Major Environmental Legal Case: Dispute Over The River Nile

Introduction

With the water quality degrading or the quantity available having to meet the rising demands of the populations over time, competition among water users has intensified. This is nowhere more destabilizing than in river basins that cross political boundaries. They have mostly led to conflicts between the nations sharing the waters. However, these nations have values agreements over the disputed waters rather than war because they make international relations over water more stable and predictable. According to the United Nations, the last 50 years have seen only 37 acute disputes involving violence, compared to 150 treaties that have been signed in the same duration. While most basins are shared between just two countries, there are many basins where this number is much higher. 13 basins worldwide are shared between five and eight riparian nations. Five basins, the Congo, Niger, Nile, Rhine and Zambezi, are shared between 9 and 11 countries. The river that flows through the most nations is the Danube, which travels within the territory of 18 nations (UNDESA, 2014).

The Nile River is believed to be the longest river in the world with a length of about 6,650 kilometers (Hurst & Smith, 2019). The river has a drainage area of 3,25,555KM3, and an average discharge of 2,800M3/S (Wikipedia, 2019). The White Nile tributary begins in Lake Victoria in Uganda where it leaves the Lake at Ripon Falls near Jinja, while the Blue Nile tributary begins at Lake Tana in Ethiopia and then flows into Sudan from the Southeast. The White Nile tributary passes the Murchison Falls and then flows into Lake Albert and the river is now known as Albert Nile from here and is the last part of the river on the Uganda’s territory. The river enters Sudan via South Sudan from the Southeast. The two tributaries meet near Khartoum, the capital of Sudan. The Nile River then flows entirely through a desert into Egypt and outflows into the Mediterrenean Sea (Lang, 2013). The water of the Nile River flow at an average volume of 300million M3 per day and moving in the course of a three-month journey from the south to the mouth (Lang, 2013). About 85 percent of the water flowing into the Nile River comes from the Ethiopian highlands through the Blue Nile while the rest comes from the White Nile.

Rising south of the equator and flowing northwards through northeastern Africa and draining into the Mediterranean Sea, the Nile River has a vast basin of eleven countries that include Eritrea, Tanzania, Rwanda, Burundi, The Democratic Republic of Congo, Uganda, Kenya, South Sudan, Ethiopia, Sudan, and Egypt. The Kagera River in Burundi is the Nile River’s most distant source.

Ethiopia is in the middle of a major dispute with Egypt that threatens the stability of the region. The dispute is over the waters of the Nile River. Ethiopia as a nation announced in 2011 that it had plans of building a 4 billion dollar Grand Renaissance Dam on the Blue Nile River in Guba Woreda, Benishangul Gumuz Region. The region is near the Ethiopia-Sudan boarder and the dam was to serve majorly as a hydroelectric dam. The then-prime minister of Ethiopia, Meles Zenawi, laid the foundation for the construction of the Dam on 2 April 2011.The dam is projected to have a capacity of 6,000 megawatts upon completion, which will make Ethiopia the biggest African power exporter. The dam is proposed to take at least seven years to be full, which will in turn reduce the flow of the water by at least 25% for that period. The first filling process stage was expected to take two years which would bring the water level in the reservoir to 595meters out of the expected final level of 632 meters. The reservoir would hold up to 67 M3 of water upon completion. Ethiopia has therefore argued that this dam will be crucial in bringing economic development. The dam will supply both water for its agricultural and industrial purposes, and at the same time providing electricity to it. Egypt on the other hand sees it as affecting the water flow in the Nile River hence threatening its main source of fresh water and survival of its economy and population. It argues that the construction of the dam will be devastating to them since Egypt relies on the water from the river for irrigation, transport, and fishing.

Egypt’s Dispute Position

Egypt is a largely desert country and relies on the Nile River water for its sustainability. It also has a rapidly growing population of around 100 million people and around 90% of this population relies on the fresh water from the Nile River (Lewis, 2019). The country imports approximately half of its food products and annually recycles about 25 billion M3 of water. It has therefore accused Ethiopia of not factoring the risks of drought that may ensue should it go ahead constructing the dam. Besides, Egypt stands to lose more than 1.8billion dollars in economic production annually and more than one million jobs. It therefore proposed that the proposed two-year filling process stage be extended and that it be guaranteed by Ethiopia a 40 billion M3 annual water supply upon completion of the dam (Lewis, 2019)

Ethiopia’s Dispute Position

Ethiopia has a population of more than 100 million people. It alleges that Egypt is trying to maintain a colonial-era grip over the Nile River waters. Ethiopia accuses Egypt of holding the dam project hostage by imposing rules over the filling of the dam and its subsequent operation. Ethiopia has however taken the interests of both Sudan and Egypt into consideration. It argues that it could have filled the dam in between 2-3 years but now have proposed it be filled in a 4-7 year process. However, Ethiopia argues that the requirement by Egypt to be guaranteed 40 billion M3 of water annually is unrealistic (Lewis, 2019). Instead, Ethiopia offers 31 billion M3, which is slightly more than half the volume the 1959 agreement had guaranteed Egypt. This quantity will not satisfy the country’s needs (Harb, 2019).

Each of these countries have their own arguments concerning the dam and any ongoing dispute showdown between them is a major threat to regional peace and stability. This calls for the international community to press for an equitable settlement and find a common ground for the two countries. Both countries have in the past voiced a preference to negotiate a long-term agreement to the dispute but this has not been achieved so far. Egypt alleges that Ethiopia is dismissing the concerns that Egypt has raised regarding the threat to its water security. Ethiopia on the other hand has insisted that these issues will be discussed before the dam is completed and a solution reached. Both Ethiopia and Egypt have accused each other of delaying bilateral talks and negotiation process that has previously stalled midway. The United States Of America (U.S) and Russia have also been seeking ways to mediate the dispute. Russian President Vladimir Putin solemnly vowed to help the two countries reach a compromise when he met the Egyptian President Abdel Fattah al-Sisi and Ethiopia’s Prime Minister Abiy Ahmed on the sidelines of the Russia-African Summit held in Sochi, Russia in late October, 2019. The two leaders agreed that a technical committee be allowed to continue its work. The U.S also has in the past invited Ethiopia, Egypt and Sudan (also affected by the dispute) to Washington for discussion concerning the dispute. On 6Th November, 2019, the three countries attended a trilateral meeting and they agreed to hold four technical meetings on the dam. They noted their hope of reaching an agreement by 15 January 2020. Failure to do so, they will seek further outside mediation on the matter (Harb, 2019).

On November 15 2019, the three countries held a meeting in Addis Ababa in presence of representatives from U.S and the World Bank. The two-day meeting reached a breakthrough progress in the talks over the construction of the dam. The Sudan government agreed on a deal on filling the dam in seven years (AL-Awsat, 2019) Sudan has recently backed the construction of the dam (AFP, 2019). It believes that the dam will curb the flash floods that normally hit the nation during the rainy season by maintaining the water levels in the river while at the same time blocking unwanted silt. It also argues that the dam will provide Sudan with a low cost electricity hence more growth.

Anglo-Egyptian Treaty

The Anglo-Egyptian Treaty was signed in 1929 by the United Kingdom and the monarchial Egypt to allocate water rights along the basin. In this treaty, Sudan and Egypt were guaranteed an annual supply of 4 billion and 48 billion M3 respectively, from the estimated yearly yield of 84 billion M3 of Nile water (Harb, 2019). The second agreement was signed in 1959 between the United Kingdom and the now independent Egypt. This treaty increased Sudan’s share to 18.5 billion cubic meters and Egypt’s share to 55.5 billion cubic meters and leaving 10 billion cubic meters to account for seepage and evaporation (Kimenyi & Mbaku, 2015). The rest of the waters were to be shared by the other countries along the Nile River. The new treaty therefore reaffirmed an important provision from the earlier 1929 agreement. This was the fact that Egypt now had the right to veto or authorize any construction projects that could hinder the flow of water into or in the Nile River (Harb, 2019). The agreement also stipulated that in a situation where the water exceeds the average yield, then the increased yield should be shared equally between Sudan and Egypt (Kimenyi & Mbaku, 2015). These agreements have left Egypt with the notion of ‘acquired rights’ over the use of the waters of the Nile River. It can therefore be concluded that these two agreements could have been the root course of the current dispute. The agreements only focused on Sudan and Egypt while excluding the other countries in the Nile River basin, not allocating them any share of the waters at that time. These excluded countries in the basin have had a share of problems in abiding by terms of an agreement that they never partook in. Ethiopia in particular was not party to the agreements and therefore does not recognize it as binding to them (Harb, 2019). This has come in handy with the rapidly growing population in the region, the tough economic needs and the need for sustaining the two while developing.

The Cooperative Framework Agreement.

In 1999, the Nile River basin countries with the exception of Eritrea, signed the Nile Basin Initiative (NBI) in a bid to enhance cooperation on the use of Nile basin water resources. Under the NBI, these countries embarked on developing what they believed would be a permanent legal and institutional framework to govern the Nile River basin. The agreement was referred to as the Cooperative Framework Agreement (CFA) and it introduced the concept of equitable water allocation in discussions on Nile governance as well as water security concept. The CFA was ready for signature by 10th May, 2010. Uganda, Burundi, Kenya, Ethiopia, Tanzania, and Rwanda signed it. However, arguing that their “acquired rights” to the waters of the Nile River would not be protected, Egypt and Sudan immediately registered their intention not to sign the agreement because they had objections to the wording of Article 14(b)of the agreement that stated that “Nile Basin States therefore agree, in a spirit of cooperation:... (b) Not to significantly affect the water security of any other Nile Basin State.” They then instead proposed an alternative wording for Article 14(b) with emphasis on (b) that “Nile Basin States therefore agree, in a spirit of cooperation:... (b) Not to significantly affect the water security and current uses and rights of any other Nile Basin State”. The upstream countries rejected this wording arguing that “the current uses and rights” phrasing would entrench the concept of prior rights, including those created by the Nile Agreements and effectively retain the inequity and unfairness that had characterized the allocation and utilization of water in the Nile River basin since the 1920s.

The Nile Agreement

On 23 March 2015, the leaders of Egypt, Ethiopia and Sudan met Khartoum and signed and agreement that was expected to resolve various contentious issues that had arose out of the Ethiopia’s decision to build the Grand Ethiopian Reconnaissance Dam Project (GERDP) on the Blue Nile River. This Khartoum declaration has come to be referred to as the ‘Nile Agreement’ and as helping in resolving the dispute over sharing of waters of Nile River. However, it has been argued that the agreement only deals with the Blue Nile and does not tackle the still broader contentious conflicts of sharing of the Nile River waters among all the countries in the Nile basin. The Nile Agreement therefore still leaves conflicts of equitable, fair, and reasonable utilization and allocation of waters of the Nile River unresolved. An estimated population of 160 million people relies on the Nile River waters for their livelihood and hence the maintenance, preservation, and use of the waters and resources of the Nile River sustainably and efficiently should be a goal to be shared by the entire Nile Basin region (Kimenyi & Mbaku, 2015)

Current Situation and Recommendations

There has been an escalated international mediation involving the United Nations, the World Bank, and other multilateral organizations that have sought to devise a plan that will address the concerns without necessarily meeting the competing demands. This could involve convincing Ethiopia to meet Egypt’s 40 billion cubic meters’ annual request, helping Egypt in developing modern alternative irrigation schemes that will decrease their water usage, and helping in creation of water desalination plants in the country. To Ethiopia, these organizations could temporarily help in meeting the country’s growing electricity needs by funding floating power plants in the Red Sea, and the energy transported across Eritrea (Harb, 2019). In seeking such compromise, the other Nile basin countries will also need to be involved because the agreement will likely affect all of them.

Egypt also needs to go further and sign and ratify the Cooperation Framework Agreement without insisting on changes to Article 14(b) to guarantee Egypt the rights created by the Nile Agreement. With the CFA in place, all Nile basin countries can negotiate in good faith to agree an allocation formula that is acceptable to all of them and considered reasonable, equitable and fair. As Africa as a continent becomes affected by climate change, its various groups must agree to cooperate in the development of institutional structures that can enhance their ability to live together peacefully and allocate their natural resources in a fair and sustainable manner (Kimenyi & Mbaku, 2015).