A couple of days ago, Egypt pulled out of the grand East African regional power pool known as the Eastern Africa Power Pool (EAPP) due to the concerns over the use of the River Nile waters.
That arrangement was set up with a purpose of pooling electrical energy resources in coordinated and optimized manner in order to increase the rate of access to electricity by the population of the Eastern Africa region and thereby promote regional integration.
It brings together Burundi, Democratic Republic of Congo (DRC), Egypt, Ethiopia, Kenya, Rwanda and Sudan, and was signed under Inter-Governmental Memorandum of Understanding (IGMOU).
This is, however, not the first regional arrangement made between Egypt and other regional states.
For example, on 23 March, 2015, Egypt, Ethiopia and Sudan signed a ‘Declaration of Principles’ to govern Nile River water use for their over-border water sources, and realising the importance of the Nile River as a source of life and a vital source for the development of the people of Egypt, Ethiopia and Sudan, the three countries committed themselves to the following principles concerning the Grand Ethiopian Renaissance Dam being built by Ethiopia;
Among others, cooperation based on mutual understanding, common interest, good intentions, benefits for all and the principle of the sovereignty, unity and territorial integrity of the State.
At any rate, Egypt opposes any project along the Nile stretch, fearing that it will reduce the flow of the water.
At one point, since the inception of the Grand Ethiopian Renaissance Dam, Egypt declared that “all options are open” to stop a reduction of “even one drop of Nile water” as a result of the construction of the dam, including involving the military, arming opposition groups and sabotaging the dam, although it showed no appetite for war with Ethiopia.
Egypt’s stance over the Nile River waters poses several critical legal issues. The first concerns the legal basis of Egypt and other Eastern Africa Power Pool (EAPP) members for using Nile waters and resources.
Egypt argues on the basis of “inherent” or “historic” title, as enacted in colonial treaties, including in the 1929 and 1959 Nile Water Treaties between Egypt and Sudan. The latter treaty entitles Egypt to use eighty-seven percent of the Nile which amounts to 55 billion cubic metres of water per annum, while Sudan is entitled only to eighteen and a half percent.
The rest evaporates into the air. Ethiopia and other upstream riparian counties including Kenya, Tanzania, Burundi, Uganda, Rwanda, the Democratic Republic of the Congo rely on the principle of “equitable and reasonable use and utilization” of the Nile River waters and resources.
The right Egypt purports to have over Nile River waters based on colonial treaties have been adamantly opposed by Ethiopia, and all upstream countries including Kenya, Tanzania, Burundi, Uganda, Rwanda, the Democratic Republic of the Congo, considering them (colonial treaties) unfair and discriminatory.
The stance of the EAPP, except Egypt, is the respect of the principle of “equitable and reasonable use and utilization” of the Nile River waters and resources.
Egypt has argued, however, that colonial treaties must be honored, which includes those agreements entered into between the British colony and most upstream countries not to use or “arrest” the Nile waters without receiving permission from Egypt and Sudan.
This argument is rather weak, as Ethiopia had persistently objected to the treaties, and all upstream (and downstream) countries were under colonial rule and thus not legally bound by such treaties as newly independent countries.
The “clean state” doctrine, as codified under Article 16 of the Vienna Convention on Succession of States in Respect of Treaties of 1978, submits that countries that gain independence are not obliged to succeed to colonial treaties excepting boundary issues.
Moreover, these colonial treaties were created to pursue self-interest rather than common values and shared interest among the Nile Basin states.
This is why most Nile riparian countries subscribed to the Nile Basin Cooperative Framework Agreement in 2010 which is based upon equality, and cooperation, rather than the status quo ante; it will also establish a joint Commission to oversee the River’s management.
At this rate, it can fairly be argued that contemporary international law does not recognise the “inherent” or “historic” use “principle” to exclusively utilise a water course without ensuring the fair share of other riparian states.
For that matter the 1997 UN Convention expressly rejects the “inherent” use claim as a bar to the equitable and reasonable use of international waters.
The problem is Egypt is not willing to risk a reduction of “a drop of water” from the Nile as that is contrary to its “inherent” or “historic” title to fully use and utilise the Nile waters. However, the duty not to inflict a significant harm is founded on the principle of “equitable and reasonable use” of a trans-boundary river and thus does not rely on the prior will or permission of one concerned party.
The solution lies on Egypt accepting the rights and entitlements of riparian countries in accordance with 21st century international law.
By Fred K. Nkusi
The writer is a lecturer and international law expert