By Mohammed Ali Mohammed
Since the last decade of the 19th century, various and series of water agreements were concluded regarding the use of the Nile waters. However, regrettably, the agreements were bilateral, which excluded most riparian states in such a way that denies their natural and legal rights over the shared water resources. The agreements were concluded mainly to promote the colonial interest of Great Britain and later on that of Egypt. Great Britain concluded various agreements the terms of which restrained upper riparian states from diverting or modifying the flow of the Nile towards Egypt. With the end of British colonial rule in the area, Egypt pursued the same objective of securing the Nile water to its exclusive benefits. As examined hereunder, most of colonial and post colonial treaties didn’t take into account the rights and interest of upper riparian states.
The 1891 Anglo-Italy treaty
On 15 April 1891, Great Britain representing Egypt and the Sudan and Italy, on behalf of Eritrea signed an agreement whereby the Italian government undertook not to construct on the Atbara River, in view of irrigation, any work which might sensibly modify its flow into the Nile. The reason for Italy to sign this agreement without any consideration is not clear and this may render the validity of the agreement questionable; and by its very nature, ceased effect with Italian and British colonial rule in the region. Despite its viability, anyone can deduce, from the obligation imposed on Italy, that the significance of the agreement was to safeguard the interests of Great Britain and its colonial subject, Egypt.
The 1902 Anglo-Ethiopian Agreement
In 1902, Great Britain dispatched John Harrington to Ethiopia to negotiate border and Nile water issues with Emperor Minilik II of Ethiopia. Article III of this Anglo-Ethiopian Treaty Provides:
“His majesty, the Emperor Minilik of Ethiopia, engages himself towards the Government of His Britanic majesty not to construct or allow to be constructed any works across the Blue Nile, Lake Tana or the Sobat, which would arrest the flow of their waters into the Nile except in agreement, with His Britanic majesty’s Government and the Government of the Sudan” (emphasis added)
However, there is no evidence as to the ratification of the agreement of the parties to it. More arguably, there is no reason for Ethiopia to contract out its natural and legal rights to use the water resources within its territory. On the other hand, it is argued that neither the dictionary meaning of the word “arrest” nor its contextual meaning is understood as not consuming/using the Nile water. Rationally seen, the assurance had been made against a probable and complete stoppage of the Nile water without an agreement on a mutually satisfactory basis. In support of this argument, the Amharic version of the said Article specifies that “as long as Minilik did not “stop” the flow of the waters, the agreement did not restrict him from equitably using the Nile water within his territory.
Notwithstanding that this agreement has been controversial as to the meaning of the word “arrest”, it has never been ratified by both parties. On top of that even if one assumes that the signatories originally intended to subordinate Ethiopia’s interest on the Blue Nile to Sudan’s consent, it could be contested that, in the circumstances of a century, situations on use of shared water resources have been changed dramatically rendering Article III of the 1902 agreement in applicable based on the doctrine of
rebus sic stantibus.
The 1906 Tripartite Agreement
Having secured an apparent commitment from Ethiopia in 1902 and from Independent state of the Congo in 1906; not to tamper with the Blue Nile and the White Nile as well, the British went one step further by soliciting identical assurances from the colonial rivals of the region, Viz. Italy and France. Consequently, on 13 December 1906 Britain, France and Italy reached the so called tripartite agreement to safeguard the interest of Great Britain in Ethiopia’s sub-basin by regulating, without prejudice to Italy’s interest, the waters of the Nile and also agreed to protect the interest of Ethiopia. Ironically, it is difficult to imagine how they could claim to protect Ethiopia’s interest without consulting or inviting Ethiopia to take part in the agreement process, while it was an independent state at the time.
This treaty denied “the absolute sovereignty” of Ethiopia over its water resources and resulted the then Ethiopian government in immediately notifying its rejection of the agreement by indicating that no country had the right to stop it from using its own water resource; despite neither Ethiopia’s military power nor its international political and economic influence was strong enough to protect its sovereign rights over its water resource.
It is ridiculous to conclude an agreement over the property and rights of a third party without inviting or in the absence of that party. The Tripartite agreement included a provision requiring the powers to act in concert to preserve the interest of Great Britain and Egypt in the waters of the Nile and its tributaries. In any case, this agreement has no binding force on Ethiopia for it was not party to it, while the country was independent as this agreement was concluded.
The 1925 Anglo-Italian exchange of Notes
On 20 December 1925, Britain and Italy concluded an agreement by exchange of notes, whereby Italy agreed to recognize the prior rights of Egypt and the Sudan on the headwater of the Nile and guaranteed not to construct on the headwater and its tributaries any works that might sensibly modify their flow into the main river. The parties also agreed to continue their contact with Ethiopia and to endeavor to obtain concessions from Ethiopia for the construction of a dam on Lake Tana as storage for use on the Blue Nile Valley during scarcity.
When news of the Anglo-Italian agreement of 1925 reached Addis Ababa, it aroused an angry reaction and Ethiopia, by then a member of the League of Nations, dispatched a protest note to members of the League and the British and Italians as well. The Ethiopian Government wrote to the Italian government as follows:
“The fact that you have come an agreement, and the fact that you have thought it necessary to give us a joint notification of that agreement, make it clear that your intention is to exert pressure, and this in our view, at once raises a previous question. This question which calls for preliminary examination must therefore be laid before the league of Nations”
And the protest Note to the British government:
“The British government has already entered into negotiations with the Ethiopian government in regard to its proposal, and we had imagined that, whether that proposal was carried into effect or not, the negotiations would have been concluded with us; we would never have suspected that the British government would come to an agreement with another government regarding our lake.”
These letters embarrassed the two governments and they backed away from their position and declared publicly that they did not harbor any ambition on the sovereignty of Ethiopia. When an explanation was required from the British and Italian governments by the League of Nations, they denied challenging Ethiopia’s sovereignty over Lake Tana.
The 1929 Anglo-Egyptian Agreement
Similar to that of the 1925, the 1929 Anglo-Egyptian agreement was concluded by exchange of notes between Egypt and Britain, acting on behalf of Sudan and the East African countries, riparian states to Lake Victoria. The agreement was concluded in Cairo on May 7, 1929, and entered into force the same day. The primary motivation of this agreement was to facilitate an increase in the volume of water reaching to Egypt by constructing reservoirs on the Equatorial Lakes as well as Lake Tana and by increasing the yield from the Swamps in Southern Sudan. In spite of their awareness of the fact that Sudan needed considerably more water than it was using then, the Egyptians insisted on special consideration based on their historical right and the requirement for the extension of irrigated agriculture. Article 4(b) of the Egyptian note which is accepted by Britain, provides:
“Save with the previous agreement of the Egyptian government no irrigation or power works are to be constructed or taken on the River Nile or its branches, or on the lakes which it flows so for as these are in the Sudan or in countries under British administration, which would in such a manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water arriving in Egypt, or modify the date of its arrival or lower its level.
As can be deduced from the above provision, the main significance of the 1929 agreement was to secure the exclusive interest of Egypt over the Nile at the expense of the other riparian states. The agreement had simultaneously granted Egypt the right to inspect and investigate any control work along the whole length of the Nile. However this agreement, had not been accepted by the Sudan and the East African countries for it is not based on the principle of reciprocity. The agreement purports to confer rights on Egypt in the East African territories without any corresponding obligations; the later obtain no rights in Egypt. It seems reasonable for the upper riparian states to reject the 1929 agreement for it gives Egypt the right to veto any project on the Nile that could adversely affect its interests.
Ethiopia, on its part, did not recognize the validity of the 1929 agreement nor did it ever accept Egypt’s claim to acquired historic rights. Ethiopia maintained that the whole exercise of the agreement was geared mainly to protect and to promote Egypt’s interests without any reciprocity and that it had not renounced its own quantitatively unspecified but existing natural right to the Nile waters in its territory.
The 1959 Agreement Between Egypt and Sudan
The changing circumstances since the adoption of the 1929 agreement required a new legal arrangement for a more rational and fair distribution of the Nile waters. What is fair and rational distribution of the Nile waters can be assumed by referring to the circumstances under which the two countries agreed. The Sudanese had been contesting that the 1929 agreement was no longer valid for it had been reached by Britain and Egypt without consulting with the Sudan and had discriminated against them. As soon as the Sudan gained its independence in 1956, it called for the revision or abrogation of the 1929 Anglo-Egyptian agreement. Incidentally, the Sudanese demand for the revision of the 1929 agreement was forwarded at a time when the Egyptian were contemplating in making a deal with the Sudanese that could enable Egypt to construct the envisaged Aswan High Dam.
As distinct from the arrangements for the partial use of the Nile waters in the 1929 agreement, the 1959 agreement particularly address the issue of “full control” and “full utilization” of the Nile waters. To refer to full utilization and full control of the river where there were only two states involved in the agreement rather than all of the basin states, especially the upper ones who contributes the entire volume of the water, seems rather anomalous. Ironically, Ethiopia which contributes about 86 percent of the Nile water, and the east African states contributing the remaining portion of the water had not been invited to this agreement. Contrary to common sense, the two states acted as if the Nile starts in the Sudan and ends in Egypt and left no room for the other riparian states. Needless to say, the two downstream states are simply recipients and users, dependent on water from the Ethiopian high lands and the East African lakes.
In the 1959 Agreement Egypt was allotted 55.5 billion m3, while the Sudan was allowed to use the remaining 18.5 billion m3 of the Nile water, in that the ratio of the Sudan’s share to Egypt’s that was 1:12 in the 1929 agreement was elevated to 1:3 in 1959. Literally, this agreement set up a zero sum game in the Nile basin by ignoring the natural and legal rights of the remaining riparian states to the bounty of the Nile water resources. Consequently, the 1959 agreement was made between Egypt and Sudan to the exclusion of the other Nile riparian states, and as such it can only create obligations between the two states and cannot bind the other riparian states without their consent res inter alios acta. The general rule is that international agreements bind only the parties to them. The reasons for this can be found in the fundamental principles of the sovereignty and independence of states, which posit that states must consent to rules before they can be bound by them. More relevantly, the two states failed to comply with the internationally accepted rules and principles governing the utilization of international watercourses, which impose prior consultation and agreement with all riparian states specifically interested or affected by rivers of common interest.
The upstream states, including Ethiopia, are of the opinion that such an agreement is unfair; and is valid between the two countries only and that they need to harness the water in a fair and rational manner. Ethiopia, in particular had rejected the validity of the 1959 agreement, both during its negotiation and at its conclusion. In an Aide memoir of 23 September 1957 addressed to the diplomatic mission in Cairo, the government of Ethiopia declared that:
“Ethiopia has the right and obligation to exploit its water resources for the benefit of present and future generation of its citizens [and] must, therefore, reassert and reserve now and for the future, the right to take all such measures in respect of its water resources.”
The Aid memoir concludes that:
“under the circumstances, Ethiopia done that source of nearly the entirety of the waters involved must, once again, make it clear that the quantities of the water available to others must always depend on the ever increasing extent to which Ethiopia, the original owner, will be required to utilize the same for the needs of her expanding population and economy.”
Despite Ethiopia’s protest, Egypt went ahead with the construction of the Aswan High Dam with the help of the Soviet Union. The Sudan also constructed the Roseires Reservoir on the Blue Nile and other works as provided in the agreement. Consequently, irrigation, hydro electric power and water supply projects have become the basis for the downstream countries to claim historical water rights over and above those of remaining riparian states in the basin. However, the upper riparian states do not feel bound by the 1959 agreement in any way and contend that they have the right to exploit their water resources within their territories.