The Nile riparian countries opposed the 1929 and 1959 agreements which gave Egypt and Sudan supremacy over the utilization Nile resources. The growing population, changing climate and a need for development led many countries to look for avenues to tap the water resources of the Nile. This made the countries look for other arrangements by which there could be equitable utilization of water. Thus they agreed to sign the Cooperative Framework Agreement (CFA) of 2010. So far six countries-Burundi, Ethiopia, Kenya, Tanzania, Uganda, and Rwanda have signed pull out of the negotiations. Egypt wanted its previous (historical) rights over Nile to be left untouched, while the other nations wanted a new arrangement. The disputed Article 14(b) is now included in the Annex of the CFA and it is to be resolved by the Nile River Basin Commission which would be constituted under the CFA. South Sudan’s assent with respect to the Framework is also highly debated.
In order to understand the “legal and institutional ramifications of the entry into force of CFA”, an extra-ordinary meeting of Nile Council of Ministers political situation in Egypt should continue. They, however, decided to continue discussions with the three non signatory nations. In July 2012, Annual Meeting of Nile-COM was held in Kigali and the Nile Ministers have been meeting on different occasions, including on the sidelines of multi-lateral fora.
Blue Peace for the Nile 83
Nevertheless, formal or informal dialogue on legal and institutional ramifications of CFA has been insufficient and inconclusive.
CFA contemplates under Article 2 the “use, development, protection, conservation and management of the Nile River Basin and its resources”
as well as the establishment of “an institutional mechanism for cooperation among the Nile basin states”. The agreement lists 15 principles under Article 3 which would guide the use of Nile by the states. It is important to note that most of the principles are also established principles of customary international law such as “equitable and reasonable utilization”, principle of no harm, principle of territoriality, peaceful settlement of dispute, prior notification of planned measures and community of interest.
Other principles included within the framework are - exchange of information, cooperation, sustainable development, protection and conservation and environmental impact assessment. The social and economic value of water as well as the principle of water security wherein states “have a reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment”
is also stressed upon in this framework. It also recognizes water as a “finite and vulnerable resource”
thus advancing toward sustainable development which ensures that economic development is not done at the cost of degradation of the ecosystems.
While the CFA is progressive and includes provisions which encourage parties to equitably utilize the Nile river without causing transboundary harm or adversely affecting the environment, a scrutiny of the provisions reveal that state adherence to this agreement as well as its implementation is a difficult task to achieve without the spirit of cooperation and the sincere commitment towards joint management of the Nile River. Further, some of the states have undertaken projects whose continuance is a clear violation of the provisions of this draft framework.
It is to be noted that before the ratification of an instrument, a state is not bound by its provisions.
However a signature in itself signifies that the state cannot do anything that would “defeat the object and purpose of the treaty” as per Article 18 of the Vienna Convention on the Law of Treaties, 1969.
In this regard let us examine the provisions of the CFA. Article 4 of the CFA requires the Nile Basin States to “in their respective territories utilize the water in an equitable and reasonable manner.” This is to be achieved by taking into consideration 9 factors including:
“social and economic needs of the basin states”
“the population dependent on the water resources of each state”
“the effects of the use or uses of the water resources in one Basin State on other Basin States”
“the existing and potential uses of the water resources”
“the availability of alternatives of comparable value to a particular planned or existing use”
and the “contribution of each Basin States to the waters of the Nile River System”.
The states are under an obligation to consider all the factors, and any potential use should be based on consideration of the aforementioned factors taken together. Thus any project undertaken by a state for the utilization of Nile River should take into account all the aforementioned principles in order for it to be termed “reasonable and equitable utilization” under Article 4.
Further, provisions of the CFA such as Article 5 reiterates the principle of ‘no harm’ which is a well established principle of customary international law, wherein states are under an obligation to ensure that utilization of resources within their territory cause no significant harm to other basin states. If such harm is caused or is likely to be caused, measures to prevent/
mitigate the harm should be taken as given under Article 11.
Article 6 incorporates the principle of cooperation
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and sustainable development by ensuring that the states “individually and where appropriate, jointly, to protect, conserve and where necessary, rehabilitate the Nile River Basin and its ecosystems”.
It lays particular emphasis on the protection and conservation of wetland as well as the protection and the improvement of “the quality of water within the river Nile”. This is in line with the obligation of the Nile Basin countries under international law embodied in treaty form as well as under customary international law. For example the Ramsar Convention on Wetlands to which all the Nile nations except Ethiopia, Eritrea and South Sudan are signatories to, is the international instrument for the conservation and protection of wetlands. It places an obligation on parties to designate the relevant areas in their countries as a wetland under the convention and work towards its protection. The Convention on Biological Diversity to which all Nile basin countries except South Sudan are a party to is another example of a treaty body which embodies the principle set in Article 6. The principles under the convention are also regarded as customary international law. Further, the Convention on the Law of the Non-Navigational Uses of International Water Courses (1997) also stresses on the protection of watercourse and ecosystem, as well as prevention of pollution. It can thus be noted that the obligations under Article 6 of the CFA is also indicative of the norms under international law which has to be adhered to by the state parties.
However, it would be pertinent to note that the Nile basin countries and especially the present state parties would find it difficult to implement and abide by this provision particularly under Article 6(1) (a) which makes it necessary for the states parties under this draft framework to take all measures appropriate towards the protection and improvement of water quality within the Nile River Basin. This entails a major responsibility of prevention as well as mitigation of pollution – industrial, agricultural or domestic that would affect the quality of Nile water. This form of prevention and even reduction is extremely difficult
and would certainly overshadow development projects.
CFA also enumerates Environmental Impact Assessments (EIA) under its general principles (Article 3(11)) and it is to be noted that EIA’s are recognized as part of the principle of cooperation. The 1949 Corfu Channel case at the International Court of Justice led to the establishment of the principle that the state parties are under a duty to inform other states of any environmental hazards that may be caused in their territory and which may adversely affect other states. This principle was later codified under Article 8 of the International Law Commission’s (ILC) draft articles on the Prevention of Transboundary Harm from Hazardous Activities 2001 which stipulates the duty of a state to inform the victim state when there appears to be a risk of significant transboundary harm. The International Law Association(ILA), a body established in 1873 mainly for the development of both public and private international law concluded in its report that the obligation of a state to inform the victim state of “new or increasing pollution” is a principle of customary international law. This principle of customary international law has evolved into the provision of Environment Impact Assessment found in several international instruments, now including the CFA. It is particularly important to note that the requirements of Environment Assessment have been incorporated by international organizations such as the World Bank for the purpose of funding projects.
A violation of this provision under Article 3 read with Article 6 could be alleged for example in the case of the Grand Renaissance Dam. While an International Panel of Experts for the assessment of the dam has been constituted, the environment impact assessment report is yet to see the light of day. In the absence of such an assessment, the move to go forward with such projects would be a clear violation of international law as well as provisions of the CFA.
Article 10 hinges towards community participation in order to implement a project to utilize the Nile
Blue Peace for the Nile 85 have an opportunity to voice their concerns. However, recent reports on displacement of people, mostly indigenous with no redressal mechanism, the massive harm on the environment and the ecosystems caused by the implementation of projects further point to the difficulty of States parties in adhering to the provisions of CFA.
The most contested of all the provision of the CFA is Article 14. Egypt and Sudan want the provision to recognize the “current uses and rights” of Nile basin states which the 6 upper riparian states refused to accept. It is to be noted that the upper riparian states seem to be advancing their arguments on the utilization of Nile waters and rejecting the claim of the lower riparians on one criterion alone and that is the economic and developmental needs of the upper riparian states. Other factors such as the existence of other sources of water in the upper riparian regions, the massive dependence of the lower riparians for the survival of its people is not taken into consideration.
The task of effective implementation of the CFA is given to the proposed Nile Basin Commission (NBC). However, there seems to be an uncertainty of the coming into existence of such a body as it is dependent on the ratification of the CFA, availability of resources, as well as the smooth transition of the responsibilities of the NBI to the NBC. The discrepancy in transition also arises when states such as Egypt and Sudan which are not parties to the CFA, are parties to the NBI. It could be thus inferred that it would take a reasonable amount of time for the NBC to come into existence and then formulate rules and procedure on implementation. Also, it seems that the states neither want to be bound by any other previous agreements/
arrangements nor have they come to a conclusion on which principles of customary international law is applicable to them. This raises two important
questions:
Under this uncertainty with neither a governing body in existence nor a legal regime agreed upon, can the states unilaterally move forward with the projects on Nile which would ultimately be in violation of the CFA?
Further, when the NBC comes into existence and formulates rules, will and can the states halt the projects that have already significantly progressed but are in violations of the rules formulated by the NBC and thus in violation of the CFA?
In situations such as these, it seems more relevant to first enter into consultations, agree upon certain matters and then make progress. Any unilateral act without adequate consultations would only raise more disputes of a legal nature in the future.