The Renaissance Dam V. fallouts of the Nile Water Agreement, 1959

Khartoum, (sudanow.info.sd) – Ahmed Abdul Ghait, the former Egyptian Foreign Minister, after signing on behalf of his country the Comprehensive Peace Agreement (CPA) between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM) on January 9, 2005 was unnecessarily repeating that Egypt supports the right to self-determination for the people of South Sudan on condition that the referendum leads to the unity.

It is quite astonishing for many people who were equally struck by the oddity of that statement as the CPA, which he had signed, granted the people of South Sudan the right to self determination, and ultimately, secession and so, what was the meaning of Egypt’s condition that contradicted the Agreement as well as the logic and developments of the events? This attitude is repeated nowadays without much change on the dispute over the Ethiopian Renaissance Dam as the fiery statements coming out from Cairo are equally characterized by the same sort of contradictions.

Egypt repeats that it supports the right of the Nile Basin states to exploiting the Nile water for the purpose of economic development in those states on condition, Egypt stated, that this would not impair a single drop of water flowing to Egypt!!

These statements go beyond that when President Mohamed Mursy declares that Egypt “will defend with blood every drop of the Nile water. If a single drop decreases, our blood will be the substitute.” The similarity between the two statements is that they are contradictory and illogical.

Egypt and Sudan decided that all the Nile water is their exclusive right according to the Nile water agreement they signed alone on November 8, 1959 and therefore divided all the Nile water between them. The two countries used all the water, leaving not a single drop to the other nations. For this reason, any use by any Nile nation will be at the expense of Egypt which takes the lion’s share, about 87%, while the Sudan consumes about 13% of the Nile water.

How then could Egypt recognize the right of the other Nile Basin nations to utilizing the Nile water for development purposes and then threaten those nations by waging war if they dare to do so?

The current Nile Basin crisis, especially with regards to the Ethiopian Renaissance Dam, originates from the Nile Water Agreement of 1959 which is characterized by superiority and exclusion in dealing with all the remaining Nile Basin nations.

This agreement was quite inappropriate and has remained a source of both grievance and mockery on the part of the Nile Basin nations which have in the past years decided to retaliate in double and snatch their rights by themselves and in the same way Egypt and the Sudan had followed under that agreement.

In fact, all disputes of the Nile Basin nations over the past 50 years resulted from this unfortunate agreement. This article is aimed at discussing this issue and shedding light on the positions the 1959 Nile Water Agreement attempted to impose on the other Nile Basin nations and how this has recoiled against Egypt and the Sudan in the form of decisions by the source nations to build their projects, including the Ethiopian Renaissance Dam, in absolute disregard and defiance of this agreement.

Ethiopia knew that the Sudan and Egypt had decided to conduct negotiations on distribution of the Nile water since their first meeting in 1954 and sent messages to both countries in June 1955 demanding participation in the negotiations. The two countries ignored this Ethiopian demand, prompting Ethiopia to send another memorandum to Egypt and the Sudan on 23 September 1957.

In this memorandum, Ethiopia made reference to a previous statement that was issued on June 13, 1956 on its rights in the Nile water. However, Egypt and the Sudan continued ignoring the Ethiopian demand and upon the signing by Egypt and the Sudan of Nile Water Agreement on June 8, 1959, Ethiopia sent memoranda to the two countries and the United Nations declaring full opposition to the agreement and stressing its rights in the Nile water.

Britain, earlier on October 9, 1959 asked for participation in the negotiations, representing its three colonies of Kenya, Uganda and Tanganyika, but Egypt and the Sudan also ignored this request. On 30 November 1959, Uganda declared, on behalf of the Equatorial Lakes’ states, that the agreement is rejected and is not binding to those states.

It must be indicated at this point that, according to the basic and primary principles of the international law, the international treaties do not impose commitments on a third state unless that third state explicitly or implicitly agrees to the agreement.

This is why we were astonished by the repeated statement by the legal advisor of the Sudanese negotiating delegation that the 1959 agreement is binding on the other Nile Basin countries (see the TV programme “Till the Picture is Completed “ of October 8, 2012 on our website and also on the website of Al-Tahir Hassan al-Toam).

So, the exclusion began with rejection by Egypt and the Sudan of participation by the Nile Basin nations, particularly Ethiopia, in the negotiations on the Nile water. The irrationality, and lack of logic and fairness of the rejection are apparent when we remember that Ethiopia is the source of about 86% of the Nile water, while the remaining 14% comes from the nations of the Equatorial Lakes.

The evaporation and seepage take away all the rain water the Sudan and South Sudan add to the Nile water, while Egypt contributes nothing.

However, the rejection by Egypt and the Sudan of participation by the other Nile Basin countries was only the beginning of the exclusion. The 1959 Nile water agreement was full to the rim of provisions for monopolizing the Nile water and denying the other Nile Basin states the simplest rights to the Nile water as stipulated by international law, let alone the rules of fairness, logic and rationality.

Let’s have a quick glance at those provisions of the agreement.

First: The exclusion of the other Nile Basin countries was clear in the very title of the1959 Nile water agreement which indicates that Egypt and the Sudan have placed under their control all water of the River Nile for their full benefit. The title of the agreement reads: “Agreement between the United Arab Republic and the Republic of Sudan for full utilization of the water of the River Nile.” The preamble of the agreement further explains “the full utilization” by stating: “Whereas the full utilization of the Nile waters for the benefit of the United Arab Republic and the Republic of Sudan …” So, the title and preamble of the agreement stipulate the full monopoly of the Nile water and increasing its water supply for the interest of the two countries only.

Secondly: The 1959 Nile water agreement divided all water of the Nile between Egypt and Sudan. The second paragraph of the agreement indicates that the net water of the River Nile measured at Aswan after the construction of High Dam is 84 billion cubic meters and after deducting the quantity of the evaporated water from the High Dam lake, which is 10 billion cubic meters, the agreement divides the remaining 74 billion cubic meters between Egypt and Sudan and, according to the 1959 agreement, Egypt got 55.5 billion cubic meters and the Sudan 18.5 billion cubic meters.

So, with this division, the agreement did not leave a single drop of the Nile water to the other countries of the Nile Basin. Still, the Egyptian brothers are reiterating the right of the other Nile Basin countries in the Nile water for development provided that this would not affect a single drop of water from Egypt’s rights. How come?

Let’s look below for further exclusion and superiority in the agreement.

Third: Paragraph two of the fifth part of the Nile water agreement makes reference to demands by the other Nile Basin nations for a share in the Nile water and to the agreement between Egypt and the Sudan to discuss together those demands to reach a unified position on them. If they agree on granting any quantity to any of those nations, this quantity, counted at Aswan, would be deducted equally from their shares.

The agreement entrusts the joint Egyptian-Sudanese permanent technical commission to make sure that this granted quantity is not exceeded. Therefore, this paragraph of the agreement gives Egypt and the Sudan only the right to determining the share of any Nile state on condition that this state submits a request to Egypt and Sudan.

The agreement also gives the two countries the right of rejecting or accepting this request and determining the quantity of water they will grant to that state and the joint Egyptian Sudanese Commission will see to it that the state will not exceed that quantity. This paragraph completely ignores the principles of the international law, logic and fairness.

Do Egypt and Sudan really expect that any other Nile riparian state to submit to them a request for water and leave it to Egypt and Sudan to decide whether to accept or reject the request? Such a request implies that the other Nile Basin countries recognize the 1959 agreement to which they are not party, in addition to their recognition of the full monopoly by Egypt and Sudan over the River Nile, including the right of Egypt and Sudan to refusing to appropriation of any quantity of water to anyone of those littoral countries.

It also implies that those countries are relinquishing the right guaranteed by the international law to each one of the riparian nations for benefitting in a fair and reasonable way from any common river.

For instance, were Egypt and Sudan expecting that Ethiopia, which is the source of 86% of the Nile water, to submit to them a request for appropriating a quantity of the Nile water for it?

As we have mentioned earlier, Ethiopia demanded several times participation in the negotiations but Egypt and Sudan ignored this demand. Reference should also be made to a statement by Mr. Hall, the First Under-Secretary of the Ugandan Ministry of Commerce and Industry on November 30, 1959, in which he said he was greatly astonished with the arrogance that prevailed throughout the 1959 Nile water agreement which provides that the water share of the Nile Bas countries is a grant by Egypt and Sudan rather than a legitimate right to those countries, according to the international law.

Fourth: The fifth paragraph of the Nile Water Agreement details the jurisdictions of the Joint Sudanese-Egyptian Nile Water Technical Commission which include accomplishment of technical cooperation between the governments of the two republics, continued research and studies necessary for the River control projects and the water supply for the interest of the two countries, in addition to continued water monitoring at the upper points.

This paragraph indicates that if the research results in agreement for implementation of operations beyond the borders of the two Republics, the Joint Technical Nile Water Commission, after contacts with the concerned authorities of the relevant countries, will draw up all technical details of implementation, operation systems and whatever necessary for maintenance of those operations.

After approval of those details by the concerned governments, the Joint Technical Commission will be tasked with supervising implementation of the provisions of those technical agreements. This Paragraph is remarkably bewildering as, after Egypt and Sudan turned down participation by the Nile Basin countries in the negotiations and stripped them off any rights in the Nile water, the two countries decided that it is their right to set up projects in the other Nile Basin states to increase the Nile water for use by Egypt and Sudan rather than those other states.

The 1959 Agreement then tasked the Joint Sudanese-Egyptian Permanent Technical Commission with supervising implementation of those projects. It is not strange that this provision has remained mere ink on paper throughout the past 50 years and has aggravated the anger and grievance of the nations of the sources of the Nile.

Fifth: The Nile Water Agreement expands the jurisdictions of the Joint Technical Commission by granting it the right to monitoring the Nile levels and flowing courses at all of the upper points in the source countries (Ethiopia, Uganda, Tanzania, Burundi, Rwanda, Congo, Eritrea and South Sudan).

The Agreement provides that this task will be carried out under the technical supervision of the Joint Commission by Egyptian and Sudanese engineers. This means that those engineers have the right to enter the other Nile Basin countries to monitor the Nile water levels whether this is accepted or not accepted by those countries.

This provision certainly contracts the simplest sovereignty principles of any nation. How come that the two countries have decided to include it in a bilateral agreement? Did they really expect this provision would be implemented? Such provisions in the 1959 Nile Water Agreement only incite grievance and anger among the other nations of the Nile Basin.

This was exactly what those provisions have caused, and the continued talk by Egyptian and Sudanese politicians and technicians about cooperation with the other countries of the Nile Basin in spite of those provisions means that either those people are unaware of the implications of these provisions, or they are aware but believe that cooperation must prevail within and under them.

The first case, which is more likely, means that they are not adequately familiar with the content of the Agreement, while the second case implies continued superiority and exclusion.

Nobody can deny Egypt’s full dependence on the Nile water, but in the same measure, nobody can deny the rights of the other countries to development and use of the Nile water and the right, rather, the duty of those countries to fighting famines, darkness and thirst among their peoples by using the Nile water, exactly like Egypt and the Sudan. Egypt and the Sudan, which consume all of the Nile water for those purposes, have to acknowledge the rights of the other countries and consult and cooperate with them for reaching middle-of-the-road solutions that ensure each state a fair and reasonable share of the Nile water in accordance with the international law, logic and fairness.

It was saddening (and embarrassing) to see the entire world following the strong opposition by Egypt and Sudan to “Shin Yanga” project in which Tanzania built a canal for conveying water from Lake Victoria for drinking purposes in a number of villages hit by drought and thirst. The quantity of water needed for drinking purposes in those villages did not exceed a billion cubic meters, but its impact on Egypt and Sudan would not exceed a hundred million cubic meters, because of the regulation of the Sudd swamps in South Sudan of the flow of the White Nile water.

Egypt and Sudan made a big row in opposition to this project and threatened to strike it. This occurred at a time when more than 17 billion cubic meters of the Nile water are lost to evaporation in Egypt and Sudan (10 billion from High Dam Lake and 7 billion at the Sudanese dams, including 2.5 billion at Jebel Awlia, the purpose of which has now been nullified).

Tanzania ignored the protests and went through with its project supported by the world’s nations and international organizations along with the experts of international water law. This clearly exposed the Egyptian and Sudanese isolation on the Nile water issues and their lack of sensitivity and appreciation of the needs of the other Nile countries, even for the drinking water which is considered by law, sharia and ethics as an undisputable human right.

Ethiopia, for its part, built four dams on the Blue Nile and a large one on the Atbara River without heeding threats by Egypt and Sudan (despite Wiki leaks talk on the presence of an Egyptian team of commandos during the era of former President Hosni Mubarak tasked with the mission of blowing up the Ethiopian dams).

Uganda also continued building its dams on the White Nile and completed construction of Boja Ghali Dam and began planning for Karoma Dam. Those were the projects which were executed by Ethiopia, Uganda and Tanzania and the fact that they were not brought to discussion and consultation with Egypt and Sudan was the logical result of the 1959 Nile Water Agreement and the complete disregard by Egypt and Sudan of the other Nilotic nations and their rights in the Nile water.

It was odd of Egypt and Sudan to demand the other Nile Basin nations to notify them of their projects, while the two countries, after signing the Nile Wart Agreement, carried out several projects without notifying or consulting anyone of the Nile Basin states.

Those projects included the High Dam, Toshka project and the Peace Canal (in Egypt), and al-Rosaries, Khashm al-Girbah and Merowe dams (in Sudan. Egypt even offered Nile water to Israel through the Peace Canal which conveys the Nile water to Sinai desert.

The offer was made by late Egyptian President Anwar Sadat during his visit to Israel in Haifa on September 5, 1979. Sadat himself had on several occasions, declared that he would not permit anyone of the Nile Basin countries to use a single drop of the Nile water. Although the Nile water is little and limited, its usage can be rationalized and its supply can be increased to achieve the goals of the Nile Basin states. It is to be noted that Egypt decided it needs 55 billion cubic meters in 1959 when its population was 22 million, and now its population is close to 100 million people using the same quantity of water more than 50 years ago.

This situation made Egypt the world’s top importer of wheat as it now imports 60% of its wheat needs despite its high consumption of the Nile water. This necessarily implies that Egypt requires much more additional water.

However, the usage rationalization, maximum utilization of the Nile Basin water and adding new quantities of water require cooperation in good faith, equal footing and abandoning the policy of superiority, disregard and exclusion on which the 1959 Nile Water Agreement was based.

This Agreement rejects recognition of the rights of the other Nile Basin countries, the source of all water of the Nile. The Agreement does not even recognize the sovereignty, borders and territorial integrity of those countries.

For all the reasons we have mentioned in this article, we believe it is high time for Egypt and Sudan to part with the 1959 Nile Water Agreement and join the Entebbe Agreement alongside the other seven Nile Basin nations.

This will provide opportunities for cooperation in good faith, seriousness and equal footing for the development and progress of the Nile Basin and benefitting from its waters in a fair and sustainable way for the interest of the peoples of the Basin the majority of whom is suffering from poverty, hunger, thirst and darkness.

The Renaissance Dam will turn into a development project from which all countries of the Nile Basin, including Egypt and Sudan, will benefit from the tremendous, cheap and clean hydro-electric power it will generate, the power which all countries of the Basin need urgently.

This, of course, is in addition to the tremendous and numerous benefits the Sudan will gain and which we have discussed in previous articles. Genuine cooperation will then prevail in lieu of the existing disputes and the common benefits will then replace the unilateral programmes and war drums.

END

Mas/MO

*Dr. Salman Mohamed Ahmed Salman is an Acadmic Researcher, and the former Water Law and Policy Adviser of the World Bank in Washington, United States of America.  Note: This article is the English translation of an Arabic article that was published in Sudanile electronic newspaper on June 15, 2013