Section I
Ref #16.1
May 6, 2013
----------------
The Cooperative Framework Agreement and the Future of the Nile Politics: The Scenarios
By Zerihun Abebe Yigzaw
----------
Introduction
Making a binding agreement on transboundary watercourses that is acceptable by all riparian states is a convoluted business. The negotiation process is tough and challenging. Especially if there are other issues that are embedded with the water shared, making an agreement is very difficult. The hydropolitical history, international relations of the riparians, culture and religion, number of riparian states sharing the water, geography of the basin and water availability, power relations between states are important factors. In this context, unlike most river basins, the Nile Basin, had no either multilateral treaty or a customary law that binds all riparian states that guides the utilization and management of its waters. If there had been ‘agreements’ it is colonial, partial, non-inclusive or bilateral “treaties” of 1929 between Great Britain (on behalf of Sudan as a colonizer) and Egypt (still under British occupation) and the 1959 treaty between Egypt and Sudan. In all of these “treaties” upstream states were neither consulted nor invited which makes the ‘agreements’ partial. The 1959 agreement gives the two water receiving countries the right to use all the waters of the Nile by neglecting the water interests and needs of upstream states notably Ethiopia which contributes almost 86% of the total flow of the Nile. This has divided upstream and downstream states. But as a result of third party involvement such as the UNDP and the World Bank, Ethiopia`s insistence not to take part in any Nile based cooperation attempts unless negotiation for water sharing is at the center of the process, and Egypt`s relaxed move to involve in this negotiations lead to the commencement of the negotiations for new Nile treaty and the parallel establishment of the Nile Basin Initiative (NBI) in 1999. Then the 10 years negotiation yielded the Cooperative Framework Agreement of the Nile (CFA).
---------------------------
The CFA: Basic Principles in light of International Water Law
The negotiation for the CFA took 10 years-from 1997-2007 but it was signed in 2011 due to the deadlock due to disagreement between Egypt and Sudan in one hand and the rest of upstream states on the other hand on Article 14(b)which mainly is about water security (which is discussed below). Nevertheless, it was signed in May 2010 by five upstream states-Ethiopia, Uganda, Rwanda, Tanzania and later Kenya joined after days. Burundi signed the agreement on February 2011. Its signing is a milestone in the hydropolitical history of the Nile Basin. This is mainly because the signing of the CFA marked “the beginning of the end of the status quo” (Nicol and Cascao, 2011: 323). Needless to say, the status quo in the Nile Basin is the one claimed by Egypt seconded by Sudan as fair and legitimate as per the 1959 Agreement. This agreement divides the total flow of the Nile Waters-which is estimated 84 billion cubic meters to three entities. Egypt received 55.5 billion cubic meters while Sudan granted 18.5 billion cubic meters and the remaining 10 billion cubic meters to evaporation in the Sahara Desert. Furthermore, the agreement gives Egypt the power to veto upstream water projects and states “Egypt`s historic and natural rights” over the Nile waters against the water needs and interests of the other basin states. But the CFA ruins all these one-sidedly claimed “right” and ‘water apportionment.’ How?
The different principles of the CFA in one way or another are influenced by the 1997 United Convention on the Law of Non-navigational Uses of International Watercourses. The two major principles of the UN Convention “equitable and reasonable utilization (Article 7) and obligation no significant harm (Article 7)” The CFA under Article 4 discuss the details of the principle of “equitable and reasonable utilization” of the Nile waters. By so doing the agreement declares the Nile belongs to all the riparian states and there is no state to claim veto against the other. Article 4(1) affirms that: “Nile Basin States shall in their respective territories utilize the water resources of the Nile River system and the Nile River Basin in an equitable and reasonable manner…Each Basin State is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River system and the Nile River Basin.” (Eclipse mine).
To ensure such equitable and reasonable utilization the agreement under Article 4(2) outlines a number of ‘relevant factors and circumstances’ to be considered. The CFA furthermore includes obligations on riparian states to refrain from causing a significant harm on the utilization of the waters of the Nile by other riparian states. According Article 5(1) “Nile Basin States shall, in utilizing Nile River System water resources in their territories, take all appropriate measures to prevent the causing of significant harm to other Basin States.” Here it should be noted that this principle for long was acclaimed and propagated by downstream states. Yet it is worth mentioning that the causing of significant harm is not exclusively an occurrence from upstream states against downstream riparians alone. This principle is also an obligation that holds true for any significant harm created by the downstream riparians against other riparians. “They do this either by implementing grandiose unilateral water projects to monopolize each and every drop of the shared water or by denying upstream riparians the means to utilize the water for instance by objecting international funding of upstream water projects” (Zerihun 2012). Despite the development of international water law has no any clear rule on which principle has a priority and make the issue open, the practice in almost all transboundary watercourses and the legal implications and interpretations of the Helsinki Rules of 1966 and the 1997 UN Convention gives weight to equitable and reasonable utilization. Looking at the principles it embrace from the UN Convention of 1997 and other related principles it contains and its inclusion of water security under Article 14, the CFA do indeed contribute tremendously to the development of international water law.
The agreement further stipulates different principles such as protection and conservation of the Nile River System and its ecosystems (article 6), regular exchange of data and information (Article 7), planned measures (Article 8) and so on which are basis for transboundary watercourse management. By and large the aim of the CFA is to establish Nile River Basin Commission (NRBC) as permanent intergovernmental organization “to promote and facilitate the implementation of the principles, rights and obligations provided for in the CFA” (Article 16). The CFA in general is a foundation to better enhance cooperation between the Nile Riparians and to ensure benefit from the fruits of the Nile to all riparian states equitably and reasonably.
-------------------
In the CFA: Who is in, who is Out and Why?
Technically speaking currently the Nile is in a hydropolitical deadlock. While six upstream states (Uganda, Tanzania, Rwanda, Ethiopia, Kenya and Rwanda) have signed the agreement and South Sudan have notified its decision for accession to the CFA, downstream Egypt and Sudan are still reluctant and have stated that they will not sign the agreement. Democratic Republic of Congo is believed to sign the Agreement soon. The main reason of the disagreement between the signing upriver states and the not-signing downriver states is Article 14 (b). Originally this article was about the status and fate of the so-called “previous agreements.” But later on Egypt has proposed a new concept called water security which is neither defined clearly in the academia nor used in other transboundary watercourse treaty makings (Zerihun 2012). Despite the basic theme of this article is clearly stated under Articles 4 and 5 of the CFA, Egypt followed by Sudan needs the inclusion of the concept of water security for one reason of maintaining the status quo by other means. This is clearly reflected on the propositions made on Article 14 (b) by both conflicting parties.
All riparian states except Sudan and Egypt have agreed on “not to significantly affect the water security of any other Nile Basin State.” But Egypt proposed that Article 14(b) should be replaced by the “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” The phrases “current uses and rights” are meant the status quo on the Nile Basin and if upstream states were to accept these phrases it would make the 10 years negotiation a rush to nowhere. Till now Egypt and Sudan are out of the CFA by even declaring they will not join the CFA till their proposal is accepted. On the other hand the signatories of the CFA have been arguing that, the old unfair and not-recognized regime in the Nile Basin is gone and gone forever and they have been calling Egypt and Sudan to come on board so that the problem on Article 14 (b) will be solved after 6 months of the establishment of the Nile River Basin Commission. This hydropolitical standoff between upstream and downstream states then makes the future of the Nile Basin Politics uncertain but open to probable and unlikely scenarios.
------------------------------
The Future of the CFA: Scenarios
The most likely and probable scenario is the six signatory states with South Sudan and the high probable signing of DR Congo will ratify the CFA and will consequently establish the Nile River Basin Commission. The question is then what will be the fate of the NBI and the reactions from Egypt and Sudan as well as donor countries and institutions. This is an open question open for speculations. This will further put the international financial institutions and donor countries on test as to which their inclination will be either to justice and fairness or otherwise. The second less likely scenario is despite their lack of enthusiasm to sign the CFA looking at the firm and undeterred move of upstream states and third party involvements such as donors in the Nile Basin Trust Fund, Sudan and Egypt would come to the board as agreed so that the issues related to Article 14 (b) will be discussed after 6 months of the establishment of the Nile River Basin Commission. But the problem here is that the negotiations for solving Article 14 (b) even after Egypt and Sudan join the CFA will be murky as the two have irreconcilable and divergent positions regarding water security. Nevertheless, within this framework there is a high probability of avoiding violent conflicts as if Egypt and Sudan agreed to the terms of the CFA as it is now there will be ample opportunity to ascertain a win-win situation. In other words, there will be no any shortcut solution to the problem. The third scenario is the situation where Sudan and Egypt are not to sign the CFA in the near future but would do after 2017/2020 taking the unilateral projects will be completed as fait accompli projects to further complicate negotiations for water sharing and allocation-if any. This would then escalate the hydropolitical tension on the Nile Basin as each and every Nile riparian state will run for scramble for water through grand unilateral water projects where the cumulative effect will be violent conflict and an outright mutual destruction. This will be yielding lose-lose situation as no riparian state can stop the other riparian state from utilizing the water in its territory. Thus the solution is choosing the best way for win-win situation. What can be best said in general is though sooner or later Egypt and Sudan will join the CFA but the problem is the aftermath of their engagement which will complicate further negotiations unless they drop their rigidity on the colonial and bilateral agreements which are disguised under the name of current uses and rights of the Nile Waters.
---------------------
Conclusion
Under current state of affairs the Nile Basin is at the cross-roads. Riparian states are to chose either the road to fairness and justice where all riparian states are to win or to a path where there will be a lose-lose situation. It is more likely that the signatory upstream states of the CFA will move forward in ratifying the agreement and will establish the Nile River Basin Commission. The old Nile Basin is for sure gone and the new Nile is born. It is in Egypt`s and Sudan`s interest if they join the CFA and sustain the fruits of the last ten years institutional arrangements to have a win-win situation and enhance overall cooperation and integration across the Nile Basin.
--------------------
Bibliography
Alan Nicol and Ana Elisa Cascao. (2011). Against the Flow-new power dynamics and upstream mobilisation in the Nile Basin. Review of African Political Economy. Vol. 38, pp. 317-325. Available at: http://dx.doi.org/10.1080/
United Arab Republic (Egypt) and Sudan Agreement For The Full Utilization of the Nile Waters Signed at Cairo, on 8 November 1959; in force 12 December 1959 Available at: http://sitemaker.umich.edu/
United Nations Convention on the Law of the Non-navigational Uses of International Watercourses. Available at http://untreaty.un.org/ilc/
Zerihun Abebe Yigzaw. (2012). Hydropolitics of Eastern Nile Basin: The Nexus Between Water Sharing and Benefit Sharing Arrangements. LAP LAMBERT Academic Publishing.
-------------
(Ed’s note- We would like to thank Zerihun, an expert known for his excellent analysis on hydro-politics of Nile, for sending us the above insightful and informative article, and for his constant words of encouragement to the NEVIS editorial team. The above article can only be reproduced with the consent of the author, as are all other articles in NEVIS)
------------------------------
