Long in coming, the Convention’s success was never guaranteed. Adopted by the UN General Assembly in 1997, the Convention appeared set for ratification as 103 of the UN’s Member States voted in favor of it. Only three countries voted against – Burundi, China, and Turkey – while 27 nations abstained and 33 were absent from the vote. That vote, however, masked long-standing disagreements over how transboundary fresh water resources should be allocated and managed. In particular, upper and lower riparians disagreed between the primacy of the Convention’s cornerstone principles of equitable and reasonable use – favored by most upper riparians – and the doctrine of no significant harm – preferred by most lower riparians (for a more detailed analysis of the UNGA vote on the Convention, as well as the disparate interests, see my article).
Lackluster support in the years following the Convention’s inception suggested to some that the treaty was doomed to failure. More recently, though, the rate of ratifications more than doubled (18 in the first 12 years in comparison to 17 over the past five years). While that resurgence may have been due, in part, to the efforts of World Wildlife Fund (which in around 2009, added implementation of the Convention to its advocacy agenda), it also suggests a broadening recognition that nations have an obligation to cooperate over transboundary freshwater resources. Maybe it’s the threat of climate change, or concerns over dwindling domestic water resources. But, the fact that states are willing to bind themselves to the procedural and substantive norms of the Convention is a promising sign.
Map of State Parties to the UN Watercourses Convention
Entry into force of the Convention, though, is not the last word on the matter. In fact, this milestone raises as many new questions as existed leading to its implementation. For example, what does the geographic distribution of member states indicate for the global success of the treaty? Of the 35 ratifications, the vast majority are from either Africa (12) or Europe (16); only two ratifying parties are found in Asia and none come from the American hemisphere; five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention. At the very least, this distribution suggests a certain geographic bias toward (and against) the Convention.
In addition, what will implementation of the Convention mean in practice? How will nations implement its mandates within their borders and in relation to riparian neighbors? Why have nations in the Americas and Asia eschewed ratification? What does the entry into force of the Convention mean for the UNECE Water Convention, which is already in force in much of Europe and on 6 February 2013, opened its membership to the rest of the world? And, what will the Convention’s implementation mean for existing regional and local transboundary freshwater agreements?
In the coming weeks, the IWLP Blog will host a series of essays addressing many of these intriguing questions. We have invited some of the most knowledgeable scholars and practitioners to offer their perspectives on the Convention’s imminent entry into force as well as on its future. As part of this series, we invite you to participate in the conversation by submitting comments at the bottom of each essay and add your own perspectives and opinions to the discussion. As you formulate your thoughts, you might want to review a prior series hosted by the IWLP Blog and prepared by Dr. Alistair Rieu-Clarke and Ms. Flavia Loures (see here and here).
The entry into force of the Convention is a significant landmark development in the international community’s efforts to better and peacefully manage transboundary fresh water resources. Whether this achievement translates into improved and more peaceful cooperation is a future that has yet to be written.
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 experts, professionals, university professors, doctors, doctoral students and graduate scholars in Europe, USA and Canada established a group named International Ethiopian Professionals Support for Abay (Nile)- IEPSA. The group which is composed of more than 25 Ethiopian experts is drawn from different fields of studies that are directly and indirectly related with water issues both from the hard sciences and the social sciences. The following is the full press release of IEPSA.
Establishment of the International Ethiopian Professionals Support for Abay (Nile)
On June 22nd 2013 Ethiopians composed of experts from different disciplines across different continents establish an international organization called International Ethiopian Professionals Support for Abay (IEPSA). .
IEPSA’s main objective is to mobilize Ethiopian professionals across the world to provide support in their professional capacity for the successful completion of the Grand Ethiopian Renaissance Dam (GERD); and for ensuring the continuous utilization of Abay (Nile) River by Ethiopia based on fair, equitable and internationally acceptable principles. The major factors for the establishment of the IEPSA are: firstly, there is no other non-governmental body to deliver researched and organized information to the international community about GERD which is currently under construction. Secondly, the majority of the Egyptian people know only what they are told by their politicians and have no information about the significance and importance of the GERD for upstream countries. Furthermore, the people of Egypt do not understand the rights of other riparian states on the Nile and as a result their attitude to upstream water development projects is very biased and negative. . Thirdly, there are also questions raised by Ethiopians about the size and location of the GERD-which needs clear answers. Fourthly, there is no formal arrangement made to bring the professionals of other riparian states so that they can play a constructive role regarding the GERD. And fifthly, there has not been any platform or mechanism to bring Ethiopians across different countries together so they could professionally support the efforts of Ethiopia on water and related projects.
With the aim of filling the aforementioned gaps and the necessity of focusing on the ongoing projects on Abay (Nile) River, the IEPSA aspires to achieve certain objectives mainly providing scientifically conducted and research based information about the GERD to the concerned entities, provide professional support and work in cooperation with the National Committee for the Coordination of Public Participation on the Construction of the Grand Renaissance Dam on different issues which need expertise, working towards maintaining and protecting Ethiopia`s national interest on the international stage through strengthening public relation works and lobbing, establishing a database to make any information on the Nile River, in general and the GERD in particular, available for the public and answering all questions regarding the Nile in general and the GERD in particular. IEPSA will also support the national committee to mitigate and answer the critical questions raised by the international environmental organizations on the GERD.
IEPSA is composed of professionals from different disciplines who are mainly university professors, doctors, researchers, expertise in different fields working in big companies; and doctoral students and university graduate scholars mainly from America, Europe and Canada. The composition includes engineers from different disciplines, economists, environmental scientist and conservation professionals, water management experts, and trans-boundary water management professionals, international law experts, information technology professionals; and international relations/hydropolitics researchers.
It is with great privilege we invite all Ethiopian professionals and scholars to join us the ‘International Ethiopian Professional Support for Abay .Your contribution and participation in this timely issue would be greatly appreciated. You can rich us by email: firstname.lastname@example.org
ዓለምአቀፍ የኢትዮጵያ ባለሙያዎች ድጋፍ ለአባይ (ኢፕሳ)
International Ethiopian Professional Support for Abay (IEPSA)
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 theSudan.
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…
ADDIS ABABA, June 13 (Reuters) – Ethiopia’s parliament unanimously ratified on Thursday a treaty that strips Egypt of its right to the lion’s share of the Nile river waters, raising the political temperature in a dispute between Cairo and Addis Ababa over the construction of a dam.
The parliament’s move follows days of irate exchanges between two of Africa’s most populous nations over Ethiopia’s new hydroelectric plant, which Egypt fears will reduce a water supply vital for its 84 million people.
Egyptian President Mohamed Mursi said on Monday he did not want “war” but would keep “all options open”, prompting Ethiopia to say it was ready to defend its $4.7 billion Great Renaissance Dam near the border with Sudan.
Six Nile basin countries including Ethiopia have signed a deal effectively stripping Cairo of its veto, which is based in colonial-era treaties, over dam projects on the Nile, source of nearly all Egypt’s water.
Ethiopia’s late leader Meles Zenawi had delayed parliamentary ratification until Egypt elected a new government.
“Most of the upstream countries have approved it through their parliaments. We delayed it as a gesture of goodwill to the people of Egypt until a formal elected government was in place,” Ethiopian government spokesman Bereket Simon told Reuters.
“We have a principled stance on the construction of dams. We are determined to see our projects brought to completion.”
Another government spokesman, Shimeles Kemal, said Ethiopia’s 547-seat legislature had voted to “incorporate the treaty into domestic law”.
Egyptian Foreign Minister Mohamed Kamel Amr is expected to travel to Addis Ababa on Sunday for talks about the dam, though Ethiopia’s foreign ministry has said there can be no question of suspending construction.
An Ethiopian foreign ministry spokesman has said the talks with Egypt are “in the spirit of Ethiopian interests”.
The African Union has urged both sides to hold talks to resolve the row.
Under a 1929 pact, Egypt is entitled to 55.5 billion cubic metres a year of the Nile’s flow of around 84 billion cubic metres.
But, along with other upstream neighbours such as Kenya and Sudan, Ethiopia argues that this pact is outdated. Ethiopia has also dismissed the talk of military action as “psychological warfare”.
Officials in Addis Ababa say a technical analysis compiled by experts from Ethiopia, Sudan and Egypt provides assurances to downstream nations that the dam being built by an Italian firm will not have a negative impact on the river’s water levels. (Reporting by Aaron Maasho, editing by Gareth Jones)
The Ministry of Foreign Affairs has previously issued a statement on the unhelpful and unnecessary propaganda campaign being carried out by some Egyptian politicians, civil society leaders and political parties about the Grand Ethiopian Renaissance Dam (GERD).
The statement noted that Ethiopia had twice called the Egyptian Ambassador in Addis Ababa to the Foreign Ministry in order to explain the position of his government over these comments, and had indeed requested formal clarification from the Government of Egypt itself. Ethiopia, in turn, made clear its own unshakable belief in friendship, cooperation and mutual benefit as the underlying principles of its relations with all friendly states, including Egypt.
That being said, Ethiopia was deeply frustrated to see further unconstructive propaganda aired about the GERD in the presence of the President, Mohamed Morsi, the Prime Minister, Hisham Qandil, and other high ranking Egyptian officials at the Popular Conference on Egypt’s Rights to Nile Water. Among the baseless allegations aired at the Conference were comments that claimed the Dam posed a danger to the survival of the people of Egypt and malicious suggestions on ways to initiate activities aimed at putting pressure on Ethiopia to halt construction of the GERD. There were, in general, a series of provocative statements attacking both the national interest of Ethiopia and the will of its people to escape poverty. Indeed, a barrage of inaccurate and ill-advised comments, aimed at undermining the report of the International Panel of Experts, were also aired during the Forum.
The proposed suggestions of any resort to war or other forms of sabotage are unacceptable and have no place in the 21st century. In this context, Ethiopia would like to make it clear that it expects the Government of Egypt to refrain from all such unacceptable forms of behaviour or engagement and work towards greater cooperation between the two countries.
Ethiopia affirms that it will not be discouraged by this violent rhetoric. It reiterates in the strongest possible terms that it will not accept any proposal, from Egypt, to halt or delay the construction of the GERD. This apparent attempt to use alleged protests against the GERD as an element of internal domestic politics is against the interests of the people of Egypt.
Ethiopia would like to take this opportunity to extend its warmest appreciation to the Government of Sudan for the positive statements it has made about the benefits of the GERD as detailed in the report of the International Panel of Experts. It would hope that others could learn much from the strong stance taken by Sudan in this regard.
Ethiopia would like to remind the Government of Egypt that as the report of the International Panel of Experts made very clear; the GERD offers major benefits to Egypt. Ethiopia remains firm in its genuine desire to cooperate with Egypt and foster greater friendship between the two countries.