanding that a new, basin-wide agreement be concluded.44
The perspectives of the Nile riparian states have been significantly influenced by
developments in international water law, especially the adoption of the UN Water-
courses Convention.45 These developments have both hindered and fostered coop-
eration between the states. On the one hand, the open and partially contradictory
theories and principles of international water law have in the past contributed to a

36
See Dellapenna (2006), p. 296.
37
See also Mekonnen (2010), p. 431. Birnie et al. (2009), p. 582, state: “some rivers, most notably
the Nile, are still managed on the basis of outdated regimes”. But see among Egyptian commen-
tators for example Maḥfūẓ Muḥammad, who views the core principles of international water law,
namely the principle of equitable and reasonable utilization (Arabic: mabda’ al-intifā‘ al-munṣif
wa-l-ma‘qūl), the obligation not to cause significant harm (al-iltizām bi-‘adam at-tasabbub fī
ḍarrar ḏī ša’n), and the general obligation to cooperate (al-iltizām al-‘ām bi-t-ta‘āwun), as laid
down in the existing Nile treaties, Maḥfūẓ Muḥammad (2009), pp. 328 and 478.
38
LNTS XCIII (1929–1930), p. 44.
39
UNTS, Vol. 453, p. 51.
40
See e.g. State Information Service (2010). The validity and binding effect of the Nile treaties for
the Nile riparian states is also predominantly affirmed by Egyptian commentators, see Maḥfūẓ
Muḥammad (2009), p. 389, citing further references, pp. 478–479 and 487.
41
See also Kaška (2006), pp. 25–26; ‘Abd al-Wahhāb (2004), p. 179; Maḥfūẓ Muḥammad
(2009), p. 378.
42
The transliteration of Arabic legal terms and bibliographical references in this book follows the
transliteration system developed by the German Oriental Society and adopted by the International
Convention of Orientalist Scholars in Rome in 1936.
43
See for example Maḥfūẓ Muḥammad (2009), p. 389, citing further references, and pp. 478–479.
44
Ibid., p. 378.
45
To the same effect see Brunnée and Toope (2002), p. 109; Dellapenna (1996), p. 219. Likewise
among Egyptian commentators for example Kaška (2006), p. 92; ‘Abd al-‘Āl (2010), p. 102.
1.4 The Legal Regime for Utilization of the Nile’s Waters 7

hardening of the competitive positions of the Nile riparian states. For a long time, the
opaque relationship between its two apparently irreconcilable core principles—
namely equitable and reasonable use and the no-harm rule—actually made it easier
for states to base their positions on one-sided arguments. However, recent develop-
ments in international water law also seem to be driving a new cooperative spirit in
relations between the Nile riparian states, after helping to redefine their interests.46
Water politics in the Nile Basin, long characterized by unilateral measures, has
therefore undergone considerable change since the 1990s. Now the Nile riparian
states are trying to cooperate across the entire Nile Basin on the basis of a new and
more balanced utilization regime that is more closely aligned with international
water law. In 1999 they founded the Nile Basin Initiative (NBI), opening a new
chapter in their relations, described by some commentators as a breakthrough from
competition to cooperation.47 Although the NBI was only established as a temporary
institution without a founding treaty, it was nevertheless an important step forward
for the Nile riparian states.48 Indeed, this was the first time that all Nile riparian states
had exhibited willingness to work together.49 Also for the first time, they empha-
sized in their shared vision for the NBI the principle of equitable utilization of the
Nile.50
In addition to this progress, the Nile riparian states also began to negotiate a
framework agreement for the Nile. This took place at the same time as the General
Assembly of the United Nations adopted the UN Watercourses Convention in 1997.
Egyptian commentators have described the adoption of the UN Watercourses Con-
vention as a major driving force behind the Nile riparian states starting productive
negotiations with each other.51 Those states’ efforts led to the adoption in 2010 of the
Agreement on the Nile River Basin Cooperative Framework (Cooperative Frame-
work Agreement, CFA),52 initially by five of the 11 riparian states, and six by the
time of writing. Ethiopia was the first country to ratify the CFA in 2013, followed by
Rwanda and Tanzania,53 while Egypt and Sudan have refused to sign. The Nile
riparian states have thus far failed to reach agreement due to differences over the
existing Nile treaties and the protection of current uses, as well as over the proposed
establishment of a compulsory notification procedure for planned measures.

46
See also Brunnée and Toope (2002), p. 110.
47
Ibid., p. 137. To the same effect see ‘Alī Ṭāhā, who considers the NBI as the first serious
cooperation attempt by the Nile riparian states, ‘Alī Ṭāhā (2005), p. 161.
48
In Egypt, for example, the mere participation in the Initiative was criticized by some as consti-
tuting Egypt’s agreement, for the first time, to a redistribution of the Nile water between the riparian
states. See ‘Alī Ṭāhā (2005), p. 181.
49
Swain (2002), p. 155; Brunnée and Toope (2002), p. 137.
50
Shared vision of the NBI, http://www.nilebasin.org (accessed 23 June 2019).
51
See e.g. ‘Abd al-‘Āl (2010), p. 102.
52
Agreement on the Nile River Basin Cooperative Framework, http://www.nilebasin.org/index.
php/documents-publications/30-cooperative-framework-agreement/file (accessed 23 June 2019).
53
NBI, Cooperative Framework Agreement, http://www.nilebasin.org/index.php/nbi/cooperative-
framework-agreement (accessed 12 January 2020).
8 1 Introduction

Despite these ongoing points of contention, the process of drafting the CFA
nevertheless represents the first common attempt by all Nile riparian states to
conclude a treaty governing the use of the Nile. The Agreement is meant to create
an entirely new framework for the allocation and utilization of the Nile’s water. It is
noteworthy that many of the provisions in the Agreement are taken almost verbatim
from the UN Watercourses Convention, notably those relating to core principles of
international water law: equitable and reasonable utilization and the no-harm rule.
The UN Watercourses Convention, when adopted in 1997, however, was criticized
and rejected by the Nile riparian states,54 and as yet none of them have ratified or
signed the Convention. Nevertheless, it has significantly influenced the drafting of
the agreement for the Nile.
Since the CFA was opened for signature in May 2010, the political situation along
the Nile has changed significantly. In February 2011, Egyptian President Hosni
Mubarak, who had rejected the Agreement, was forced to resign due to the unrest
during what became known as the Arab Spring.55 Shortly afterwards, Ethiopia began
construction work on the Grand Ethiopian Renaissance Dam on the Blue Nile,
approximately 40 km from its border with Sudan. Then, in July 2011, South
Sudan seceded from Sudan, becoming a further riparian state on the Nile.
The independence of South Sudan has created a new dynamic as it raises the issue
of how water is to be shared between South Sudan on the one side and Sudan and
Egypt on the other, and whether the Nile water treaties previously concluded by
Sudan continue in force in respect of South Sudan. In 2013, South Sudan’s Minister
for Irrigation and Water Resources, Paul Mayom Akech, repudiated any obligations
under the 1959 Nile Waters Agreement and declared that his country was preparing
to sign the CFA.56 In so doing, South Sudan was signaling its intention to position
itself on the side of the upstream riparian states with respect to the Nile issue.
The construction of the Renaissance Dam in Ethiopia caused significant political
tensions with Egypt and Sudan. In 2011, the three countries agreed to the establish-
ment of an international panel of experts tasked with examining the effects of the
dam on the downstream flow of the Blue Nile, and in 2013 the panel published its
report.57 While Egypt considered the report’s findings on the expected effects of the
dam insufficient and requested further studies, Ethiopia continued construction
work. In the context of these developments, Egypt spoke of a “Nile water crisis”

54
Burundi voted against the Convention. Egypt, Ethiopia, Rwanda, and Tanzania abstained. The
DR Congo, Eritrea, and Uganda were absent. Only Sudan and Kenya voted in favor of the
Convention. See Press Release GA/9248, General Assembly adopts Convention on Law of
Non-Navigational Uses of International Watercourses, 21 May 1997, Annex. For a detailed
discussion of the standpoints of the individual Nile riparian states, in particular Egypt, regarding
the UN Watercourses Convention, see Maḥfūẓ Muḥammad (2009), pp. 327–339.
55
Mangu (2011), p. 37.
56
Statement reproduced at Amos (2013) and Tigrai Online (2013).
57
The panel consisted of two experts from each of the three countries and four independent
international experts, see Salman (2013), p. 24.
1.4 The Legal Regime for Utilization of the Nile’s Waters 9

presenting the country with one of its most serious challenges.58 Egypt reproached
Ethiopia of breaching its contractual obligations enshrined in a treaty dating back to
1902.59
President Abdel Fattah el-Sisi, in office since 2014, has been pursuing a policy of
rapprochement with the other Nile riparian states, and has stressed the importance of
close cooperation based on mutual trust, especially with Ethiopia.60 He has initiated
talks with Ethiopia, which, in March 2015, resulted in an agreement between Egypt,
Sudan and Ethiopia determining general principles for the construction and operation
of the Renaissance Dam.61 The agreement, in a marked break from previous Nile
water treaties, is based on the principles of cooperation, equitable and reasonable
utilization, and the no-harm rule, in provisions adopted verbatim from the CFA.62 It is
notable that this agreement no longer contains any provisions covering an absolute
protection of existing uses and rights—in contrast to Egypt’s previous insistence.
As a result of this 2015 trilateral agreement, an impact assessment was commis-
sioned for the Renaissance Dam. Following the release of the assessment report, the
three countries met for a series of deliberations but were unable to agree on the
report’s results or amendments to it, and in 2017 Egypt declared the negotiations a
failure.63 With the mediation of the United States and the World Bank, the three
countries entered into negotiations again in November 2019 to reach an agreement
on the requirements for the filling and operation of the Renaissance Dam, which
does not, however, address the use and management of the Nile in general.64
Meanwhile, construction work on the dam, initially to be completed by 2017, has
fallen behind schedule and completion is now expected in 2022.
Despite this apparent stalling, these negotiations between Egypt, Sudan and
Ethiopia do provide grounds for hope that negotiations between all of the Nile
riparian states on the CFA will be resumed. The current challenge facing Nile
riparian states is the creation of a long-term legal and institutional framework for

58
See State Information Service (2019c).
59
The Treaty between Great Britain and Ethiopia relative to the Frontiers between the Anglo-
Egyptian Sudan, Ethiopia, and Erythroea, 15 May 1902, BFSP 95 (1901–1902), p. 467. See
e.g. State Information Service (2014).
60
See State Information Service (2019b).
61
Declaration of Principles on the Grand Ethiopian Renaissance Dam, signed 23 March 2015,
available at https://www.sis.gov.eg/Story/148329/‫ﻧﺺ‬-‫ﺇﻋﻼﻥ‬-‫ﺍﻟﻤﺒﺎﺩﺉ‬-‫ﺣﻮﻝ‬-‫ﻣﺸﺮﻭﻉ‬-‫ﺳﺪ‬-‫?ﺍﻟﻨﻬﻀﺔ‬lang=ar
(Arabic); English version of the Declaration available at http://www.sis.gov.eg/Story/121609?
lang¼en-us (both accessed 23 June 2019). See also Asharq Al-Awsat (2015).
62
See the Parts I, III, IV and IX of the 2015 Declaration of Principles on the Grand Ethiopian
Renaissance Dam.
63
Al-Monitor (2017) and The Reporter (2018). For details on the rounds of negotiation 2014–2017,
see the Egyptian State Information Service (2019a).
64
See the Joint Statement of Egypt, Ethiopia, Sudan, the United States and the World Bank,
15 January 2020, available at https://home.treasury.gov/news/press-releases/sm875 (accessed
18 February 2020).
10 1 Introduction

the utilization and management of the Nile that all of them can agree to. Indeed, there
is a broad consensus among them on this point. On the basis of such a framework,
they could then convert the guiding principle of equitable and reasonable utilization
into a fair allocation of water uses and joint management decisions.65

1.5 Objectives and Structure of the Book

The purpose of this book is twofold. The first objective is to help concretize the
guidance provided in international water law for establishing cooperative frame-
works for individual watercourses into a functional legal and institutional framework
for cooperation along the Nile. This includes a review of the relevant norms of
international water law as well as an assessment of both the existing legal framework
for the use and management of the Nile and the CFA.
The second objective of this book is to take a more encompassing perspective,
using the Nile as an example, and analyze the role that international water law, and
especially the UN Watercourses Convention, can play in developing a water-use
regime for a transboundary watercourse. Keeping the focus on the example of the
Nile, this book also seeks to show the degree to which the principle of equitable and
reasonable utilization can be of practical help in regulating the utilization of a
particular watercourse.
Accordingly, the first part of this book defines the broader international legal
context for designing watercourse agreements for transboundary watercourses. After
a brief introduction to the history of international water law and its theoretical bases,
it sets out the current state of customary international water law. It then discusses the
contents of the UN Watercourses Convention in detail and briefly examines selected
regional water agreements, watercourse-specific agreements, and river commissions.
Throughout this first part, special attention is paid to the different legal standpoints of
the Nile riparian states as well as to their interventions during the drafting and
negotiation of the UN Watercourses Convention.
The second part of the book is devoted to the Nile itself. It begins with a short
introduction to the Nile River and its catchment area as well as the hydrological,
climatic, socio-economic and political conditions prevailing in the riparian states,
before moving on to an examination of the existing Nile water treaties and their
compatibility with international law. At this juncture, the text pays particular con-
sideration to whether the colonial-era Nile treaties are still binding for the riparian
states. Special focus is also placed on the legal consequences of South Sudan’s
secession from Sudan in 2011. Subsequently, an overview of the initiatives for
cooperation between the riparian states is presented, with a particular focus on the
NBI, which is the current institutional framework for basin-wide cooperation.
Following this, the book retraces the negotiations conducted by the Nile riparian

65
See also Dellapenna (2006), p. 301; Carroll (2000), pp. 288–289 and 303.
References 11

states over the CFA and discusses its main provisions. The degree to which this
agreement accords with the principles of international water law and how far it was
influenced by the UN Watercourses Convention are also analyzed at this point. On
the basis of this analysis, recommendations are provided for amendments that would
reconcile the interests of all the riparian states and align the Agreement with the
principles of current international water law. The book also examines the legal
consequences of a possible entry into force of the Agreement for only some of the
Nile riparian states. Finally, building on the recommendations, it addresses the
implementation of the principle of equitable and reasonable utilization along the
Nile. In particular, it discusses how that principle can be used as guidance in the
process of determining equitable use of Nile water in the riparian states, and it
illustrates the extent to which the principle can provide a conceptual framework for
regulating water use. To this end, the book considers the individual factors and
circumstances that are relevant for an equitable and reasonable utilization of the Nile
in each riparian state, surveys the respective country data, and highlights the legal
issues that arise with respect to the principle’s application.

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an-Nahḍa” li-ta’mīn maṣāliḥiha fī miyāh an-Nīl (Egypt, Ethiopia and Sudan sign declaration
of principles for the “Renaissance Dam” to safeguard their interests in the Nile water) (Arabic)
Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford
University Press, Oxford
Boisson de Chazournes L (2005) Eaux internationales et droit international: vers l’idée de gestion
commune. In: Boisson de Chazournes L, Salman S (eds) Les ressources en eau et le droit
international. Martinus Nijhoff Publishers, Leiden, pp 3–43
Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford
12 1 Introduction

Brown Weiss E (2007) The evolution of international water law. Recueil des Cours 331. The Hague
Academy of International Law, The Hague
Brunnée J, Toope SJ (2002) The changing Nile Basin regime: does law matter? Harv Int Law J
43:105–159
Bulto TS (2009) Between ambivalence and necessity: occlusions on the path towards a basin-wide
treaty in the Nile Basin. Colorado J Int Environ Law Policy 20:291–320
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Environ Law Rev 12:269–304
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factbook/wfbExt/region_afr.html. Accessed 23 June 2019
Dellapenna JW (1996) Rivers as legal structures: the examples of the Jordan and the Nile. Nat
Resour J 36:217–250
Dellapenna JW (2006) The Nile as a legal and political structure. In: Coopey R, Tvedt T (eds) A
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Cases by Basin, vol 1. Legislative Study 15. Rome
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(Egypt’s rights to the Nile water in light of international watercourses law). Asyut (Arabic)
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 Part I
International Water Law

The term “international water law” refers to the norms governing the relations
between states, or between states and international organizations, in relation to
water resources.1 The regulatory realm of international water law includes both the
use of international freshwater resources, for example for energy generation, irri-
gated agriculture, industrial use, or drinking water supply, as well as the protection
of these waters.2 With the entry into force of the UN Watercourses Convention there
is now a global treaty in place governing the non-navigational uses of international
watercourses. Nonetheless, the norms of customary international law continue to be
of particular importance in international water law, in particular for the large
majority of states that so far have not acceded to the Convention.
Today, international water law forms a particular and increasingly important part
of the broader field of international environmental law. The latter encompasses those
rules of international law whose primary objective is the protection of the environ-
ment.3 As a comparatively young legal field, international environmental law has
thus far not evolved to a comprehensive state, but rather contains partial rules for
specific environmental media, such as the sea, freshwater resources, air or climate, as
well as for biodiversity conservation.4 It is based on a multitude of bilateral, regional
and global agreements, as well as a few customary international law principles. With
regard to the protection and management of freshwater resources, the instruments

1
Caponera (2007), p. 186.
2
Boisson de Chazournes (2013), p. 7.
3
Sands et al. (2013), p. 13. For detail on the purposes and principles of international environmental
law, see Wolfrum (1990), pp. 308–330.
4
On the notion of international environmental law, see Birnie et al. (2009), pp. 2–4. For an overview
of the sector-specific instruments of international environmental law, see ibid., passim and
Bodansky et al. (2007), pp. 315–422.
16 Part I International Water Law

and principles of international water law are mutually complementary with those of
wider international environmental law.5
A fundamental challenge for international water law—as for international envi-
ronmental law in general—is to reconcile the sovereignty of one state with regard to
the use of natural resources within its territory on the one hand, with the territorial
integrity of neighboring states on the other.6 Several theories for reconciling these
interests of riparian states sharing a transboundary watercourse have emerged over
time. The theories form the basis for the current customary international principles
for the joint management and use of international watercourses that were developed
over the course of the twentieth century. These customary principles were codified in
the UN Watercourses Convention and have been incorporated into agreements at
both regional and watercourse level.

References

Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford
University Press, Oxford
Bodansky D, Brunnée J, Hey E (2007) The Oxford Handbook of International Law. Oxford
University Press, Oxford
Boisson de Chazournes L (2013) Fresh water in international law. Oxford University Press, Oxford
Caponera DA (2007) Principles of water law and administration: national and international,
2nd edn. Taylor & Francis, London
Matz-Lück N (2009) The benefits of positivism: the ILC’s contribution to the peaceful sharing of
transboundary groundwater. In: Nolte J (ed) Peace through international law. Springer, Heidel-
berg, pp 125–150
Sands P, Peel J, Fabra A, MacKenzie R (2013) Principles of international environmental law,
3rd edn. Cambridge University Press, Cambridge
Wolfrum R (1990) Purposes and principles of international environmental law. German Yearb Int
Law 33:308–330

5
Boisson de Chazournes (2013), p. 109. There are manifold interrelations between fresh water and
its environment. For example, major changes to rivers, such as the construction of dams and
irrigation channels for agriculture, may affect biodiversity in the entire river system, see ibid.,
pp. 107–108.
6
See Matz-Lück (2009), p. 131.
Another random document with
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got to go down the wind like a dead leaf afore them, because I soon saw
that under her mild words, Susan weren't going to be shook."

"She wouldn't be. There's no strength like the strength of a woman who
gets her only chance. She knows, poor dear, 'tis Palk or nothing."

"I told 'em to get out of my sight for a pair of cold-blooded, foxy devils
—yes, in my anger I said that—and so they have; and soon, no doubt,
they'll be gone for good and all. And that's the middle and both ends of it;
and the worst and wickedest day's work ever I heard tell about."

"You've dropped below your usual high standards, if I may say so,"
answered Melinda. "Little blame to you that you should feel vexed, I'm
sure; but 'tis more the shock than the reality I believe. I feel the shock
likewise, though outside the parties and only a friend to all. 'Tis so unlike
anything as you might have expected, that it throws you off your balance.
Yet, when you come to turn it over, Joe, you can't help seeing there's rhyme
and reason in it."

"You say that! For a woman to fly from the safety and security of her
father's home—and such a father—to a man who don't even know what
work he's going to do when he leaves me. And a wretch that's proved as
deep as the sea. Can't you read his game? He knows that Susan be my only
one, and bound to have all some day—or he thinks he knows it. That's at the
bottom of this. He looks on and says to himself, 'All will be hers; then all
will be mine.'"

"Don't you say that. Keep a fair balance. Remember you held a very
high opinion of Palk not two months agone, when he showed by his acts to
his dead sister's child that he was a high-minded man."

"I'll thank you to keep my side of this, please," he answered. "I don't
much like the line you're taking, Melinda. Just ax yourself this: would any
man, young or old, look at Susan as a possible help-mate and think to marry
her, if he warn't counting on the jam that would go with the powder? She's
my child, and I'm not one to bemoan my fortune as to that, but a woman's a
woman, and was the male ever born who could look at Susan as a woman?
You know very well there never was."
 "You couldn't; but men ain't all so nice as you about looks. And you
can't deny that apart from being a bit homely, Susan——"

"Stop!" he said. "I believe you knew about this all the time and be here
as a messenger of peace! And if I thought that——"

"Don't think nothing of the sort, there's a good man. I'd so soon have
expected the sun to go backward as hear any such thing. But 'tis done on
your own showing, and you must be so wise as usual about it and not let the
natural astonishment upset your character. It's got to be, seemingly. So start
from there and see how life looks."

Melinda indeed was also thinking how life looked. Her mind ran on and
she had already reached a point to which Mr. Stockman's bruised spirit was
yet to bring him. She prepared to go away.

"I won't stop no more now. You'll have a lot to think over in your mind
about the future. Thank goodness you be well again—and never looked
better I'm sure. What's their plans?"

"Damn their plans—how about my plans?"

"You'll come to your plans gradual. And don't think 'tis the end of the
world. You never know. When things turn inside out like this, we be often
surprised to find there's a lot to be said for changes after all."

"'Tis mortal easy to be wise about other folk's troubles," he said.

Then Mrs. Honeysett departed and felt Joe's moody eyes upon her back
as she went slowly and thoughtfully away. Soosie-Toosie's eyes were also
upon her; but that she did not know.
 CHAPTER XXX

THE NEST

Joe Stockman, like a stricken animal, hid himself from his fellow men
at this season; yet it was not curious that he should conceal his tribulation
from fellow men, because he knew that sympathy must be denied. To run
about among the people, grumbling because his daughter had found a
husband, was a course that Joe's humour told him would win no
commiseration. He was much more likely to be congratulated on an
unexpected piece of good luck. Even Melinda, with every kindly feeling for
him, proved not able to show regret; and if she could not, none might be
looked for elsewhere. But he made it evident to those chiefly involved that
he little liked the match; he declined to see any redeeming features and
went so far as to say that the countryside would be shocked with Susan for
leaving her father under such circumstances. To his surprise he could not
shake her as at first he had hoped to do. She was meek, and solicitous for
his every wish as usual; she failed not to anticipate each desire of his mind;
she knew, by long practice, how to read his eyes without a word; but upon
this one supreme matter she showed amazing determination.

She did not speak of it; neither did Thomas, and when his master, who
had failed for the moment to get a new horseman worthy of Falcon Farm,
invited Palk to stop another month, he agreed to do so. But Thomas
grumbled to Maynard when they were alone, and at the same time heard
something from Lawrence that interested him.

They were hoeing the turnips together and the elder spoke.

"There's no common decency about the man in my opinion," he said.

"Goodjer take him! He's like a sulky boy and pretends that facts ban't facts,
while every day of the week shows they are. And patience is very well, but
it don't make you any younger. Here I've pleased him by promising to stop
another month, and when I did that, I had a right to think it would break
down his temper and stop the silly rummage he talks about a thankless child
and so on. You know how he goes on—chittering at me and Susan, but
never to us—just letting out as if he was talking to the fire, or the warming-
pan on the wall—of course for us to hear."

"He's took it very hard no doubt. Of course it's a shatterer. He didn't

know his luck; and when you suddenly see your luck, for the first time just
afore it's going to be taken away from you, it makes you a bit wild,"
explained Lawrence.

"Let him be wild with himself then, and cuss himself—not us. Look at it
—I meet his convenience and go on so mild as Moses, working harder than
ever, and all I get be sighs and head-shakings; and you always see his lips
saying 'sarpent' to himself every time you catch his eye. It's properly
ondacent, because there's duties staring the man in the face and he's trying
his damnedest to wriggle out of 'em!"

"What duties?"

"Why, his daughter's wedding, I should think! Surely it's up to him,

whatever he feels against it, to give the woman a fatherly send off. Not that
I care a cuss, and should be the better pleased if he wasn't there glumping
and glowering and letting all men see he hated the job; but Susan be made
of womanly feeling, and she reckons he did ought to come to the church
and give her away, all nice and suent, same as other parents do. And after
that there ought to be a rally of neighbours and some pretty eating and
drinking, and good wishes and an old shoe for luck when us goes off to the
station man and wife. And why the hell not?"

"I dare say it will work out like that. You must allow for the shock,
Tom. He'd got to rely on you and your future wife like his right and left
hand; and to have the pair of you snatched away together—— He's a man
with a power of looking forward and, of course, he can see, in a way you
can't, what he'll feel like when you both vanish off the scene."

"You be always his side."

"No, no—not in this matter, anyway. I know very well what you feel
like, and nobody wishes you joy better than me. You've got a grand wife,
and I've always thought a lot of you myself as you know. But 'tis just the
great good fortune that's fallen to you makes it so much the worse for him.
He knows what he's losing, and you can't expect him to be pleased. He'll
calm down in a week or two."

"Let the man do the same then and take another. There's a very fine
woman waiting for him."

"There is; and he'll take her no doubt; but there again, he knows that
you can't have anything for nothing."

"He had his daughter for nothing."

"Yes, and got used to it; but he won't have Melinda Honeysett for
nothing. A daughter like Susan gives all and expects no return; a wife like
Mrs. Honeysett will want a run for her money. And Joe knows mighty well
it will have to be give and take in future."

"Quite right too."

"There's another thing hanging over master. It won't seem much

compared with you going. But I'm off before very long myself."

"By gor! You going too!"

"In the fall I reckon."

"When he hears that, he'll throw the house out of windows!"

"Not him. I'm nobody."

"If it's all the same to you, I'd be glad if you didn't break this to
Stockman till our job's a thought forwarder," said Thomas. "He can only
stand a certain amount. You was more to him than me really. This will very
like turn him against human nature in general, and if he gets desperate, he
may disgrace himself."

"I shan't speak just yet."

 "We was much hoping—Soosie and me—that he'd go bald-headed for
Melinda before this—if only to hit back. Because, if he done that, he might
cut my future wife out of his will you see. And, in his present spirit of mind,
I believe it would comfort him a lot to do so—and tell me he had."

"No, no—he wouldn't lower himself like that. And as for Mrs.
Honeysett, I reckon he's to work in that quarter. He can't strike all of a
sudden, of course, because the people would say he'd only done it for his
own convenience; but he'll be about her before long I expect. He's been
saying in a good few places that he must marry now."

"He named her name at Green Hayes to my certain knowledge," said

Thomas, "and Mrs. Bamsey heard him do so; and she told Arthur Chaffe,
the carpenter; and he told his head man; and he told me. And he said more.
He said that Arthur Chaffe had marked that Joe had lost a lot of his old
bounce and weren't by no means so charming as he used to be."

"There's no doubt this job has upset him a lot."

"Then where's his religion? He did ought to remember he can't go

sailing on and have everything his own way all his life, no more than
anybody else."

They hoed together shoulder to shoulder, then reached the end of their
rows and turned again.

"There's a religious side no doubt," admitted Maynard. "And we never

feel more religious, if we're religious-minded at all, than after a stroke of
good fortune; and never less so than after a stroke of bad. And I'm telling
you what I know there, because I've been called to go into such things
pretty close. There's nothing harder than to break away from what you was
taught as a child. 'Tis amazing how a thing gets rooted into a young mind,
and how difficult it may be for the man's sense to sweep it away come he
grows up."

Mr. Palk, however, was not concerned with such questions.

 "I don't want to break away from nothing," he said. "I only want for
Stockman to treat me and his daughter in a right spirit. And what I say is, if
his religion and church-going, not to name his common sense, can't lead
him right, it's a very poor advertisement for his boasted wisdom."

"So it would be; but he'll come round and do right, only give him time,"
answered Lawrence.

"And what's in your mind?" asked Thomas presently, as he stood up to

rest his back. "Have you got another billet in sight?"

"No. I much want to get abroad. It's always been a wish with me to see a
foreign country."

"A very fine idea. I'd so soon do the same as not; but I heard a chap say
that you find the land pretty near all under machinery if you go foreign.
And I shouldn't care to quit hosses at my time of life."

"There's your wife to think on. She'd never like to put the sea between
her and her father."

"As to that," answered Palk, "it's going to be largely up to him. If he

carries on like what he's doing now, he'll have to pay for it; because the
woman's only a human woman and she haven't deserved this conduct. Why,
God's light! if she'd stole his money-box and set the house on fire he
couldn't take it no worse!"

These things were heard by another pair of ears in the evening of that
day, for then Maynard saw Dinah again. But much passed between the
lovers before they reached the subject of Susan and Thomas. Maynard had
been deeply interested to hear of Dinah's sudden departure, of which she
had told him nothing, and he had puzzled ever since learning the fact
mentioned by Melinda Honeysett. For he did not guess her purpose, or her
destination, and the fact that she had gone away only served to explain her
need for money. She let him know, however, before they met, and that
without any word; for during her absence, there came a picture postcard to
Lawrence—a coloured picture of Barnstaple parish church; and that told
him everything.

He trusted her, but knew her forthright ways and felt very anxious to see
her again. The date and place for their next meeting had been fixed between
them at their last conversation, and as he had heard that Dinah was returned,
he knew that she would keep the appointment. He brooded for hours upon
her action and inclined to a shadow of regret that she should have taken it,
yet the fact did not astonish him, looking back at their last meeting; for had
Dinah asked permission to go, he would not have suffered it in his mood at
the time. That she knew; and yet she had gone. He recognised the immense
significance of her action and the time seemed interminable until the dusk
of that day, when he was free. The night came mild and grey with a soft
mist. Their meeting place was a gate in a lane one mile from Green Hayes
among the woods ascending to Buckland. There it had been planned they
should join each other for the last time before one, or both, disappeared
from the Vale.

Maynard felt a curious sense of smallness as he went to the tryst. He

seemed to be going to meet somebody stronger, more resolute, more
steadfast of spirit than himself. Surely Dinah had done the things that would
have better become him to do. And yet he could not blame himself there,
for it would have been impossible for him to set foot in the town where, no
doubt, his wife still lived. He had wearied himself with futile questions,
impossible to answer until Dinah should meet him, and there was nothing
left but intense love and worship for her in Maynard's mind when they did
meet. If she had any sort of good news, so much the better; but if she had
none, he yet had good news for her. He had banished the last doubt during
her absence and now told himself that not moral sensibility, but moral
cowardice had ever caused him to doubt. He had probed the equivocal thing
in him and believed that its causes were deep down in some worthless
instinct, independent of reason. She should at least find him as clear and
determined as herself at last. He had decided for Australia, and the question
of their separate or simultaneous disappearance was also decided. She had
to hear to-night that they could not leave England together for her credit's
sake. The details of their actions were also defined. He had planned a
course that would, he hoped, suit Dinah well enough, though as yet he knew
not whether any word of hers might modify it.

She was waiting for him and came into his arms with joy. She guessed
that her postcard had revealed her adventure and began by begging for
forgiveness. This he granted, but bade her talk first.

"It's made me long to go out in the world," she said. "Just this taste. I've
never seemed to understand there was anything beyond Ashburton and
Lower Town; but now I've gone afield and seen miles and miles of England,
and I've met people that never heard of the Vale. Say you ban't cross again,
my dear heart. You know very well why I went. It rose up on me like a
flame of fire—to make sure. I told 'em at Green Hayes I had some business
up the country and they think I went to be married—Jane's idea that was.
She's positive sure I'm married, though I've told her in plain words I'm not.
Of course they be curious, but I couldn't tell a lie about it. So I said
'business.'"

"Never mind them. I won't swear I'd have said 'no' if you'd asked me,
Dinah—not if I'd thought twice. It was a natural, needful point, and you
grasped it quicker than I did, and no doubt made up your mind while I was
maundering on about the law. I saw all that after I got your card. But I
couldn't have gone myself."

"It was my work and I've done it; and I wish more had come of it. But
nothing has. I took a room in a little inn near the station and tramped about
and found her shop in the best part of the town. A big place with fine
windows—a dairy and creamery and refreshment room. Just 'Courtier' over
the windows, in big, gold letters, and a few maidens inside and—tea. I
marked her, of course, the minute I saw her. She's in the shop herself—
rather grand, but not above lending a hand when they're busy. She's up in
the world. They knew about her at the inn where I stopped, and told me the
story. They said her husband went mad on the honeymoon and disappeared
off the earth. I went to the shop three times and had my tea there, and the
second time there was a man at the counter talking to her. But he didn't look
much of it. So there it is. She's going on with her life just as you thought,
and making money; and what the people see, I saw, and what they don't see,
or know, is no matter. But she was quite pleased with herself—a cheerful
woman to the eye. You can tell that much.

"She's worn well I should think. She's a pretty woman; but she's hard
and her voice is hard. She wouldn't have no mercy on people under her. She
drove her maidens in the shop and was down on 'em if they talked much to
customers. At my inn she was spoke very well of and thought a bit of a
wonder. You was forgot. They said it was thought you killed yourself. And
now that the seven years are up, some fancied she might marry again, but
others didn't think she ever would, being too independent. A man or two
they mentioned; but the opinion I heard most was that she never wanted to
change. I couldn't ax too much about her, of course."

So Dinah told her tale.

"I wish it had been different," she went on. "I hoped all sorts of things—
that I'd find her married again, or gone, or, perhaps dead. But there she is,
so large as life, and I shouldn't think she'd ever marry for love, but she
might for money, or for getting a bit more power. I didn't feel to hate her in
the least, or anything like that. I felt sorry for her in a way, knowing what
she'd missed, and I thought, if it had been different, what a big man you
might be by now. But you'll be bigger some day along with me. And so we
know where we are, Lawrence."

He asked various questions, which she answered, and he observed how

absolutely indifferent Dinah found herself before the facts. She evidently
recognised no relationship whatever between the husband and wife. From
the adventures at Barnstaple she returned to the present, and he let her talk
on, waiting to speak himself till she had finished.

She had been away nine days and returned to find Jane fallen out with
Jerry Withycombe. Mr. Bamsey had recognised her on her return and called
her by name and made her sit beside him for a long time. But the next
morning he had forgotten her again. Faith Bamsey had also thought Dinah
must have disappeared to be married, but believed her when she vowed it
was not so. John Bamsey was away for the time, doing bailiff's work up the
river above Dartmeet.
 Then he told her of his determination and greatly rejoiced her, save in
one particular.

"We don't go together," he said, "and the details will very soon clear
themselves; but there must be no shadow on your memory, here or
anywhere, when you're gone. I give Joe notice presently and go to
Australia, to get the home ready. You find work and, for a bit, keep that
work. Then you leave it for London, or a big town, where ships sail from,
and your passage is took and you come along. That leaves them guessing
here, and none can ever say a word against you. But so sure as we go
together, then Stockman tells everybody that I'm a married man, and the
harm's done."

"You do puzzle me!" she answered. "You can't get this bee out of your
bonnet, Lawrence—such a clever chap as you, too. What in fortune's name
does it matter what Cousin Joe says about you, or what the people believe
about me? I know you're not married, and when I wed you I shall be your
one and lawful wife. Who else is there—now foster-father be gone? That
was the only creature on earth I could hurt, and he's past hurting, poor old
dear. I like your plan all through but there. I'm going when you go, and half
the joy of my life would be lost if I didn't sail along with you in the ship.
That I do bargain for. Oh, I wish it was to-morrow we were running away!"

"I hate to run."

"I love it—yes, I do, now. I wish to God I wasn't going to lose sight of
you again. But it won't be for long."

They spoke of the details and he pointed out that her plan must increase
the difficulties somewhat, yet she would take no denial.

"What's all this fuss for? False pride," she said. "You've got to think for
me the way I want you to think, not the way you want to think. If we know
we're right, why should we fret if all the rest of the world thought different?
I'm hungry and thirsty to go and be in a new world with you. I want you and
I want a new world. And you will be my new world for that matter."

"I know that."

 "Together then. 'Twould spoil all any other way. 'Twould be small any
other way. 'Twould be cringing to the Vale."

He laughed.

"I can't keep you here in the rain all night. The next thing is our post
office—from now on."

"Promise about my going with you."

"That means thinking over all the plans again."

"Think them over again then; and I'll help. And I've found the post
office. List!"

They kept silence for half a minute, but Dinah had only heard a night-
bird.

"'Tis here!" she said, "twenty yards down the lane. I found it in the
spring—a wrennys' nest hid under the ivy on the bank. No better place. 'Tis
empty now and snug as need be."

He accompanied her to the spot, lit matches and examined the proposed
post office. It was safe enough, for the snug, domed nest lay completely
hidden under a shower of ivy, and Dinah had only discovered it by seeing
the little birds pop in when they were building.

Lawrence doubted; it seemed a frail receptacle for vital news; but it was
dry and as safe as possible.

"I'd thought to put a tobacco tin under a stone somewhere," he said, "but
perhaps this couldn't be beat."

He took careful note of it and marked the exact spot as well as he could
in the dark. A sapling grew in the hedge opposite and he took his knife and
blazed the bark behind, where only he, or Dinah, would find the cut.

"There'll be a letter for you in a few days," she said, "for I know I've
forgot a thousand things; and when your new plans be finished, you'll write
'em for me."

"We must go slow and steady," he answered. "I've got to give Joe
warning presently, and I don't mean to be out of work longer than I can
help. When we know what we're going to do to the day, then I'll speak; and
he won't like it none too well. He's terrible under the weather about Susan."

He told her the Falcon Farm news, with details which she had not heard.

"I'm sorry for Cousin Joe, but mighty glad for Susan, and I'm coming up
one day to supper to congratulate her—why not?"

"It will be something just to look at you across the table," he said, "but
we'd best speak little to each other."

Dinah grew listless as the moment for leave-taking came. Her mood
was shadowed.

"I know it's right and wise to keep apart now," she told him. "And I
know we can never have none of the old faces round us when we're
married, and none of the little pleasures that go with old friends. But I am
sorry. It's small, but I am sorry."

"So am I, for your sake," he answered. "And it's not small. It's natural.
This is the only home you know, and the only folks you know are in it. And
most are kindly and good. It only looks small against the bigger thing of
being together for evermore. The time won't be long. 'Twill slip away
quicker than you'll like I guess. And there's plenty of new friends waiting
for us down under."

"It's cruel of life," she cried. "It's hard and cruel of life to make love like
ours so difficult. Open air, daylight creatures, like us, to be called to plot
and scheme and hide against the frozen silliness of the world. Just the
things I hate most. And now we must trust the house a little bird have made
with things that we'd both be proud to shout from the church steeple!"

"I know every bit what you're feeling. I feel it too—I hate it more than
you do—knowing what you are. It will soon be over."
 "I'll come up and look at you anyhow," said Dinah. "That won't shock
the people; and I dare say, now that Susan knows what it is to love a man—
but don't you fear. I won't kiss you even with my eyes, Lawrence."

"Susan wouldn't see nothing for that matter," he said. "Love be a dour
pastime for her and Palk as things are. They be like us in a way—frightened
to look at each other under that roof."

"But firm," she said. "Cousin Joe ain't going to choke Susan off it?"

"Not him. She'll take Thomas, so sure as you take me."

Dinah was cheerful again before he left her.

"When we'm married, I'll always be wanting to kiss you afore the
people," she said, "just for the joy of doing it openly."

Then they parted, to meet no more in secret until they should never part
again.

He half regretted her determination to sail with him, as he tramped

home; yet he felt in no mind to argue the point. In his present spirit, sharing
her indignation that his fellow men would thrust him away from Dinah for
ever if they could, he cared little more than she for what their world might
say and think when they had vanished from it for a larger.

CHAPTER XXXI

JOE'S SUNDAY

Melinda stood at her door and spoke to her neighbour, Mr. Harry Ford,
the gardener. He was a red-whiskered man of fifty, and he and Mrs.
Honeysett viewed life somewhat similarly.
 "You bad creature," she said, "working in your garden o' Sunday!"

This was the sort of remark on which Harry never wasted speech. He
went on with his digging.

"I wish the second early potatoes were coming up so well at the Court
as they are here in my little patch," he remarked. "But they haven't got the
nice bit o' sand in the soil as we have."

He rested a moment.

"How's Jerry going on?" he asked. "Have it come right?"

"No, I'm sorry to say; and yet not sorry neither. She's keeping all this up
because he vexed her Easter Monday. They was at Ashburton revel together
and she says he took a drop too much and very near ran the trap over Holne
Bridge and broke her neck coming home. And he says no such thing. But
the real trouble is about the blessed shop Jane wants to start at Ashburton
after marriage. She's for a tobacco shop, and Jerry wants for it to be green-
grocer's, where he can do his part. My own belief is that Jane Bamsey's
getting tired of Jerry. If the wedding had gone through when it was
ordained, all might have been well; but owing to Ben Bamsey's illness and
sad downfall after, 'twas put off. I never much liked her I may tell you, no
more didn't my father."

"He must have been a bit of a wonder—a very clever man they say."

"He was a clever man."

"Did he believe in the ghost in my house, Mrs. Honeysett?"

"He did not—no more than you do."

He paused and looked at her. Melinda appeared more than usually

attractive. She was in her Sunday gown—a black one, for she still mourned
her parent; but she had brightened it with some mauve satin bows, and she
wore her best shoes with steel buckles.

"There is a ghost in the house, however," declared the gardener.

 "Never!"

"Yes—the ghost of a thought in my mind," he explained.

"Ideas do grow."

"If they stick, then they grow. Now I'll ax you a question, and you've no
call to answer it if you don't want. You might say 'twas a hole in my
manners to ax, perhaps."

"I'm sure you wouldn't make a hole in your manners, Mr. Ford."

"I hope not. 'Tis this, then. What might the late Mr. Withycombe have
thought of Farmer Stockman up the hill?"

Melinda parried the question.

"Well, you never can say exactly what one man thinks of another,
because time and chance changes the opinion. A man will vex you to-day
and please you next week. Sometimes what he does and says is contrary to
your opinions, and then again, he may do or say something that brings him
back to you."

"He liked him and didn't like him—off and on? But he'd made up his
mind in a general way about his character?"

"I suppose he had."

"I know he had."

"How should you know?"

"Because I was at the trouble to find out."

"Fancy!"

"Yes. I sounded a man here and there. I went to Chaffe, the carpenter."
 "Arthur Chaffe knew father very well and respected him, though he
didn't hold with his opinions about religion."

"Religion I never touch—too kicklish a subject. But I spoke to Chaffe,

and being friendly disposed to me—and why not?—he said a thing I might
be allowed to name to you in confidence."

"Certainly," said Melinda, "if it's nothing against my father."

"Far from it. And I hope you'll take it as 'tis meant."

"I always take everything like that."

"That's right then. Well, Chaffe, knowing me for a pretty quiet man and
a hater of gossip, told me the late fox-hunter saw very clear you'd go to Joe
Stockman after he was took——"

"How could he?"

"Well, I don't know how he could. But he did. And though too tender to
whisper it in your ear, he told Chaffe that he was sorry!"

"Good Lord, you surprise me!"

"No business of mine, you'll say. And yet I felt somehow that if your
father—such a man as him—felt sorry, there was a reason why for he
should. And I won't deny but I told Chaffe he ought to mention it to you. He
wouldn't, because he said the thing was too far gone."

"What's gone too far?"

"You know best. But people have ears and Stockman's got a tongue."

Mrs. Honeysett showed annoyance, while Harry returned to his

potatoes.

"You're telling me what I know, however," she said.

He purposely misunderstood.
 "You knew your good father didn't care for Mr. Stockman at bottom?"

"I know he's talking."

"The only thing that matters to know is your own mind, not what's in
other people's, or in his."

At this moment a black-coated figure appeared on the high road and,

much to Mr. Ford's regret, turned up the lane to the cottages.

"Talk of——!" he said.

It was Mr. Stockman.

"He's coming here and—and—I hoped something weren't going to

happen for the minute," confessed Melinda; "but now I reckon it may be."

"Well, if you're in doubt, nobody else is," said Mr. Ford striking boldly.
"Farmer's sounding his victory far and near—not a very witty thing to do
when an old man's after a young woman."

Melinda ignored the compliment and viewed the approaching figure

with impassive features.

"He's cut the ground from under his own feet as to his age," she
answered, "for if you cry out you're old before your time, of course people
must believe you."

Mr. Ford could not answer for Stockman was within earshot.

He showed a holiday humour, but reproved Harry.

"Working o' Sunday!" he said.

"There's all sorts o' work, master," replied the gardener. "I dare say now
that the better the day the better the deed holds of your job so well as mine."

"You're a sharp one! And how's Melinda?"

 "Very well," she said. "You wasn't to church this morning."

"I was not. I meant coming down the hill again this afternoon, to drink a
dish of tea with you, if you please; and though twice up and down the hill
be naught to me, yet I shirked it."

They went in together.

"Where's Jerry?" he asked.

"Mooning down to Green Hayes on the chance of getting things right."

"Good. He'll fetch her round; though I doubt she's worth it."

"So do I."

"However, I'm not here, as you'll guess, about your brother. The time
has come, Melinda."

"You've let 'em name the day then—Susan and Thomas?"

"No such thing; but they'll be naming it themselves pretty soon. They'll
be away in a month or two I expect. And I want for the house to be swept
and garnished then. I want a lot done. I've suffered a great deal of
undeserved trouble in that quarter, and there's wicked words being said
about my treatment of my child. The people have short memories."

"There's wicked words being said about a lot of things. It's been said,
for instance, up and down the Vale, that you've told a score you be going to
marry me, Joe. That's a proper wicked thing, I should think."

He was much concerned.

"Good God! What a nest of echoes we live in! But there it is. When a
thing's in the air—whether 'tis fern seed, or a bit of scandal, or a solemn
truth, it will settle and stick and grow till the result appears. No doubt the
general sense of the folk, knowing how I've felt to you for years, made up
this story and reckoned it was one of they things that Providence let out
before the event. Marriages be made in Heaven they say, Melinda."
 "But they ain't blazed abroad on earth, I believe, afore both parties
choose to mention it."

"Most certainly not; but if you move in the public eye, people will be
talking."

"Yes, they will, if they be started talking. I met Ann Slocombe to Lower
Town three days agone and she congratulated me on my engagement to
you."

"Who the devil's Ann Slocombe?"

"She's a woman very much like other women. And I told her it was stuff
and nonsense, and far ways from anything that had happened, or was going
to happen."

"No need to have said that, I hope. 'Tis the curious case of——"

"'Tis the curious case of talking before you know," said Melinda tartly.
"What would you have thought if I'd told people you'd gone down to
Brixham, to offer yourself to a woman there?"

"God's my judge I——"

Mr. Stockman broke off.

"This is very ill-convenient, Melinda, and quite out of tune with me and
the day, and what's in my mind. If I've spoke of you with great affection to
one or two tried friends—friends now no more—then I can only ax you to
overlook their freedom of speech. I've been in a very awkward position for
a long time, and made of justice as you are, you must see it. For look how
things fell out. First, just as I was coming to the great deed and going to ax
you to be mistress of Falcon Farm, there happened your dear father's
grievous illness and his death. Well, I couldn't jump at you with my heart in
my hand, while you was crying your eyes out and feeling your fearful loss.
And then, just as the clouds were lifting and the way clear, what happened?
My misguided girl takes this false step. And that cut two ways. First there
was the disaster itself, and then, in a flash, I saw that if I came to you on top