The Significance of the Doctrine of Prior Appropriation in Terms of Equitable Utilization with Particular Emphasis to the Nile Basin
No Thumbnail Available
Date
2008
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Addis Ababa
Abstract
The doctrine of prior appropriation which basically advocates historical rights is
one of the doctrines which have influenced the question of the right to divert the
waters of international water courses. This doctrine which may be implemented
successfully for determining rights with in one country, its application where the
claim for the right to the use of a water course involves nation states is jound to
be more problematical. The doctrine in its meaning of prior in time is prior in right
is no longer considered a controlling principle of international water law. Prior use
or existing use which this doctrine held as dispositive, is relegated to the status
of one of the relevant factors with the advent of the principle equitable utilization.
Despite the general acceptance of the notion that prior uses are merely one of the
factors to be considered in the determination of equitable utilization, nation states
could not reach at clear agreement on the issue of what weight should be 'given to
existing uses compared to other relevant factors. This arises from the claim of
downstream states, which usually are prior users, to the preferential treatment of
existing uses. This clashes with the accepted principle of equitable utilization
since the later does not recognize hierarchy among the factors to be considered in
the determination of what amounts to equitable share. Such a situation is also
reflected in the tension between the principle of equitable utilization and the
notion of causing no significant harm to other water course states. This
controversy which results from the conflicting approaches over the issue of which
rule takes precedence stands as one of the most problematic aspect ofinternational water course law. The prevalence of no significant harm rule in its
application to water quantity issues presents difficulties on the settlement of
controversies over allocation of disproportionately used international water
courses by giving, like the doctrine of prior appropriation, complete priority to
existing uses. This competes with the principle of equitable utilization which may
allow the causing of significant harm so long as it results from a use which is
equitable when viewed by taking into account all the relevant factors. The case in
the Nile depicts the tension created because of the unresolved conflict between
the claim to maintain the status quo and that of equitable allocation of the shared
watercourse. The conflict between the claim of Egypt for the absolute protection of
prior uses and that of the upstream riparian states for the reallocation of the
resource, which is also revealed in the disagreement on the relationship of the
two competing principles, has remained at the centre of the controversies over
the issue of sharing the Nile waters.