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Governing Shared Watercourses Under Climatic Uncertainty: The Case of the Nile Basin

Wednesday, July 7th, 2021

The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in Environmental Law Reporter. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law where his dissertation is supervised by Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.

Climate change is projected to have catastrophic impacts on the hydrological cycle. Water availability, quantity, and demand will all be affected by climate change. Even worse, these changes are coming at a time when the sustainability of water resources is severely strained by other non-climatic factors, such as population growth, economic development, and urbanization. All of these factors will decrease water supply or increase demand. Responding to such changes requires building flexibility and adaptability into watercourse treaties.

The GERD from Space — Image of the Grand Ethiopian Renaissance Dam from space. Source: NASA/METI/AIST/Japan Space Systems, and U.S./Japan ASTER Science Team, https://www.jpl.nasa.gov/images/grand-ethiopian-renaissance-dam

This article examines treaty flexibility and climate change adaptation in the context of the Nile Basin, with special emphasis on the Grand Ethiopian Renaissance Dam (GERD). Ever since commencement of its construction in 2011, the GERD has been a point of serious contention between Ethiopia and its downstream neighbors—Egypt and Sudan. For Ethiopia, the project is meant to offer a solution to its severe power problem, providing electricity access for an estimated 65 million Ethiopians. Egypt, on the other hand, relies on the Blue Nile for 60% of its freshwater, and maintains that the dam represents an existential threat, although it endorsed the importance of the dam in 2015 signing an agreement on the Declaration of Principles with Ethiopia and Sudan. For its part, Sudan had to balance its concerns about water supply with the dam’s benefits, including a more regular flow of water, better siltation prevention, a reduction in evaporation, and cheaper electricity. In a historic break with its past practice of moving in lockstep with Egypt, and until recently, Sudan showed unwavering support for the GERD since 2012. In the past few months, however, it again firmed up on its opposition to the Dam.

To be sure, the dispute over the GERD is the focus of a voluminous body of academic literature. Legal scholars, political scientists and engineers, and hydrologic experts have exerted much effort during the last decade on the GERD dispute. Relatively little attention, however, has been directed to scrutinizing how the GERD should be governed in the face of climate change. This is especially problematic as the ramifications of climate change on Nile water resources—in particular regarding future rainfall, river flow, and water availability—are bringing a new dimension to the GERD dispute.

Although there is no certainty in projections, most studies and climate change models are commonly predicting increases in average annual temperature, leading to greater losses of water due to evaporation. There is much less certainty in projections concerning future rainfall, river flow, and water availability. Regarding the latter issues, studies find contradictory results; some predict floods and increased runoff, while others predict water scarcity and possible droughts. It seems evident that proper governance of the GERD in the face of these uncertainties demands a response to two contradictory scenarios, either increase in water availability and flooding or water scarcity and drought; each of which requires opposite adaptation strategies. If climate change reduces the available water in the Nile Basin, competition for water between Ethiopia, Sudan, and Egypt will only intensify, possibly leading to conflict. If the available water resources increase due to climate change, this will create a need for new legal responses to flooding. In either case, flexible legal arrangements governing the GERD will be crucial to adapt to climate change.

Part I of the article introduces the mechanisms that can provide flexibility in watercourse treaties; it reviews the practice of various water-sharing countries and encapsulates the principal ways of building a climate-proof treaty. Part II analyzes treaty flexibility in the Nile Basin and probes the intrinsic capacity of the 1959 Nile Treaty between Egypt and Sudan, and the 2010 Cooperative Framework Agreement. Part III specifically addresses whether the Declaration of Principles contemplates a flexible legal arrangement for governing the GERD under climatic uncertainty. After answering in the affirmative, this part also proposes a flexible basin wide treaty capable of accommodating the ramifications of climate change, and an institutional mechanism for coordinated operation dams in the Nile Basin. Part IV provides concluding remarks, which call upon Nile Basin States and other water-sharing States to set aside their egoistic national interests and address the ramifications of climate change by developing flexible and climate-proof treaties.

The full article is available via the Environmental Law Reporter website.

Tags: Egypt, Ethiopia, GERD, Grand Ethiopian Renaissance Dam, Nile Basin, Nile River, Sudan
Posted in Africa, Middle East, Transboundary Rivers, Water Conflicts | 2 Comments »

Sink or Swim: Alternatives for Unlocking the Grand Ethiopian Renaissance Dam Dispute

Monday, March 22nd, 2021

The following essay by Mahemud Tekuya is a summary of his recently published article (under the same title) in the Columbia Journal of Transnational Law. Mr. Mahemud is a Ph.D./JSD candidate in International Law and Legal Studies at McGeorge School of Law under the supervision of Professor Stephen McCaffrey. He can be reached at mahmudeshetu@gmail.com.

For the past five years, Ethiopia, Sudan, and Egypt have negotiated the filling and annual operation of the Grand Ethiopian Renaissance Dam (“GERD”), but failed to strike a deal acceptable to them all. In August 2019, Egypt submitted proposals on the filling and operation of the dam and later effectively internationalized the GERD negotiations by involving the United States government and the World Bank as observers. The three states then held meetings with the United States Department of Treasury and the World Bank’s representatives in both Africa and Washington, D.C.

The Washington talks, which at first were progressing well, took a turn for the worse in January, resulting in a stalemate. The United States, evidently going beyond its status as an observer in the talks, proposed an agreement that Ethiopia considered adverse to its national interest. Ethiopia rejected the proposal and withdrew from the final meeting. The U.S. Department of the Treasury requested that Ethiopia sign the proposed agreement and cautioned Ethiopia to refrain from testing and filling the GERD without an agreement with Egypt and Sudan. Ethiopia expressed its disappointment with the statement and announced that it would proceed with filling the reservoir in parallel with the construction of the dam as agreed to in the Declaration of Principles (DoP) that the parties signed in March 2015. Egypt, on the other hand, signed the United States proposal and vowed to protect its interests in the Nile River “by all available means.”

The Nile River Basin. Source: Nile Basin Initiative

Although disguised in talks over the GERD’s filling and operation, the current tension between Ethiopia and Egypt is principally related to their longstanding disagreement over the validity of the 1902 Anglo-Ethiopian Treaty, the 1929 Anglo-Egyptian Treaty, and the 1959 Nile Treaty between Egypt and Sudan (collectively, the “colonial Nile Waters Treaties”). This disagreement—which reached an apex during the negotiations of the Cooperative Framework Agreement (CFA)—is adversely adversely impacting the GERD negotiations.

This article analyzes the implications of the colonial Nile Waters Treaties for the ongoing GERD dispute between Ethiopia and Egypt. The negotiations over the filling and operation of the GERD are the focus of a voluminous body of academic literature. Political scientists have extensively studied the hydro-hegemonic implications of the GERD in their effort to determine “who gets how much [of the Nile] water, when, where, and why?” Other scholars have addressed whether the GERD will be a source of conflict or a catalyst for cooperation. Engineers and hydrologic experts studied the GERD’s positive and adverse effects and proposed various scenarios for the filling and operation of the dam. Legal scholars have explored some of the substantive issues concerning the legal developments in the GERD dispute, including the DoP. What the academic discourse regarding the GERD lacks, however, is a detailed study analyzing the ramifications of the colonial Nile Waters Treaties on the GERD negotiations, the legitimacy of the United States’ role in the GERD negotiations, the U.S. Treasury statement vis-à-vis international law, and solutions for resolving the GERD dispute.

This article intends to fill these gaps in the scholastic discourse on the GERD negotiations. The first part of the article briefly introduces the disputes over the colonial Nile Water Treaties as well as the context for the fragmented legal regime that currently governs the Nile Basin. It also addresses the interplay between the colonial Nile Waters Treaties and the DoP and submits that the latter does not abrogate the former. Part II analyzes the implications of the Nile Water Treaties for the post-DoP talks on the filling and operation of the GERD. It discusses the justifications for the involvement of the United States and the World Bank, and explores recent sticking points in the GERD talks. Part III examines whether—as the U.S. Treasury has suggested—a preliminary agreement is required to fill and test the GERD. It further probes the legitimacy under international law of the United States’ involvement in the GERD. Part IV explores alternatives for resolving the GERD dispute, such as negotiation, mediation, and judicial settlement. Finally, the article offers its concluding remarks and a call for Egypt, Ethiopia, and Sudan to, inter alia, stop approaching the Nile watercourse as a zero-sum game and cooperate for their mutual benefit.

The full article can be accessed here.

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Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

Monday, September 28th, 2020

The following essay by Dr. Zeray Yihdego and Julie Gibson is a summary of their recently published monograph (under the same title), which appears in Vol. 5(3) 2020, pp. 3-90 of Brill Research Perspectives in International Water Law. Dr. Yihdego is Professor and Chair of Public International Law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego@abdn.ac.uk. Ms. Gibson is a Doctoral Researcher with the Strathclyde Centre for Environmental Law and Governance, Strathclyde School of Law. She can be reached at julie.gibson@abdn.ac.uk.

Over the past few decades, in an attempt to balance the competing uses and trade-offs on international watercourses, a number of water resources management paradigms have been developed. From Integrated Water Resource Management (IWRM) and water security to nature-based solutions and the Water-Energy-Food (WEF) Nexus, each framework has applied a new lens through which to view the governance of transboundary resources. These frameworks have undoubtedly proved useful, each approaching water governance from a different perspective allowing both synergies and gaps across multiple sectors and uses. However, in many cases, each of these frameworks function within their own body of research and fail to identify overlaps and duplication of efforts. And each one attempts to ‘reinvent the wheel’ rather than focussing on long-term solutions and taking a holistic perspective of the frameworks already in existence.

Existing largely separated from these policy sphere frameworks is International Watercourses Law (IWL). IWL provides a number of key principles including equitable and reasonable use and the duty to prevent significant harm, which have become the foundation of many water governance regimes. Yet, in many ways, IWL provides only a broad framework for States to follow and is not sufficient to systematically consider the trade-offs of water use across multiple sectors such as energy and food.

Both areas – of policy and of law – bring clear benefits. Policy frameworks often provide more ambitious targets, which may be more tangible than IWL, as can be seen within the Sustainable Development Goals (SDGs). They may also be more industry/business focused, as is the case with the WEF nexus and can look for more scientific solutions to transboundary water governance. In this sense, policy frameworks can, therefore, fill some of the gaps which exist within the body of IWL. But the use of certain policy frameworks may be fleeting. Development agendas expire and notions of water security or nature-based solutions fall in and out of fashion. Thus, by linking to IWL, the temporal scope of these agendas can also be lengthened, underpinned by a legal framework, thereby demonstrates only one of the benefits of integration.

This monograph tests this theory of integration by viewing IWL, the WEF Nexus and the Sustainable Development Goals in an integrated manner termed the Law, Nexus Goals (LNG) approach. It explores the extent to which the WEF Nexus and the SDGs can support a progressive, realistic and balanced interpretation of the core principles of IWL and the cardinal rule of equitable and reasonable use in particular. Specifically, it asks and demonstrates how the SDGs and WEF Nexus could be mutually supportive in tackling the tension between competing uses and trade-offs between sectors.

This LNG approach is applied to the case study of the Zambezi River Basin, an extremely complex and fast-developing watercourse with a strong history of cooperation. Our findings demonstrate that even where sound IWL frameworks and cooperative processes exist, this does not guarantee a focused, measurable and sustainable outcome that is capable of addressing tensions among riparian and competing water uses in all cases. A more integrated and holistic framework could go some way to developing a more comprehensive and progressive water governance approach within transboundary river basins.

The monograph presents a perspective of integrated governance, bridging both law and policy. It illustrates the complexities of managing shared water resources that are subject to multiple uses – as illustrated through the Zambezi – and demonstrates how making the most of existing frameworks, rather than forming new ones, could be a positive driver for strengthened IWL implementation.

The monograph is derived from research conducted under the €5.5M four-year EU Horizon 2020 funded DAFNE project, which concerns the promotion of integrated and adaptive water resources management. The project explicitly addresses the WEF Nexus and aims to promote a sustainable economy in regions where new infrastructure and expanding agriculture has to be balanced with social, economic and environmental needs. The project takes a multi- and interdisciplinary approach to the formation of a decision analytical framework for participatory and integrated planning to allow the evaluation of decisions based on social, economic and environmental needs, thereby reflecting sustainable development. The monograph, therefore, derives its perspectives from the interdisciplinarity within the project.

You can access the monograph here.

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African Basin Management Organizations: Contribution to Pollution Prevention of Transboundary Water Resources

Monday, July 20th, 2020

The following essay by Dr. Komlan Sangbana is a summary of his recently published monograph (under the same title), which appears in Vol. 5 (1) 2020, pp. 1-76, of Brill Research Perspectives in International Water Law. Dr. Sangbana is a Legal Officer at the Secretariat of the Convention on Protection and Use of Transboundary Watercourses and International Lakes (UNECE) and a Research Fellow at the Platform for International Water Law housed by the Faculty of Law at the University of Geneva. He can be reached at komlan.sangbana@un.org

Shortly after their emergence as independent states, African countries established basin organizations and commissions. Some basin organizations, such as the Inter-State Committee established by states sharing the Senegal River basin, namely Guinea, Mali, Mauritania, and Senegal, were already established in the 1960’s. The Lake Chad Basin Commission and the River Niger Commission were both established in 1964. While economic integration justified this initial impetus of African countries towards the establishment of basin organizations, several challenges, such as transboundary freshwater pollution and low water quality due to the multiplication of development projects, have become a growing concern in the recent decade. The chief concerns of African countries in this respect were to avoid the dramatic consequences of water pollution for the quality of life of populations, the aquatic ecosystems, and biological diversity. Poor or unilateral management of transboundary water basins may cause these negative consequences for local communities living near international watercourses.

This monograph examines the important role that basin organizations play in the protection of water resources in Africa and offers suggestions to enhance their efficiency by looking at their normative and institutional frameworks. It is divided in four sections.

The first part is an introduction that provides an overview of the existing basin organizations in Africa, their different goals and multiple objectives. It offers an analytical framework for understanding the proliferation of basin organizations in Africa, as well as their legal typology.

The second part of the monograph discusses the contribution of basin organizations in the elaboration of pollution control standards. Focusing on the standard-setting role of these bodies, it unveils how basin organizations foster cooperation among member states and assists them in preventing transboundary pollution. In that respect, it reviews the processes and norm-based arrangements that inform the adoption of pollution control standards. Furthermore, it explores the various normative tools used by African basin organizations to regulate the conduct of their member states and their nationals, while taking into account the increasing involvement of non-state actors in the exploitation and management of transboundary water resources.

The third part of the monograph examines the contribution of African basin organizations to the implementation of pollution control standards. In this regard, it critically analyses the procedural and institutional tools that African basin organizations use to ensure the respect for the rule of law. Noting that the support that African basin organizations provide to their member states is as diverse as the organizations themselves, this study chooses to focus on the most analytical relevant aspects of their mandates. Thus, it addresses the scope and features of their control and monitoring activities and their mandates as far as the settlement of dispute is concerned.

The fourth part, which is a general conclusion, provides concrete suggestions derived from African practices of transboundary water management for the prevention of the pollution of transboundary water resources, as well as for enhancing cooperation and strengthening the role of basin management organizations.

From this study, it is clear that over time, the protection of water resources and their ecosystems has become a key focus of basin organizations in Africa. The development, adoption and implementation of pollution control standards by basin organizations have widened the remit and greatly strengthened the role of these institutions. As such, basin organizations have become central actors in the domain of African regional law for the protection of freshwater resources and the environment more generally.

The monograph is dedicated to the memory of Professor Kader Asmal (1934–2011) for his steadfast intellectual efforts to promote environmental protection in water governance.

The full article can be accessed here.

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Swimming Against the Current: Revisiting the Principles of International Water Law in the Resolution of Fresh Water Disputes

Wednesday, April 22nd, 2020

The following essay by Tamar Meshel, of the University of Alberta Faculty of Law, summarizes her recently published article in the Harvard International Law Journal under the same title. She can be reached at meshel [@] ualberta.ca.

There are currently two dominant views in the international water law (IWL) literature on the relationship between the customary international law principles of ‘equitable and reasonable utilization’ (ERU) and ‘no significant harm’ (NSH). The first view considers ERU to be the guiding principle of IWL and subordinates NSH to it, while the second view posits that the two principles are equal, and neither prevails over the other. Both views may be fit for purpose in the daily management of interstate fresh water resources and the prevention of disputes. In the context of resolving ever-increasing transboundary fresh water disputes (TFDs), however, the practical application of the two principles remains unclear, casting doubt on their ability to effectively guide states. This is evident, for instance, in the ongoing dispute between Ethiopia and Egypt concerning the Grand Ethiopian Renaissance Dam. While Ethiopia claims an equitable and reasonable right to build the dam, Egypt maintains its historic right to be free from significant harm that it claims the dam will cause it. The unclear relationship between the two principles thus enables states to cling to contradictory interpretations that suit their unilateral interests, thereby aggravating the dispute rather than resolving it.

In my article, I explore the potential for NSH to operate as the guiding principle of IWL and promote the resolution of TFDs. The strengths and weaknesses of ERU, as well as the historical evolution of both ERU and NSH, have been discussed in detail elsewhere. The article therefore largely takes the status quo described above as its starting point, and focuses on how the role that the two principles have played in the resolution of TFDs could be strengthened. Its contribution is not in arguing that ERU is an irrelevant principle to TFD resolution. Rather, while ERU remains the end goal of such resolution, the article posits that, both conceptually and practically, the means to this end is the NSH principle.

The article discusses two qualities of NSH that make it an appropriate guiding principle in the resolution of TFDs: First, its due diligence standard of conduct and second, its ability to balance states’ competing interests.

The due diligence standard of the NSH principle guides states on how to prevent or minimize the risk of significant harm. This standard can facilitate the resolution of TFDs since it does not simply impose an “amorphous negative duty” to avoid harm, but rather a “positive duty to take concrete steps” to prevent harm. It therefore makes such harm not only more easily attributable to a particular state, but also less likely to occur if diligence is exercised. The due diligence nature of NSH also clarifies that this principle does not constitute a rigid blanket prohibition of all harm, but rather a more flexible rule that enables states to prevent significant harm by requiring them to observe a basic and uniform standard of conduct.

River Nile route.
Wikipedia https://commons.wikimedia.org/wiki/File:River_Nile_route.jpg

In addition, the NSH principle can be used to objectively evaluate states’ competing water uses by way of a balance-of-harms analysis. This analysis weighs the overall detrimental effects of a particular water use against its overall benefits—or, in other words, the harm caused by prohibiting it. It achieves a balanced outcome by focusing on the relevant states’ mutual goal of avoiding the greater harm to each other, the environment, and the shared fresh water resource. The question guiding this analysis, moreover, is not whether a particular use is “equitable and reasonable” and should therefore be allowed regardless of the resulting harm, but rather what is the greater harm to be avoided—that caused by the particular use or that resulting from the loss of its benefits. This ensures that even where “equities presumptively [support] protection” of a particular use, “the balance of benefit and harm” is maintained.

The due diligence nature of NSH and its balance-of-harms analysis also operate to reduce the incredibly high transaction costs involved in the resolution of TFDs. Due diligence obligations contribute to the reduction of these transaction costs since they equip states with the common goal of preventing the greater harm, as well as with the tools to achieve it. The balance-of-harms exercise provides states with reciprocal protection as well as an objective yardstick with which they can evaluate each other’s behavior. NSH can therefore serve to reduce transaction costs arising from contradictory positions and the absence of a unifying, objectively assessable, guiding principle.

The article also evaluates the use of NSH and ERU in the resolution of TFDs in practice by analyzing six such disputes submitted to arbitration and judicial settlement. This analysis reveals that where only the ERU principle was applied by the court or arbitral tribunal, namely in the Danube River decision, the dispute was not successfully resolved. The absence of both principles in the Meuse River decision also did not lead to a successful resolution. In contrast, in the four disputes that were successfully resolved—Lake Lanoux, Indus River, San Juan River, and Uruguay River—the NSH principle was applied either alone (in the first three cases) or together with the ERU principle (in the latter case). This analysis is not intended to prove that the use of the NSH principle necessarily leads to the successful resolution of all TFDs, as such resolution ultimately depends on states’ political will and good faith. Nevertheless, it lends some empirical support to the conceptual proposition that NSH is well suited to guide states toward successful resolution.

In their current state, the ERU and NSH principles fail to provide effective guidance to states faced with TFDs. At the same time, these disputes are likely to continue arising around the world, making effective international rules even more imperative. This article suggests an alternative to the prevailing views of IWL, which treats the NSH principle as its guiding principle for the purpose of TFD resolution. This approach builds on NSH’s due diligence standard, and proposes a balance-of-harms analysis to assist states such as Egypt and Ethiopia in weighing their competing interests and minimizing or preventing the most significant harm. Using NSH in this way promises to achieve both harm prevention and equitable and reasonable use––the dual goals of IWL.

The full article can be accessed here.

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Botswana, Namibia and South Africa Develop Joint Governance Mechanism for the Stampriet Aquifer System in the Orange-Senqu River Commission

Monday, December 9th, 2019

The following essay was prepared by Stefano Burchi, Chairman of the International Association for Water Law (AIDA), and former consultant to the GGRETA project. He can be reached at stefano.burchi [@] gmail.com.

Background

The Stampriet Transboundary Aquifer System (STAS) stretches from Central Namibia into Western Botswana and South Africa’s Northern Cape Province, and lies entirely within the Orange-Senqu River Basin (see map). The STAS is a very large transboundary aquifer system, receiving relatively insignificant recharge, in a semi-arid to arid region without permanent surface water. It covers a total area of around 87 000 km², of which 73% lies in Namibia, 19% in Botswana, and 8% in South Africa. The area is sparsely populated with slightly over 45,000 persons concentrated in communities ranging from small rural settlements to villages and towns. Groundwater is the major source of water in the area and provides potable water to the population and livestock and for irrigation. There currently are no industrial or mining activities taking place in the STAS area. Over 20 million m³/year of groundwater is abstracted from the Aquifer, a considerable majority of which occurs in Namibia (over 95%). The largest consumer of water is agriculture in the form of irrigation, followed by stock watering and domestic use. There is a sizeable amount of water that is lost through evaporation and to invasive plant species and that is difficult to estimate.

With financial assistance from the Swiss Agency for Development and Cooperation (SDC), and with the technical assistance of UNESCO-IHP, the STAS countries have been actively cooperating in assessing the aquifer and its characteristics since 2013, through the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project. That project aims to facilitate cooperation among countries sharing select transboundary aquifers (TBAs). In addition to the STAS, the GGRETA project is active in Central America on the Ocotepeque-Citalá Aquifer shared by El Salvador and Honduras (see here), and in Central Asia on the Pre-Tashkent Aquifer System shared by Kazakhstan and Uzberkistan.

Location of the Stampriet Transboundary Aquifer System (in orange) and the Orange-Senqu River Basin (in green) in southern Africa

The first phase of the project (2013-2015) focused on an in-depth assessment of the STAS using existing data and information, which allowed for the establishment of a shared science-based understanding of the aquifer. The activities of the second phase (2016-2018) focused primarily on consolidating the technical results achieved and the tools developed in the first phase. It also addressed strengthening capacity of national water institutions and academia in groundwater governance at the national and transboundary levels in order to support the process of establishing a Multi-Country Cooperation Mechanism (MCCM) for the governance and management of the STAS.

The cooperation facilitated by the GGRETA project has yielded an in-depth assessment of aquifer characteristics, including current and projected uses of groundwater and likely future stress conditions under relevant factors.

The assessment also revealed a number of challenges:

lack of monitoring data seriously hampers a systematic diagnostic analysis of groundwater quantity-related stress;
pollution by humans and animals, and that caused by poor well construction and lack of protection, is currently localized in the shallower parts of the STAS;
although there is no mining or industrial activity in the STAS area at present, unregulated mining activities might lead in the future to pollution of the aquifer system due to its fragility and vulnerability;
vertical leakage between superposed aquifers is accelerating due to uncemented borehole casings and metallic corrosion.

In view of the importance of the aquifer’s resources to the future of the local population, the three countries sharing the aquifer concurred in 2016 on the desirability of establishing a Multi-Country Cooperation Mechanism (MCCM) for the joint governance and management of the STAS.

The STAS MCCM

On 17-18 May 2017, delegations from Botswana, Namibia and South Africa attended the 3rd meeting of the Orange-Senqu River Commission (ORASECOM) Ground Water Hydrology Committee (GWHC) and Technical Task Team (TTT), where they tabled a proposal to establish the STAS MCCM within the ORASECOM structure. The proposal was put before the 34^th Ordinary meeting of the ORASECOM Council, held 17-18 August 2017 in Windhoek, Namibia. The Council resolved that the STAS MCCM “be nested/housed” within the ORASECOM GWHC. While it is unclear whether the Council formally resolved to “establish” or “create” the mechanism, its intent to do so is clearly implied by its decision to “nest/house” such mechanism in the ORASECOM structure. Moreover, the Council resolution was subsequently endorsed by the Ordinary meeting of the ORASECOM Forum of the Parties (Ministers responsible for water), held on 16 November 2017 in Kasane, Botswana. Relevant milestones and a schedule of implementation were also approved, with implementation being reportedly in progress.

The STAS MCCM aims at integrating the GGRETA project support structure in the GWHC. The GGRETA project hydrogeology/model, legal and institutional, and gender National Focal Points (NFP) in the three countries will assist and report to the GWHC Officials on data collection, which will serve as a basis for the development of scenarios and project activities. In the short term, GWHC Officials will be in charge of updating the STAS joint borehole database during GWHC meetings, and reporting to the Technical Task Team (TTT) on the work program according to the planning and annual budget. The TTT will then report to the Council. Ad hoc Working Groups (AWG) composed of experts nominated by the Council or GWHC will be formed as and when necessary for the evaluation of studies, and to support the design of projects and activities. Other concerned stakeholders (e.g. the SADC Groundwater Management Institute) would be invited to GWHC meetings on a regular basis.

The long term vision is for the STAS MCCM to move from data collection and exchange to joint strategizing and advising STAS countries on the management of the aquifer and its resources.

The decision to “nest/house” a STAS joint governance mechanism in an existing river basin organization can be regarded as a breakthrough in many respects. First, it is the first arrangement for the governance of a transboundary aquifer since the adoption of the Sustainable Development Goals (SDGs) in 2016. Prior to the STAS cooperative mechanism, only a handful of formal agreements worldwide had been developed for TBAs (see summary at the end of the essay). Second, it is the first governance mechanism to be nested formally in a river basin organization, which attests to the Integrated Water Resources Management (IWRM) approach with potential for, in particular, the conjunctive management of groundwater and surface water. Third, the fact that activities related to the STAS are now built in ORASECOM’s 10-year IWRM Plan (2015-2024) can be regarded as an indicator of the sustainability of the institutiional arrangement made. As a result, ORASECOM will be responsible for the implementation and reporting on activities related to the STAS. Lastly, the process that led to the decision to institutionalize cooperation on the STAS was remarkably expeditious. The process was expedited by a combination of factors, chief among them a clear perception by the countries concerned of the advantages of cooperation in the face of the challenges looming ahead. The institutional architecture of ORASECOM, structured into a Forum of the Parties, a Council, a Secretariat, four standing Task Teams, and committees operating under the latter (among these, the GWHC operating under the standing Technical Task Team), also helped as the proposal that was initiated by the GWHC could quickly and seamlessly work its way up the institutional ladder to the highest decision-making body of the Commission, for a decision in less than a year.

Information generated by the GGRETA project and STAS databases are currently available at http://wis.orasecom.org/stas/

NOTE: Legally binding agreements are on record for the following TBAs: North-Western Sahara Aquifer System (Algeria, Libya, Tunisia); Nubian Sandstone Aquifer System (Chad, Egypt, Libya, Sudan); the Genevese Aquifer (France, Switzerland); and Al Sag/Al Disi Aquifer (Jordan, Saudi Arabia). An agreement on the Guaraní Aquifer (Argentina, Brazil, Paraguay, Uruguay) is pending delivery of the final ratification to the agreement’s secretariat, while an agreement on the Iullemeden Aquifer System (Algeria, Benin, Burkina Faso, Mali, Mauritania, Niger, Nigeria) is pending signature by some of the Parties.

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Shared Water Resources in West Africa – Relevance and Application of the UN Watercourses and the UNECE Water Conventions

Monday, April 16th, 2018

The following essay by Nwamaka Chigozie Odili is a summary of her recently published monograph (under the same title), which appears in Vol. 3(1) 2018, pp. 1-98, of Brill Research Perspectives in International Water Law. Mrs Nwamaka Odili is a Legal Officer with Federal Ministry of Justice, Abuja, Nigeria. She can be reached at amaka142 [at] yahoo.com.

West Africa has twenty-five shared watercourses but only six of them are governed by legal instruments. Yet, the region, like the rest of the world, is exposed to water-related stress due to the impacts of climate change, urbanization, and overpopulation. This position results in abundance of fresh water in some countries of the region and limited or scarce availability of the resource in others. The need for a regulatory framework for managing all the region’s transboundary watercourses, therefore, cannot be overemphasized. Although the principles of customary international law apply in all cases whether there are regulatory instruments or not, treaties create obligation that are needed to strengthen the international water law system. Global framework treaties like the UN Watercourses Convention and the UNECE Water Convention provide the needed support through universal norms ‘to shape the content of instruments adopted at the regional and basin level’ (Laurence Boisson de Chazournes, ‘Freshwater and International Law: the Interplay between Universal, Regional and Basin Perspectives’ (Paris, UNESCO, 2009) at 5).

Transboundary Watercourses in West Africa

Regulated

Transboundary Watercourse	Riparian States
Niger River Basin	Nigeria, Niger, Burkina Faso, Côte d’Ivoire, Benin, Cameroun, Guinea, Mali, Chad
Lake Chad Basin	Cameroun, Nigeria, Chad, Central African Republic, Niger, Libya
Volta River Basin	Ghana, Burkina Faso, Benin, Togo, Côte d’Ivoire and Mali
Senegal River Basin	Senegal, Guinea, Mali, Mauritania
Gambia River Basin	Gambia, Guinea, Guinea Bissau, Senegal
Koliba-Korubal River Basin	Guinea and Guinea Bissau

Non-Regulated

Transboundary Watercourse	Riparian States
Cross River Basin	Nigeria and Cameroon
Akpa Yafi River Basin	Nigeria and Cameroon
Queme River Basin	Nigeria and Benin
Tano River Basin	Ghana and Côte d’Ivoire
Komoe River Basin	Côte d’Ivoire, Ghana and Burkina Faso
Atui River Basin	Mauritania and West Sahara
Mono River Basin	Togo and Benin
Bia River Basin	Ghana and Côte d’Ivoire
Sassandra River Basin	Guinea and Côte d’Ivoire
Cavally River Basin	Côte d’Ivoire, Guinea and Liberia
Cestos River Basin	Côte d’Ivoire, Guinea and Liberia
St John River Basin	Liberia and Guinea
St. Paul River Basin	Liberia and Guinea
Loffa River Basin	Liberia and Guinea
Mana Morro River Basin	Liberia and Sierra Leone
Moa River Basin	Liberia, Sierra Leone and Guinea
Little Scarcies River Basin	Sierra Leone and Guinea
Great Scarcies River Basin	Sierra Leone and Guinea
Geba River Basin	Guinea Bissau, Guinea and Senegal

Since adoption of the General Act of Berlin in 1885, which dealt, inter alia, with the Niger River, more agreements have been contracted for the management of some of the shared watercourses in West Africa, particularly in the post-colonial era. Hence, West Africa contributed through these agreements to the development of international water law prior to the adoption of the UN Watercourses Convention and the UNECE Water Conventions in the 1990s. Initial instruments dealt primarily with navigation, while later agreements addressed the need for co-operation and incorporated other principles of customary international water law. The two conventions, no doubt, have influenced this trend such that water regimes in the region improved over time. This raises the question: do riparian states in West Africa need to be parties to either or both water conventions to enhance management, sharing and protection of their shared watercourses?

The influence of the UN Watercourses Convention in the region is established because water regimes implemented after adoption of the UN Watercourses Convention reflect some of its substantive and procedural provisions. Moreover some countries in West Africa are parties to the Convention. On the other hand, influence of the UNECE Water Convention in the region is limited and its potential benefits have yet to be determined. Article 25 and 26 of the UNECE Water Convention were amended to allow non-UNECE states that are members of the United Nations to become parties to the Convention. However, its mandatory provisions regarding basin organization and compliance with its stringent requirements, details, and tasks necessitates significant foreseeable financial and technical resources, which countries in West Africa now lack.

Although most West Africa water instruments are flawed by loopholes and there is need to address the problems generated by unregulated shared watercourses in the region, West Africa nations do not need to be contracting parties to both the UN Watercourses Convention and the UNECE Water Convention. What West Africa needs is a treaty position that accommodates the reality of the management of its transboundary water resources. Adoption of global treaties by the states of West Africa is not sufficient because the universal law in those treaties needs to be complemented by regional or basin agreement for realistic implementation. The important issue is not which global convention the states belong to, but rather how strong and efficient transboundary water resources management in the region has grown over time. To achieve this goal and to further address major gaps and failings in transboundary water resources management in West Africa, states in the region could negotiate a region-based water treaty to reflect the needs and concerns of the region and supplement it with basin-specific treaties.

The entire article is available here.

Posted in Africa, Brill Research Perspectives – International Water Law, International Water Law, UN Watercourses Convention | Comments Off on Shared Water Resources in West Africa – Relevance and Application of the UN Watercourses and the UNECE Water Conventions

Disputes over International Watercourses: Can River Basin Organizations make a Difference?

Friday, July 21st, 2017

The following essay by Sabine Blumstein and Susanne Schmeier is a summary of a recently published book chapter titled “Disputes Over International Watercourses: Can River Basin Organizations make a Difference?”. Ms. Blumstein works as a Project Manager at adelphi. Ms. Schmeier is Coordinator for Transboundary Water Management at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). They can be contacted at: blumstein[at]adelphi.de.

Disagreements or even full-fledged disputes over the use of water resources in shared basins have increasingly made headlines in the past years. Developments in the Mekong, Nile, Syr Darya, Indus and other basins have led more and more scholars, as well as policy-makers and journalists, to warn of the risk of water conflicts or even wars. This revives – albeit in a more informed manner – the water wars debate of the early 1990s. While much progress has been made since then – especially through the creation and institutionalization of cooperative arrangements in many shared basins – disputes nonetheless continue to occur. And they do occur even in basins with River Basin Organizations (RBOs) in place, which have often been set up to solve, mitigate or prevent such disputes.

However, research on transboundary river basin management as well as empirical evidence from basins around the world suggest that RBOs do make a difference. They provide a variety of direct and indirect mechanisms for dispute resolution, as discussed in a recently published chapter which appeared in “Management of Transboundary Water Resources under Scarcity. A Multidisciplinary Approach”. In this chapter, the authors shed light on how RBOs engage in the solution of disputes that arise over water resources in transboundary basins. And they show that it is not dispute-resolution mechanisms in the narrow sense – often identified as the key if not the only instruments RBOs provide – that make a difference in whether a conflict is solved peacefully in a cooperative manner. Instead, it is the broader cooperative framework of RBOs that matters.

The authors review existing dispute resolution mechanisms of international RBOs around the world in a comprehensive manner. Their research indicates that more than 50% of the 121 analyzed RBOs have a dispute resolution mechanism in place – seemingly a good starting point. Among those, they identify three broader categories of RBO dispute resolution mechanisms: bilateral negotiations between those RBO members involved in a disagreement; RBO-internal mechanisms; and external actors’ involvement. Often, states have opted to establish more than one step in the respective dispute-resolution mechanism, structuring the processes in two instances with different mechanisms to be applied. For instance, bilateral negotiation between disputing parties (facilitated by the RBO) are often followed by a possible engagement of external actors – both 3^rd party mediators and judicial ones.

The authors also provide explanations for why dispute resolution mechanisms vary around the world (in terms of existence in the first place, but also in design). Often, it is the history of cooperation (also beyond the water sector) that determines both the existence as well as the exact design of dispute resolution mechanisms. The high share of dispute resolution mechanisms in African RBOs, for example, can be explained by the past conflicts found in many African basins as well as the high presence of international donors, which often consider well-defined dispute-resolution mechanisms as a prerequisite for successful cooperation. In Europe, on the other hand, the existence of cooperation mechanisms (including specific instruments for solving disputes) in many issue-areas has limited the need for well-defined dispute resolution mechanisms within specific basins and RBOs.

Regional distribution of dispute-resolution mechanisms in RBOs

In the second part of the chapter, the authors analyze two conflicts in greater detail in order to shed more light on how exactly RBOs make a difference in solving or mitigating disputes in shared basins. For the Mekong River Basin, they find that while the Mekong River Commission’s (MRC) dispute resolution mechanisms themselves (see Art. 34 and 35 of the 1995 Mekong Agreement) might seem insufficient for addressing issues as complex as recent hydropower developments and related inter-state conflicts, the MRC provides ample other tools for ensuring that such disputes get addressed in a cooperative manner and on the basis of comprehensive technical data and information. Although having been criticized by many scholars, the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) and the processes established around them (e.g. the identification of environmental and socioeconomic baselines, the establishment of guidelines for impact mitigation, etc.) have ensured that disagreements have been handled in a rather cooperative manner. This is particularly obvious if compared to similar situations of unilateral hydropower development in other basins around the world.

For the Nile River Basin, the authors find that the Nile Basin Initiative (NBI) did not directly contribute to diplomatic negotiations or any other form of direct resolution of the conflict around the Grand Ethiopian Renaissance Dam (GERD), which can partly be explained by the absence of any NBI dispute resolution mechanism. In addition, the lack of any notification mechanism or requirement to exchange data/information on planned infrastructure measures which could potentially impact downstream countries, prevented the NBI to play any significant role in averting the dispute in the first place. Despite this limited role in conflict prevention and direct diplomatic engagement, NBI played an important role in defusing the conflict through broader activities around data and information sharing and increasingly distributing this knowledge to the broader public. The RBO’s activities regarding knowledge distribution and more neutral reporting through national media is an important contribution to de-securitize national discourses around the construction of GERD and hence a precondition for any ﬁnal resolution of the dispute.

While the findings reveal that the existence of specific dispute resolution mechanisms in a narrow sense does not necessarily influence the success of dispute resolution and depends on a number of other intervening factors, RBOs as a whole do matter in 2addressing water-related conflicts. This is because RBOs provide a range of instruments beyond pure dispute resolution mechanisms: amongst others, they provide platforms for negotiation and exchange, data and information exchange or notification procedures. These instruments are of key importance to solve, contain or even prevent conflicts. Water practitioners and policy actors should therefore not exclusively focus on the specific dispute resolution mechanisms provided by RBOs but be aware of and actively use the broader repertoire of governance instruments provided by RBOs to avoid and solve evolving disputes in transboundary river basins.

Posted in Africa, Asia, International Water Law, New Resources & Information, Transboundary Rivers | Comments Off on Disputes over International Watercourses: Can River Basin Organizations make a Difference?

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.

After 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

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.

Posted in Africa, Brill Research Perspectives – International Water Law, International Water Law, Middle East, Transboundary Rivers, Water Conflicts | Comments Off on The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

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.

The 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 4^th 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.

Posted in Africa, International Water Law, Middle East, Transboundary Rivers | 2 Comments »

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