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Chapter 1

Introduction

•••• River Niger: Physiography and History

The River Niger is the principal river of Western Africa. With a length of 2,600 miles

(4,200 km), it is the third longest river in Africa, after the Nile and the Congo. It runs in a

crescent through Guinea, Mali, Niger, on the border with Benin and then through

Nigeria, discharging into the Gulf of Guinea through a massive delta known as the Niger

Delta or the Oil Rivers. Its source, the Guinea Highlands in south-eastern Guinea, is just

150 miles (240 km) inland from the Atlantic Ocean, but the river runs away from the seainto the Sahara Desert, then takes a sharp right turn and heads southeast to the Gulf of

Guinea.

The history surrounding the Niger is the stuff of legends and epics. About a thousand

years ago, in the prime years of the Mali Empire, traders brought gold by pirogue (a type

of canoe) down the Niger from Ghana to Timbuktu, whence it was carried by camel to

Tripoli and Alexandria. While the Niger’s true course was presumably known to locals, it

was a mystery to the outside world until the late 18th century. Ancient Romans such as

Pliny, thought that the river near Timbuktu was part of the Nile River; a notion which

persisted in the Arab and European worlds until the 19th century. The Portuguese

however arrived at the Niger Delta on the coast in 1473 but there is no evidence of any

extensive exploration of the river’s course by them. By the seventeenth century, coastal

trade had supplanted the trans-Saharan trade; mostly dealings in slaves. During these

years when the slave trade flourished, nearly half the total number of slaves exported

from Africa came from the Niger delta, which came to be known as the "Slave Coast’’.

After many unsuccessful European expeditions to plot the Niger, a Scottish explorer,

Mungo Park became the first European to lay eyes on it. The true course of the river was

established in his book Travels in the Interior of Africa, which appeared in 1799.

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•••• The Regime of Inland/Internal Waters

Now since, as we have seen from the forgoing, that the Niger’s course flows through five

sovereign states; Guinea, Mali, Niger, Benin and Nigeria, the first instinct of the student

of international law maybe to locate those parts of the river which lie within the borders

of these states as forming part of their respective internal or inland waters. While this

may generally be the true position of things, a closer look must also be had at some not

so well defined areas; for instance where the Niger forms the boundary between Benin

and Niger Republics. Let me also from this outset say that a good part of the

international law on river Niger; and most other international watercourses for that

matter, relate to deviations; exceptions if you may, from the general rules on how

sovereign states deal with their internal/inland waters. It would therefore be apt to

consider first and foremost this regime of internal waters. What exactly are internal

waters?

A nation's internal waters cover all waters and waterways on the landward side of the

baseline from which a nation's territorial waters is defined. It includes waterways such as

rivers, lakes and canals, and sometimes the water within historic bays. According to the

United Nations Convention on the Law of the Sea (UNCLOS), the coastal state is free to

set laws, regulate any use, and use any resource within its internal waters. Foreign

vessels have no right of innocent passage within internal waters, and this lack of right to

innocent passage is the key difference between internal waters and territorial waters.

The immediately apparent problem with this UNCLOS conception of internal waters is

the fact that it appears to relate to only coastal states. Land locked countries certainly

have no baselines from which any territorial waters can be measured so a reference to

internal waters as being on the land ward side of the baseline is for their purposes very

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unhelpful. Since the Niger flows through three of such land locked countries, with only

Benin and Nigeria worthy of the appellation costal states, I have in this paper resorted to

the general international law concepts of territory and territorial sovereignty in order to

locate the prima facie status of those parts of the River Niger which lie within, Guinea,

Mali and Niger. Simply put the territory of a state is all that area over which its

sovereignty extends. As Judge Huber noted in the Island of Palmas Case:

Sovereignty in relation to a portion of the surface of the globe is the legal

condition necessary for the inclusion of such portion in the territory of any

particular state.

The territory of many African states can be located by application the idea of Uti

Possidentis by which colonial frontiers existing as at the date of independence are

recognised as constituting a tangible reality. The logical question therefore would be; did

the frontiers of past colonialists extend to and over the various parts of the River Niger

lying within Guinea, Mali and Niger? The answer to this question by application of the

General Act of Berlin (1885) is in the affirmative. Thus Guinea, Mali and Niger just like

Benin and Nigeria can also claim as Inland waters, exercise Jurisdiction over and enjoy

exclusive rights, with regards to those parts of the Niger enclosed by their respective

borders.

There are however serious qualifications to the rights of riparian states with regard to

such trans-boundary watercourses as the river Niger. While these qualifications will form

the gist of our discussion in subsequent parts of this paper it is pertinent to consider at

this juncture, albeit skeletally, the regime of international Watercourses.

1.3. The Regime of International Watercourses

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An international river is not an easy concept to define. Nowadays, its original

interpretation is regarded as too narrow a concept. The concept has evolved through

centuries of application of international law in the management of trans-boundary water

resources. Earlier treaties focused on international rivers which divided or crossed

territories and related to ensuring that such rivers were kept open for navigation. The

General Act of Berlin 1885 for instance had set some qualifications to the territorial

sovereignty of riparian states when in its Article 24 it inter alia provided thus:

The navigation of the Niger, without excepting any of its branches and

outlets, is and shall remain entirely free for the merchant ships of all

nations equally, whether with cargo or ballast, for the transportation of

goods and passengers. It shall be regulated by the provisions of this Act of

Navigation, and by the rules to be made in pursuance of this Act.

More recent treaties however refer, not just to the flow of water between banks

bordered by two or more states and crossing the boundaries between them, but to all or

part of the watercourse system - its watershed, basin, associated lakes, tributaries,

groundwater systems and inter-connecting waterways - whether local, distant, within

the same territory or crossing international boundaries.

It must be said here however, that even in the 20th century, international rivers have not

been regarded, unlike the high seas, as open to unlimited freedom of access and use by

all states. No international rivers have been designated “common heritage of mankind as

was the deep seabed and its resources in the United Nations 1982 Convention on the

Law of the Sea (UNCLOS). They have also never been subjected to global administration,even when flowing. This is not to say, however, that international law has not been

applied in the management and use of international rivers; thus making for a regime of

international watercourses. Law certainly plays a significant role in managing trans-

boundary water resources. The study of how the norms of international Law are

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developed and applied towards regulation and management of international

watercourses is what has come to be regarded as International Fluvial Law; and that is

the subject of our discussion in the following chapter.

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