The 1959 Nile «Agreement»: Why it is null and the way Forward for Downstream States

Zerihun Abebe Yigzaw

The Nile Basin is undergoing a dramatic shift since May 2010. Actually the process of change begun in the mid1990s when preparations were done to establish the later Cooperative Framework Agreement of the Nile (CFA) which was called D3 project initially and the 1999 establishment of the Nile Basin Initiative (NBI). This was a period where once complacent over the Nile upstream riparian states in the Equatorial Lakes region started to engage rigorously in the Nile issue. Above all, the consolidation of new government in Ethiopia and the clear position of the country on the Nile-negotiating for equitable and reasonable water sharing on the Nile triggered the issue of change. This process was backed by development partners such as UNDP, CIDA and later the World Bank until the benefit sharing issue came in. In fact, Egypt had to drop its long standing position on no new water negotiation issue at this time. This process was also paralleled by the intensification of mega projects in both upstream and downstream states of the Nile.

The making of the multilateral Nile treaty took more than ten years from 1997 to 2010. The draft document of the treaty-the CFA was accomplished on 2007. Yet because upstream and downstream states of the Nile have divergent positions on the Nile regarding Article 14(b) its opening for signature was delayed. Despite reasoned on water security issue in the article mentioned above, the real cause of the divide were colonial and bilateral agreements concluded exclusively to benefit downstream states at the expense of upstream states. At the center of the debate is the 1959 Agreement which is the subject of this piece discussed below. To shed light to the existing situation though I have to remind readers that regarding Article 14(b) of the CFA all riparian states of the Nile except Egypt and Sudan that it should be read us Not to significantly affect the water security of any other Nile Basin State…” Egypt proposed the replacement of the agreed wording by “Not to adversely affect the water security and current uses and rights of any other Nile Basin state.” Egypt´s proposal is an attempt to maintain the status quo which is based on the 1959 “Agreement” with the Sudan.

Moreover, following Ethiopia´s decision of constructing the mega dam called the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile-which is according to official statements more than 20 percent accomplished- Egyptian officials went on saying that the dam will reduce the water “share/quota of Egypt.” But let us ask this big question-which share? Who give you that quota? Their answer is clear the 1959 “Agreement.” They went on further saying that Egypt is not against any water development in upstream but as long as it is not against the 55.5 billion cubic meter of water they claimed they have according to this treaty with the Sudan. But is the 1959 agreement a matter of concern for upstream states? What are its basic elements? Is there any way for Egypt and Sudan to have a safe exit to join the CFA by nullifying this agreement? Why is the agreement null for upstream states?

The 1959 “Agreement” some Basic issues

One of the divisive issues regarding this agreement is its title which reads: AGREEMENT BETWEEN THE UNITED ARAB REPUBLIC AND THE REPUBLIC OF SUDAN FOR THE FULL UTILIZATION OF THE NILE WATERS.” The very title of the agreement which is signed between two water receiver countries, without involving any of the water source countries and declaring “full utilization” its nonsensicality. This is in fact, an insult to upstream states, to their people and their interest.

The agreement furtherer endorsed the so-called acquired rights of both Egypt and Sudan. What are these rights? The agreement under Part I declared that both countries had rights under colonial treaty signed in 1929 when Great Britain on behalf of Sudan and its colonies in the region. The agreement further allotted the entire flow of the Nile between the two downstream states and the evaporation at Lake Nasser behind Aswan High Dam. Allocation is made then as follows. Egypt to utilize 55.5 billion cubic meters, Sudan to use 18.5 billion cubic meters and for evaporation more than 10 billion cubic meter. It should be clearly noted that the entire flow of the Nile as measured at Aswan in Egypt is estimated 84 billion cubic meters but vary from year to year. The colonial agreement of 1929 and the 1959 agreements are further problematic because they gave Egypt to have veto power on any upstream water projects.

The 1959 “Agreement” and upstream states

There are no any moral, legal as well as political reasons for upstream states to recognize this agreement. For them both the 1929 colonial and the 1959 agreements are null and void. Regarding the colonial treaties especially the 1929 agreement where Great Britain signed on behalf of its colonies, upstream states upon achieving their independence have made it clear that colonial treaties regarding the use of the Nile waters has no any binding nature on them. The famous Nyerere Doctrine is developed in this context. The making of international treaties and agreements perspective, any country would be abide by a treaty if and only if it is a signatory state or acceded to it. Neither of the upriver riparian states were party to this treaty notably the not colonized state Ethiopia.

To be specific to the 1959 Agreement no upstream state has recognized as well as acceded to it. In fact, to the contrary all upstream states undermined and denounced the actions of downstream states. Notably Ethiopia from the very beginning has made it clear that any treaty made on the Nile without its involvement will not binding and has no any effect on the country. Be that as it may, the dramatic developments in the Basin would necessitate the renegotiation of the treaty between the two signatory states themselves because the Basin is undergoing a fundamental change of circumstances. Yet this agreement should not be surfaced by downstream Egypt as a threshold for any Nile water negotiation with upstream states. Upstream states have every legal backing to nullify Egypt´s claim of the agreement to be accepted by upstream states. If Egypt continues with this position it should be underlined that no upstream state in the Nile is going to accept what it requests as they made it clear through the signing of the CFA

The Way Forward

There is only one solution to the problem. Egypt and Sudan must come to table and accept the CFA. Both countries were in the negotiation for more than 10 years. Egypt´s claim as if it has a water quota allocated to is non-existent from upstream point of view. The CFA declares equitable and reasonable utilization of the Nile waters by all riparian states. In line with this it also obliges all riparian states to take all measures not to significantly affect the interest of other riparian states. Hence, it should be clear that these two principles are basis of contemporary international water law especially the 1997 United Nations convention on the law of the non-navigational use of transboundary watercourses. On the contrary, what Egypt claimed as historic rights or acquired rights have no a foundation in international water law.

Both Egypt and Sudan have door opened in their own treaty to make changes to their stance and use the 1959 Agreement as a way to adjust themselves to the CFA. Despite not stated and acclaimed like the water quotas it grants to Egtypt and Sudan, this agreement under Part Five paragraph two states that:

As the riparian states, other than the two Republics [upstream states], claim a share in the Nile waters, the two Republics have agreed that they shall jointlv consider and reach one unified view regarding the said claims. And if the said consideration results in the acceptance of allotting an amount of the Nile water to one or the other of the said states, the accepted amount shall be deducted from the shares of the two Republics in equal parts, as calculated at Aswan.

This provision clearly states the 1959 agreement would be changed one day when the neglected and undermined upstream states turn their face to the river-which they do. Both countries Egypt and Sudan can use this provision as a safe exit to the CFA rather than making the 1959 agreement dogmatic.  The 1959 bilateral agreement was done between Sudan and Egypt. Yet taking the overall political atmosphere the change in government in Sudan it is not illogical to say the 1959 agreement was between Egypt and Egypt for Egypt. But the CFA which was negotiated by all Nile riparian states except Eritrea and signed by six Nile states where two other states are likely to sign and endorsed by all riparian states except Egypt followed  by Sudan is a multilateral treaty for the benefit of all riparian states. Joining the CFA is in the best interest of all riparian states of the Nile. Hence, Egypt and Sudan should answer that call for their own sake and for the peace and prosperity of the whole Nile Basin. It is up to Egypt and Sudan to answer that call…  The bell is ringing…

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