By Zerihun Abebe Yigzaw
Since the ousting of Hosni Mubarak, Egypt has been seen some three governments either as transitional ones appointed by the military or popularly elected in a free election.
The first transitional government of Prime Minister Essam Sharaf was progressive and seemed to turn Egypt`s face to Africa where its origin and life relies on. Nonetheless, because it was a transitional government and had no any constitutional ground. It was a handicapped one and its efforts were not fruitful. But this does not mean that Sharaf’s government was unique in its orientation but its attempts to solve the Nile issue in a peaceful and civilized way that will establish a win-win situation was a good start.
Following a popular election in June 2012 Egypt’s old organized Islamist group-Muslim Brotherhood`s political wing Freedom and Justice Party`s representative Dr. Mohammed Morsi won the presidential election from Mubarak’s last Prime Minister Ahmed Shafik in a narrow vote difference (51.7 percent to 48 percent). The new president established his government and appointed a water expert Hisham Qandil as his prime minister-
which shows the priority he gave to the Nile issue. In a parliamentary election Muslim Brotherhood with the conservative Salafists won the election and drafted a more Islamist and criticized constitution. This indeed led to the ousting of Mohammed Morsi in a military coup supported by a popular riot organized by young political activists called the Tamarod in July 2013.
The military chief of Egypt and Defense Minister appointed by Morsi himself, General Abdel Fattah Al Sisi announced that Morsi was ousted and the 2012 constitution suspended. Al Sisi further declared Adly Mansour, who was the chief justice of the Supreme Constitutional Court, as the president of the transitional government. Mansour a lawyer by profession appointed Ahmed Beblawi as prime minister and there was hope that the Nile discord would be solved as one of the criticisms against Morsi was that he could not handle the Nile problem well as he was busy of remarking war mongering speeches following Ethiopia’s successful retouring of Abbay (Blue Nile) to make clear of the river bed from water to undertake the civil works of the construction of the Grand Ethiopian Renaissance Dam (GERD). The new government under Mansour will been in power till a new government is established following the promulgation of a new constitution. President Mansour was authorized to form the constitutional drafting committee which he actually did.
Egypt’s new constitution drafting body was composed of 50 people from different political groups and sectors and chaired by Amr Moussa, ex-minister of the Ministry of Foreign Affairs of Egypt and ex-secretary general of the Arab League. The committee was entrusted initially to amend the constitution introduced by Mohamed Morsi’s government and was believed that it would only take sixty days. Yet, the constitution drafting committee which almost took three months came up with a new constitution. The new constitution is endorsed by the people of Egypt with a 97 percent vote in the January 14 and 15, 2014 referendum. Yet the problem is despite the Egyptian people has the right to say whatever they want in their constitution, their politicians led them in to a free fall and codified a historical wrong that their grandfathers done in the early and mid-20th century regarding the Nile. Let us compare the provisions of Egypt`s 2012 and 2014 constitutions on the Nile and say a few words on how it is again a historical wrong than right.
Egypt`s 2012 constitution under Article 19 declared that “The Nile River and water resources are a national wealth. The State is committed to maintaining and developing them, and preventing abuse. The use of such resources shall be regulated by law.” Hence there is no problem and no indication is made the transboundary nature of the river. When the constitution declares that it is ‘national wealth’ it refers to the water that flows to Egypt. And as any other Nile Basin country Egypt is entitled to say the Nile is its
national wealth. The provision of the 2012 constitution on the Nile is purely of domestic nature and one can say that had no any complications. Nonetheless, it is a constitution suspended with the ousting of Mohammed Morsi.
Article 44 of the 2014 constitution on the other hand reads as that “The state [of Egypt] commits to protecting the Nile River, maintaining Egypt’s historic rights thereto, rationalizing and maximizing its benefits, not wasting its water or polluting it…” Now the problem is on the inclusion of the phrases “maintaining Egypt’s historic rights” which clearly shows and carries a message to the Nile Basin states. This made the provision under this article more controversial and despite a national constitution which has no legal effect outside the Egyptian territory, the implicit meaning attached to it is worth of scrutinizing, as it has a transboundary message to the Nile Basin states. Before analyzing the issue from the perspective of international law and the politics of the Nile waters in relation to other Nile Basin states it is worth zooming in on the meaning of “maintaining Egypt’s historic rights” from the Egyptian perspective.
Claim of “Historic Rights” on the Nile and International Water Law
For Egypt the so-called “historic rights” on the Nile are defined based on colonial or partial treaties of the 20th century. As repeatedly discussed Egypt considers the 1929 colonial “treaty” between Britain (on behalf of Sudan and its other colonies in East Africa) and Egypt as the base of its “right” on the Nile. In fact, it is difficult to call the 1929 “Agreement” as a bilateral agreement between Egypt and Britain as the former was still under tight political and economic control of the later. It can better be said that the 1929 “Agreement” was between Britain and Britain for Britain as concluded to make sure that its textile factories in Manchester had secured uninterrupted cotton from Egypt produced by the Nile waters. This “agreement” gave Egypt the lion’s share of the Nile waters and veto power on upstream water projects which has been a ludicrous and irrational attempt of controlling the Nile. In fact, the idea was that the British administrators in upstream Nile British colonies would not do anything without consulting the British administrators in downstream of the Nile in Egypt. But Britain had left the Nile Basin long ago and Egypt’s today’s call of claiming a “right” based on an obsolete colonial “treaty” is a self tomfoolery.
Following Sudan’s independence from British colonial rule and issues precipitated following Egypt’s decision to construct the High Aswan Dam in the 1950s the Nile issue was again raised and the 1959 Agreement between Egypt and Sudan was signed. In fact, the process of negotiation for the 1959 Agreement was full of Egyptian trickery supported by Sudan’s pro-Nasser president Ibrahim Abboud who came to power in a coup in 1958. Nonetheless, Egypt considers the 1959 Agreement as a consolidation of a self-claimed “historic right” on the Nile. The 1959 Agreement divided the entire flow of the Nile for Egypt, Sudan and evaporation at the Sahara from Lake Nasser behind the Aswan High Dam (55.5, 18.5 and more than 10 billion cubic meters of water respectively). Furthermore, the veto power of Egypt was still maintained in this agreement. It is worth noting here that many Sudanese are not happy with the way the 1959 Agreement is negotiated and signed. In addition, the recent policy shift of the Sudanese should be seen from such a perspective of latent opposition to the unfair 1959 Agreement.
Hence for Egypt, it is those partial, unfair and irrational “agreements” which are regarded as the basis of the self-claimed “historic right” on the Nile. No water is left for upstream states and their national pride was in fact insulted and they were considered as non-existent. Their water rights were neglected, undermined and ignored. This is what Egypt is claiming as its “historic right” which is a total absurdity, hydropolitical arrogance and vindictive stance which will not solve the Nile problems but throw it in a vicious-circle of mutual suspicion and mistrust.
From upstream point of view the so-called “historic rights”, a recurring fanfare by Egypt, are rather historic wrongs on the Nile. Ex-British and other European colonies on the Nile, immediately after their independence in the 1960s, declared that agreements entered by colonial powers are null and void on newly independent states. This is famously known as the Nyerere Doctrine after Julius Nyerere of Tanzania who for the first time declared that Tanganyika will not abide by a treaty entered by Britain on the Nile. As for the 1959 Agreement it is a bilateral agreement entered between “two independent” states where the legal effect is only on the signatory states and as clearly declared in Article 34 of the Vienna Convention on the Law of Treaties of 1969 “a treaty does not create obligations or rights for a third party without its consent.”
As for Ethiopia, which was the only state on the Nile Basin that was not colonized, both “agreements” are of no concerns. In fact, Ethiopia has made its position clear in 1957 knowing that negotiation between Egypt and Sudan was taking place. Ethiopia asserted that it has the right to utilize the Nile waters for the benefit of its current and future generation. Furthermore, it has unequivocally declared that any attempt of making treaties on the Nile without involving Ethiopia has no legal effect on its utilization of its Nile waters.
From the above explanations one can note that the position of Nile riparian states are at odds and Egypt is standing alone upholding an obsolete doctrine in the utilization of transboundary watercourses. In fact, other Nile riparian states have the support of international water law which has tremendously evolved in the 20th century. In the eyes of international law “historic right” with its other names such as “ancient right, prior use, established right” and so on had been nominal ‘doctrines’ in the utilization of transboundary watercourses. A doctrine in this sense is defined as more of a theory and personal opinion of a few individuals with no legal base. As far as international water law is concerned the basic principle, which has the acceptance of leading scholars and is accepted as a basic rule in international courts, is the principle of equitable and reasonable utilization. This principle is capable of answering the water questions of any state in transboundary watercourses as evidenced, for example, in the decision of the International Court of Justice in Gabcíkovo-Nagymaros Project Case on the Danube between Hungary and Slovakia. This principle is therefore the most popular and widely accepted one and is developed into a status of principle of customary international law. As clearly stated in the works of leading international law experts there is nothing called “historic right, established right, ancient right” in international water law (For details, one can refer to A. H. Garretson, R. D. Hayton, & C. J. Olmstead (Eds.). 1967. The law of international drainage basins. Dobbs Ferry, NY: Oceana.).
Why is the phrase in the constitution?
Knowing what Egypt is claiming as “historic rights” have no international legal ground and knowing that upstream states on the Nile are against this nominal doctrine, why the politicians are adamant to include it in the constitution? There is no perfect answer for this but we can infer from experiences and current situations in the Nile Basin. Firstly, the current constitution of Egypt is drafted in a time where the Nile Basin is undergoing a dramatic shift from a one-country show of unfairness and monopoly into a basin which embraces all riparian states under the umbrella of a fundamental principle of international water law called equitable and reasonable utilization. The Cooperative Framework Agreement on the Nile (CFA) signed on May 14, 2010 is such a reflection and a historic moment. Furthermore, Ethiopia’s undergoing construction of the GERD, which eventually will become Africa’s biggest hydropower dam, is part of such a dramatic change on the Nile basin. Hence, the inclusion of the so-called “historic rights” is a mere reaction of attempting to maintain the unfair past. In my view, the Egyptian’s seem frustrated and unnecessarily fear the developments on the Nile and are in state of unstable mind. Hence, they seemingly include the phrase having in mind that this might help them despite the truth the truth being the exact opposite.
Secondly, the inclusion of the “historic rights” phrase in the constitution might have to do with the ongoing domestic instability in the country following the ousting of President Mubarak and later Morsi. The Nile issue had been used by Egyptian leaders as a playing card to divert attention from their internal crisis to an international agenda. This was what Mubarak and Morsi tried to do but failed and what the current regime is doing will be doomed to fail as their narration is a groundless accusation of upstream states.
Thirdly, it could be due to the personalities of members of the constitution drafting committee and their attitude. In this regard, highlighting the perception and attitude of the chair of the committee, Amr Moussa, regarding the Nile and its riparians is important. In 1997 in his interview with the now defunct Amharic magazine Ifoyita Moussa as the minister of Foreign Affairs of Egypt stated that “his country has a good attitude for Ethiopia as far as the later do not encroach upon the former’s right.” His definition of Egypt`s right on the Nile is nothing but those based on the 1929 and 1959 “Agreements” discussed above. For obvious reasons, foreign relation matters in the constitution and the inclusion of the “historic rights” phrase are the works of this man. Among the committee members, it is also worth mentioning the Grand Mufti of Egypt Shawky Allam from Al-Azahar and other members from the Salafist Nour Party whose perception of upstream water development on the Nile is linked with Israel and America`s involvement and conspiracy. Furthermore, people from the Al-Aharam Center for Political and Strategic Studies have been viewing upstream water developments as a violation of international law despite their baseless claim. These people are daring to say that the colonial and partial bilateral “agreements” on the Nile and their declaration of the so-called “historic rights” of Egypt “are binding on the non-signatory upstream states.” All the members of the committee I can say are children of the same mother who have grown victimized hearing and learning the historic wrongs of colonial powers and emotional military generals since the 1950s as “historic rights.” And it is not a surprise that they have included the phrase in the constitution. So the question is; What are its effects?
The effect of Article 44 on the Nile Basin
Despite being debatable one can argue that ‘the foreign policy of a state is the continuation and/or extension of its domestic politics and policy.’ In this regard, the number one effect of the inclusion of the so called “historic rights” in Egypt’s constitution is, it will make discussions on the Nile tougher. Egyptian negotiators possibly will appear more rigid and unyielding than before in discussions regarding the Nile either pertaining to the CFA or the GERD. But it must be clear also that the reactions of upstream states for sure is what they have been saying and they will never accept any imposition of such arrogance which would have deprived them of their natural rights of utilizing the Nile waters for the benefit of their current and future generation. The result of such a situation will be nothing but a hydropolitical deadlock which could further fatten the norm than exception in the Nile Basin which is suspicion and mistrust. This will, however, not stop upstream states from utilizing the Nile waters as evidenced in their mega hydropower projects.
Article 44 of the constitution of Egypt is in fact – especially the phrase “maintaining Egypt’s historic rights” – tantamount to insulting the upstream states of the Nile and their people. It is equivalent to saying “you have no Nile waters and the Nile is a property of Egypt.” In addition it is meant to say that those countries that are the sources of the Nile are a bunch of colonies that live with and accept the scars of the colonial powers manifested in the form of the 1929 “Agreement” that deprived them of their interest from their own waters and could do nothing. What should this countries therefore respond to such an insult? It is plain clear that the ball is in their court. Upstream states have gone further in calling Egypt and Sudan to come on board to join them and sign the CFA which can answer the question of all riparian states. It is time for the signatory states to ratify the CFA and those which do not ink their signatures follow their African brothers and maintain their rights on the Nile River. The CFA is the best instrument that the Nile Basin have to solve problems associated with the Nile waters. It is based on basic and accepted principles of international water law mainly equitable and reasonable utilization of the Nile waters for the benefit of all riparian states and enhance win-win situation in the Basin.
Furthermore, from the perspective of international law, Article 44 is nothing but a provision of one state’s national law. Its legal effect is within the boundary of the concerned state and it has no international legal effect. In the same token it should be clear that international laws have supremacy over domestic laws. In this context, as clearly stated in the 1969 Vienna Convention on the Law of Treaties and analyzed by Malcolm N. Shaw (2008), “A particular provision within the internal legal structure of a state, including its constitution if there is one, cannot be applied to evade an international obligation.” This obligation includes among others principles of customary international law. By no means can the doctrine of “historic right” be invoked to escape the principle of equitable and reasonable utilization of transboundary waters. In addition to this, the upstream Nile riparian states which are signatories of the CFA have international obligations of this agreement which has a binding effect on them. Besides, as seen in the Cameroon vs Nigeria case and viewed by the International Court of Justice, “There is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States.”
To sum up, Moussa, in his interview with Asharq Al-Awsat, stated that the new constitution of Egypt “was written in the context of the 21st century.” The truth is though this constitution of Egypt regarding the Nile issue is still in the early 20th century and not yet brings itself to the developments of the 21st century it has repeated the then colonial power Britain and Egypt`s own historic wrongs of the 19th and early and mid-20th centuries to say the least. In fact the new constitution is a codification of these historic wrongs with no solution for the Nile controversy but fueling suspicion and mistrust. Again as the late Prime Minister of Ethiopia, Meles Zenawi plainly said in November 2010 during his interview with Reuters, “The Egyptians have yet to make up their minds as to whether they want to live in the 21st or the 19th century.”
Ethiopian Reporter 25 January 2014