Posts Tagged ‘Nile River’

Finally! the Nile Basin Cooperative Framework Agreement Enters into Force

Monday, July 15th, 2024

The following post is by Dr. Salman. M.A. Salman, an academic researcher and consultant on water law and policy and former water law advisor to the World Bank. You can reach Dr. Salman at SalmanMASalman [at] gmail.com.

In a stunning development, the Republic of South Sudan announced on Monday 8 July 2024 that its Transitional National Legislative Assembly (TNLA) unanimously voted to accede to the Nile Basin Cooperative Framework Agreement (CFA) [see here].

The CFA (also known as the Entebbe Agreement) has an intricate history which dates back to 1999, following the establishment by the Nile Basin riparian countries of the Nile Basin Initiative (NBI). The main objective of the NBI has been to conclude a cooperative framework agreement that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all the Nile riparians. Work on the CFA, facilitated by the World Bank, the UNDP and other donors, started immediately after the NBI was formally established, and continued for more than ten years.

However, the process ran into some major difficulties as a result of the resurfacing and hardening of the respective positions of the riparians over the Nile colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters. Egypt and Sudan demanded an explicit reference to those uses and rights (termed as their “water security”) in the CFA; a demand that was vehemently rejected by the other riparians who broached the banner of “equitable and reasonable utilization.” Those differences persisted and could not be resolved at the negotiations or ministerial levels, and no agreement on the final draft CFA could be reached.

Nonetheless, on 14 May 2010, in an historic development, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda, and were subsequently joined by Kenya and Burundi, raising the number of the signatories to six.

The CFA lays down some basic principles for the protection, sharing and management of the Nile Basin. It establishes the principle that each Nile Basin state has the right to use, within its territory, the waters of the Nile River Basin, and lays down a number of factors for determining equitable and reasonable utilization. The CFA is modelled largely on the UN Convention on the Law of the Non-navigational Uses of International Watercourses.

In addition to the factors enumerated in the Watercourses Convention, the CFA includes the contribution of each basin state to the waters of the Nile River System, and the extent and proportion of the drainage area in the territory of each basin state [see here]. The CFA will enter into force 60 days after six countries have ratified or acceded to the document and deposited their instrument with the African Union; i.e. on 6 October 2024.

The process of ratification of the CFA started in June 2013, four years after its signature, by Ethiopia, followed in August of that year by Rwanda. Tanzania ratified the CFA in 2015, followed by Uganda in 2019, [see here]. Burundi joined those four riparians and ratified the CFA in 2023, raising the number of ratifications critically to five [see here].

Subsequently, all eyes were cast on the ratification by Kenya, the sixth country to sign the CFA, which would enable the CFA to enter into force. However, that did not take place. Instead, South Sudan did it, putting Kenya in the awkward position of being the only signatory not to ratify the CFA.

The Republic of South Sudan emerged as an independent state on 9 July 2011, and was admitted to the NBI on 5 July 2012 [see here]. That decision clearly favored the Nile upper riparians, based on ethnicity, geography, history, culture and interests. When it joined the NBI, South Sudan could not sign the CFA because the signing process closed in 2000, long before its birth. But, it could accede to the instrument.

The pressures from each of the two sides to the CFA on South Sudan kept South Sudan wavering on accession and none-accession to the CFA for a long time. In fact, the proposed bill for the accession of South Sudan had been on the agenda of the TNLA since mid-2023, until its unanimous sudden approval was announced on 8 July 2024.

The entry into force of the CFA will create new momentous realities which Egypt and Sudan cannot, and indeed should not, overlook or underestimate. It will enable the establishment of the Nile Basin Commission replacing the NBI with wider and more elaborate mandate, power, visibility and recognition by the world water and development aid communities. Entry into force of the CFA will also end the long academic and futile debate on the Nile colonial treaties. Thus, it is for Egypt and Sudan own interests to join the CFA, and to work in the spirit of cooperation with the other Nile riparians to manage, share, develop and protect the Nile River Basin. Afterall, and as mentioned above, the CFA is modelled on the UN Watercourses Convention that was endorsed by more than one hundred countries in 1997, and has been in force since 2014.

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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.

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