August 2, 2024, Written by Mahemud Tekuya
On July 8, 2024, South Sudan announced that its Transitional National Legislative Assembly (TNLA) unanimously ratified the Nile Basin Cooperative Framework Agreement (CFA). (See here) This development follows ratifications by five Nile Basin States — Ethiopia, Tanzania, Rwanda, Uganda, and Burundi— paving the way for the CFA to come into force sixty days after South Sudan deposits its ratification with the African Union, as stipulated in Article 42. (See here and here)
While the impending entry into force of the CFA is a landmark development for the upstream Nile Basin States, its rejection by the downstream States— Egypt and Sudan — poses significant challenges to cooperative management of the Nile watercourse. This piece scrutinizes the ramifications of the CFA’s entry into force. It reviews the negotiation history of the CFA, critically examines its salient features, and reflects on the challenges and prospects of its implementation.
The Sisyphean Negotiation Process
The downstream States have rejected the CFA to maintain the status quo established by the 1902, 1929, and 1959 agreements (collectively, “the existing Nile Waters Agreements”). During the scramble for Africa, Britain signed the 1902 Treaty with Ethiopia and the 1929 Treaty with Egypt and set the rules of the Nile game, prohibiting upstream States from utilizing the waters of the Nile without the consent of those downstream. After decolonization, Egypt followed in Britain’s footsteps and concluded the 1959 Agreement with Sudan, effectively institutionalizing the same power balance. This Agreement allocated the entire flow of the Nile waters between Egypt and Sudan, without considering the interest of the nine upstream states that share the watercourse.
As mushrooming population growth, droughts, and famines generated ever-greater water needs in the Nile Basin toward the close of the 20th century, upstream States amplified their calls for a new legal framework. (See here) In 1997, all of the Nile Basin States at the time (except Eritrea, which participated as an observer) began negotiating and formulating the CFA. During negotiations, the fate of the existing Nile Waters Agreements was the subject of significant controversy. The upstream States sought to replace and supersede these agreements with the CFA, while Egypt and Sudan insisted on their recognition and continued validity. (See here) To accommodate these differences, the principle of “water security”, which requires all Nile Basin States “not to significantly affect the water security of the other,” was introduced into the CFA. However, Egypt and Sudan rejected this phrasing, insisting that the language should obligate all parties “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” The upstream States rejected that proposal and opened the CFA for signature on May 14, 2010. So far, the CFA has been signed and ratified by six upstream States. Despite continued rejection by Egypt and Sudan, the CFA is now about to enter into force.
Salient Features of the Cooperative Framework Agreement
The CFA was the first multilateral attempt by all Nile Basin States to cooperate in developing a basin-wide legal and institutional framework to regulate the utilization and management of the Nile watercourse. As a modern and “forward-looking agreement,” the CFA codifies customary international water law principles, including the principle of equitable and reasonable utilization and the obligation to prevent significant harm. (See Articles 4-5) It adopted the U.N. Watercourses Convention almost word for word.
The CFA also reflects recent trends in international environmental law, particularly around its emphasis on the protection and conservation of the Basin and its ecosystem. The Agreement imposes several obligations on the Nile Basin States, including an obligation to protect and improve the water quality of the Basin, to prevent the introduction of any alien or new species into the River System, which may have detrimental effects on its ecosystems, and to protect and conserve wetlands within the Basin. (See Article 6¶1) It also contemplates the protection of the Nile River System during wartime (see Article 13) and incorporates the principle of public participation. (See Articles 3¶3 and 10)
The CFA goes above and beyond the U.N. Watercourses Convention, incorporating “the community of interest of the Nile Basin States in the Nile River System” as a general principle. (Article 3¶9) In so doing, the Agreement affirms that all Nile Basin States share an interest in the Nile watercourse and that this shared interest forms a type of community. The CFA also affirms the “perfect equality” of rights of all Nile Basin States in the use of the Nile, as well as the “exclusion of any preferential privilege of any one riparian State in relation to the others.” In other words, the CFA recognizes that both the upstream and downstream Nile Basin States maintain “equal rights” to use the Nile Watercourse, independent of any prior degree of Nile development or use.
The CFA also incorporates the notion of benefit sharing within its principle of equitable and reasonable utilization. (See Article 4) Benefit sharing focuses on increasing the “bundle of benefits” from the Nile watercourses through Basin-wide institutional cooperation. It assumes sharing all benefits of the Nile Watercourse by “increasing benefits to the river, from the river, reducing costs because of the river, and increasing benefits beyond the river.” Remarkably, the CFA goes even further, empowering an organ of the Nile River Basin Commission, the Council of Ministers (Nile-COM), to decide upon “formulas for cost and benefit-sharing by the Nile Basin States in respect of particular joint projects within the Nile River Basin.” (Article 24¶16)
The CFA establishes the Nile River Basin Commission (NRBC) as an institutional body that will promote and coordinate cooperation among the Basin States concerning Nile governance. The proposed NRBC would possess a wide range of capacities, including data collection and management, identifying optimal water use measurements, rulemaking, and dispute resolution. (Articles 7, 8, 24, and 30)
Possible Challenges
While the CFA represents a significant step towards institutional cooperation across the Nile Basin, its implementation is extremely challenging. Firstly, under customary international law “[a] treaty does not create either obligations or rights for a third party without its consent.” Given that Egypt and Sudan continued to reject the CFA, it is devoid of any legal relevance vis-à-vis these states. Considering the geography of the Nile Basin, where upstream water utilization does not affect other upstream states (except, to a lesser extent, the states on the Equatorial Nile sub-basin), implementing the CFA without the involvement of Egypt and Sudan is impractical. The purpose of a basin-wide agreement on the Nile Basin is to govern the interests of both upstream and downstream states regarding the use, allocation, and management of the Nile watercourse.
Second, even assuming the CFA could be practically implemented, its entry into force would create two parallel basin-wide institutions. According to Article 30 of the CFA, the NRBC would succeed in all rights, obligations, and assets of the Nile Basin Initiative (NBI) as soon as the Agreement enters into force. Since Egypt and Sudan refuse to sign the CFA, the question arises: “What will happen to the rights and obligations under the NBI of the States that are not parties (and do not plan to be parties) to the CFA?” Dr. Salman M.A. Salman, anticipating that “[t]his situation … will raise some difficult legal issues and exacerbate the existing disputes over the CFA,” suggested that “the mediators and drafters of the CFA neither took into account nor anticipated the occurrence of this situation.” Although the establishment of the NRBC without the downstream members of the NBI could exacerbate the existing disputes over the CFA, the legal ramifications of the situation are clear. Under international law, the ramifications of Article 30 apply only to states that are parties to the CFA and NBI. As for the downstream states that are not parties to the CFA, Article 30 is irrelevant, and another agreement would be necessary between the future members of the NRBC and downstream states to transfer the rights, obligations, and assets of the NBI to the NRBC. Confirming this, the legal consultant of the CFA project, Professor McCaffery, stated: “The legal situation seems clear enough. How it will play out is another question. As between states that are not parties to a CFA in force, the old regime will govern their relations. The same is true for relations between those States and States that are parties to the CFA. It is only as between States, all of which are parties to a CFA in force that will govern their relations.”
Thirdly, if the CFA does not govern the relationship between upstream and downstream Nile Basin States, the NRBC will not exercise its functions properly. For instance, Article 26 of the CFA grants the NRBC the power to make binding “decisions regarding the determination of equitable and reasonable use of water in each riparian country taking into consideration the factors provided in Article 4, paragraph 2.” (See Article 24¶12) In determining the equitable and reasonable use of water of its member states, the NRBC may ideally (re)allocate the Nile water or permit the development of water consumptive projects in upstream States. However, given the Nile watercourse is already appropriated by downstream states, and that the 1959 Agreement did not leave a single drop of water for upstream states, the NRBC’s decision would adversely affect the interest of Egypt and Sudan. Given the CFA’s lack of legal relevance for Egypt and Sudan, the NRBC would find it extremely challenging to exercise most of its functions effectively.
Prospects for Basin-Wide Cooperation
The CFA presents the best option for institutional basin-wide cooperation in the Nile Basin. But, for this option to materialize, Egypt and Sudan must accede to the CFA. Both states have expressed prior opposition, but circumstances may have changed enough to warrant newfound support for the CFA. The current hydrological and political contexts surrounding the Nile Basin differ significantly from those present during CFA negotiations in the early 2000s. The Grand Ethiopian Renaissance Dam (GERD), which has brought about a de facto change in the status quo, will affect the Nile’s flow during the period in which it was constructed and filled. Ethiopia may be able to use the GERD to incentivize Egypt and Sudan to accept the CFA.
Sudan already supports the GERD because of the benefits the project will bring. Egypt, on the other hand, remains concerned about the GERD’s impact on the current allocation of Nile waters. Egypt might be convinced that the CFA will now serve to regulate the operation of the GERD in a way that protects Egyptian interests. Ethiopia could facilitate this by agreeing to NRBC regulation of all dams in the Nile Basin, including the operation and refilling of GERD, under the CFA. This shared management of GERD operations presents a workable compromise. As the NRBC makes binding decisions by consensus, Egypt’s interests will be better protected than if it remains obstinate while Ethiopia forges ahead.
Egypt may be further incentivized to accept the CFA by the need to avoid unilateral exploitation through cooperative use of the Nile River. Egypt, after all, cannot prevent Ethiopia from constructing the GERD. There is the risk that other riparian states would follow Ethiopia in unilaterally developing the Nile River. Upstream states are beginning to assert their rights to use the Nile. Given Egypt’s geographic and hydrologic vulnerability by virtue of its place as a downstream state, a legal regime that protects its interests is increasingly vital. Egypt (and Sudan) should accept the CFA in part because of how safeguards their interests through equitable and reasonable utilization, cooperative utilization, the “no significant harm” principle, and binding dispute resolution mechanisms.
Conclusion
Though the CFA is a significant step towards cooperative management of the Nile watercourse, its potential for fostering basin-wide cooperation depends on the inclusion of all Nile Basin States. The impending entry into force of the CFA is no doubt a landmark development for upstream States. However, ensuring the participation of Egypt and Sudan remains paramount for sustainable management of the Nile watercourse.
Mahemud Tekuya
Mahemud E. Tekuya holds a JSD/Ph.D. from McGeorge School of Law where he received the 2022 Award of Excellence for JSD Achievement (highest GPA and scholarship achievement). He is the…
