INTRODUCTION

1. THE IMPEDIMENTS AND OPPORTUNITIES OF COOPERATION IN THE NILE RIVER BASIN: HISTORICAL, LEGAL AND ENVIRONMENTAL PERSPECTIVESBYMULU HADUSH WELDEMARIAM (M. A IN INTERNATIONAL RELATIONS) COLLEGE OF LAW AND GOVERNANCE, MEKELLE UNIVERSITYETHIOPIA

2. INTRODUCTION The Nile is one of the world’s great rivers. For millennia, this unique waterway has • nourished varied livelihoods, • an array of ecosystems, • diversity of cultures and • above all, it give rise to the greatest civilization of the world. • As the world’s longest river, it traverses nearly 6,700 kilometers, covering more than 35 degrees of latitude and draining an area of over 3 million KM2, one tenth of Africa’s total landmass (NBI, 2001:1).

3. Contd…. It is generally agreed that Nile has several sources(the principal sources) are: • the White Nile; which originates in the Great Lakes region of Central Africa contributes 15% • Abbay (the Blue Nile) contributes 52% • Tekezie (Atbara) contributes 13% and • Baro-Akobo (Sobat) contribute 14% • The latter three originate from the Ethiopian highlands contributes about 86% of the total Nile water as measured in the Aswan high dam.

4. Contd…………. • The Nile River is shared by ten countries • Burundi • Democratic Republic of Congo (DRC) • Eritrea • Ethiopia • Kenya • Rwanda • Tanzania • Uganda • Sudan and Egypt .

6. Cont’ed… • It is a home of 160 million people within the boundaries of the basin, and about 300million live within the ten countries. • Water scarcity has attracted the attention not only on the Nile riparian countries, but also of the international community, and is considered one of the major environmental concerns of the 21st century.

7. Cont’ed… • the World Resources Institute in Washington, DC, has warned that the world’s fresh water systems are in peril. • For example, 60% of the African continent is covered by trans-boundary River Basins, and about 300million people, a third (1/3) of the continent’s population live with water scarcity. • Six (6) of the world’s ten list developed countries are situated in the Nile River Basin and it is projected that 50% of African countries will suffer from water stress by 2025(Debay, 2008:19).

8. Cont’ed… • When the researcher looks into the water scarcity situations in the Nile River Basin, it is devastating. • The population of most of the riparian states of the Nile is projected to double between 1996 and 2020. • In addition to population growth, migration and over-grazing, which have contributed to deforestation and land degradation, the Nile River Basin is experiencing serious environmental problem as well as drought and desertification. • Economic needs for food and energy sources is also increasing. For example, Ethiopia, Growth and Transformation plan?

9. Cont’d…. • The ten riparian states of Nile River Basin have an estimated population of over 300million, which accounts about 40% of the African population. •  It is estimated that by 2025 the number of people who depend on the Nile River will increase to 859million. • According to the World Bank (WB) fact book the population of Egypt (80million) is the second highest in Africa and is 10% higher than Ethiopia. A rising expectation of a growing population results in increasing consumption of scarce resource as in the case of the Nile River Basin.

10. cont’d…. • Within this situation why cooperation becomes impossible and what possible scenarios are there to be used as win-win situation? • For the purpose of this study, the researcher selects the legal and environmental approaches as the most appropriate approaches to avoid the conflict situation in the Nile River Basin. This is due to the fact that; • First: as the researcher has tried to assess various literatures on the Nile issue, the legal approach is mostly supported by the upper riparian states perspective and the environmental approach is often supported by the lower riparian states perspective. But it is through the harmonious application of the two approaches that a basin-wide cooperation in the Nile River Basin can be ascertained.

11. cont’d…. • Second, the NBI which is the current basin-wide cooperation attempt in the Nile River Basin; its goal of establishment is based upon the combination of both the legal/institutional and environmental approaches to cooperation. That is to achieve sustainable socio-economic development (environmental approach) through equitable utilization (legal approach) and benefit from the common Nile water resource (Nile, 2001:1).  • Third, the remaining approaches of cooperation, security, economic and technology can also be included under the environmental approaches.

12. The major impediments that hinder basin-wide cooperation in the Nile River BasinA. Major impediments 1. The Legacies of Colonial and Post-Colonial Treaties Examples, the 1891,1906,1906,1925,1929,1953, 1929,1959. • A good example is the 1959 treaty between Egypt and Sudan on the full-utilization of the Nile water. This agreement leads to the building of big dams like the Aswan High Dam in Egypt and Rosaries Dam in Sudan and volumetric allocation/Bilateral(55.5 BMC, 18.5 BMC &. 10 BMC Evaporation). • For example, Sub-article 14-B of the legal- framework in NBIis the core of divergence between lower and upper riparian states. The point of departure is on “water security” issues which have to do with the 1929 and 1959.

13. 2. The Issue of Weak International Water Laws and Enforcement Mechanism • In the field of international water law the position is anarchy/ no institutions which uphold widely recognized and formally agreed codes of practice. • For example, adopted in 1997 the UN Convention on the Law of the Non-Navigational Use of International Watercourses was believed to mitigate the impending water crisis by using legal means to resolve trans-boundary watercourse disputes. • The Convention was drafted to accommodate the two extreme practices on the utilization of international rivers.

14. Cont’d…. • The Convention has attempted to do emphasize the two contentious principles of “sovereignty” and “integrity” under “equitable and reasonableutilization” and “nosignificantharm”. • However, what is equitable and reasonable in a given situation is not clearly defined in both the Helsinki Rules and the 1997 UN Convention and there is no clear indication as to which legal principle comes first, either “equitable and reasonable utilization” or “no significant harm”. • It therefore leaves room for various interpretations depending on the prevailing circumstances and the interest of the concerned states, and the ambiguity in interpreting is a fertile ground for conflict.

15. Cont’d…. • For example, The Nile-riparian states diverge in terms of primacy of legal principles. • Upstream riparian denounce the acquired rights agreement and encourage the equitable and reasonable utilization principle while • the downstream countries maintain their argument in favor of the non-harm principle on acquired and prior rights. • It is because of this clash of interests that none of the riparian states have since ratified or signed the Convention.

16. Cont’d…. • The reactions of the riparian states to the Convention have been mixed. • Only Sudan and Kenya voted for the Convention, • Egypt, Rwanda, Ethiopia and Tanzania abstained, • Burundi voted against, • Uganda and DRC were absent. • Ethiopia protested that giving priority to the no harm doctrine would override the right to equitableandreasonable utilization. • On the opposing side, Egypt continued to claim that the no harm rule was the foundation of international watercourse law and that it should not be given the same weight as equitable utilization.

17. Cont’ed…. • Thus, the absence of consensus on the provisions of Convention by all the riparian states by interpreting into different waysand • the absence of an international or regional courts and law enforcement mechanism is a hindrance to the sharing of international waters (Matondo, 2000).

18. B. The Absence of Common Customary Law • Historically, before the establishmentof the NBI the upper riparian states of the Nile was supporting to the theory of absolute territorial sovereignty,that is, the state may use the river water, which lies within its borders as necessary without regard for any other riparian state. • The lower riparian states on the other hand, were supporting the theory of absolute territorial integrity, that is, non-interference with the natural flow of the river in their territory (Girma, 1997:292). • However, the agreement on the principle of equitable utilization by all the riparian states of the Nile was the basic factor for the establishment of the NBI.

19. Cont’d…. • It is within this platform that the Nile riparian states begun negotiation in 1997 on the issue of equitable sharing of the Nile water. • conciliation of the two divergent positions and solutions for the long-lasting legal dead lock in the Nile basin appears a complex task. • For example, in order to conciliate the upstream- downstream divergent bargaining positions, the concept of “water security” as a legal principle was suggested and introduced in the Cooperative Framework Agreement (CFA).

20. Cont’d…. • The Article 14 of the Draft Agreement asserts, “The Nile Basin states therefore agree in a spirit of cooperation, to work together to ensure that all states achieve and sustain water security and not to significantly affect the water security of any other Nile Basin states”. • The aim was to accommodate and harmonize the divergent claims of upstream and downstream riparian, and simultaneously incorporate “equitableutilization” and “no harm” principles. • However, all the states agreed to this provision except Egypt and Sudan that want the last part of the article re-phrased as “Not to adversely affect the water security and current uses and rights of any other Nile Basin States” (Ibid.). • Rwanda, Burundi, Ethiopia, Kenya, Uganda, Tanzania and DRC have rejected rephrasing the article which has left the agreement hanging imbalance.

21. 3. The Absence of Uniform Cooperation Interest by the Upper Riparian States • The importance of the Nile water is not the same for all the ten riparian countries. As their water consumption is minimal, some riparian countries are less interested in cooperation on Nile water allocation and development projects and are therefore less committed to basin-wide initiatives. • For example, the Upper White Nile states economy is dependent up on the rain-fed agriculture. They do not have extensive land suitable for irrigation. Their contribution of water to the main Nile is minimal (14%) and • much of the water is lost due to the Sudd swampy area in Southern Sudan.

22. Cont’d…. • The extraction of water by these states for water development is not as such threatening to the lower riparian state as much water is still lost by evaporation in the Southern Sudan swampy region(50%). • However, Ethiopia on the other hand, contributes about 86% of the Nile water degraded its environment and repeatedly affected by sudden and chronic famines has strongly showed its willingness to equally share and benefit from the Nile water.

23. Cont’ed…. • The other six (6) great lake states as justified by John Waterbury have mainly “a wait and see attitude, which is still a holdback factor in institutionalizing basin-wide cooperation in the Nile River Basin” (Waterbury, 2002:33).

24. 4. The Unilateral and Fragmented Approach of Water Management by the Riparian States • The riparian states do not have an integrated water development policy which hinders basin-wide cooperation. • For example, relying on the “acquired” rights of the Nile water resource, Egypt has already been the largest user of Nile water. • Even it plans more to use it in the future. Egypt has been unilaterally developing projects called the Mega National Development Projects (MNDP) since 1994-1917.

25. Cont’ed…. • Egypt plans to “expand its agricultural area by1.43 million ha. These large projects are to reclaim land from the desert in Sinai, the West and South West of Egypt, and integrated projects that include the development of industry, cities and tourism” (Mason, 2004:142). • For example, the New Valley Land Reclamation Project in the Western Desert (Toshka) has been undertaken in order to “resettle three million people, this $ 88.5 billion project includes constructing new urban areas and irrigating more than 200,000 ha. of desert. The project calls for diverting up 5BCM of water from Lake Nasser through a network of canals centered on a main axis, the Sheikh Zaid Canal” (Swain, 2002).

26. Cont’ed…. • Another ongoing scheme is the North Sinai Development Project (NSDP), which plans to expand the area of irrigated land in the Sinai Desert by 250,000 ha. This project will transfer 12.5 MCM of water per day from the Nile through the Salaam Canal, traversing the Suez Canal to irrigate new farm lands beyond the Red Sea. • Mean while, the upstream countries of the basin are making efforts to utilize the Nile water for their own purpose. • Uganda received substantial financial support from the World Bank (WB) to build a dam on the Nile at the Bujagali Falls. • Yet among upstream riparian, Ethiopia’s water development plans pose the most serious threat to Egypt’s water supply.

27. Cont’d…. • Indeed, Ethiopia has a vast potential for irrigation, since the farmland currently irrigated is extremely limited. So far, the country has only been able to irrigate 190,000 ha. of land, but estimates show that up to 3,637,000 ha. are suitable for irrigation. • Of the 123 BCM of renewable fresh water that originate in the Ethiopian highlands, only 3% remains in the country, whereas the rest are lost flows to the lowlands in neighboring countries(mostly to the Nile).

28. Cont,d… • Recently, however, Ethiopia has confirmed its commitment to harness its water potential on its own finance more effectively. For example: • Tekeze Dam(9.3BMC)-300 MWP • TanaBeles Dam Project= 460 MWP + 120 thousand ha for irrigation. • Renaissance Dam, on Blue Nile River(63BMC) =5,250 MWP.

29. 5. Military Gesturing/Posturing in the Nile River Basin • From early time in history, there is always a fear and a sense of insecurity on the part of the downstream countries of the Nile that the upstream countries may go ahead with their intended water utilization plans. • “Egypt’s foreign policy has to a significant degree be shaped by the hydro politics of the Nile in general and Blue Nile in particular” (Daniel, 2001). • It is predicated upon the premise that Egypt should be strong enough either to dominate Ethiopia, or to create the conditions to prevent the latter from building the dams on the Blue Nile. This indicates Egyptian intention to dominate or destabilize the upper riparian states of the Nile particularly, Ethiopia.

30. Cont’ed…. • For example, in 1978, when Ethiopian Engineers and Economists started to carry out irrigation feasibility in the Lake Tana area, the late president of Egypt Anwar Sadat declared that, any action that would endanger the water of the Blue Nile will be faced with a firm reaction on the part of Egypt, even if that action should lead to war. • This militaristic behavior of the consecutive Egyptian leaders has also been observed in the legal negotiations under the Panel of Experts (POE). • For example, according to Elsa Cascao “The long negotiations for a new Cooperative Framework Agreement in the Nile River Basin evidence a rapport de forces characterized by both hegemonic and counter-hegemonic forces” (Cascao, 2008).

31. 6. Conflict and Political Instability in the Region • The Nile River Basin region is well characterized by intense intra-state and inter-state conflicts. • The internal conflict between the Southern Sudan based SPLA and the Government in Khartoum are particularly important to the basin-wide cooperation attempt in the Nile River basin, not least because 60% of the river lies within Sudanese boundaries. • In addition to the rhetoric and threats of war that the Egyptians have repeatedly and yet consistently put forward against the upper riparian states particularly, Ethiopia they have been observed as leaving no stone unturned to destabilize the horn region and to attack Ethiopia.

32. 7. The Role play by the Western Powers and International Financial Institutions • In order to maintain their interests, international powers always find ways to influence the Nile Basin countries, in turn affecting either confrontation or cooperative relations between countries (Yacob, 2007:37). • Of all the Nile Basin counties, Egypt enjoys the best relations with the USA, due to its inextricable involvement in the Middle East peace process particularly after the 1979 Camp David Agreement. • Because of the financial aid from the USA, Egypt is always in the forefront on the Israeli-Arab conflicts(Military expenditure is covered by the USA).

33. Cont’d…. • The policies of the International Financial Institutions (IFI) and many other international organizations which are predominantly occupied by the Egyptians like the WB are in favor of the lower riparian states of the Nile. • Egypt, “particularly with the advent of Sadat era and the re-entry into Western Camp in the Cold War began to place its water experts and other senior personnel in key UN agencies, the World Bank, the IMF, the African Development Bank and many other bilateral and multilateral aid agencies”(Waterbury, 2002:90). • The Operational Policy (OP) of the WB is formulated in the interest of the lower riparian countries, for example Egypt and Sudan in the Nile River Basin.

34. Cont’ed…. • The WB Operational Policy 7.50 (OP 7.50) illustrates that the WB has a great deal to influence the interest of states within the cross boundary of rivers. • OP 7.50 prohibits WB assistance to water resource development projects of upstream countrieswithout downstream approval, which serves to discourage upstream countries participation in collaborative negotiations. • The Bank has consistently maintained its commitment to protect acquired rights, enshrined in its Operational Directive 7.50. The general guideline is that the Bank will fund a project on an international watercourse only if it has been fully explained to the other riparian and their acquiescence/agreement sought.

35. B. Opportunities of Cooperation • The legal approach of equitable sharing and the environmental approach of environmental security are the imperatives to bring basin-wide cooperation in the Nile River Basin. • There are basic possible scenarios/opportunities within the Nile River Basin, if implemented can bring sustainable and basin-wide cooperation in the River Basin. • The following could be taken as best opportunities:-

36. 1. Strengthening Active Sub-Basin Cooperation • To bring a basin-wide cooperative mood in the Nile River Basin, the historical, hydrological, geopolitical relations and cooperative interests of all the riparian states of the Nile has to be identified and considered. • As the study indicates, the historical, socio-economic, hydrological and geopolitical relations and cooperative interest of the two segments of the upper riparian states, that is, the Upper White Nile and the Upper Eastern Nile with the lower Nile riparian states is different.

37. 2. Completion of the Blue Nile Schemes • Completion of the already studied Blue Nile schemes has a legal, economic and environmental benefit to the Eastern Nile riparian states. • The first series proposal of constructing Blue Nile Dams was made by the United States Bureau of Reclamation (USBR) (1958-1963) which is still believed by many hydrologists and engineers as an important development opportunity for the sub-basin riparian states.

38. Cont’ed…. The Bureau of Reclamation investment plan come up with development opportunities as: - • 33 irrigation and hydroelectric power projects • the total area of the proposed irrigation projects was about 434,000 ha • the irrigation projects were estimated to require 6BCM. Four major hydroelectric projects were proposed below Lake Tana. • Together these dams would have an estimated active storage capacity of about 51BCM and • an estimated annual electricity generation of over 2.5 billion Kilo Watt / Hours (about 3 times the actual production of the Aswan High Dam)(Whittington& Mc Clelland,1992:149).

39. Cont’d…. • So, a unilateral water development projects through water diversion as in the case in Egypt the scientific and hydro-logically studied projects in the Blue Nile need to be reconsidered and reassessed as plausible opportunities which have a legal, economic and environmentalbenefits to all the sub-basin states. • For example, Wittington and Mc Clelland (1992) brought some thoughts on Nile water allocation and regional cooperation issues. • They suggest that new Nile water agreements should be drawn up, with several new dimensions to make it more comprehensive and sustainable.

40. Cont’d…. Based on their findings, they stress that certain opportunities for mutual gain should be exploited. These are : - • The constriction of the Blue Nile reservoirs, as proposed by the US Bureaus of Reclamation, which would save 4-5 BCM of water. • The elimination of the Jebel Auliya reservoir, which has out lived its initial purpose since the completion of AswanHighDam, which would save 2.8 BCM. • They further suggest that these should become a part of any new agreement on Nile water allocation.

41. Cont’d…. • Furthermore, their cumulative effects would raise the net annual water from 74 BCM to 80 BCM for evaporation and seepagedifference between Egypt and Ethiopia. • They further determined that Ethiopia should receive a water allocation of 12 BCM, as measured at Aswan, which would reduce Egypt’s share to 52.5 BCM and Sudan’s share to 15.5 BCM. • In their calculations, they only depend on the 6.0 BCM water savings from the construction of the Blue Nile Reservoirs and the elimination of Jebel Auliya reservoir. • As an opportunity on water allocation, whether Ethiopia as the lion share of the Nile water would accept the 12 BCM has yet to be a better opportunity to strengthen active sub-regional cooperation.

42. 3. The Lower Riparian States Need to Focus on Increasing Water Supply • In both Sudan and Egypt supply of water could be increased by exploiting reserves of ground water. • In both countries, aquifers that are recharged from the Nile (either directly or through drainage from irrigated fields) are tapped. • This is especially true in Egypt, where 2.6 BCM are extracted from such aquifers (Shapland, 1997:160). There is a scope for more extensive use of these aquifers. • Both states have also huge fossil aquifers which has not been as well investigated as have surface waters could be a source of supply (Ibid.).

43. Cont’d…. • Given the fact that Egypt and Sudan have a substantial reserve of oil and gas, desalination of sea water or saline ground water might appear to be an option for the supply of water. • There are also many opportunities for greater efficiency. Both Egypt and Sudan could easily compensate for the Ethiopian use of the River through increasing efficiency, lowering the level of Lake Nasser and encouraging the peasants to water their plants at night (reduces waste). • Egyptian and Sudanese farmers mostly use traditional methods of irrigation, and sprinkler and drip systems would make more efficient use of water at the farm level. Further savings could be made by substituting others, less thirsty crops for rice and sugar cane.

44. 4. The Lower Riparian States Need to Focus on Other Economic Sectors • As Egypt is moving toward a modern economy it may be that agriculture with its heavy uses of water resource ceases to be the bases of its economy. • Irrigation agriculture generally yields low returns per cubic meter vis-à-vis other uses (e.g. industry), particularly, where hot and dry climate conditions mean very high annual water requirements for ha (Allan, 1993: 57) . • Besides this fact, the contribution of the agricultural sector to the GDP of Egypt decreased from 40% in the 1960s to 30% in the 1970s to about 16% in the 1990s. It is also interesting to note that 48% of the WB’s investment in Egypt is in the agricultural sector (Mason, 2004:151).

45. Cont’d…. • Therefore, the importance given to the agricultural sector both by the Water Policy of Egypt as well as by the World Bank do not seem to be in proportion to its economic significance/returns. • The same is true for Sudan, which has become the main exporter of oil in Africa. • Egypt has not had a balance in its trade in agricultural goods since 1970s. It currently imports the greater part of certain basic food stuffs. • As a result of the growth in Egypt’s population the country has not been able to feed itself. For a quarter of a century, like many other countries, it has coped with this situation in a pragmatic manner by importing a growing volume of food.

46. Cont’d…. • Self-sufficiency in food as a contribution to the national security can be achieved through cooperation in the Nile River basin. • The point of debate here is, Egypt as a better industrialized in the Nile River basin by focusing on the other economic and service sectors (not by abandoning the agricultural sector) which have a better economic returns should give a guarantee to the equitable share of water for the upper riparian states, particularly to Ethiopia which has a much better opportunity to produce excess agricultural products and energy not only for its own but also for the lower riparian states.

47. Cont’d…. • Therefore, it would be much easier for Egypt to continue to find ways of dealing with this water gap by importing water over quantities of food (virtual water) are required by its citizens.

48. Conclusion • Population growth in the Nile River Basin is rapid, and there is strong evidence that human activities, especially overgrazing, deforestation, poor watershed management, soil erosion combined with shifting climatic conditions, are contributing to the rapid desertification in the Nile basin region. • This environmental concern of the Nile does not only affect to independent states national security but also to the whole regional security of the Nile which needs a collective and basin-wide cooperation.

49. Cont’ed • The legal and environmental approaches are the most appropriate approaches promoting cooperation in the Nile River Basin. • It is through the simultaneous application of these approaches that a peaceful and sustainable basin-wide cooperation can be institutionalized in the Nile River Basin.

50. Thank You !