The Issue of the Nile in light of international water sharing principles (Mekdelawit Messay)

Editor’s Note : Egypt claims “historical right” over Nile. In her opinion piece, Mekdelawit Messay argue that “there has been an evolution in international trans-boundary water allocation principles.”

Nile _ international water sharing principles
Tis Isat Fall – part of the Nile River

by Mekdelawit Messay
March 9, 2020

Discussions on the filling and operation of the Grand Ethiopian Renaissance dam (GERD) has been escalating in recent weeks. Although on face value discourse from all sides seems to talk about “equitable and reasonable use” and “no Significant harm”, the underlying premise behind the arguments from different sides point to completely varying underlying principles of transboundary water sharing. So, let us break this down. 

There has been an evolution in international trans-boundary water allocation principles. Let’s start with the narrow and short-sighted ones.

1. Absolute territorial sovereignty also known as “The Harmon Doctrine” named after the Attorney General of the US in 1895, came up with this ideology when the US (an upstream state in this case) was dealing with Mexico (a downstream state) over the transboundary Rio-Grande river they share. This doctrine states that a nation can utilize the waters of a trans-boundary river flowing in its territory as it likes regardless of the consequences to other countries. One can see how this doctrine clearly favours the US as an upstream country and how irresponsible and short-sighted it is. Owing to its obvious bias and flaws even the US did not adopt this ideology in their final negotiations with Mexico.

2. Absolute territorial Integrity is the polar opposite of the above. It states that downstream countries are entitled to the full, uninterrupted natural flow of a trans-boundary river. What does this mean? It means upstream countries cannot use the water at all!! Again, clearly very short-sighted. In essence this is the principle that Egypt is following when it demands a “historic share” of 55.5 Billion Cubic Meters (BCM) of water per year. This so called “historical share” of 55.5 BCM comes at the cost of Ethiopia and the other upstream countries using none, zero, absolutely nothing of the Nile water. The number don’t lie!

The so called 1959 “agreement” allocates 55.5 BCM for Egypt plus 18.5 BCM for Sudan and 10 BCM for evaporation which equals 84 BCM. 84 BCM is the average annual flow of the Nile river! THE TOTAL Nile water flow. That is the 1959 agreement! It also gives Egypt veto power over upstream projects, which is a breach in national sovereignty of upstream nations but that is a talk for another time. Therefore, any negotiation or talk that starts with 55.5 BCM water share for Egypt has this underlying principle at heart and not equitable and reasonable use.

3. The Principle of Prior Appropriation, another archaic ideology, states that first users of transboundary waters have the right to continue using the amount of water they used to, regardless of new developments in other countries! Does this sound familiar? Yes! Egypt demands “historical rights” because they used the water first, because they are used to using it, even though population as well as demand for use upstream has increased drastically and the other countries also need to use their fair share. Again, this does not echo reasonable and equitable use, rather a very one-sided first come first serve attitude.

The modern-day water sharing principles are more moderate. We have the principle of limited territorial sovereignty which states that ALL riparian countries have the right for EQUITABLE and REASONABLE use of the shared water and the obligation to not cause SIGNIFICANT HARM. This is more sensible, which is why it is the foundation for modern day international water laws, such as the 1966 Helsinki rules, the 1997 UN watercourse convention, the Corporative Framework Agreement (CFA) signed by 6 out of the 11 Nile countries and the declaration of principles (DOP) on the GERD signed by Egypt, Sudan and Ethiopia as well as many other agreements on other trans-boundary waters worldwide.

While current customary water laws are explicit in vouching for equitable and reasonable water use without causing significant harm, applying these principles in the Nile basin seems to be a very big problem! Why? The sticky point in the Nile is that we are dealing with a stakeholder who is used to enjoying the whole cookie, so ANY kind of sharing feels like injustice! The problem with the Nile is that we are dealing with a stakeholder who feels entitled to a water “share” that comes at the cost of other not using any! What kind of “sharing” is that? It does not really matter if the public rhetoric is for a fair and equitable use. As long as we are citing the 1959 “Agreement” and using 55.5 BCM as a threshold for dialogue we are not discussing equitable and reasonable use, because that “treaty” hinges on the upstream countries using absolutely none of the water as mentioned above. 0 BCM for the other 9 countries!!!!! How is this even in place? Well, the 1929 and the 1959 treaties were both signed to secure enough water for British cotton plantations in the then colonial Egypt and Sudan without regard for the future of the basin. Now we have the US in place of the British with a “new” neo-colonial agreement they are trying to shove down our throat, which Egypt is so keen to sign on. Why? What changed in 4 months after 7 years of tripartite negotiation? Well I argue that this American deal will ensure Egypt’s perceived entitlement of their water share.

Unless we consider the whole basin as a whole as an economic unit and have a basin wide collaboration to maximizing the benefits of the water for the whole basin, there is no way Egypt or Sudan can keep their current “share”. This however requires significant regional economic and political integration. But since we are still far from this economic unity, let us at least try and keep history from repeating itself. Let us have a sane and reasonable conversation.

The GERD is only a hydropower project; it is not water consumptive like irrigation. What happens when Ethiopia launches massive irrigation projects as planned? We have 1.25 million hectares of irrigable land which will contribute significantly towards food security. What happens when the other 8 upstream countries also want to use their fair share? It is inevitable! The only way forward is let go of these colonial treaties and a “me only” mentality and engage in a progressive dialogue for an inclusive basin wide water allocation agreement, which the CFA is in the process of achieving.

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