- June 2018
Authors:
Abstract
For a long time, Egypt has been the principal hegemon state in the Nile basin. “Through a myriad of mechanisms and tactics Egypt has been capable of maintaining its role as the regional hydro-hegemon and effectively hindering any competition over its water supply.” Recently, however, the upstream states, especially Ethiopia, are challenging the Egyptian hydro hegemony and undertaking various measures to change the status quo. The launching of the Nile Basin Initiative (NBI), the adoption of Cooperative Framework Agreement (CFA), the construction of the Grand Ethiopian Renaissance Dam (GERD), and the signing of Declaration of Principles (DoPs) are examples of those measures. This paper attempts to analyze the implications of those measures on the hydro-hegemonic configuration of the Nile basin. In so doing, it follows a multi-disciplinary approach- drawing upon politics, hydro-hegemony and law. The paper argues that, although the measures are steps forward for challenging the Egyptian hegemony, the two important legal instruments, the CFA and DoPs, are not sufficient to change the anachronistic status quo. In addition, the paper indicates how the lower riparian states could use these documents to perpetuate the status quo. It proposes a change in the status quo through a new basin wide multilateral treaty that harms none and benefits all. Part II presents the Egyptian hydro hegemony in the Nile basin and indicates how it was developed. Part III analyzes the status of the Egyptian hydro-hegemony in light of international law. Part IV presents the actions taken by upstream states to challenge the Egyptian hydro-hegemony and analyzes their legal and non-legal implications on the status quo. Part V proposes alternatives for changing the status quo. The last part provides concluding remarks.
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1 INTRODUCTION
Sharing transboundary water resources is an extremely
difficult task.1This is especially true for the world’s longest
River, the Nile,2where the riparian States’ demand for
water is exceeding the available supply.3‘Found in the
water stressed hydrographic region of the Middle East and
North Africa’,4the access and the use of the Nile waters
pose serious economic, environmental and security
challenges. Although reasonable and equitable utilisation
is a sine qua non for the resolution of such problems, the
existence of ‘restrictive’ or ‘oppressive’ hydro-hegemony
in the Basin,5where only the lower riparian States –
mainly Egypt and, to some extent, Sudan – control the
water, ‘makes the just and equitable resolution of the Nile
waters questions a daunting task…’.6
For a long time, Egypt has been the principal hegemon
State in the Nile Basin: ‘Through a myriad of mechanisms
and tactics Egypt has been capable of maintaining its role
as the regional hydro-hegemon and effectively hindering
any competition over its water supply’.7Recently, how-
ever, the upstream States, especially Ethiopia, have chal-
lenged the Egyptian hydro hegemony and are undertaking
various measures to change the status quo. The launching
of the Nile Basin Initiative (NBI), the adoption of
Cooperative Framework Agreement (CFA), the construc-
tion of the Grand Ethiopian Renaissance Dam (GERD) and
the signing of the Declaration of Principles Agreement are
examples of those measures.
This article attempts to analyse the implications of those
measures on the hydro-hegemonic configuration of the
Nile Basin. In so doing, it follows a multi-disciplinary
approach, drawing upon politics, hydro-hegemony and
law. The article argues that, although the measures are
steps forward for challenging the Egyptian hegemony, the
two important legal instruments, the CFA and the
Declaration of Principles Agreement, are not sufficient to
change the anachronistic status quo. In addition, the
article indicates how the lower riparian States could use
these documents to perpetuate the status quo. It proposes
a change in the status quo through a new basin-wide
multilateral treaty that harms none and benefits all.
Section 2 presents the Egyptian hydro hegemony in the
Nile Basin and indicates how it was developed. Section 3
analyses the status of the Egyptian hydro-hegemony in
light of international law. Section 4 presents the actions
taken by upstream States to challenge the Egyptian hydro-
hegemony and analyses their legal and non-legal
implications on the status quo. Section 5 proposes a way
forward for changing the status quo. The last section
provides concluding remarks.
2 EGYPTIAN HYDRO-HEGEMONY ON
THE NILE
The description that Egypt is ‘the gift of Nile’ is as relevant
today as it was when first coined by Herodotus in 4th
century BC.8The survival of Egypt and its very existence
still depend upon the waters of the Nile. Owing to this
dependency, Egypt has, for centuries, pursued a
hydrological strategy towards controlling the Nile and
preventing the upstream States from utilising its waters. In
the 18th and 19th centuries, it used the most explicit
coercive tactic, namely military force, to control the Nile
from its sources.9However, Egypt’s goal of annexing the
sources of the Blue Nile and administering Ethiopia under
26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO
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* Mahemud Tekuya LL. B, LL.M, Ph.D/JSD candidate (mahmudeshetu@
gmail.com). I am very grateful to my supervisor, Professor Stephen
McCaffrey for his precious comments on the earlier version of this work.
The usual disclaimer applies.
1 See Dereje Zeleke Mekonnen ‘From tenuous legal arguments to
securitization and benefit sharing: hegemonic obstinacy: the stumbling
block against resolution of the Nile waters question’ (2010) 2 Mizan Law
Review 233.
2 The Nile River is 6,650 km long. Originating at two separate sources,
Lake Tana (Ethiopia) and Lake Victoria, the Nile River traverses through the
territories of 11 countries, namely Tanzania, Uganda, Rwanda, Burundi,
Democratic Republic of the Congo, Kenya, Ethiopia, Eritrea, South Sudan,
Sudan and Egypt. Ethiopia contributes 86% of the water reaching Egypt
through three main tributaries, the Sobat, Blue Nile and Atbara Rivers. The
Nile’s hydrologic environment is often characterised as very difficult
‘where rainfall is markedly seasonal: a short season of torrential rain
followed by a long dry season, [which] requires the storage of water; or
where there is high inter-annual climate variability, where extremes of
flood and drought create unpredictable risks to individuals and com-
munities and to nations and regions and require over-year water storage’.
See Dereje Zeleke Mekonnen ‘Between the Scylla of water security and the
Charybdis of benefit sharing: the Nile Basin Cooperative Framework
Agreement: failed or just teetering on the brink?’ (2011) 3 Goettingen
Journal of International Law 349 (citation omitted).
3 Russell Smith ‘Africa’s potential water wars’ BBC News (15 November
1999) http://news.bbc.co.uk/2/hi/africa/454926.stm.
4 See Mekonnen (n 1) 233.
5 Melvin Woodhouse and Mark Zeitoun ‘Hydro-hegemony and
international water law: grappling with the gaps of power and law’ (2008)
Water Policy 113.
6 See Mekonnen (n 1) 233.
7 Mathias Devi Nielsen The Waters of the Nile: Ethiopia Challenging
Regional Hydro-Hegemony (University of Copenhagen 2015) 4.
8 Jean Kerisel The Nile And Its Masters: Past, Present, Future Source
of Hope And Anger (Philip Cockle trans, A A Balkema Publishing 2001)
34–36; Fekri A Hassan ‘The dynamics of a riverine civilization: a
geoarchaeological perspective on the Nile Valley, Egypt’ (1997) 29 World
Archaeology, Riverine Archaeology 51.
9 See Yacob Arsano Ethiopia and the Nile Dilemmas of National And
Regional Hydropolitics (Swiss Federal Institute of Technology 2007)
199–201; see also Daniel Kendie ‘Egypt and the hydro-politics of the Blue
Nile River’(1999) 6 Northeast African Studies 145, 146.
10
THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN:
THE QUEST FOR CHANGING THE STATUS QUO
MAHEMUD ESHTU TEKUYA*
McGeorge School of Law, Sacramento, California
Article2-Tekuya_WL Article 20/09/2018 08:51 Page 10
its flag did not materialise as it was subjected to successive
defeats by Ethiopia.10
The expression ‘the scramble for Africa: the scramble for
the Nile’11 best describes the colonial history of the Nile.
As controlling Egypt and the Suez Canal was contingent
upon controlling the Nile, the Nile has long been under
European colonisers’ sphere of influence. ‘Notwithstand-
ing Belgian control of Burundi, Rwanda and Congo (now
Democratic Republic of Congo (DRC)), Ethiopia’s inde-
pendence and Italian control of Eritrea, Great Britain had
effectively controlled the Nile River from its origins to
the Mediterranean Sea’.12 Although Britain used various
means to achieve the full control of the Nile, the
containment strategy of concluding normative agreements
and thereby shaping the institutional practice was the
most effective device to that end. Indeed, it was through
such normative agreement tactics that Britain and later
Egypt were able to define the ‘rules of the game’,
cementing the Egyptian hydro-hegemony in the Basin. For
instance, the 1902 agreement between Britain and
Ethiopia,13 the 1929 Agreement between Britain and
Egypt14 and the 1959 Agreement between Egypt and
Sudan15 not only prohibited the upstream States from
utilising the waters of the Nile but effectively established
the ‘historic’ right of Egypt and thereby institutionalised
the status quo.
The coercive hegemonic policy of Egypt did not change in
the 21st century. In today’s world, the use of force is
outlawed by the international community.16 Hence, Egypt
is following the less explicit coercive tactics suggested by
Werner Munzinger that ‘Ethiopia … is a danger for Egypt.
Egypt must … retain it in anarchy and misery’.17 At the
time of writing, it is frequently argued by scholars and
politicians alike that Egypt engages in covert and proxy
operations to divert the attention of Ethiopia and devote its
limited resources towards resolving internal turmoil.18
Egypt has vested interests in the destabilisation of Ethiopia
and craves to prevent it from spending its resources on
harnessing the resources of the Blue Nile.19 Concerning
the 2016 civil unrest in Ethiopia, for instance, in his
address to the Parliament the president of Ethiopia stated
that: ‘groups and individuals which our country describe
as terrorists like the Oromo Liberation Front and the
Ginbot 7, work hand in hand with Egyptian institutions
and are responsible for the recent destruction in our
country’.20
War rhetoric is the other well-known coercive tactic that
Egypt frequently uses to ensure compliance and safeguard
its hegemonic status.21 For instance, Hosni Mubarak,
former Egyptian President, once threatened to ‘bomb
Ethiopia’ if it built a dam on the Blue Nile.22 More
recently, Mohamed Morsi, who took power following
President Mubarak, emotionally revealed that Egypt will
trade a drop of blood for every drop of its Nile water.23
In addition, Egypt, being most advanced in hydraulic
expertise, has, for a long time, been manipulating the
‘popular belief [of] donors and riparian competitors to
reinforce [its] control over water resources.24 In the 1980s
and 1990s, for instance, many Egyptian professionals
were able to occupy the World Bank’s key political and
environmental positions. In the words of Amdetsion, ‘this
contributed to the establishment of World Bank Operating
Directive [7].50, which permits disbursement of World
Bank funds meant to develop major rivers only when such
projects garner the support [or non-objection] of water-
sharing political entities-thereby favoring the status quo’.25
Also, Egypt was successfully able to block an African
Development Bank loan to Ethiopia for a dam project,
alleging that the project would reduce the flow of the
Nile.26 Commenting on this, the Wall Street Journal
remarked that: ‘[International financial institutions] have
TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW
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10 See Kendie (n 9). See also Gebre Tsadik Degefu The Nile: Historical,
Legal and Developmental Perspectives (Trafford on Demand Publishing
2003) 145. As Degefu rightly stated: ‘The series of military expeditions
which [Egypt] launched in 1875 and 1876, resulted in ignominious defeats
for Egypt. Between November 14, 1875, and November 16, 1875, more
than 2,500 Egyptian soldiers were routed at the Battle of Gundet. Similarly,
from March 7, 1876, to March 9, 1876, some 12,000 Egyptian soldiers
were annihilated at the Battle of Gura’.
11 Fasil Amdetsion ‘Scrutinizing the ‘Scorpion Problematique’:
arguments in favor of the continued relevance of international law and a
multidisciplinary approach to resolving the Nile dispute’ (2008) 44 Texas
International Law Journal 1, 16.
12 See Takele Soboka Bulto ‘Between ambivalence and necessity in the
Nile Basin: occlusions on the path towards a basin-wide treaty’ (2008) 2(2)
Mizan Law Review 206, 207.
13 See Treaty on the Delimitation of the Frontier between Ethiopia and
Sudan, Ethiopia–Great Britain (15 May 1902) http://treaties.fco.gov.uk/
docs/pdf/1902/TS0016.pdf (1902 Treaty) art III: ‘[n]ot to construct or
permit construction on the Blue Nile and its tributaries, of any works that
would arrest their flow, without the prior agreement of the government of
Britain’. As Abdo explained, there was a disagreement on the meaning of
the word ‘arrest’ in the Amharic (Ethiopian language) and the English
versions. in the Amharic version, the obligation imposed on Ethiopia did
not preclude the use of the water. What was prohibited, however, was any
scheme which would totally arrest the flow of water. See Mohammed
Abdo ‘The Nile question: the accords on the water of the Nile and their
implications on cooperative schemes in the basin’ (2004) 9 Perceptions
Journal of International Affairs 48.
14 Exchange of Notes between Her Majesty’s Government in the United
Kingdom and the Egyptian Government on the Use of Waters of the Nile
for Irrigation (May 1929) (1929 Agreement).
15 See Agreement Between the Republic of Sudan and the United Arab
Republic Egypt on the Full Utilization of the Waters of the Nile (1959
Agreement) http://www.fao.org/docrep/w7414b/w7414b13.htm.
16 See UN Charter art 2(4).
17 See Kendie (n 9) 145.
18 See eg M Zeitoun and J Warner ‘Hydro-hegemony: a framework for
analysis of transboundary water conflicts’ (2006) 8 Water Policy 435, 446.
See also Kendie (n 9) 153–62; Khaled Diab ‘The curse of the Nile’ The
Guardian (5 December 2010) https://www.theguardian.com/comment
isfree/2010/dec/05/nile-egypt-water-war-ethiopia (describing Melese
Zenawi’s accusations of Egypt for backing anti-government rebels in his
country).
19 See John Waterbury ‘Is the status quo in the Nile basin viable?’ (1997)
4Brown Journal of World Affairs 287, 293.
20 See E Boh ‘Ethiopia accuses Egypt of “Fuelling” Violence’ Africa
News (10 October 2016, http://www.africanews.com/2016/10/10/
ethiopia-accuses-egypt-of-fueling-violence//.
21 Anwar El Sadat once asserted that: ‘[a]ny action that would endanger
the water of [the] Blue Nile … even if the action should lead to war’. And
Buthros Ghali, who served as Egyptian Minister of State of Foreign Affairs,
once stated that: ‘[t]he next war in our region will be over the waters of the
Nile, not politics’. In relation to this see Amdetsion (n 11) 8; Arsano (n 9)
224; Abadir M Ibrahim ‘The Nile Basin Cooperative Framework Agree-
ment: the beginning of the end of Egyptian hydro-political hegemony’
(2011) 18(2) Missouri Environmental Law and Policy Review 292.
22 See Arsano (n 9); Ibrahim (N 21) 293.
23 In early June 2013, he conducted a meeting with Egyptian political
figures to discuss potential actions that Egypt could take against the
GERD’s construction. Unbeknownst to the participants, the meeting was
aired live on national television and suggestions that were put forward
included a military attack on Ethiopia.
24 See Nielsen (n 7) 13.
25 See Amdetsion (n 11) 12.
26 ibid. See also Yehenew Tsegaye Walilegne ‘The Nile basin: from
confrontation to cooperation’ (2004) 27 Dalhousie Law Journal 503.
11
Article2-Tekuya_WL Article 20/09/2018 08:51 Page 11
been loath to support anything upstream on the Nile that
might disrupt the vital flow of water to Egypt … Ethiopia,
meanwhile, lacked funds to develop its own broad irriga-
tion network. The result is one of Africa’s cruelest ironies:
the land that feeds the Nile is unable to feed itself’.27
In a nutshell, it could be argued that Egypt, enforcing its
resource capture and containment strategies through
coercive measures (military forces, covert operations and
war rhetoric), normative agreement (signing treaties) and
construction of knowledge and sanctioned discourse
tactics, has effectively established an ‘oppressive’ hydro-
hegemony in the Nile Basin. In so doing, it has prevented
the upstream States from utilising the waters of the Nile.28
Recently, the upstream States, having attained the neces-
sary stability and economic progress, have challenged
the Egyptian hydro-hegemony, and Ethiopia has already
engaged in an active unilateral activity, constructing a
large-scale dam in the Blue Nile. The lower riparian
States, on the other hand, are fighting to maintain their
anachronistic status quo.
3 LEGALITY OF THE STATUS QUO UNDER
INTERNATIONAL LAW
The existing status quo with respect to the Nile’s
prevailing legal regime was first established by the 1929
Nile Waters Agreement between Britain and Egypt.29 This
agreement, recognising the historic and natural rights of
Egypt, gave Egypt a veto power over any construction
projects along the Nile River and its tributaries.30 It also set
a bedrock for the perpetuity of the Egyptian hydro-
hegemony by proclaiming the observance of its ‘detailed
provisions irrespective of the time and circumstances’.31
By 1956, the newly independent Sudan rejected the 1929
Agreement and persistently demanded its modification.32
In 1959, Egypt and Sudan concluded the Agreement for
the Full Utilisation of the Nile Waters.33 Although more
favourable to Sudan than the 1929 Agreement, the 1959
Agreement allocated the bulk of the Nile’s waters, 55.5
BCM, to Egypt (or 66% of the 84 BCM total water flow),
18.5 BCM (22%) to Sudan and left the remaindering 10
BCM (12%) for evaporation.34 It did not recognise the
rights of the upstream countries. “It defined a status quo
set in absolute quantities. It constructed a classic zero-sum
situation; ceteris paribus, any gain in water to an upstream
riparian must be a loss to Egypt and the Sudan.35”
Officials and scholars from downstream States advocating
for the existing status quo often cite these two agreements
as the governing rules of the Nile Basin. Egypt insists
and continues to claim the binding nature of the 1929
Agreement against British East African colonies (Kenya,
Tanzania, Sudan and Uganda) based on the theory of
‘universal succession’, arguing automatic transmission of
all rights and obligations of the predecessor colonial
States to the newly independent States.36 However, this
argument is refuted on various grounds. First, it has been
argued that ‘the circumstance under which the agreement
was executed has changed so fundamentally that it is no
longer valid’.37 This argument is based on the rebus sic
stantibus doctrine, embodied in the Vienna Convention
on the Law of Treaties (VCLT), which ‘allow[s] State
parties to an agreement to withdraw from or terminate an
agreement owing to a fundamental change of circum-
stances that occurred after its conclusion’.38 As the ICJ
explains in Gabcˇikovo-Nagymaros Project case, for the
doctrine to be invoked ‘[t]he fundamental changes of
circumstance must have been unforeseen; the existence of
the circumstances at the time of the treaty’s conclusion
must have constituted an essential basis of the consent of
the parties to be bound by the [t]reaty’.39
Hence, the argument is that the colonial powers did not
foresee that Nile Basin States would be decolonised, and
colonisation was the very essence for the consent of the
parties to be bound by colonial treaties. In other words,
without colonial influence, upstream States would not
give their consent and sign the 1929 Agreement, which
significantly affected their sovereign interest. As a result,
considering Britain’s need to reign over the Nile as the
only reason that justified the conclusion of this agree-
ment,40 the upper riparian States contended that ‘once the
colonizers are gone, so too are the interests that they
represented’.41
Secondly, the upper riparian States often use the clean
slate Nyerere doctrine or tabula rasa theory to argue
against the 1929 Agreement. Embodied in Article 16 of the
Vienna Convention on the Succession of States in Respect
of Treaties (VCSST), the clean slate (tabula rasa) theory
entitled the upstream States not to be bound ‘to maintain
in force, or to become a party to, any treaty by reason only
of the fact that at the date of the succession of States the
treaty was in force in respect of the territory to which
the succession of States relates’.42 The former British East
Africa colonies had no role in the formation and con-
clusion of the 1929 Agreement, and therefore they must
26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO
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27 See Roger Thurow ‘Ravaged by famine: Ethiopia finally gets help from
the Nile’ Wall Street Journal (6 November 2003) https://www.wsj.com/
articles/SB106979937643978400.
28 Indeed, since the utilisation of a River in the upper catchment area
requires some level of technical and financial strength, other factors like
geography, internal political instability and the lack of technical, financial
and institutional capabilities also contributed for the inequitable utilisation
of the Nile waters. See Ibrahim (n 21) 288.
29 See generally the 1929 Agreement (n 14).
30 See the 1929 Agreement (n 14) art 4(iii): ‘Except with the prior con-
sent of the Egyptian Government, no irrigation works shall be undertaken,
nor electric generators installed along the Nile and its branches …’.
31 Letter from Lord Lloyd to Mohamed Mahmoud Pasha (part of the
1929 Agreement (n 14)) (7 May 1929) para 4.
32 C O Okidi ‘Legal and policy regime of Lake Victoria and Nile basins’
(1980) 20 Indian Journal of International Law 395, 423.
33 See generally the 1959 Agreement (n 15).
34 ibid section 1(1).
35 See Waterbury (n 19) 291.
36 See Dereje Zeleke Mekonnen ‘The Nile Basin Cooperative
Framework Agreement negotiations and the adoption of a “water security”
paradigm: flight into obscurity or a logical cul-de-sac?’ (2010) 21 European
Journal International Law 432.
37 See Ibrahim (n 21) 297.
38 See United Nations Vienna Convention on the Law of Treaties (VCLT)
(23 May 1969) UNTS 1155 art 62(1); see also Malcolm N Shaw
International Law (6th edn Oxford University Press 2008) 951.
39 Gabcˇikovo-Nagymaros Project (Hungary v Slovakia) Judgment
[1997] ICJ Rep 56, 65, para 104.
40 See Yoseph Endeshaw ‘Review of the validity or continuous
application of the Nile water treaties’ Paper submitted at the National
Water Forum (ECA 2004) 11–13, as cited in Ibrahim (n 21) n 63.
41 ibid.
42 See United Nations Vienna Convention on Succession of States in
Respect of Treaties (VCSST) art 16 (12 August 1978) 1945 UNTS 3.
12
Article2-Tekuya_WL Article 20/09/2018 08:51 Page 12
Citations (7)
References (1)
… For example, Beaumont [8] suggested two indicators, namely relative flow contribution and prior appropriation, to apply the principle of equitable and reasonable water sharing on transboundary rivers. Ziad and Bassam [9] also proposed nine indicators for the Jordan River basin to allocate water between Israel, Jordan, Palestine, Syria, and Lebanon. With the addition of water quality and ecological variables, a study by Kampragou, et al. [10] proposed 13 additional indicators for equitable water allocation in the Nestos River basin. …
… .Therefore, in addition to 24 unique indicators previously applied in different studies to inform fair share of basin states [8][9][10][11], this study introduced 51 additional indicators. Of these, 56 out of the 75 indicators were categorized as highly important, and of the remaining 19 indicators for which significant differences were observed, the level of consensus was labelled as moderate and low (9 and 10), respectively. …
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