Setting the record straight on the Nile

The coming together of six East African states to sign the Cooperative Framework Agreement regulating use of the Nile – the first basin-wide agreement to attract the support of a majority of Nile riparian states – has elicited widespread media coverage. Ethiopia’s announcement that it intends to build a new mega dam along the Nile has further spurred the journalistic frenzy.

As is often the case with stories about a region which seldom makes international headlines, but for the most harrowing of crises, some of what is written is correct, but significant aspects of what appears in print is wrong.

In a recent New York Times op-ed, Lester Brown, head of the Earth Policy Institute, writes that East Africa’s recent drive to use the Nile is unfortunate for Egypt and poses ‘a grave threat to Africa’s newest democracy,’ given its growing population and dwindling water resources.[1] Brown neglects to mention why Egypt’s 81 million citizens are ostensibly entitled to a monopoly over the river, to the detriment of the Nile Basin’s 220 million other inhabitants.

Most other commentary, does not show such a wanton disregard for East Africa, but is often rife with inaccuracies nonetheless.

Here’s what is right: Egypt contributes no water to the Nile, but together with Sudan, makes exclusive use of the river. Egypt justifies its monopoly by pointing to two archaic treaties. Egypt signed the first such treaty with Anglo-Egyptian Sudan in 1929 (and an updated version with independent Sudan in 1959). The 1929 Agreement allotted twelve times more water to Egypt than Sudan, whereas the 1959 Agreement gave Egypt 75 per cent of the water and Sudan 25 per cent. Both agreements apportion no water to upper riparian states.

The British also signed onto the 1929 Agreement on behalf of their colonies, pledging that no works reducing the quantity of water flowing to Cairo would be undertaken in British-administered territories. The Egyptians claim that these agreements preclude the upper riparian states (Ethiopia, Kenya, Tanzania, Uganda, Rwanda, Burundi, and the Democratic Republic of the Congo) from sharing in the river’s plentiful bounty.

These basic contours of the story are accurately reported, but the details which follow, often are not. Broadly speaking, the fallacies fall into three categories.

First, that the 1929 treaty bestows upon Egypt an unqualified majority stake in the Nile and that this agreement is legally binding on upper riparian states.[2]

Second, that the upper riparians are trying to rewrite or renegotiate the 1929 and 1959 Agreements by entering into the new Cooperative Framework Agreement on the Nile.[3]

And, third, that such modification is sought in order to dispossess Egypt of its ‘majority’ rights.[4]

These statements are inaccurate and must be corrected.

The 1929 Agreement does not bind all countries through which the Nile flows. In the case of the DRC, Rwanda, Burundi and Ethiopia, the matter is straightforward because these countries never subscribed to the 1929 Agreement. One need not be a lawyer to understand that non-parties to an agreement cannot be bound by its terms. It is plainly obvious that Egypt cannot enjoy an unqualified majority right to the Nile, if Ethiopia, from which approximately 85 per cent of the water flows, is not a party to the 1929 Agreement.

But the 1929 Agreement carries no weight with respect to Britain’s former East African colonies too. Indeed, there are multiple arguments – from the fact that the treaty violates fundamental norms (referred to by lawyers as jus cogens), to the fact that it was too one-sided (a Leonine treaty, in legal parlance) – which militate in favor of concluding that the agreement was void at its inception. Even if that were not the case, under international law, newly independent states are generally not considered to inherit treaties, unless such treaties deal with the discrete issue of international boundaries. [5]

Moreover, the upper riparians are not attempting to rewrite or renegotiate the 1929 Agreement, for how could they rewrite an agreement they refuse to recognize, consider illegitimate, and to which they have registered strenuous on-the-record objections? Instead of modifying existing agreements, the upper riparian states are trying to institute a framework for the utilization of the Nile, where there previously was none.

Finally, by coming together to conclude an agreement, upper riparian states are not trying to ‘dispossess’ Egypt. The lack of significant works in the upper reaches of the Nile basin does not imply acquiescence to a purported Egyptian right, which East Africans are supposedly suddenly clamoring to appropriate for themselves. Instead, the paucity of construction reflects the historical inability of East Africans to muster the requisite resources to develop the Nile because of political instability and the hurdles to international funding put in place by Egyptian diplomats.

These corrections are not mere semantic quibbles. Words matter, and inaccuracies – be they legal or historical in nature – risk becoming conventional wisdom if repeated often enough. It is incumbent on concerned Africans to avail themselves of every opportunity to set the record straight.

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* Fasil Amdetsion is an Ethiopian-American lawyer based in New York. He is a member of the Global Advisory Board for the International University of Haiti and a member of the Board of Directors of the African Services Committee.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.

NOTES

[1] Brown, Lester (2011) ‘Egypt’s Food Supply in Danger’, The New York Times, 1 June.
[2] Associated Press (2011) ‘Egypt tells Ethiopia it will negotiate over Nile’, Associated Press, 21 April; Sudan Tribune (2009) ‘Egypt, Sudan thwart Nile basin sharing Pact’, 28 July
[3] Reuters (2011) ‘Ethiopia keeping Egypt in dark on Nile dam’, April 18; The Economist (2011), ‘Egypt and Ethiopia Quarrel over Water’, April 21
[4] Agence France Press (2011) ‘Nile treaty set for ratification’, March 1
[5] Vienna Convention on the Succession of States in Respect of Treaties (1978), arts. 11 and 16