Introduction
On 14 May 2010, four Nile Basin states (Ethiopia, Rwanda, Tanzania and Uganda) signed the Cooperative Framework Agreement (CFA) to develop the resources of the River Nile for mutual benefit. This new agreement took over 10 years to negotiate between all riparians and provided a blueprint for international cooperation within the Nile Basin. Days later, Kenya signed up to the agreement, leaving the parties just one signatory short of the two-thirds required for it to enter into force. This article provides a short commentary on the hydropolitics of the process and implications for future cooperation on the Nile.
The four states that did not sign on 14 May were Burundi, the Democratic Republic of Congo (DRC), Egypt and Sudan.1 Burundi and Congo were expected to have signed together with the other five Nile upstream riparians, but for Burundi, one of the reasons presented for not signing was that presidential elections were due in June and the outgoing government was not in a position to commit to new international agreements.2 Much of the regional media reported, however, that the reason for reluctance on the part of these two riparians was political pressure being exerted by Egypt, including provision of diplomatic and financial ‘incentives’ for these states not to sign (Daily News Egypt 2010). For Egypt, the stakes were high and only one of the two states was required to sign in order to create a two-thirds majority under which the CFA agreement would become valid (Reuters 2010; also Al-Ahram Weekly 2010).
As a result, Burundi came top of Egypt's foreign policy agenda from mid-2010 onwards. This small upstream country, largely ignored beforehand by Cairo, exchanged high-level visits with Egypt's government and business officials (Al-Masry Al-Youm 2010a; also African Press Agency 2010a, 2010b; Al-Masry Al-Youm 2010b). Egypt promised bilateral cooperation and investment in Burundi in return for Burundian acknowledgement that no agreement in the Nile Basin should be signed against Egyptian interests. Implicitly, therefore, Burundi would ‘refrain’ from signing the CFA (Al-Masry Al-Youm 2010c; also African Press Agency 2010c). Egypt's strategy imploded with the convulsions that took place from January 2011 onwards. With turmoil across Egypt, Burundi saw an opportunity to take forward its allegiances with upstream states and duly signed the CFA on 22 February 2011 (Bloomberg 2011). The game had changed for Egypt and Sudan.
The main point of contention within the CFA for these two downstream countries is the wording of Article 14b on ‘Water Security’, which states:
the Nile Basin States therefore agree, in a spirit of cooperation, to work together to ensure that all states achieve and sustain water security and not to significantly affect the water security of any other Nile Basin State.
Egypt and Sudan expressed their reservations to the ambiguous article, and considered that the last sentence of Art. 14b should be replaced by the following wording: ‘… not to adversely affect the water security and current uses and rights of any other Nile Basin State’.
(emphasis added)
All of Article 14b in its current form was annexed to the signed CFA, but not included in the main body of the agreement.
At the core of disagreement over this article is the reference it makes – however obliquely – to existing agreements signed in 1929 and 1959, which apportioned all the Nile's flow to Egypt and Sudan alone. The 1929 Agreement was signed between Egypt and Britain (on behalf of Sudan as part of the Anglo-Egyptian Condominium), and established particular volumetric water allocations for the first time: 44.4 billion cubic metres (bcm) for Egypt and 4.5 bcm for Sudan (Agreement 1929; cf. Godana 1985; Okidi 1994). This agreement became the legal basis for subsequent Egyptian and Sudanese claims to historical rights over Nile waters. The 1959 Nile Waters Agreement (NWA) guaranteed minimum flows of the river based on a notional annual flow of 84 bcm as measured at Aswan: 55.5 bcm to Egypt and 18.5 bcm to Sudan, with 10 bcm assumed lost to evaporation from Lake Nasser/Nubia which was created behind the High Aswan Dam, built following the agreement. This figure of 84 bcm/year is based on the calculation of average flows over a century at Aswan. There is some dispute as to the accuracy of this figure. Waterbury (1979, pp. 22–23) suggests that the data used to calculate these volumetric water allocations are in fact underestimates that are based on the lowest averages of Nile flows. Such an underestimation would necessarily mean that Egypt receives annually at Aswan far more water than is officially declared.
Upstream states contend that the signing of these treaties was during a period of colonial rule and means that they are no longer valid. Of equal if not more significance for the current Nile impasse is the fact that the 1959 Agreement was concluded at a time of great political change during the Cold War era and by two newly independent states – Egypt and Sudan. The Soviet Union and the United States had begun to overtake Britain's strategic dominance in the region after the Suez crisis in particular, and both Egypt and Sudan had started coming under Eastern Bloc influence. With Soviet support, Egypt began to construct the High Aswan Dam which for the first time enabled the capture of more than an entire annual Nile flood, most of it stored within Egypt's national borders.
After 1971, when the dam was completed, the Nile in effect became one long irrigation ditch from Aswan to the Mediterranean. Rapid expansion of irrigated agriculture took place in the Nile Valley and Delta. Hydropower production also increased markedly and the High Aswan Dam provided 50% of Egypt's energy supply in its early years (though falling to less than 15% today). This provided energy for industrial expansion and helped to light the country's burgeoning cities. The dam became the most potent symbol of the Nasserist Revolution and of Egypt's national development and regional political strength.
For upstream states, however – and their superpower allies – the dam also represented an era of continued Egyptian hegemony over the Nile. After the signing of the 1959 NWA, the United States began a comprehensive study of potential dam sites on the Blue Nile in Ethiopia (United States Bureau of Reclamation [USBR] 1964). At this time, Ethiopia's Imperial Regime was an important strategic ally. Though none of the proposed developments came to fruition, the very threat of upstream development helped to stoke Egypt's water security fears. Vision of the Nile's flow blocked behind dams upstream in Ethiopia became established within mainstream public consciousness. Bellicose political statements – echoed in the national media – followed from the government on the consequences of dams upstream on the Blue Nile and its tributaries.
For Sudan, caught in the middle between the major Nile water ‘producer’, Ethiopia – where some 85% of the total Nile's flow derives – and the major ‘consumer’, Egypt, the 1959 Agreement was not a particularly good deal. Nevertheless, in part due to its post-independence weakness, Sudan was cajoled into signing the NWA by its more powerful northern neighbour. The NWA guaranteed Sudan a share of the Nile waters – 18.5 bcm compared with Egypt's 55.5 bcm. Although this was a substantial increase on the 1929 Agreement, the country was not in a position to utilise much of this allocation for several decades. In addition, the filling of the reservoir behind Aswan had several adverse effects, including the displacement of thousands of Sudanese Nubians.
Egypt, however, was in position to use – and reuse – its allocation under the Agreement. The irrigation system took water upstream on the river, delivered it to crops and then returned it further downstream through drainage in a continued (and relatively efficient) recycling of flow. As a result, Egypt's actual utilisation of the Nile exceeds its official quota, partly because it also receives additional ‘unutilised’ water from Sudan each year and any excess flows over and above the 84 bcm received at Aswan. The Sudanese refer to the water they do not use as ‘water-on-loan’ (El-Zain 2007, p. 14). Currently the ‘loan’ so-called is an estimated 4 bcm/year given Sudan's stated usage of around 14.6 bcm (Ministry of Agriculture and Forests, Sudan [MAF] 2000, the official number). In spite of the uneven nature of benefits and costs between the two signatories, the 1959 Agreement has persisted to this day and a Permanent Joint Technical Commission established to oversee the provisions of the agreement has persisted even during periods of extreme political tension between Cairo and Khartoum. The 1959 Nile Waters Agreement has remained the single largest piece of hydropolitical furniture in the Basin to this day.
Changing geopolitical contexts
From the 1960s to the 1980s, much of Africa, including the Nile Basin, remained locked in the embrace of the two superpowers. However, during the late 1980s this grip began to weaken as the Soviet Union and its Eastern Bloc allies felt the effects of perestroika and glasnost. In the mid 1980s, the geopolitical landscape in the Horn of Africa began to change too, reflecting the weakening Cold War embraces. This was a time of intense military confrontation between a slowly weakening Soviet-backed regime and a strengthening rebel movement in Ethiopia. At the same time, exceptionally low rainfall in the Ethiopian highlands contributed to a globally emblematic famine in 1984/85 which began to redefine the international community's response to development issues in the Nile Basin. Exceptionally low flows on the Nile caused unprecedented concern in Egypt too where the levels of the river by mid 1988 had become such a national security concern that they were on the masthead of national newspapers on a daily basis. Built to secure Egypt's water supply, the reservoir levels at Aswan had fallen to levels so alarmingly low that they threatened the closure of hydropower turbines.
The eventual toppling of the Mengistu Haile Mariam government in Addis Ababa in 1991, although one of the smaller sideshows to wider geopolitical shifts, nevertheless had profound resonance throughout the region. Ethiopia's new government had an ostensibly developmental outlook and was quick to capitalise on international goodwill, mindful of the impacts on this hugely populous country of the devastating famine suffered in 1984/85. Population, development and food security issues in upstream states became part of a wider development dialogue with aid agencies and donors as political space opened up across the basin in Kenya, Uganda and Tanzania too. The nature of development discourse moved from exchanging slogans on sovereignty over waters to a more comprehensive and basin-wide approach which sought benefits through joint development of the river. This discourse was strengthened further by a new platform for dialogue – the Nile 2002 Conferences – launched in Aswan in 1993 and held each successive year for a decade. This informal ‘track-two’ process contributed to parallel donor initiatives, including greater collective action under the Nile River Basin Action Plan.
The 1990s – in search of Nile cooperation
Combined with the geopolitical shift and widening and deepening of development dialogue on the Nile, new international recognition of a standard for cooperation on shared rivers was enshrined in the 1997 UN Water Convention (International Law Commission (ILC) 1997). The Convention emphasises the notion of equitable water and benefit sharing.3 This concept provided a useful alternative for states seeking cooperation without wishing to enter into complex international legal processes on water sharing. The new ‘orthodoxy’, if it can be called that, was captured in the Nile Basin Initiative (NBI), established in February 1999 by nine riparians.
The increasing entente cordiale between Ethiopia and Egypt was a key plank in the NBI and was facilitated, inter alia, by the two states' wider co-interest in combating political threats. These included the rise of Islamism in the region (for Egypt, the Muslim Brotherhood, and for both, state change in Sudan towards a more Islamist orientation and state disintegration in Somalia). The new entente provided a window of opportunity through which donors, including the World Bank, could support a more formal process of hydropolitical cooperation in the basin. This was initially in the form of the ‘D3 Project’, which later became the Cooperative Framework Agreement (CFA). D3 aimed at constructing a legal and institutional framework for cooperation and was initiated in 1997 with financial support from the UNDP. D3 sought to conclude a new multilateral agreement on cooperation but shied away from discussing the status of existing water treaties, as expected at the outset by upstream riparians.
The second process set in motion was the NBI. This represented a temporary mechanism for strengthening cooperation and identifying potential joint investment projects between all riparians. The expectation of many was that after the conclusion of the multilateral agreement through the D3 process, the NBI would be replaced by a permanent Nile Basin Commission. The length of this ‘transitional period’ was left undefined, however, and became an important factor in the ensuing dead lock between upstream and downstream riparians.
The genesis of the CFA and the NBI
The CFA enshrined a number of international legal principles including the ‘equitable and reasonable utilisation’ of water resources preferred by upstream riparians, but also the ‘no-harm’ and ‘prior notification’ principles emphasised by Egypt and Sudan. Whilst the CFA negotiations proceeded slowly, the NBI was quickly institutionalised and a secretariat established in Entebbe. Two subsidiary action programmes at the sub-basin level in the Eastern Nile (in Addis Ababa) and the Nile Equatorial Lakes region (in Kigali) began identifying joint water projects for implementation and enabled a neat side-stepping of the World Bank's (1994) Operational Directive 7.5 on lending within shared basins. In the past, this Directive had prevented the World Bank from financially supporting hydraulic projects in upstream Nile states when there was downstream opposition (most notably from Egypt). The new subsidiarity principle enabled financing through lower (and easier to achieve) levels of agreement. Donors, particularly some bilaterals, the World Bank and the African Development Bank – other donors felt less sure – were encouraged to achieve ‘quick win’ development projects which would, they believed, provide examples of confidence building to strengthen the wider NBI.
Realpolitik – beyond Nile cooperation
The NBI Subsidiary Action Programs (SAPs) played an important role in reinforcing the new political confidence enjoyed between riparians. Nevertheless, the ‘cooperation’ represented by the NBI also masked realities including the continuation of unilateral developments by countries including Egypt, Ethiopia and Sudan. In Sudan the exploitation of its oil wealth with Chinese and other Asian countries' support enabled domestic financing for new dam projects at a time when the country remained blacklisted by the international financial system. This new-found wealth allowed the government to complete the Merowe Dam in 2009 which added substantial hydropower capacity to the Sudanese grid. Further dams were subsequently planned on the main Nile. In Egypt domestic financing of the Toshka project – which diverted excess water from the Lake Nasser/Nubia reservoir – opened up large areas of the south-western valley to agricultural expansion. Questions remain over the financial and political viability of this huge undertaking particularly given its remoteness, but the project was mainly justified by former President Mubarak on the grounds that it could help reduce population pressure in the Old Valley.4 Finally, Ethiopia pressed ahead and constructed the Tekezze Dam with Chinese support, substantially increasing hydropower generation.
In spite of the paraphernalia of international cooperation under the NBI and D3 negotiations, some countries pushed ahead with national projects that were neither part of joint cooperative regional assessments, nor strictly speaking, in the spirit of wider ‘benefit sharing’. This latter notion became a centrepiece of the NBI and held that through working jointly and cooperatively countries could optimise the benefits available to all. Worse still, for some countries the projects also signalled political manoeuvring to establish ‘facts on the ground’ – particularly in Egypt and Sudan. Projects that would increase water use would strengthen positions on acquired rights, even if the projects resulted in relatively higher net losses from the system because of poor siting of dams in areas of high evaporation losses. More significantly perhaps, in Ethiopia the Tekezze Dam emphasised across the basin that Chinese backing and technical expertise could and would assist states in taking forward their unilateral projects.
The logic of cooperation through regional development suggested that benefits should be maximised by situating hydropower dams and their reservoirs in countries where evaporation losses are reduced—for example, in Ethiopia's cooler highlands where the ‘head’ is also greatest and could generate up to 30,000 MW of power, with significantly lower water loses. Moreover, under this logic, most large-scale irrigation would be in Sudan where vast tracks of fertile soils are still available. The reality on the ground, however, showed that narrower national economic and political interests continued to prevail over the logic of cooperative action in part because of the slow pace of change under the NBI.
Negotiations under D3/CFA dragged on through the 2000s until a split took place along upstream–downstream lines in 2007. After 10 years of negotiations, the final document was almost complete and riparian states had reached consensus on 38 out of 39 articles. At the Nile Council of Ministers (Nile-COM) meeting in February of that year, the anticipated conclusion to the agreement (and the one desired by upstream riparians) failed to take place. Instead, Nile security issues returned to the fore and responsibility for finally concluding the document moved from technical and legal experts to heads of state.
The tipping point
Although the technical–legal negotiations were declared to have ended at the Nile-COM meeting in 2007 in Entebbe, subsequently representatives (including negotiators and advisors) of the Nile riparians held extraordinary meetings on the future of the CFA document, and in particular what to do with Article 14b. In the latter part of 2007 and throughout 2008, talks continued between states but failed to reconcile ‘water security’ with existing treaties and the demands of upstream states for a fairer basis on which to continue international cooperation. Upstream states were keen to accept an ambiguous definition of water security that would not make specific reference to water reallocations, but neither would it refer to past agreements. This was considered a possible compromise in order to move ahead with the establishment of the permanent Nile Basin Commission, and at the same time ensure the commitment of the two downstream riparians. However, although Egypt and Sudan had earlier appeared ready to accept ambiguity as a diplomatic solution – given the oft-repeated media reports that an agreement was near – they then reverted to earlier hard-line positions on the new agreement explicitly recognising their existing uses and rights to the Nile waters. Upstream countries, that had argued that the goal of the CFA was not to acknowledge historical agreements but instead to move to a new era of cooperation, regarded this as unacceptable. The upstream riparians interpreted the changed wording as a way to legitimise the past agreements instead of moving away from them, and rejected it as a whole (The Standard 2007; The New Vision 2007).
Soon after the end of the negotiations in 2007, the role of the international donor community came under scrutiny. Increasingly some of the riparians viewed the World Bank's role as having moved from that of neutral facilitator to value-laden stakeholder. This was because the Bank was believed to be pushing for an all-inclusive Nile Basin Commission and thereby rejecting the option of a Commission being established by a majority of states. Other major Nile donors, both multilateral and bilateral, tacitly supported this position, whilst remaining silent in public. This apparent taking of sides was reported at the time to have angered upstream states, who perceived that donors had begun exerting pressure in support of the downstream position on the CFA's final wording (for example, The East African 2009).
Continued delay led the seven upstream riparian states to form an unofficial bloc in support of the existing CFA text. They increasingly warned downstream states that they would sign as a bloc and thereby create a new internationally recognised agreement in the basin, citing two main reasons.5 First, because the window of opportunity created in 2007 when the agreement was almost concluded by all riparians was rapidly closing, and not to sign would have wasted 10 years of serious and legitimate multilateral negotiations. Second, because the NBI was nearing the end of its first phase of programmes (many of the Shared Vision Programs were phased out in 2009), and the Nile Trust Fund was expected to be phased out in 2011. For this reason alone, the establishment of a new vehicle for donor funding (i.e. the Nile Basin Commission) became an imperative for upstream riparians.
High-level meetings during late 2007 and 2008 were inconclusive, and the riparians could not agree on Article 14b. The options were: (1) annexe Article 14b and return to negotiations over that article, but under the auspices of the new Nile Commission; (2) delete and forget about it altogether; or (3) renegotiate it again from scratch. Upstream states were in favour of the first two options; downstream states were in favour of the third option. Again, countries could not reach a consensus, and at the end of 2009 during a Nile-COM meeting in Sharm el-Sheikh the upstream riparians decided they could wait no longer and announced that signing of the new agreement would take place on 14 May 2010, after which the Agreement would remain open for signature for a year. By May 2010, five upstream riparians had signed the CFA. Burundi finally signed in February 2011, and the DRC has yet to do so.
2011 – the beginning of the end of the status quo
The new challenge to the Nile basin status quo changed dramatically in 2011. The CFA has the sixth signatory, which means that it is open for ratification. At the same time political space has opened up even further in the basin with the passage of two major events.
The first was in Sudan. Although a referendum on the secession of Southern Sudan was included in the Sudanese Peace Agreement (of 2005), few believed the referendum would take place as scheduled in January 2011 or that it would be conducted in a peaceful manner. The emphatic vote with 99% in favour of separation means that an 11th riparian state will join the basin in July 2011, representing an additional competitor for resources, but also an additional partner in negotiations and agreements, including the CFA. Given the equivocal attitude of the incoming Southern Sudanese government towards the 1959 NWA – and their claims on future water allocations – this is a worrying scenario for Egypt.
However, the second event, which came totally unexpectedly, overshadows such worries but has important long-term bearing on Nile Basin development. Once the Basin's most monolithic and stable political system, Egypt underwent major convulsions in January 2011 which have changed the nature of the Egyptian state and, potentially, its relationship to Nile development issues. Although it is unlikely that there will be a sea change in Egypt's position on the Nile and how the Nile figures on the national security agenda, there may well be a reassessment of Egypt's position on the CFA, and eventually a decision taken to join the future Nile Basin Commission.
Both events represent a change in the status quo of the Egyptian–Sudanese Nile basin dyad. Upstream states now have a stronger development narrative and the institutional–legal machinery with which to pursue it. The opportunity now exists for Egypt and both Sudans to choose to embrace this new reality.
Notes on contributors
Alan Nicol is a Research Fellow at IDS. He is a political scientist by background, and set up and ran the Water Policy Programme at the Overseas Development Institute. He has directed research programmes in Ethiopia and the Nile region and consulted for a wide range of government and non-governmental institutions working in the Nile Basin.
Ana Cascão is a political scientist with expertise on hydropolitics in the Middle East and northeast African regions. Her main research topic is the hydropolitics of the Nile Basin. Her doctorate focused on the political economy of water resources management and allocation in the Nile Basin.