Archive for June, 2017

The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

Friday, June 30th, 2017

The following essay by Dr. Zeray Yihdego is a summary of his recently published monograph (under the same title), which appears in Vol. 2.2, 2017, pp. 1-80, of Brill Research Perspectives in International Water Law. Dr. Yihdego is a Reader in public international law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego [at] abdn.ac.uk.

The Nile, the longest River in the world, is shared by eleven riparian states, including Egypt, Sudan, South Sudan and Ethiopia.  Ethiopia contributes about 86% of the Nile waters, while Egypt (and to a certain extent Sudan) rightly or arbitrarily use most of the waters. Rightly because the climate and dependency of the two downstream countries on the Nile may be used to justify their historic or existing (lion) share. Arbitrary because other riparian states with millions of people who live within the basin are denied their equitable share of Nile water resources and socio-economic development needs. The construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile is justified by Ethiopia based on equitable utilisation and crucial development needs, while questioned (until March 2015) by Egypt as a threat to its ‘historic’ water use rights.

This monograph articulates the key arguments and messages of enquiring into the fairness dilemma in connection with the construction, reservoir filling, and to some extent, future operation of the GERD, in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international water law.

Nile_Map_UpdatedAfter providing factual, political and historical context to the GERD case in the Introduction, the monograph sets out the theoretical and normative framework around Thomas Franck’s fairness principle, and international water law (IWL), as primarily featured in the 1997 United Nations Watercourses Convention (UNWC). Franck’s theory of fairness uses procedural legitimacy (or right process) and distributive justice as two fundamental features of fairness.  These are supported by the rejection of making absolute claims and the possibility of accommodating inequality among states, as caveats to the fairness principle. It is argued that IWL, in general, and the UNWC provide rules and principles that specifically fit into the principle of fairness in all its aspects, although there is no evidence to suggest that inequality is tolerated or promoted in international (water) law.

Given that none of the Nile basin states is a party to the UNWC, and notwithstanding the relevance and application of customary international water law to the GERD, the monograph resorts to dealing with the Nile Basin Initiative and the Nile Basin Cooperative Framework Agreement (CFA), and argues that the CFA, either as a treaty regime or a codification of customary watercourses law, represents an emerging Nile basin legal framework with a potential to addressing questions of fairness in the basin. As the CFA has not entered into force and Egypt and Sudan do not constitute part of the process, however, the fairness of the GERD cannot be judged form the CFA perspective.

Following a thorough investigation of the fairness of the 1902 Nile Treaty, the 1993 Ethio–Egyptian Framework instrument, and the tripartite Declaration of Principles (DoPs) on the GERD signed by Ethiopia, Sudan and Egypt in March 2015, the monograph submits that the 1902 and 1993 instruments do not provide a fair content and system for the concerned parties, albeit for different reasons. While the 1902 Nile Treaty is inherently arbitrary, and thus not compatible with the notion of fairness, the 1993 instrument incorporated modern principles of IWL, but not sufficiently, and lacks specificity of rights and duties of the two countries.  In contrast, the DoPs is founded on the globally accepted principles and rules of IWL and has

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

embraced both relevant content and legitimate process. The content of the DoPs includes the adoption of equitable utilisation and no significant harm principles. Similarly, the process agreed to in the DoPs includes the duty to exchange data and information, establishment of a National Technical Committee, the use of foreign consultancy firms and the use and endorsement of the work of an International Panel of Experts (IPoE).  All these, although not without challenges, have been negotiated in good faith, with equal participation of all concerned.

Based on this analysis, the monograph submits that:  the GERD is a symbol of a fair share of the Nile waters, the realization of which depends on, inter alia, an appropriate economic return and prevention of significant impacts; although application of the fairness principle can be complex, the notions of procedural fairness and distributive justice can be applied to define and delineate the principle with reference to a specific treaty regime; despite historical or existing injustice, a fair share of natural resources can bring sustainable and durable peace in inter-state relations.

The entire article is available here.

 

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The Nile Basin Cooperative Framework Agreement: The Impasse is Breakable!

Monday, June 19th, 2017

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. Until 2009, Dr. Salman served as Lead Council and Water Law Adviser for the World Bank. He can be reached at SalmanMASalman [at] gmail.com.

A summit of the head of states of the Nile Basin countries is planned for June 22, 2017, in Entebbe, Uganda, to discuss the impasse over the Nile Basin Cooperative Framework Agreement (CFA). The summit is to be preceded by a meeting of the ministers of foreign affairs of the Nile countries on June 20 – 21, 2017. The purpose of this Note is to clarify the differences over the CFA, and to propose a roadmap for resolving these differences.

The CFA and the Differences Thereon

The Nile Basin Initiative (NBI) was born on February 22, 1999, in Dar-es-Salam, Tanzania, following the signing of the minutes of the meeting by nine of the Nile ministers of water resources in attendance. The NBI was facilitated by a number of donors led by the World Bank and the United Nations Development Programme (UNDP). The NBI was established as a transitional arrangement to foster cooperation and sustainable development of the Nile River for the benefit of the inhabitants of those countries. The NBI is guided by a shared vision “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources.”

Work started immediately on the CFA, and lasted ten years. However, by 2009, major differences over some basic issues erupted, and could not be resolved, neither at the technical, nor at the political levels, leading to the impasse on the CFA. These major differences persisted as a result of the resurfacing and hardening of the respective positions of the Nile riparians over the colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters, and the rejection of these claims by the upper riparians.

Nile_Map_UpdatedThe first difference related to water security. Article 14 of the CFA required the Basin states to work together to ensure that all states achieve and sustain water security. However, this paragraph did not satisfy Egypt and Sudan who wanted to ensure, through an additional clause, that their existing uses and rights are fully protected under the CFA. Consequently, Egypt and Sudan demanded and insisted that Article 14 of the CFA should include a specific provision, to be added at the end of the Article, that would oblige the Basin states “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” This demand was rejected by the upper riparains who saw it as a denial of the basic principle of equitable and reasonable utilization, and a breach of the vision of the NBI itself.

The second major difference related to the concept of notification, demanded by Egypt and Sudan and rejected by the upper riparians. The upper riparians saw it as a means for Egypt and Sudan to invoke the colonial treaties and their claim of veto power.

While the impasse persisted, on May 14, 2010, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda. They were joined five days later by Kenya, and by Burundi on February 28, 2011. The CFA has thus far been ratified by Ethiopia, Tanzania and Rwanda. It needs a total of six instruments of ratification/accession to enter into force. Egypt and Sudan continue to vehemently reject the CFA.

Developments Since Conclusion of the CFA

The upper riparians continued with their projects on the Nile notwithstanding the impasse over the CFA, and the erosion of the NBI. The Grand Ethiopian Renaissance Dam (GERD), which commenced in 2011, has proven a major challenge to, and a source of a bitter dispute between Ethiopia on the one hand, and Egypt and Sudan on the other. However, by December 2013, Sudan broke ranks with Egypt, and declared its full support of the GERD.

Egypt followed, albeit reluctantly, fifteen months later. Egypt, Sudan and Ethiopia concluded in March 2015, through their head of states the Agreement on Declaration of Principles on the GERD (DoP). Egypt and Sudan basically accepted, through the DoP, the GERD and declared for the first time ever “the significance of the River Nile as a source of livelihood and the significant resource to the development of the people of Egypt, Ethiopia and Sudan.” The three countries agreed further “to cooperate based on common understanding, mutual benefit, good faith, win-win, and the principles of international law, (as well as) in understanding upstream and downstream needs in its various aspects.” The DoP went on to state explicitly that “the purpose of the GERD is for power generation to contribute to economic development, promotion of transboundary cooperation and regional integration…”

The DoP included other provisions on equitable and reasonable utilization, the obligation not to cause significant harm, as well as peaceful settlement of disputes. It also contained explicit provisions on the GERD, including cooperation on filling its reservoir, as well as its safety. The DoP was confirmed nine months later through the signature by the three countries of the Khartoum Document in December 2015 at their 4th tripartite meeting.

Breaking the Impasse

These developments clearly annulled Egypt and Sudan previously held position of securing all the Nile waters for their exclusive use through existing uses and rights, and the veto power over other Nile countries’ projects. Equality of all the riparians, as pronounced by the Permanent Court of International Justice in the 1929 River Oder case, and reconfirmed by the International Court of Justice in the 1997 Gabčíkovo-Nagymaros Project case, is now fully accepted by Egypt and Sudan. Similarly, Egypt and Sudan have confirmed their acceptance of the basic and cardinal principle of international water law of equitable and reasonable utilization.

The consequent and logical step for Egypt and Sudan is to drop their demand for recognition of their existing uses and rights as a part of the water security paragraph of the CFA. Indeed, the whole section of the CFA on water security is no longer needed, given that the CFA includes the same provisions of the United Nations Watercourses Convention (UNWC) on equitable and reasonable utilization, as well as on the obligation not to cause significant harm. It is worth mentioning that the UNWC includes no provisions on water security, as this is not a legal concept – merely a political pronouncement.

The quid pro quo for Egypt and Sudan agreeing to drop their demand for recognition of their existing uses and rights is to include provisions in the CFA similar to those of the UNWC on notification. This should cause no alarm to the upper riparians as the basis of Egypt and Sudan of their veto power in case of notification – the colonial treaties – is no longer on the table since the two countries have accepted the principle of equality of all the riparians. Besides, notification could take place through the Commission to be established under the CFA, or through the ministerial council of the Nile Basin States as happened in the latter years of the NBI before the differences erupted over the CFA.

This compromise would address the concerns of both Egypt and Sudan on the one hand, and those of the upper riparians on the other. Its details can be successfully worked out through good faith negotiations, if the political will among the Nile riparians exist. Indeed, this political will is urgently needed to resolve the differences over the CFA and conclude an agreement that is inclusive of all the Nile riparians, so as to pull the 250 million inhabitants of the Nile Basin out of their poverty, underdevelopment, hunger and darkness.

 

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Salman M.A. Salman Bestowed with IWRA Crystal Drop Award

Friday, June 9th, 2017

While an individual’s career is often influenced by various guides and advisers, on occasion, it is possible to trace one’s career path to a particular mentor.  In my case, it is Dr. Salman M.A. Salman.  Regarded as one of the definitive experts in the field of international water law, Dr. Salman has been exceptionally kind with guidance on research and consulting projects throughout my career, and has championed my candidacy for various opportunities.  In no small measure, Salman has been an unassailable and steadfast Sherpa on my journey through the water world.  More importantly, he has been a mentor and friend.

This is why I was absolutely thrilled when, on 1st June 2017, the International Water Resources Association bestowed on Dr. Salman (along with the equally incredible Dr. Cecilia Tortajada) its highest recognition – the Crystal Drop Award – at the XVI World Water Congress.  Having devoted his entire career and scholarship to water issues around the world, I know of no one more deserving of this recognition than Dr. Salman.  The following is a transcript of Dr. Salman’s acceptance speech.

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Good afternoon water colleagues and friends

I am deeply humbled by my selection as the co-recipient of the Crystal Drop Award 2017. It is indeed a great honor being a member since 1994 of the International Water Resources Association – the premier, global, inclusive think tank that encompasses all the disciplines and experts around the world working on water resources.

Thus, it is particularly rewarding and gratifying that this distinguished community of experts has recognized my work on water law and policy, and on the urgent need for cooperation on shared watercourses. This is a mission I have embarked on some decades ago at my hometown, Khartoum, at the confluence of the Blue Nile and White Nile in the Sudan.

Allow me fellow water colleagues and friends, after this acceptance speech of the Crystal Drop Award, to deliver a short address on the role and contribution of our International Water Resources Association on the on-going debate on the challenges facing water resources.

Dr. Salman M.A. Salman accepting the Crystal Drop Award

Dr. Salman M.A. Salman accepting the Crystal Drop Award

We have now been in Cancun together for almost a week, for our sixteenth Congress, debating and brainstorming on the tremendous challenges facing the planet’s most scarce and precious resource. Hence, I thought I would use my remaining time for a quick overview of how the road to this week’s Congress has been paved, and to bring to light the great efforts that have helped in expanding and strengthening our contribution to water resources management.

The efforts of the Association in this connection are almost half a century old, and can be traced to the seventies of last century. During all these years the Association’s role in the debate has been immense and substantive, its voice loud and audible, and its publications, recommendations and actions have contributed considerably to the successes that have since been achieved in the water sector. Indeed, one can safely contend that the Congresses, debate, and actions of the Association had preceded in earnest, and influenced, all the other global efforts in this field.

The idea of establishing a water institution encompassing all the disciplines working on water resources, and open to all the experts around the world, was debated in the sixties of the last century during the meetings of the American Water Resources Association. However, it was in May 1970 that the first steps were taken for putting this idea into effect. Eighteen months later the preparatory work was completed, and the International Water Resources Association was officially formed and registered, and was legally incorporated in the State of Wisconsin in the USA on 29 November 1971.

On April 1, 1972, Mr. Ven Te Chow, Professor of Hydraulic Engineering at the University of Illinois, was elected as the first President of the Association. The business office was opened in that month in Falls Church, Virginia, with 195 members, representing the major disciplines working on water resources, from more than 40 countries. Thus, the Association was born, hitting the ground running.

The first Association’s World Water Congress was held a year and half later, on September 24 – 28, 1973, in Chicago, Illinois. Indeed, the event marked the birth of the Association, with an impressive attendance of more than 200 experts, representing the major disciplines concerned with water resources, from 62 countries. The theme of the Congress was “Importance and Problems of Water in the Human Environment in Modern Times.” That Congress can accurately be called the first world water forum, and the official launching of our Association as a multi-disciplinary global water institution. The conclusions and resolutions of the first Congress included two important aspects, namely:

One: The need to develop a significant new international and interdisciplinary approach on water resources.

Two: Many common problems exist among nations and water users which can best be solved though a cooperative and coordinated approach.

Thus, the Association was, in 1973, clearly ahead of its time and other institutions. Aren’t these issues still the focus of our discussion, even this weeks in Cancun? Aren’t we still debating multi-disciplinary approaches, integrated water resources management, and the need for cooperation at both the national and international levels for addressing the challenges of management, sharing and protection of water resources?

The year 1975 witnessed two major and significant developments. In July 1975, the first issue of our flag journal – Water International – was published as the first periodical devoted exclusively to water resources management, with articles addressing the multi-disciplinary approach, by experts in all fields of water resources.

Dr. Salman M.A. Salman and Dr. Cecilia Tortajada accepting the Crystal Drop Award, presented by IWRA President Patrick Levarde (far left), Past President Ben Braga, and Awards Chairman James Nickum (far right)

Dr. Salman M.A. Salman and Dr. Cecilia Tortajada accepting the Crystal Drop Award, presented by IWRA President Patrick Levarde (far left), Past President Ben Braga, and Awards Chairman James Nickum (far right)

The second development was the holding of the Association second Congress in New Delhi, India, in December 1975. The Congress was organized under the theme “Water and Human Needs.” It was attended by more than 1,200 participants from 45 countries, who presented and discussed more than 260 rich multi-disciplinary papers.

The second Congress was hosted by, and co-organized with the Association by the Central Board for Irrigation and Power in New Delhi. This approach set in motion the precedent of hosting of the Congress by the national water institutions, with the assistance and guidance of the Association – a practice we have seen even this week in Mexico, with the organization of ANEAS in Cancun of the 16th Congress. It is worth mentioning that Mexico also hosted the third Congress that was organized thirty-eight years ago, in April 1979 in Mexico City. The theme of that Congress was “Water for Human Survival.” About 1,500 participants from 80 countries attended and presented more than 500 papers. These are impressive numbers, interestingly, almost similar to the numbers we are having this week in Cancun.

The multi-disciplinary nature of the Association was proven to the letter when the members of the Association elected Guillermo Cano as the second president in 1979 for the period 1980 to 1982. The more than one hundred legal colleagues who are here this week for the 16th Congress will be pleasantly surprised to learn that the second president of the Association, almost forty years ago, was a lawyer, and not an engineer or a hydrologist. The Association confirmed beyond doubt its multi-disciplinary character.

The role and influence of the Association on other concurrent and parallel events in the water sector have also been quite prominent from the early days. Soon after the United Nations Environment Programme (UNEP) was established in 1972, an invitation was extended to some members of the Association to help with UNEP water program. Dr. Chow and Dr. Biswas assisted UNEP in that task, and were able to include much of the Association’s philosophy in UNEP water policies and program.

In fact, it was the influence and push of the Association that led the United Nations to hold the first ever conference exclusively devoted to water resources – the Mar del Plata Conference in Argentina in 1977. The secretariat of the Mar del Plata Conference included a number of Association’s members, and the Association contributed considerably to the stounding success of that conference, and its resolutions and action plans.

It was also the Association’s eighth Congress in Cairo in 1994 that paved the way for the establishment of the World Water Council, and later the Global Water Partnership. Henceforth, the mobilization of action on critical water issues at all levels would be undertaken by the World Water Council; the coordination aspects by the Global Water Partnership; leaving the Association to concentrate, as a think tank, on the intellectual aspects of water resources management. The World Water Forums organized by the World Water Council every three years would complement, rather than compete with the Association’s triannual Congress. Some past presidents of the Association would assume the presidency of the World Water Council, and vice versa, and this has helped in transplanting of their unique experience, and in the coordination of the respective activities.

I can continue for the rest of this afternoon talking about the tremendous influence and contribution of our Association. However, I need to stop here, and conclude with the reminder that despite the successes we have achieved, existing challenges to water resources are multiplying and mounting, and new ones are surfacing every day. We need to remain relevant and effective. However, we can only do so by redoubling our efforts, and by continuing to be innovative, proactive, adaptive, and responsive.

Thank You Very Much.

 

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