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Regional covenant on the Nile River proving elusive

 

Let the negotiations languish for as old as the Methuselah[1]

 

                                                                                                                 By Tadesse Kassa[2]

 

When, on the 26^th of June 2007, the Nile Council of Ministers responsible for water affairs of the nine Nile riparian states concluded their negotiations on substantive and procedural contents of the proposed ‘Nile River Basin Framework Agreement’ in Uganda, expectations were so high that the draft would soon be adopted by the respective governments and a Nile Basin Commission established. The discourse would have represented the culmination of a decade-long conscientious diplomatic enterprise that kicked-off in 1997.

 

It did not happen. One and half years since the draft was last referred to the heads of governments of each of the riparian states, the Nile still remained without a comprehensive legal regime regulating its equitable use,  and Ethiopia positioned on the trailing side.

 

In deed, the negotiations have languished for fairly too long, with two clusters of basin states still unable to patch up their, somewhat incompatible, sovereign aspirations. In consequence, the diplomatic manoeuvres, largely held reticent by obstinate positions of Egypt and Sudan, continued to ‘keep Ethiopia waiting indefinitely’ for a settlement over vital issues of water sharing and basin-wide regulation of the Nile River.

 

If with reservation, it has now become obvious that Ethiopia’s water diplomacy fervently working on a basin-wide framework along with like-minded states is not paying a premium dividend. If its involvement in the dialogues were to proffer equable gains, it appears Ethiopia would as yet require an astute understanding of the legal, social and historical fundamentals that have customarily steered the canons of water consumption and proprietary perceptions down the stream.

 

Certainly, this is not the first time the nation’s hydraulic interests had been put to jeopardy through ill conceived manoeuvres of foreign elements. In the past, too, Emperors Menelik and Haileselassie had incessantly endured pressures of varying scales.

 

Old legal and diplomatic accounts reveal that first, the British colonial administration in the basin, and later, Egypt and Sudan, had persistently laboured to secure an Ethiopian dam concession that would sanction the construction of a dam on the Lake Tana. The initiative was wholly motivated by development concerns along the lower most reaches of the Nile. Lord Allenby, the British High Commissioner in Egypt between 1919-1925, depicted the financial implications of the egocentric undertaking on the British Colonial Empire: ‘on the assumption that three thousand million cubic meters are made available by the reservoir during the low stages of the Nile, this would be sufficient for the cultivation of about one million acres of cotton in Egypt, or alternatively, at least half a million acres in Sudan.’

 

The foreign manipulates notwithstanding, though, throughout 1902-1955, Ethiopia’s water politics generally outrivaled, consistently and skilfully rebuffing the diplomatic efforts of Great Britain and the Arab Republic of Egypt for control of the Nile that on one occasion, in 1930, the New York Tribune flatteringly reported that ‘the diplomatists of the little mountain kingdom had made British policy look like a trifle foolish.’

 

When their importune pleadings failed to receive favour in Ethiopia, the dam negotiation then lingering for decades after decades, Bentinck, Great Britain’s Ambassador in Ethiopia in the 1927, publicly levelled, against Emperor Haileselassie, charges of naivety, imprudence and shrewdness. Failed, he complained the British were in fact dealing ‘with an impossible and dilatory people who would appear all to expect to live as long as Methuselah!’

 

In deed, where its sovereign interests so required, the little mountain kingdom had kept them waiting.

 

Today, the tide of history has changed course. So does the bargaining clout of the parties involved. While the state of Ethiopia begs for an equitable share of its own river in regional negotiations, the same old ‘petitioning’ states of Egypt and Sudan, shielded behind the ‘status quo’ mantra, now persist on ‘keeping Ethiopia waiting ad-infinitum’, perhaps for as old as the Methuselah.

 

Yet, for a blend of patent considerations, Ethiopia can barely afford to wait longer without using its water resource.

 

A question naturally poses: can the political parallel in modern Ethiopia reckon seriously the opportunity cost of every day passing in protracted negotiations, without appropriating a drop of the Blue Nile, and adopt a pragmatic approach that would let downstream policies of exclusive use ‘look like a trifle foolish!’?

 

The Nile, truly, is a river of mysterious juridical destiny. If anything, intricate legal arrangements, disparate climatic settings and dependence in the basin, the development of massive hydraulic infrastructures producing hard-to-ignore facts of life on the ground, and most notably, diversely depicted definitions of right of use of the shared resource have only turned the squabble for resource control more and more intense, widening the gaps in strategic aspirations.

 

Evidently, contemporary basin-wide initiatives endeavouring to install a regime for cooperative use of the Nile River should survive these challenges.

 

Sadly though, to date, Egypt and Sudan have opted not to modify the traditional melody, engage in a genuine diplomatic discourse and refrain from a devious political subtlety that barely offered anything beyond a mere rhetoric acknowledging ‘the Nile as a sacred property of its inhabitants.’

 

In consequence, now more than ever, the probability is so high that the hugely publicized Nile discourse and the optimism carried along are on the verge utter collapse.

 

The sheer size of the upstream-downstream divergence on the single most imperative theme that mattered to Ethiopia can be discerned from the proposals state envoys submitted but failed to resolve during the winding stages of the negotiations. Restated in unembroidered colloquial language, the subject of disagreement boils down to this: who does the Nile water really belong to?

Seven basin states in the upper most reaches of the river, including Ethiopia, adopted a nearly analogous position on the contents of the proposed Framework Agreement, including its most contentious provision, Article 14, whereas Egypt and Sudan, as predicted, deviated.

 

The disagreement displayed at the crucial stages, confirmed officially, and for the first time in the history of Nile related dialogues, that downstream states had barely meant their declarations in public and media stunts advocating lofty principles such as ‘the right to equitable utilization’ and acknowledging ‘joint ownership and use of Nile resources.’ In deed, their engagement in contemporary discourses was scarcely motivated by a bona fide conviction that the Nile actually belongs to citizens of the ten basin states. This was manifested in the proposed contents of Article 14 of the Framework Agreement, the only provision that has called for the intervention of the heads of states.

 

An upstream version of Article 14 of the arrangement, supported by seven countries including Ethiopia, called upon basin states 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 state.’

 

An absolutely novel concept, no doubt, the stipulation,  introducing a ‘water security regime’, nevertheless attempted to accommodate the two incongruous pillar principles of international water law, blending the theories of ‘equitable utilization’ and ‘the duty not to cause significant harm’, and entitling each state a right to unquantified waters, with out significantly prejudicing the established uses of other states.

 

Easier said than done, the precise connotation and application of the pillar principles has in the past decade been, both under customary rules and the UN Watercourses Convention (1997), the subject of intense controversy. Although the UN Watercourses Convention did structure the core principles governing the shared use of international watercourses, and hence contributing to the progressive development of the legal regime, neither states nor intellectual discourse has to date settled on a number of issues. This includes for example, whether the principle of equitable use (generally favouring upstream states such as Ethiopia) enjoys precedence over another principle of the same Convention prescribing a duty not to cause significant harm to established uses; and whether a greater weight should be attached to some of the factors (such for example as size of population, potential uses, geography, climatic setting etc) when evaluating the equitability of use in any given situation, and not to others (for example the availability of alternative water resources, scale of current uses etc).

 

Worse, as though international law has a clear cut set of principles to define rights and diffuse water use conflicts, the regional initiative on the Nile has come up with a new concept of ‘water security’ that has little or no precedence in international relations.

 

For the informed, Ethiopia’s participation in any basin-wide debates would be triggered by nothing but the pressing urge for correcting historical injustices and uncertainties propounded by the system of international law, and by a reasonable buoyancy that the process will eventually yield tangible gains. It should by no means start by incorporating in to a basin framework a barely recognized legal jargon that will no doubt denote several things to a number of basin states, and take on decades before state parties to the treaty can settle on a common reading.  

 

The biting wit of this development has however been that even with the obscure formulation of the provision proposed by upstream states, Egypt and Sudan failed to ‘perceive’ that their legitimate rights would be shielded adequately. The reference, of course, was to the series of claims principally institutionalized through treaties signed in 1929/1959. Hence, they point-blankly argued any arrangement under the Framework Agreement short of preserving the status quo is but objectionable.  

 

A joint proposal of the two states submitted that Article 14 should instead be framed to read that the Nile Basin states shall work together ‘to ensure that all states achieve and sustain water security and not to adversely affect the water security and current uses and rights of any other Nile Basin state.’

 

Current uses? The proposal, indisputably a frosty retort to a 10-year-long diplomatic exertion, surely underestimated the scale of urgency of exploiting the Blue Nile waters in Ethiopia. It should be noted that an agreement re-negotiated between Egypt and Sudan on the 8^th of November 1959, although resolutely rejected by all upper basin states, has already apportioned 74 Billion Cubic Meters of the total 84 BCM of Nile waters just between two states. Only recently, high level officials had publicly admitted that ‘full utilization’ of their respective quotas has been attained.

 

In consequence, should all ‘current uses’ of the Nile waters, situated for the most part along the right and left banks of the Nile, the Gezira irrigations in Sudan and a whole stretch of developments along the reclaimed barren lands of Egypt, be protected under the new water security regime, eight upstream states would have to split a meagre 10 BCM of waters to attend the entire developmental needs of their communities.

 

No rational upstream nation can of course subscribe to outrageous arrangement of such sort, or to a substitute scheme that contemptibility proffers something in form but nothing in essence. Upper riparians states should unmistakably articulate a high running exasperation over the perpetual use of regional processes as a time buying diplomatic exercise.

 

Ethiopia, in particular, with a leading stake in the subject, should defy distractions caused by short-sighted academic, political and NGO nuisances glorifying, albeit without cause, the actual merits of a basin-wide process in building inter-state confidence and in changing time-honoured perceptions of river use.

 

Most importantly, Ethiopia should assertively resist the enticement of phoney downstream consensus for an isolated-limited-scale use of Nile waters in its territories, including the new projects along the fertile plains adjoining Lake Tana.

 

It basically has to look intently deep within, outside the confines of the broadly politicized regional endeavours, and enthusiastically embrace unilateralism until such point when the scale of its own utilization ipso facto engenders a genuine interest to negotiate.