Colonial treaties and equitable Nile water sharing

By Afro-Middle East Centre

Ethiopia’s decision in May 2013 to divert the Blue Nile tributary for 500 metres to aid in the construction of the Grand Ethiopian Renaissance Dam (GERD) was met with fury from the Egyptian administration led by President Mohamed Morsi. Military action was even threatened as a retaliatory move. Morsi’s subsequent overthrow and the need of the military coup administration to reassert control meant that talk of such hostilities was suspended.

This article is the first in a two-part series which analyses these events using the 1966 Helsinki principles of equity and water security as a framework to permit better understanding of the situation. This part will contextualise the GERD’s construction by unpacking the main historical and current issues which have influenced its development, and by analysing the evolution of water sharing. Additionally, changes in the balance of power in the region and the rise of Ethiopia are critically examined.

Overview

The importance of the Nile River lies not only in its size, but also in its significance to the countries through which it flows. Stretching over 6 700 kilometres, the river and its tributaries run through eleven states, ten per cent of Africa’s landmass, and serves over forty percent of the continent’s population. Used mainly for drinking and irrigation, the river has historically been a source of both peace and conflict. Currently, over seventy-five per cent of the river’s eighty-four billion cubic meter (KM3) discharge is used for irrigation, especially in its northern coverage area encompassing Sudan and Egypt, where rainfall is less than twenty-five millimetres annually. Around half the countries through which the river flows are classified by the United Nations as least developed countries (LDCs), and many experience chronic food shortages and drought. Nine of the eleven states are linked to the river through tributaries and thus have the ability to divert the water flow, while the two downstream states, Egypt and Sudan, are dependent on the ‘goodwill’ of upstream states.

With many of these states’ economies developing, and as a result of population increases, much pressure is being placed on Nile water, leading many to speculate that ensuring Nile river discharge may soon lead to the initiation of high level interstate conflicts, or ‘water wars’. This is especially so since, unlike comparable water basins such as the Amazon (with over 5 500 billion KM3), Congo (1 250 billion KM3, Mekong (480 billion KM3, and even the Niger basin (180 billion KM3), the Nile’s discharge is a relatively moderate eighty-four billion KM3, ten billion of which is thought to be lost through evaporation.

Historical overview

In the past few centuries, the Niles water distribution has been affected by two main factors. Firstly, colonialism, specifically British interests in Egypt, had led to many treaties related to the Nile being enacted. Two of these are still commonly cited and have threatened to instigate conflict. The 1929 treaty signed by Britain (which, at the time, controlled Tanzania and Kenya) and Egypt recognised Egypt’s ‘natural’ and ‘historic’ rights to the river, and allowed Egypt the use of the bulk of the water. Further, the treaty tasked Egypt with monitoring the river, and provided it a veto over any projects being constructed upstream. The 1959 treaty between Egypt and the Sudan sought to renew the 1929 treaty. It afforded Sudan the use of four billion KM3, and Egypt forty-eight billion, while hinting at the possibility of other states sharing in the water. The figures have since been revised upward as a result of the creation of the High Aswan and Roseires Dams in the two countries. Sudan was subsequently allotted 18.5 billion KM3, and Egypt 55 billion. An earlier agreement that is also relevant is the 1902 agreement between Britain and Ethiopia, which prohibited Ethiopia from ‘arresting’ the river’s flow. These agreements are, however, extremely tenuous, as circumstances have changed so drastically over the years that their validity has largely been nullified. Moreover, because Britain was still in colonial control of countries such as Tanzania, and because Ethiopia – where eighty-five percent of the river originates – is not mentioned in these treaties, they are invalid in light of the Nyerere and ‘clean slate’ doctrines on treaty secession. These doctrines deal with the process of treaty accession following Ethiopia’s independence. The first, named after former Tanzanian president Julius Nyerere, asserts that states that had recently gained their independence have a period of time during which they can decide which treaties they want to be bound by, while the ‘clean slate’ doctrine stipulates that newly independent states are not bound by treaties that former colonialist-controlled regimes had acceded to.

Secondly, the past century has seen an Egyptian obsession around securing Nile water discharge. This is justifiable since the country depends on the river for over ninety-five per cent of its fresh water and irrigation needs, and since over ninety-seven percent of its citizens live in the Nile valley. To this end, Egypt had, in the Sadat and Mubarak eras, threatened the use of force against Ethiopia, Tanzania, and Sudan, amongst others, and aided Eritrean independence through its support of the Eritrean and Tikrayan people’s liberation movements. So brazen had the Egyptians been that after the announcement regarding the construction of the GERD, Egyptian intelligence services conveyed their intention to bomb and sabotage the dam, with commandos being reportedly allowed the use of a Sudanese base for this purpose. Further, through the country’s political influence, Egyptian officials were appointed to key international positions, enabling the country to pressure various institutions, including the World Bank, to refrain from funding dam construction projects in upper riparian states.

Political and power balance alterations

However, since the 1990s, the power balance has shifted as a result of various factors. Firstly, economic and population growth resulted in upstream countries conceptualising plans and scenarios whereby they would be able to utilise the Nile to benefit their citizenry, in contravention of the 1959 treaty. The legal justification utilised in this case is the ‘Harmon Doctrine’, which permits states to use water flowing through their territories for any purpose they deem fit. Thus Kenya, Uganda, and Tanzania have at various times threatened to abrogate the treaty. Ethiopia is a case in point. The country’s dependence on water has more than doubled over the last decade, leading it to construct various dams, including the Tana Beles Dam, and proposing the cooperative Framework Agreement (CFA) adopted three years ago.

In addition, the rise of China, and its thirst for raw materials and resources, has meant that funding large projects – which the country has a penchant for – has slowed. Chinese-African trade has increased to over a hundred billion dollars annually, from around twelve million in the 1980s, with Sudan, Ethiopia, and Egypt benefiting most from this. Unlike the World Bank and most financial institutions and donor organisations which, theoretically at least, only fund water projects consented to by all the relevant states, China has not refrained from aiding in the funding and construction of dams. China has thus been involved in the construction of the Merowe Dam and upgrading of the Roseires Dam in Sudan; Chinese companies helped in the construction of the Tana Beles and Tekez Dams in Ethiopia, and are currently assisting in constructing water projects in Burundi and the Democratic Republic of the Congo.

Moreover, Egypt’s hegemonic position in the Nile basin has waned, while Ethiopia’s has concomitantly strengthened. The end of the Cold War, Mubarak’s ouster, and the rise of the Muslim brotherhood resulted in a decrease in western diplomatic support for the country, and a concurrent slide in the country’s economic position. Conversely, Ethiopia’s position has strengthened. The conflict in Somalia – which had previously checked Ethiopian ambitions; the secession of South Sudan; the entrance of China – which has invested over two billion in the country; and Ethiopia’s role in the American ‘war on terror’ have all combined to ensure that its position in the horn of Africa region is stronger than ever. Lastly, the discourse surrounding water usage has changed. Whereas treaties and hard power had previously been the norm, human security and equity are increasingly being promoted. Thus the Helsinki and Berlin rules on water usage, and the 1997 UN watercourse convention emphasise equity in water usage allowances, resolving that this supersedes the principle of ‘significant harm’ to the affected state’s economy and society.

The Nile Basin initiative

The above factors combined and led to the 1999 establishment of the Nile Basin Initiative (NBI), whose aim was to ‘achieve sustainable socio-economic development through the equitable utilization of, and benefits from, the common Nile Basin water resources’. The NBI’s main goals are to ensure the equitable usage of the basin, efficient management of it, and usage that will ensure water security and economic growth and integration. For this purpose, the forum maintains a secretariat in Entebbe (Uganda); comprises a council of water ministers of Nile basin states (Nile-COM); ensures participation of irrigation and water experts through the technical advisory committee (Nile-TAC), and is well funded by the World Bank and by Nordic countries. In addition, to ensure that practical cooperation occurs, the NBI has conceptualised a strategic action plan, with two main branches. The Shared Vision Program (SVP) is a basin-wide programme tasked with ensuring that the environment for cooperation is maintained and strengthened through the building of mutual trust and institutional and human capacity. The Subsidiary Action Programs (one for eastern Nile countries and another for equatorial Nile states) are sub-basin initiatives tasked with identifying avenues for cooperation, and ensuring that interstate and intrastate water initiatives do not negatively impact basin states as a whole.

Further, a new water sharing framework was to be conceptualised as part of the SVP to replace the now outdated 1959 treaty. However, opposition from Egypt and Sudan have partially stalled the process, leading to the non-consensual introduction of the Cooperative Framework Agreement of the Nile Basin countries (CFA) or Entebbe Agreement in 2010. The CFA provides for Nile water to be shared equitably, causing as little harm to downstream states as possible. It also resolved that Egypt’s consent would no longer be necessary for upstream water projects. Further, Article 14B of the CFA states that water security and not historical rights would be the criterion for water usage, resulting in downstream states such as Egypt and Sudan to vehemently oppose it. To date, six states (Burundi, Rwanda, Tanzania, Uganda, Kenya, and Ethiopia) have signed the agreement, with South Sudan recently announcing that the country will soon sign as well. Sufficient signatories will then have been collected to ensure the CFA’s legal enforcement – in spite of Egyptian and Sudanese opposition. It is noteworthy that the Entebbe Agreement’s expiration date (March 2011) has passed, meaning that the agreement is theoretically unenforceable. Nevertheless, the process of ratification has been allowed to continue.

This treaty is significant, as it will mean that the 1959 treaty is null, thus strengthening the already strong legal basis for upstream riparians to undertake water projects on the river. In addition, Egypt’s monitoring powers would be revoked and the country would become merely a normal Nile basin state with equal rights and responsibilities. Had the Entebbe Agreement already been in place, Ethiopia would not have needed to notify Egypt about the GERD’s construction, nor would it have had to seek Egypt’s permission; the mere provision of dam construction and usage plans would have sufficed.

Realising that the balance of power has shifted, and that Mubarak’s foreign policy toward upstream riparians was flawed, the former Morsi administration had carried out a vigorous diplomatic charm offensive toward upstream riparians. Envoys had been despatched to NBI states, and generous loan and aid packages were offered. Further, Hisham Qandil (a former water affairs minister) had been appointed prime minister, illustrating the importance that Morsi had placed on negotiating a solution to the Nile issue. The military coup seems not to have amended this approach. Egypt’s foreign minister, Nabil Fahmy, has repeatedly attempted to arrange meetings between Egypt, Ethiopia and Sudan to begin a process of negotiations. However, this has not had the desired result, with Uganda and South Sudan subsequently signing on to the Entebbe Agreement, and Sudan implicitly supporting the GERD’s construction and postponing meetings with Egyptian authorities.

This first part has contextualised the GERD’s construction by placing it in a broader perspective of the Nile Basin Initiative, and the evolving paradigm of ‘human security’. In addition, it has elaborated on the changing dynamics within the region that have resulted in increased Ethiopian influence, to the detriment of Egypt. Part two will discuss the GERD, its significance for Egypt and Ethiopia, and the possibility of war breaking out over its construction, which appears minimal according to our current assessments. It will also focus on the possible solutions to negotiate an end to the current impasse.

Last modified on Thursday, 19 February 2015 11:09

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