The Nile Basin Cooperative Framework Agreement: The impasse is breakable!
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By Salman M.A. Salman
A summit of the head of states of the Nile Basin countries is planned
for June 22, 2017, in Entebbe, Uganda, to discuss the impasse over the
Nile Basin Cooperative Framework Agreement (CFA). The summit is to be
preceded by a meeting of the ministers of foreign affairs of the Nile
countries on June 20 – 21, 2017. The purpose of this Note is to
clarify the differences over the CFA, and to propose a roadmap for
resolving these differences.
The CFA and the Differences Thereon
The Nile Basin Initiative (NBI) was born on February 22, 1999, in
Dar-es-Salam, Tanzania, following the signing of the minutes of the
meeting by nine of the Nile ministers of water resources in
attendance. The NBI was facilitated by a number of donors led by the
World Bank and the United Nations Development Programme (UNDP). The
NBI was established as a transitional arrangement to foster
cooperation and sustainable development of the Nile River for the
benefit of the inhabitants of those countries. The NBI is guided by a
shared vision “to achieve sustainable socio-economic development
through equitable utilisation of, and benefit from, the common Nile
Basin water resources.”
Work started immediately on the CFA, and lasted ten years. However, by
2009, major differences over some basic issues erupted, and could not
be resolved, neither at the technical, nor at the political levels,
leading to the impasse on the CFA. These major differences persisted
as a result of the resurfacing and hardening of the respective
positions of the Nile riparians over the colonial treaties, as well as
the Egyptian and Sudanese claims to what they see as their acquired
uses and rights of the Nile waters, and the rejection of these claims
by the upper riparians.
The first difference related to water security. Article 14 of the CFA
required the Basin states to work together to ensure that all states
achieve and sustain water security. However, this paragraph did not
satisfy Egypt and Sudan who wanted to ensure, through an additional
clause, that their existing uses and rights are fully protected under
the CFA. Consequently, Egypt and Sudan demanded and insisted that
Article 14 of the CFA should include a specific provision, to be added
at the end of the Article, that would oblige the Basin states “not to
adversely affect the water security and current uses and rights of any
other Nile Basin State.” This demand was rejected by the upper
riparians who saw it as a denial of the basic principle of equitable
and reasonable utilisation, and a breach of the vision of the NBI
itself.
The second major difference related to the concept of notification,
demanded by Egypt and Sudan and rejected by the upper riparians. The
upper riparians saw it as a means for Egypt and Sudan to invoke the
colonial treaties and their claim of veto power.
While the impasse persisted, on May 14, 2010, four of the Nile
riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in
Entebbe, Uganda. They were joined five days later by Kenya, and by
Burundi on February 28, 2011. The CFA has thus far been ratified by
Ethiopia, Tanzania and Rwanda. It needs a total of six instruments of
ratification/accession to enter into force. Egypt and Sudan continue
to vehemently reject the CFA.
Developments Since Conclusion of the CFA
The upper riparians continued with their projects on the Nile
notwithstanding the impasse over the CFA, and the erosion of the NBI.
The Grand Ethiopian Renaissance Dam (GERD), which commenced in 2011,
has proven a major challenge to, and a source of a bitter dispute
between Ethiopia on the one hand, and Egypt and Sudan on the other.
However, by December 2013, Sudan broke ranks with Egypt and declared
its full support of the GERD.
Egypt followed, albeit reluctantly, fifteen months later. Egypt, Sudan
and Ethiopia concluded in March 2015, through their head of states the
Agreement on Declaration of Principles on the GERD (DoP). Egypt and
Sudan basically accepted, through the DoP, the GERD and declared for
the first time ever “the significance of the River Nile as a source of
livelihood and the significant resource to the development of the
people of Egypt, Ethiopia and Sudan.” The three countries agreed
further “to cooperate based on common understanding, mutual benefit,
good faith, win-win, and the principles of international law, (as well
as) in understanding upstream and downstream needs in its various
aspects.” The DoP went on to state explicitly that “the purpose of the
GERD is for power generation to contribute to economic development,
promotion of transboundary cooperation and regional integration…”
The DoP included other provisions on equitable and reasonable
utilisation, the obligation not to cause significant harm, as well as
a peaceful settlement of disputes. It also contained explicit
provisions on the GERD, including cooperation on filling its
reservoir, as well as its safety. The DoP was confirmed nine months
later through the signature by the three countries of the Khartoum
Document in December 2015 at their 4th tripartite meeting.
Breaking the Impasse
These developments clearly annulled Egypt and Sudan previously held a
position of securing all the Nile waters for their exclusive use
through existing uses and rights and the veto power over other Nile
countries’ projects. Equality of all the riparians, as pronounced by
the Permanent Court of International Justice in the 1929 River Oder
case, and reconfirmed by the International Court of Justice in the
1997 Gab?íkovo-Nagymaros Project case, is now fully accepted by Egypt
and Sudan. Similarly, Egypt and Sudan have confirmed their acceptance
of the basic and cardinal principle of international water law of
equitable and reasonable utilisation.
The consequent and logical step for Egypt and Sudan is to drop their
demand for recognition of their existing uses and rights as a part of
the water security paragraph of the CFA. Indeed, the whole section of
the CFA on water security is no longer needed, given that the CFA
includes the same provisions of the United Nations Watercourses
Convention (UNWC) on equitable and reasonable utilisation, as well as
on the obligation not to cause significant harm. It is worth
mentioning that the UNWC includes no provisions on water security, as
this is not a legal concept – merely a political pronouncement.
The quid pro quo for Egypt and Sudan agreeing to drop their demand for
recognition of their existing uses and rights is to include provisions
in the CFA similar to those of the UNWC on the notification. This
should cause no alarm to the upper riparians as the basis of Egypt and
Sudan of their veto power in case of notification – the colonial
treaties – is no longer on the table since the two countries have
accepted the principle of equality of all the riparians. Besides, a
notification could take place through the Commission to be established
under the CFA, or through the ministerial council of the Nile Basin
States as happened in the latter years of the NBI before the
differences erupted over the CFA.
This compromise would address the concerns of both Egypt and Sudan on
the one hand and those of the upper riparians on the other. Its
details can be successfully worked out through good faith negotiations
if the political will among the Nile riparians exist. Indeed, this
political will is urgently needed to resolve the differences over the
CFA and conclude an agreement that is inclusive of all the Nile
riparians, so as to pull the 250 million inhabitants of the Nile Basin
out of their poverty, underdevelopment, hunger and darkness.The first
difference related to water security. Article 14 of the CFA required
the Basin states to work together to ensure that all states achieve
and sustain water security. However, this paragraph did not satisfy
Egypt and Sudan who wanted to ensure, through an additional clause,
that their existing uses and rights are fully protected under the CFA.
Consequently, Egypt and Sudan demanded and insisted that Article 14 of
the CFA should include a specific provision, to be added at the end of
the Article, that would oblige the Basin states “not to adversely
affect the water security and current uses and rights of any other
Nile Basin State.” This demand was rejected by the upper riparians who
saw it as a denial of the basic principle of equitable and reasonable
utilisation, and a breach of the vision of the NBI itself.
The second major difference related to the concept of notification,
demanded by Egypt and Sudan and rejected by the upper riparians. The
upper riparians saw it as a means for Egypt and Sudan to invoke the
colonial treaties and their claim of veto power.
While the impasse persisted, on May 14, 2010, four of the Nile
riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in
Entebbe, Uganda. They were joined five days later by Kenya, and by
Burundi on February 28, 2011. The CFA has thus far been ratified by
Ethiopia, Tanzania and Rwanda. It needs a total of six instruments of
ratification/accession to enter into force. Egypt and Sudan continue
to vehemently reject the CFA.
Developments Since Conclusion of the CFA
The upper riparians continued with their projects on the Nile
notwithstanding the impasse over the CFA, and the erosion of the NBI.
The Grand Ethiopian Renaissance Dam (GERD), which commenced in 2011,
has proven a major challenge to, and a source of a bitter dispute
between Ethiopia on the one hand, and Egypt and Sudan on the other.
However, by December 2013, Sudan broke ranks with Egypt and declared
its full support of the GERD.
Egypt followed, albeit reluctantly, fifteen months later. Egypt, Sudan
and Ethiopia concluded in March 2015, through their head of states the
Agreement on Declaration of Principles on the GERD (DoP). Egypt and
Sudan basically accepted, through the DoP, the GERD and declared for
the first time ever “the significance of the River Nile as a source of
livelihood and the significant resource to the development of the
people of Egypt, Ethiopia and Sudan.” The three countries agreed
further “to cooperate based on common understanding, mutual benefit,
good faith, win-win, and the principles of international law, (as well
as) in understanding upstream and downstream needs in its various
aspects.” The DoP went on to state explicitly that “the purpose of the
GERD is for power generation to contribute to economic development,
promotion of transboundary cooperation and regional integration…”
The DoP included other provisions on equitable and reasonable
utilisation, the obligation not to cause significant harm, as well as
a peaceful settlement of disputes. It also contained explicit
provisions on the GERD, including cooperation on filling its
reservoir, as well as its safety. The DoP was confirmed nine months
later through the signature by the three countries of the Khartoum
Document in December 2015 at their 4th tripartite meeting.
Breaking the Impasse
These developments clearly annulled Egypt and Sudan previously held a
position of securing all the Nile waters for their exclusive use
through existing uses and rights and the veto power over other Nile
countries’ projects. Equality of all the riparians, as pronounced by
the Permanent Court of International Justice in the 1929 River Oder
case, and reconfirmed by the International Court of Justice in the
1997 Gab?íkovo-Nagymaros Project case, is now fully accepted by Egypt
and Sudan. Similarly, Egypt and Sudan have confirmed their acceptance
of the basic and cardinal principle of international water law of
equitable and reasonable utilisation.
The consequent and logical step for Egypt and Sudan is to drop their
demand for recognition of their existing uses and rights as a part of
the water security paragraph of the CFA. Indeed, the whole section of
the CFA on water security is no longer needed, given that the CFA
includes the same provisions of the United Nations Watercourses
Convention (UNWC) on equitable and reasonable utilisation, as well as
on the obligation not to cause significant harm. It is worth
mentioning that the UNWC includes no provisions on water security, as
this is not a legal concept – merely a political pronouncement.
The quid pro quo for Egypt and Sudan agreeing to drop their demand for
recognition of their existing uses and rights is to include provisions
in the CFA similar to those of the UNWC on the notification. This
should cause no alarm to the upper riparians as the basis of Egypt and
Sudan of their veto power in case of notification – the colonial
treaties – is no longer on the table since the two countries have
accepted the principle of equality of all the riparians. Besides, the
notification could take place through the Commission to be established
under the CFA, or through the ministerial council of the Nile Basin
States as happened in the latter years of the NBI before the
differences erupted over the CFA.
This compromise would address the concerns of both Egypt and Sudan on
the one hand and those of the upper riparians on the other. Its
details can be successfully worked out through good faith negotiations
if the political will among the Nile riparians exist. Indeed, this
political will is urgently needed to resolve the differences over the
CFA and conclude an agreement that is inclusive of all the Nile
riparians, so as to pull the 250 million inhabitants of the Nile Basin
out of their poverty, underdevelopment, hunger and darkness.
Dr. Salman M.A. Salman, an academic researcher and consultant on water
law and policy and Editor-in-Chief of Brill Research Perspectives,
International Water Law. Until 2009, he served as Lead Counsel and
Water Law Adviser for the World Bank. He can be reached at
[email protected].
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