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The Regime of Inland/Internal Waters

Now since, as we have seen from the forgoing, that the Nigers 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 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.