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10 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUOTHE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUOMAHEMUD ESHTU TEKUYA*McGeorge School of Law, Sacramento, California1 INTRODUCTIONSharing transboundary water resources is an extremely difficult task.1 This is especially true for the world’s longest River, the Nile,2 where 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’,4 the 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,5 where 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…’.6For 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’.7 Recently, 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 launchingof 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 NILEThe description that Egypt is ‘the gift of Nile’ is as relevant today as it was when first coined by Herodotus in 4th century BC.8 The 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.9 However, Egypt’s goal of annexing the sources of the Blue Nile and administering Ethiopia under
- 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 ChallengingRegional 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.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW 11its flag did not materialise as it was subjected to successive defeats by Ethiopia.10The 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 andpoliticians 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’.20War 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.23In 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] have10 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) 4 Brown 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 politicalfigures 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: fromconfrontation to cooperation’ (2004) 27 Dalhousie Law Journal 503.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
12 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUObeen 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’.27In 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.28Recently, 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 LAWThe 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’.31By 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’.39Hence, 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’.41Secondly, 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 must27 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.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
44.1ATTEMPTS TO CHALLENGE THE STATUS QUONile Basin Initiative: A Move To Change Or Consolidate The Status Quo?TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW 13not be assumed to have automatically succeeded to, or be bound by, this treaty.43In addition, Egypt argues for the validity of the 1929 Agreement and other colonial treaties based on ‘terri- torial’, ‘real’ or ‘dispositive’ treaty exceptions according to which such treaties survive the impact of succession, and bind the successor States.44 The principle of uti possidedits, which is an exception to fundamental change in circumstance (rebus sic stantibus) and Clean State (tabula rasa) theories stipulates that a territorial treaty shall not be affected by the succession of States and that a fundamental change in circumstances may not be invoked as a ground for terminating or withdrawing from treaty that establishes a boundary.45 Given the fact that no boundary is established by the 1929 Agreement and considering the absence of explicate authority characterising the Nile treaties as territorial treaties,46 the legitimacy of the argu- ment that these exceptions preserve the 1929 Agreement for all posterity is very questionable.The relevancy of the 1959 Agreement to the upstream countries was also challenged, based on the pacta tertiis nec nocent nec prosunt rule of treaty law according to which ‘a treaty does not create an obligation or right for a third party without its consent’.47 Hence, since the 1959 Agreement is a bilateral treaty between Egypt and Sudan, its legal effect remains between the two and cannot bind the other riparian countries.Ethiopia usually raises this argument to reject the validity of all bilateral treaties governing the Nile Basin. Of course, except for the 1902 treaty, all Nile treaties have no legal relevancy to Ethiopia as it was neither a signatory nor acceded to them. In fact, Ethiopia persistently objected to both the validity of such treaties and Egypt’s unilateral exploitation of the Nile throughout history.48 It also made it abundantly clear that it would not be able to exploit the waters of the Nile owing to geopolitical realties, but not out of a sense of ‘legal obligation’.49with a shared vision ‘to achieve sustainable socio- economic development through the equitable utilisation of, and benefits from, the common Nile Basin water resources’.51The NBI, however, could not resolve the Nile questions owing to the conflicting interest of the riparian States, the strong commitment of upper riparian States (in particular Ethiopia) to change the Egyptian hydro-hegemony and the need of lower riparian States to maintain the status quo. Nevertheless, analysing the implications of the NBI in retrospect, one cannot understate the impact it had on the hydro-hegemonic configuration of the Basin. ‘In what may be considered a clean break from the past, [it] managed to bring all riparian States together’52 and provide forums to resolve the Nile questions through cooperation. In so doing, it offered the upstream States the opportunity to articulate their interests ‘as a united upstream block’, which in effect increased their bargaining power, while enabling them to set the agenda and influence decisions.53Moreover, it also furnished the upstream countries with the opportunity to refute the Egyptian narrative ‘which portrays the Nile waters as a veritable lifeblood even a slight reduction of which would bring mortal harm to Egypt’ 54 and craft a counter-narrative that the Nile originates in their territory and that they have right to use it to ensure food security. Concerning this, the former Ethiopian Prime Minister Meles Zenawi is quoted to have said that: ‘while Egypt is taking the Nile water to transform the Sahara in to something green, we in Ethiopia are denied the possibility to feed ourselves. And we are being forced to beg for food every year’.55Furthermore, as indicated above, owing to the World Bank’s operational policy, which requires the support or non-objection of all riparians to fund projects on transboundary water resources, Egypt has been blocking international funding for upstream development projects on the Nile River. Nevertheless, as the NBI was supported and funded by the World Bank, the access to international funding, which otherwise would only be available to, and contingent upon the consent of, Egypt, became more open to the upstream countries.56The NBI also served the lower riparian States as a tool for maintaining the status quo. Egypt used the NBI for sanc- tioning ‘the discourse as cooperative’.57 Egypt accepted the shared vision of the NBI, which calls, among others, for equitable and reasonable utilisation of the Nile water- course, to impose ‘a discourse of cooperation in order to prevent the upstream riparians from taking unilateral action on the Nile’.58 During negotiations, however, it objected to all proposed solutions and insisted in maintaining the hydro-hegemonic status quo.59 Nielsen describing this as an ‘active stalling wherein a hydro- hegemon agrees to a process, which can then be drawnThe NBI was conceived in 1998 as a strategic programme for the Nile Basin, with the initiation and support of the World Bank.50 It was formally launched in February 199943 Robert O Collins ‘In search of the Nile waters, 1900–2000’ in Haggai Erlich and Israel Gershoni (eds) The Nile: Histories, Cultures, Myths (Lynne Rienner 2000) 257.44 See Mekonnen (n 36) 433.45 See VCLT (n 38) art 62(2); VCSST (n 42) arts 11 and 12. See also Shaw(n 38) 968–69.46 Section V addresses this issue in detail.47 See VCLT (n 38) art 34.48 For instance, immediately after its conclusion, Ethiopia opposed the1929 agreement contending that the agreement solely protected Egypt’s interest without reciprocity, and during the negotiation of the 1959 agree- ment, it sent an aide memoire to all diplomatic missions in Cairo notifying that ‘[it] has the right and obligation to exploit its water resources for the benefit of present and future generations of its citizens [and] must, there- fore, reassert and reserve now and for the future, the right to take all such measures in respect of its water resources. See Amdetsion (n 11) 27–28; Arsano (n 9) 100; Kendie (n 9) 148.49 See Amdetsion (n 11) 28.50 See NBI http://www.nilebasin.org/index.php/nbi/who-we-are.51 See NBI Shared Vision www.nilebasin.org/.52 See Mekonnen (n 1) 233.53 See Nielsen (n 7) 41.54 ibid; see also Mekonnen (n 1) at 238.55 Mike Thomson ‘Nile restrictions anger Ethiopia’ BBC News (3February 2005) http://news.bbc.co.uk/2/hi/africa/4232107.stm.56 See Nielsen (n 7) 42.57 ibid.58 ibid 38.59 ibid.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
14 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUOout for years’, and has stated that ‘Egypt [was] in fact not interested in reallocation of the resources, despite rhetoric to the contrary when establishing the NBI’.60 The NBI was an opportunity for Egypt to manage the tension concern- ing the fate of colonial and immediate/post-colonial treaties, not to resolve the Nile question. This is because resolving the Nile questions requires reallocation of the Nile’s watercourse, which is not in Egypt’s interest. A sham cooperation, however, manages the tension, thus ‘temporarily satisfying the upstream riparians’.614.2 Cooperative Framework Agreement (CFA): A tool For Perpetuating The Status Quo?The Cooperative Framework Project (D-3 project) was commenced in 1997 as a strategy to prepare a basin-wide legal and intuitional framework that would regulate the interstate utilisation and management of the Nile River.62 With financial and technical support from the UNDP, the project had provided high-level political negotiations in parallel with the NBI.63 Working with a panel of experts, two UNDP consultants prepared the Nile Basin Cooperative Framework Agreement (CFA), which was opened for signature on 14 May 2010. The CFA was signed by six States and ratified by three upstream States since then.64 It requires six ratifications to enter into force.65 As it was rejected by Egypt and Sudan, the CFA, as it exists today, neither binds the lower riparian States, nor reallocates the waters of the Nile.Nevertheless, from political point of view, the CFA is an important achievement with significant implications on the hydro-hegemonic configuration of the Nile Basin. First, it helped the upstream States to isolate the lower riparians politically and to portray Egypt ‘as unwilling to cooperate and recognise an agreement that harms none and benefits all’.66 Secondly, it helped the upstream States effectively to change the pre-existing narrative in the Nile Basin, which asserts that ‘Egypt is the Nile and the Nile is Egypt’ and that ‘any gain in water to an upstream riparians is a loss to Egypt’.67 By signing the CFA, the upstream States have formed a well-articulated benefit sharing counter- narrative, that the utilisation of the Nile based on the CFA is not a zero-sum game. Depicting the inclusion of win-win solutions in the CFA, the late Ethiopian Prime Minister Meles Zenawi once stated that ‘the utilisation of the Nile watercourse through the CFA … does not mean [that] if the upper riparian countries benefit, Egypt and Sudan should lose. It doesn’t mean that if Egypt and Sudan benefit, the upper riparian countries should lose’.68From legal point of view, however, the CFA is not a successful accomplishment, but a failure of the Nile BasinStates to resolve the Nile questions. This is not only because it has no binding effect on the lower riparian States, but also because of the inclusion of a non-legal water security principle under Article14(b) of the CFA. During negotiation, the upper and lower riparians have had different version of water security. The upstream States needed the wording of the daft CFA Article 14(2) to impose an obligation on the Basin States ‘not to significantly affect the water security of any other Nile Basin State’; while Egypt and Sudan insisted that Article 14(b) should be amended to impose obligations on States ‘not to adversely affect the water security and current uses and rights of any other Nile Basin State’ (emphasis added).69Article 2(f) of the CFA defines water security as ‘the right of all Nile Basin States to reliable access to and use of the Nile River System for health, agriculture, livelihoods, production and environment’.70 Expressing the elusive nature of this definition, Mekonnen stated that the phrase ‘water security’ is ambiguous, elastic, indeterminate (which ‘practically means anything a riparian country wants it to mean’) and ‘potentially disruptive concept alien to international legal instruments dealing with the subject of trans-boundary watercourses’.71Grey and Sadoff, among others, identified a favourable hydrologic environment as a prerequisite for ensuring water security.72 However, in a Basin like the Nile Basin, where all the characteristics of a difficult hydrologic environment are predominant,73 it is hardly possible to realise even ‘a modest equitable reallocation of the Nile waters amongst all [of] the riparian States, let alone (ensuring water security) through reliable access by all for health, agriculture, livelihoods, production, and the environment’.74It follows that the principle of water security, which was deliberately introduced as a means of inserting construc- tive ambiguity into the CFA to compromise the riparian States’ conflicting interest over the use of Nile and pre- existing treaties,75 has the negative consequence of hindering the riparian States’ attempt to resolve the Nile questions significantly. This is because, even if an agreement is reached on the principle of water security, as stated in Article 14 of the CFA, the definition incorporated under Article 2(f) is so broad that it will prolong the existing status quo. Accordingly, the fate of the Nile Basin States seems ‘disappointing as long as the destructively elastic and indeterminate concept of ‘water security’ is retained in the CFA’.76 Hence, changing the status quo through a basin-wide treaty requires revisiting the CFA and omitting the notion of water security therefrom.4.3 GERD: The Beginning Of De Facto Change In The Status QuoAs indicated above, the upstream States have been challenging the Egyptian hydro-hegemony through the60 ibid.61 ibid 40.62 See Arsano (n 9) 218.63 Ana Elisa Cascão ‘Use of ambiguity in transboundary river basinsnegotiations: the case of the Nile river basin’ http://www.inweb.gr/twm4/ abs/CASCAO%20Ana.pdf.64 Agreement on the Nile River Basin Cooperative Framework (May 2010) (CFA). Ethiopia, Kenya, Uganda, Burundi, Rwanda and Tanzania have signed the CFA, and three more States (Ethiopia, Tanzania and Rwanda) have ratified it.65 See CFA art 42.66 See Nielsen (n 7) 45.67 See Mekonnen (n 1) at 237.68 Interview by Egyptian TV with Meles Zenawi, the Prime Minister ofEthiopia (July 2010) https://www.youtube.com/watch?v=2zzXLFKU0HM.69 See the CFA Annex art 14(b).70 See the CFA art 2(f).71 See Mekonnen (n 36) 430.72 See D Grey and C Sadoff ‘Sink or swim? Water security for growthand development’ (2007) 9 Water Policy 545, 547–48.73 See Mekonnen (n 2) 349.74 See Mekonnen (n 36) 438.75 ibid 429–31.76 ibid 439.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW 15NBI and the CFA. However, for those counter-hegemonic measures to have pragmatic effect, the upstream States had to develop an ability to engage in unilateral develop- mental projects that would affect the flow of the Nile River.77 Accordingly, in April 2011, the Ethiopian govern- ment announced that it had decided to construct the millennium dam, which later became the Grand Ethiopian Renaissance Dam (GERD), on the Blue Nile, an area located around 20 km from the Sudanese border. The GERD holds 74 billion cubic metres (BCM) storage capacity and about 60 BCM live storage, which will produce 6,000 MW electric generation.78Unsurprisingly, Egypt and Sudan initially opposed the dam, alleging that it will significantly affect their interests and violate the rules regulating the Nile watercourse.79 Egypt in particular responded with belligerent rhetoric, expressing the possibility of even bombing the dam.80 In response, Ethiopia proposed the establishment of a panel of experts to study the impact of the dam (but turned down an Egyptian demand to halt construction until the panel concluded its work) and alluded that the dam has significant advantage to the lower riparian States including, but not limited to, ‘providing regular flow of water, resolving problem of siltation, significantly reducing evaporation and providing cheaper electricity’.81 In addition, it made it explicitly clear that the dam will not have any significant impact to the lower riparian States for its purpose is only hydro-electric generation, not irrigation.In March 2012, President Omar Albshir of Sudan announced that the GERD had significant advantage to Sudan and his government would provide any support for the completion of the project.82 Given the two lower riparian States’ historic alliance and the requirement that they cooperate in respect of any proposed upstream pro- ject,83 this announcement was indeed a turning point in the Egyptian hydro-hegemonic position. Hence, describ- ing this circumstance, Tawfik stated that: ‘subsequent announcements on the importance of the project for Ethiopian-Sudanese integration, and the neutrality of Sudan in the Egyptian-Ethiopian conflict over the GERD have indicated that the downstream unity has been seriously compromised’.84The combination of these factors and the fact that GERD became a fait accompli forced Egypt to reconsider itsposition. For the first time in the Basin’s history, Egypt recognised Ethiopia’s right to a fairer share of the Nile waters. Furthermore, signing the Declaration of Principles on 23 March 2015, Egypt for the first time accepted the GERD and the importance of the Nile River for Ethiopian development. Hence, it can be said that construction of the GERD transformed the hydrologic configurations of the Nile Basin from challenging the Egyptian hegemony into pragmatically changing the status quo.4.4 The Agreement On Declaration Of Principles On GERD: A New Paradigm?In order to minimise the potential adverse effect and recognising the importance of the Nile for their respective development, the three eastern Nile Basin States, Ethiopia, Egypt and Sudan agreed on the Declaration of Principles Agreement on 23 March 2015.85 The Declaration of Principles Agreement contains a preamble and ten prin- ciples, four of which especially address the GERD, while the others simply reiterate the general principles of international water law.4.4.1 Legal Status of the Declaration of Principles AgreementThree possible arguments can be made pertaining to the legal status of the Declaration of Principles Agreement. It can be argued that the Declaration of Principles Agreement is soft law. One indication of this fact would be the nomenclature of the document itself. This argument would contend that Declaration of Principles Agreement is not binding simply because declarations are not an authoritative source of international law. Moreover, since the Declaration of Principles Agreement does not say any- thing about the entry into force, ratification and deposit of the document as stipulated in Article 24(4) of the VCLT, it would be likely to assert that the parties did not intend the Declaration of Principles Agreement to be a normative commitment.86On the contrary, one could argue that the Declaration of Principles Agreement is hard law and should be honoured in good faith. It is not the title of the document which is determinative as to whether it establishes a legal obligation,87 but ‘the intention of the parties as reflected in the language and context of the document, the circum- stance of its conclusion and the explanations given by the parties’88 that makes the document binding or non- binding: ‘Treaties are known by a variety of differing names, ranging from Conventions, International Agree- ments, Pacts, General Acts, Charters, Declarations and Covenant’.89 This shows that calling a given undertaking only a ‘declaration’ does not automatically make it non- binding.77 See Ana Elisa Cascao and Mark Zeitoun ‘Power, hegemony and critical hydropolitics’ in Anton Earle and others (eds) Transboundary Water Management: Principles and Practice (Earthscan 2010) 31–32, 36.78 See Rawia Tawfik ‘Revisiting hydro-hegemony from a benefit-sharing perspective: the case of the Grand Ethiopian Renaissance Dam’ (2015) 5 German Development Institute 9. See Salman M A Salman ‘The Grand Ethiopian Renaissance Dam: the road to the declaration of principles and the Khartoum document’ (2016) 42(4) Water International 515; Nielsen (n 7) 26; see also Belachew Chekene Tesfa ‘Benefit of Grand Ethiopian Renaissance Dam Project (GERDP) for Sudan and Egypt’ Discussion Paper, EIPSA Communicating Article: Energy, Water, Environment & Economic Discussion Paper (2013) 1 http://www.eipsa1.com/cms/articles/Benefitof GERDP.pdf.79 See Salman M A Salman ‘Grand Ethiopian Renaissance Dam: challenges and opportunities’ (2011)10(4) CIP Report 23.80 See the discussion in n 21 above.81 See Rawia Tawfik ‘The Grand Ethiopian Renaissance Dam: a benefit-sharing project in the Eastern Nile?’ (2016) Water International 576.82 See Tawfik (n 78) 24.83 See 1959 Agreement (n 15) art V.84 ibid.85 Agreement on Declaration of Principles between the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of the Sudan on the Grand Ethiopian Renaissance Dam Project (23 March 2015) (Declaration of Principles Agreement) https://www.international waterlaw.org/documents/regionaldocs/Final_Nile_Agreement_23_March_ 2015.86 See VCLT (n 38) art 24(4).87 ibid art 2.88 See the view of the US Assistant Legal Adviser for Treaty AffairsRobert E Dalton ‘International documents of a non-legally binding character’ (1994) 88 American Journal of International Law 515.89 See Shaw (n 38) 93 (citation omitted).THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
16 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUOThere are in fact several features of the Declaration of Principles Agreement that suggest that it is a legally binding document. The contents of some of the provisions of the Declaration of Principles Agreement which makes it binding in the three States, for instance, the phrases ‘the three States respect the final outcome of the Tripartite National Technical Committee (TNC)’, ‘the three countries have committed to’, and ‘the three countries shall take …’ are indicative of this fact. In addition, the inclusion of a dispute settlement provision under the Declaration of Principles Agreement to deal with issues of the inter- pretation and implementation of the agreement does reveal the clear intention of the parties to be bound by the Declaration of Principles Agreement. Hence, the agreement which is meant to record the intended course of action on matters of mutual concern does not seem to be a mere ‘gentleman’s agreement’. The subsequent practice of the States also appears to suggest this position. Based on the Declaration of Principles Agreement, Ethiopia, Sudan and Egypt have signed another agreement, the 2015 Khartoum minutes, where they agreed to put the Declaration of Principles Agreement into action.90The third argument would be the Declaration of Principles Agreement is declaratory principles of customary interna- tional watercourses law. Like the GA resolution no 2625, the Declaration on Friendly Relations between States, the Declaration of Principles Agreement binds the parties as an endorsement of international custom regulating transboundary watercourses. Confirming this, the ICJ in the Nicaragua case once stated that: ‘the effect of consent to the text to the resolution [Declaration of principles] cannot be understood as merely that of reiteration or elucidation … it may be understood as an acceptance of the validity of the rules or set of rules declared by the resolutions themselves’.91In the upshot, it can be argued that some of the components of the agreement on the Declaration of Principles Agreement do produce legal effects and others (regional integration, sustainability and other broader issues) remain only directory rules producing no outright obligations but mere commitments.4.4.2 Analysis of the Basic PrinciplesThe preamble of the Declaration of Principles Agreement, unlike the previous treaties, recognises the significance of the Nile River as the source of livelihood and its potential to the development of the people of the three countries. In so doing, the Declaration of Principles Agreement reaffirmed the foundation of international water resources law, equality of rights of all riparian States in the use of international watercourses.92Principle I of the Declaration of Principles Agreement provides that three countries are committed ‘to cooperate based on common understanding, mutual benefit, good faith, win-win and principles of international law. Tocooperate in understanding upstream and downstream water needs in its various aspects’.93 In addition to this specific provision, the notion of cooperation has also been cited in principle V and principle IX and forms the stepping stone for ensuring the realisation of the needs of the three States.The importance of international cooperation and good- neighborliness has been a long-established rule of inter- national watercourses law.94 Hence, the inclusion of this principle, in legal terms, is nothing more than the re- affirmation of what has already been recognised under international law. However, as indicted above, the issue of cooperation has not been practised in the Nile Basin save for the efforts under the NBI. The lower riparian States were not ready to act in the spirit of cooperation. They rather attribute the issue of the Nile with their very existence and national security.It is clear that States sharing transboundary waters would benefit more from cooperation than unilateral measures. In this regard, the move by the lower riparian States could be taken as a positive step. Hence, the principle which sets aside the non-cooperative and aggressive strategic behaviours that is inherent within the actions of the parties, is to be applauded. It also seemed to have eased Egypt’s rhetoric speeches about dispute and war over the GERD. Hence, the intended cooperation is a much- needed discourse and a highly commendable one.Principle II deals with development, regional integration and sustainability. Pursuant to this principle, the three countries recognise the purpose of GERD as ‘power generation, to contribute to economic development, promotion of transboundary cooperation and regional integration through generation of sustainable and reliable clean energy supply’.95 In so doing, the lower riparian States especially Egypt for the first time acknowledged the right of Ethiopia to utilise the waters of the Nile for sustainable development of its people. This is indeed a new paradigm and a breakthrough development in the Basin’s history. Nevertheless, the fact that the purpose of the GERD is restricted only for power generation appears to affect the population of Ethiopia living in the area. It is known that the use of the water for fishing, recreation, and small-scale industrial projects through artificial lakes would expose the water for evaporation. In addition, irri- gation projects around the dam would result in reduction of the water. Hence, by restricting the purpose of GERD to power generation, the Declaration of Principles Agreement affect the interest of Ethiopia, enabling Egypt and Sudan to receive a sustained flow of Nile waters.9693 See Declaration of Principles Agreement (n 85) art 1, para 1.94 The obligation to cooperate has been incorporated in different International Instruments such as Helsinki Rule and Berlin Rules documents. See also Convention on the Law of the Non-navigational Uses of International Watercourses art 8 (21 May 1997, entered into force 17 August 2014) GA Res 51/229 (8 July 1997) (UN Watercourses Convention).95 Declaration of Principles Agreement (n 85) art 3.96 During the signing ceremony of the Declaration of Principles Agreement (n 85) Prime Minister Halemariam of Ethiopia, deviating from art 7 of the UN Watercourses Convention, which imposes only due diligence obligation of prevention (but not absolute prohibition on transboundary ham), alluded that his government restricted the purpose of the dam to make sure that ‘the dam would not cause any harm to down- stream countries’. See ‘Egypt, Ethiopia and Sudan sign deal to end Nile dispute’ BBC News (23 March 2015) http://www.bbc.com/news/world- africa-32016763.90 The relevant part of this minute states that the three countries ‘reiterated their full commitment to implement the provisions of the Agreement on Declaration of Principles signed in Khartoum on the 23rd of March 2015’.91 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) Judgment [1986] ICJ Rep 14, para 188.92 See Salman (n 78) 521.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW 17The issue of no significant harm is also included in the Declaration of Principles Agreement. Principle III of the Declaration of Principles Agreement stipulates that ‘the three countries shall take all appropriate measures to avoid causing significant damage while using the Blue Nile’.97 It is to be noted that the Declaration of Principles Agreement specifically deals with the GERD, but this provision extends its scope to the entire Blue Nile. As indicated below, this has significant implication in terms of creating a new legal regime governing the eastern Nile Basin by reaffirming the cardinal principles of international watercourses law.However, it is also important to note that principle III of the Declaration of Principles Agreement differs from both the UN Watercourses Convention and the CFA in some aspect, while it is based largely on Article 7 of the UN Watercourses Convention and Article 5 of the CFA. Unlike the Declaration of Principles Agreement, Article 7 of the UN Convention includes the phrase ‘in utilising an international watercourse in their territories’.98 This has been excluded from Principle III of the Declaration of Principles Agreement, but kept in the principle of equit- able and reasonable utilisation. This selective exclusion does not seem coincidental and could possibly give the downstream States a window of hope to have extra- territorial control over the Nile and to take appropriate measures to prevent significant damage by Ethiopia.Furthermore, the Principle left out reference to the equit- able and reasonable utilisation incorporated under Article 7 of the UN Convention. The latter provided that ‘signifi- cant harm’ is to be measured having due regard for the provisions of Articles 5 and 6 of the Convention, in con- sultation with the affected State.99 This has a huge reper- cussion for sustaining an agreement that guarantees a flow without considerable harm to the downstream countries and providing precedence to ‘no significant harm rule’ compared to ‘equitable and reasonable utilisation’. How- ever, the jurisprudence of international water law reveals that the principle of equitable and reasonable utilisation trumps the no significant harm rule.100Principle IV dealt with equitable and reasonable utilisa- tion.101 Like other principles, this principle is based on the UN Watercourses Convention and the CFA. However, it left out the rules under Article 6(2) and (3) of the 1997 Convention. This poses two critical questions: one, the 1997 Convention stipulates that ‘watercourse States con- cerned shall, when the need arises, enter into consulta- tion’ (ie in all other scenarios States operate indepen- dently).102 But this principle does not show this freedom for Ethiopia in particular. Secondly, what weight is given to each standard and whether we should consider the whole set all together simultaneously (as indicated under the convention)103 or separately is not settled.Moreover, this principle, unlike the CFA and UN Water- courses Convention, falls short of determining the waters shared by the three countries. Both the UN Watercourses Convention and the CFA, which respectively use the expression of watercourses and Nile River System, excluded the waters that fall on the Basin but do not reach a common terminus from the scope of shared water resource.104 Principle IV of the Declaration of Principles Agreement, on the other hand, simply uses the term ‘shared water resource’, without defining what it is. In so doing, it fails to settle the issue of whether the unquan- tified waters falling in various parts of Ethiopia are part of the ‘shared water resource’.Like the UN Watercourses Convention and the CFA, this principle lays down illustrative factors to ensure equitable and reasonable utilisation. A noticeable inclusion under this principle that can be taken as a good achievement for Ethiopia is setting a guiding line which calls for considering the contribution of States to the Nile waters. But, in what may resemble the ‘while one hand giveth the other taketh away’ scenario, the parallel inclusion of ‘the extent and proportion of the drainage area in the territory of each Basin State’ as a factor diminishes the value of the contribution factor for 73 per cent of the drainage area is in the lower riparian States.105Principle V enshrines the three countries commitment to cooperate on the first filling and operation of the dam. It requires the implementation of the recommendations of an international panel of experts106 and the respect of the final outcomes of the Technical National Committee (TNC).107 It also requires the three parties to utilise the recommendation of the international panel of experts to agree on guidelines and rules on the first filling of the GERD, in parallel with the construction of the GERD and on the annual operation of the GERD, which the owner of the dam may adjust from time to time.108Although State practice concerning the management of projects on transboundary watercourse does not show a consistent practice, for all projects done jointly, the management is made accordingly, and national projects are managed independently.109 The GERD is a national project housed on Ethiopian territory and hence its fillings104 ibid art 2(a); see also CFA art 2(b).105 See A M Melesse and others (eds) The Nile River Basin (SpringerInternational Publishing 2014) 9.106 See Salman M A Salman ‘The Declaration of Principles on the Grand Ethiopian Renaissance Dam: an analytical overview’ (2017) Ethiopian Yearbook of International Law 203, 215: ‘The International Panel of Experts was established in November 2011 and consisted of ten members, two from each of the three countries, and four from outside the Nile Basin countries. The Terms of Reference of the Panel included identifying any negative impacts of the GERD on Sudan and Egypt, and recommending ways of mitigating such impacts’.107 Ibid: ‘[t]he Tripartite National Committee [sometimes referred to as National Technical Committee or TNC] is the executive organ of the three ministers of water resources of the three countries, and consists of an equal number of experts from each of the three countries’.108 See Declaration of Principles Agreement (n 85) art 5.109 For instance, the Manantali Dam on the Senegal River and the Kariba Dam on the Zambezi River are joint projects run together. While the Chinese dam on the Mekong River (there is an agreement signed with all other riparian States, except for China) is a unilateral project done without any consultation and notification for other riparian States. India also built the Farrakka Barrage on the Ganges River unilaterally without consulting Bangladesh. However, for another project it had an agreement with Pakistan on the use of the Indus River, which they signed with the help of the World Bank.97 Declaration of Principles Agreement (n 85) art 3.98 See the UN Watercourses Convention (n 94) art 7(1); see also CFAart 5.99 See the UN Watercourses Convention (n 94) art 7(2).100 See Stephen C McCaffrey The Law of International Watercourses (2nd edn Oxford University Press 2007) 408. The jurisprudence of the ICJ, as revealed in its decisions in Gabcˇikovo-Nagymaros Project (Hungary v Slovakia) (n 39) and Pulp Mills cases, is also towards giving precedence to the principle of reasonable and equitable utilisation of shared natural resources.101 See Declaration of Principles Agreement (n 85) art 4.102 See UN Watercourses Convention (n 94) art 6(2).103 ibid art 6(3).THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
18 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUOand operations should be left for Ethiopia, but it should do everything in a responsible manner as required by the customary international laws implied under Article 7 of the 1997 Convention.Principle VI ‘Confidence building’, which is not a legal principle established under international water law, stipulates that ‘priority will be given to downstream countries to purchase power generated from GERD’.110 Although the use of ‘will’ remains too vague (whether it makes a binding, directory provision or optional stipula- tion) in the legal lexicon, one can argue that contextually it puts an obligation on Ethiopia to give priority to the two States and compromises right to choose freely and affects the long term economic interests of Ethiopia, which is part of its sovereignty. The other principles are similar to corresponding ones in the UN Watercourses Convention.1114.4.3 ImplicationsThe Declaration of Principles Agreement is unique addition to the legal regime governing the use of the Nile watercourse. Unlike the previous bilateral and colonial agreements, the Declaration of Principles Agreement, con- sider the interest of Ethiopia and recognise the significance of the Nile River for the sustainable development of its people. In so doing, not only did it contain the GERD’s endorsement by the three countries, but also it reaffirmed the foundation of international water resource law, ‘equality of [rights of] all riparian States in the use of international watercourse’.112Emphasising the effort on cooperation, it has reduced if not settled the tension that has surfaced in the Basin since the CFA’s rejection by Egypt and the construction of the GERD. This is a positive move in terms of ensuring cooperation in the utilisation of this shared resource. Furthermore, based largely on the UN Watercourses Convention, the Declaration of Principles Agreement recognises the principle of equitable and reasonable utilisation as governing rule of the Nile Basin. It also en- compasses other customary international law principles, like the no significant harm rule. Hence, to the extent that it reflects these principles, the Declaration of Principles Agreement represents a new paradigm in the history of the Nile Basin.Pertaining to the legality of the status quo, the Declaration of Principles Agreement, like the CFA, deliberately avoided mentioning the colonial treaties and the 1959 Agreement and signified nothing as to their contemporary applicability. Considering this as indirect nullification, Salman contend that ‘the failure of Egypt and Sudan to refer to the 1902 Agreement, or to their existing uses and rights as per the 1959 agreement, carry with it a clear acceptance by the two countries of the new legal order established by and resulting from the Declaration of Principles Agreement’.113 Hence, ‘for all practical andlegal purposes’, Salman asserts, this order ‘replace[s] the 1902 Treaty and the 1959 Nile Waters Agreement’.114While it is true that abrogating the operation of a past treaty through the conclusion of a new treaty on the same subject matter is possible under international law,115 the assertion that the colonial and 1959 treaties are replaced by the Declaration of Principles Agreement is very much questionable. First, the doctrine of lex priori as envisaged under Article 59 of the VCLT contemplates two conflicting treaties governing the same subject matter wherein the later impliedly annulling the earlier treaty. As indicated above, the status of the Declaration of Principles Agree- ment is not clear. Although it has some legal implications, the Declaration of Principles Agreement cannot be considered as a conventional treaty capable of abrogating a pre-existing treaty.Secondly, even considering it as conventional treaty, it is hard to prove the requirements stipulated under the VCLT, that parties are intended to govern the utilisation of the Nile River by the Declaration of Principles Agreement or the two treaties are not capable of being applied together. Indeed, proving intention is always a painstaking task. But, despite the actual consequences of their actions, the fact that the three parties came up with declaration of principles, instead of a treaty, indicates that the parties did not intended the Declaration of Principles Agreement to replace the pre-existing treaties. Moreover, it can be argued that, although some of the principles extend the scope of the Declaration of Principles Agreement to the Nile Basin, the Declaration of Principles Agreement is a special agreement governing the GERD, which can be applied along with the pre-existing treaties. In this regard, the position of Egyptian government since the inception of the Declaration of Principles Agreement to this very day is that the ‘Declaration of Principles Agreement will not affect historical agreements and the water share allocated in these agreements’.116 Cairo is still assuring its people that ‘the Declaration of Principles Agreement, and any future arrangements, will not [affect] its ‘acquired rights’ in the Nile water’.117Thirdly, Egypt also raises its historic right claim against other upstream riparian States that are not party to the Declaration of Principles Agreement. And, since the treaty does not create rights and obligations to third States, it is difficult to conclude that the Declaration of Principles Agreement by itself established a new legal order abrogat- ing the pre-existing treaties concerning these countries.118 Fourthly, if Salman is correct in asserting that the 1959 Agreement replaced the Declaration of Principles Agree- ment, 1959 Agreement would not govern the Nile River as between the two lower riparian countries, Egypt and Sudan, that are parties to both instruments. Yet, it is hardly possible to imagine the nullification of the former treaty, while it is in fact honoured by the two countries.110 See Declaration of Principles Agreement (n 85) art 6.111 For instance, art 7 is about exchange of data, while art 8 addressesthe issue of dam safety. The issue of cooperation is also raised under art 9 for the third time. Article 10, on the other hand, provides dispute settlement mechanisms. It is worth noting, however, that unlike the UN Watercourses Convention (n 94), the Declaration of Principles Agreement (n 85) does not codify the general principle of prior notification. Nor does it include arbitration or the ICJ as a dispute settlement mechanism.112 See Salman (n 78) 521.113 See Salman (n 106) 219.114 ibid; see also Salman (n 78) 525.115 See VCLT (n 38) art 59.116 Tawfik (n 81) 584.117 ibid.118 It should be noted, however, that this writer is of the opinion that the1929 agreement is not binding on the Nile Equatorial Lakes countries not because it is nullified by the Declaration of Principles Agreement (n 85), but for separate reasons demonstrated in Section V.THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO : 26 WATER LAW 19In addition, as indicated above, the Declaration of Prin- ciples Agreement, deviating from the UN Watercourses Convention, overemphasises the no significant harm rule and at times envisages absolute prohibition of harm by restricting the purpose of the GERD only to generation of electricity. It also left out expression of watercourses or the Nile River System and thereby falls short of determining the waters shared by three countries. Such deviations, deliberately crafted to protect the interests of Egypt which entirely rely on the obligation not to cause harm, are poignantly tilted towards consolidation of the status quo. In sum, one can safely conclude that, although the Declaration of Principles Agreement, to some extent rep- resents a paradigm shift and a breakthrough development in the Nile Basin, it is not a comprehensive document for bringing de jure change in the status quo.5 THE WAY FORWARD:POSSIBLE ALTERNATIVES FOR CHANGE THE STATUS QUOAs the preceding discussion demonstrates, the CFA and Declaration of Principles Agreement have not in fact nullified the pre-exiting treaties. While bringing de jure change in the status quo requires the nullification of such treaties, the mere accession of Egypt and Sudan to the CFA would not result in the termination of the pre-existing treaties.119 The official position of the drafting committee, which leaves the issue of colonial treaties for future deliberations120 and the definition of water security as enshrined under Article 2(f) of the CFA, have all provided sufficient ground to claim the perpetuity of pre-existing treaties, prolonging the lifespan of the status quo. Hence, to change the status quo legally, the CFA should be revisited in a way that explicitly abrogates such treaties and that excludes the principle of water security. The question is, however, why should the downstream States accept this revised form of CFA, while objecting to the former CFA, which could prolong the lifespan of the status quo?It is clear that the current hydro-political circumstance of the Nile Basin is very different from what it was during the negotiation of the CFA. As indicated above, the GERD, which brought about de facto change in the status quo, has the potential of affecting the flow of the Nile River. The upstream States can use the dam as a bargaining chip to get concessions from Egypt. Sudan is already siding with the upstream countries, owing to the advantage it would get from the GERD. Egypt is still concerned about the GERD and has a stake in its filling and operation. It follows that Egypt would accept the revised form of the CFA if the agreement regulates the filling and operation of the dam in a way that protects the Egyptian interest, without significantly affecting Ethiopia.In addition, the revised CFA will have to provide other incentives to gain the acceptance of lower riparian countries. It should include approaches involving theadoption of measures and standards to protect the environment, both at the national and regional levels. In so doing, it will benefit the lower riparian States to tackle problems related to decreasing the overall quality and quantity of the Nile water, and will enable them to address the concern of desertification, deforestation and degradation.121Cooperative use of the Nile waters and the need to avoid unilateral exploitation would also be another incentive for Egypt to accept this revised form of the CFA. As indicted above, Egypt could not preclude Ethiopia from construct- ing the GERD. Other riparian States would possibly follow this precedent and start unilaterally exploiting the Nile River. This would certainly affect the interest of Egypt. Conversely, cooperative use of the Nile River through the revised form of the CFA would presumably protect the interests of Egypt. It would also increase the volume of water and avoid silting problems in the two downstream countries.122Furthermore, upstream States are starting to use the power of geography and developing the ability to affect the flow of the Nile River. Given Egypt’s geo-hydrologic vulner- ability, a legal regime that would protect the downstream countries seems a matter of necessity. Accordingly, Egypt and Sudan would likely accept the revised form of the CFA if it sufficiently safeguarded their interests through, among others, cooperative utilisation of the River, the ‘no signi- ficant harm’ rule, the obligation of ‘prior notification’ and the establishment of a binding dispute resolution institution.In spite of the above justifications, the lower riparians, especially Egypt, may refuse to accept the revised form of the CFA. This brings the other alternative, resorting to judicial intervention, for determining the status of the pre-existing treaties and changing/maintaining the status quo. The ICJ is an appropriate venue to determine the status of such treaties. While the jurisdiction of the ICJ is consensual,123 it can adjudicate cases against States that declare its compulsory jurisdiction.124 Among the 11 riparians, the DRC, Kenya, Sudan and Uganda have all accepted compulsory ICJ jurisdiction.125 If the case is brought before the ICJ, either through member States’ voluntary submission or its compulsory jurisdiction pro- vides that Egypt is a party, the court would address several issues and engage in a doctrinal analysis of the merits of the claims of parties (upper and lower). In order to resolve the issues, it might focus on the UN Watercourses Convention as codification of customary international law121 Studies indicates that ‘due to the rapidly degenerating eco-system, pollution from industrialization and uncontrolled use of pesticides and fertilizer, the overall quality and quantity of the Nile’s water is decreasing’. in addition, ‘the basin is also afflicted with other problems such as desertification, deforestation and land degradation’. See Walilegne (n 26) 516–17 (citation omitted).122 ibid. Research has it that, in the Sudd region of Sudan, 20 to 25 billion cubic meters (BCM) is lost annually due to evaporation. Similarly, close to 30 BCM a year is lost in Bahr El-Ghazal Basin and in the marshes that block the Sobat River, and suggests developing reservoirs like the GERD in non-arid climatic regions as critical strategy to reduce water loss owing to evaporation.123 See Stat ICJ art 36.124 ibid.125 International Court of Justice, ‘Jurisdiction: Declarations Recognizing the Jurisdiction of the Court as Compulsory’ http://www.icj- cij.org/en/declarations.119 Some scholars argue to the contrary. Ibrahim, for instance, asserts the CFA ‘will have the legal effect of annulling the previous treaties’. See Ibrahim (n 21) 302–303.120 Interview with Stephen McCaffrey, legal consultant to the Nile River Basin Cooperative Framework project, and the Cooperative Framework drafting committee (November 2017, Sacramento, California).THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM
20 26 WATER LAW : TEKUYA : THE EGYPTIAN HYDRO-HEGEMONY IN THE NILE BASIN: THE QUEST FOR CHANGING THE STATUS QUO(no significant harm vis-à-vis equitable and reasonable utilisation); the legality of the pre-existing treaties; the VCSST and the VCLT. Most of the grounds would support the upstream countries, but the status of the pre-existing treaties is expected to be the issue of controversy. Hence, instead of other issues, this article focuses on this issue as it constitutes the strong argument of the lower riparian countries (Egypt).By far Egypt’s strongest argument lies in the ‘territorial’ treaty exception, according to which colonial treaties survive the impact of succession and bind successor States. During the preparation of the VCSST, the ILC stated that ‘treaties concerning water rights or navigation on Rivers are commonly regarded as candidates for inclusion in the category of territorial treaties’.126 Egypt’s position relies heavily on this commentary. Yet, no indication exists in the preparatory works of the ILC characterising the pre-existing treaties as territorial treaties. The com- mentary simply mentions the 1929 Agreement and states only that the parties were disputing over the validity of the treaty.127 Hence, in the absence of such clarity, it is unlikely that the court will take the commentary as conclusive authority.Conversely, owing to the colonial nature of such treaties and the adverse impact they have on the upstream countries, the court will more likely look for ways to abrogate these unjust treaties and allow equitable allocation of Nile waters. The court would certainly give weight to the circumstance under which such treaties were concluded (colonisation) and the fact that it violates jus cogens norms of international law.128 It is very unlikely that it will uphold the fruits and remnants of colonisation, undermining the very survival of the people living in the upstream countries. Instead, it will likely follow the doctrine stricte est interpretanda fuerit exceptio and construe the territorial treaty exception envisaged under Article 12 of the VCSST and the ILC commentary as treaties (and water rights) relating to Rivers forming international boundaries, which the Nile does not.Furthermore, even considering such treaties as territorial treaties, it is unlikely that the court would uphold the validity of such treaties. Fundamental change in circum- stance rebus sic stantibus could be the other plausible ground for nullifying such treaties. It is more likely that the court will examine the relevant provisions enshrined in the VCLT and VCSST. The VCLT stipulates that a fundamental change in circumstances may not be invoked as a ground for terminating or withdrawing from a treaty that establishes a boundary. It does not mention territorialtreaties.129 Yet, the VCSST addressed the two categories of treaties (boundary and territorial) in separate provisions.130 Reading the two conventions together and being cog- nisant of the absence of territory from the rebus sic stantibus provision in the VCLT, the court will likely hold that upstream States can invoke fundamental change in circumstances to terminate the operation of pre-existing treaties. It is likely that the court would accept the argu- ment made in section 2 and accept the existence funda- mental change in circumstance, and thereby nullify the pre-existing treaties. In so doing, it will certainly rule for equitable allocation of Nile waters, changing the Egyptian hydro-hegemonic status quo.6 CONCLUSIONSFor a long time, Egypt has been the hegemonic State in the Nile Basin. Through myriad of mechanisms it established an oppressive or restrictive hydro-hegemony in the Nile Basin and prevented the upstream States from utilising the waters of the Nile. The legitimacy of Egypt’s hegemony traces its origin in the colonial and post-colonial treaties that established the status quo. Although Egypt always argues that such treaties preserve its hydro-hegemony for all posterity, this article made it clear that the existing status quo is at odds with international law.The upstream States are challenging the Egyptian hydro- hegemony and undertaking various measures to change the status quo. As indicated in this article, the first two measures, the NBI and the CFA, although helpful for chal- lenging the Egyptian hegemony, aim towards consoli- dating the status quo. The article contended that the definition of water security provides sufficient ambiguity to perpetuate the validity of the preexisting treaties.In addition, indicating how the construction of the GERD brought a de facto change in the status quo, the article argued that the Declaration of Principles Agreement, although a breakthrough development in the Nile Basin’s history, is not a comprehensive document for bringing a de jure change in the status quo. Furthermore, considering both the exclusion of water security and the explicit nullification of the pre-existing treaties as a condition precedent for changing the Egyptian hydro-hegemony, the article proposed a revised form of CFA (an agreement that harms none, but benefits all), to change the legally anachronistic status quo. Finally, it suggested that, if the case is brought before the ICJ, the court will abrogate the pre-existing treaties and rule in favour of the equitable allocation of Nile waters.126 Report of the International Law Commission to the General Assembly, Draft Articles on Succession of States in Respect of Treaties with Commentaries (1974) 203–204 http://legal.un.org/ilc/texts/instruments/ english/commentaries/3_2_1974.pdf. See also The Effect of Independence on Treaties: A Handbook: The International Law Association (1965) 353. 127 ibid. See also Official Records of the United Nations Conference on the Succession of States in Respect of Treaties Vol III, Doc A/CONF.80/16/ Add.2, p 33 § 27.128 Stephen C McCaffrey Understanding International Law (2nd edn Carolina Academic Press LLC 2015).129 See VCLT (n 38) art 62(2).130 See VCSST (n 42) art 11 (about boundary treaty); see also VCSST (n42) art 12 (territorial treaty).THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.CO