Nile Basin Cooperation: A Review of the Literature

By Dahilon Yassin Mohamoda | Go to book overview

3.
LEGAL ASPECTS OF UTILIZATION OF THE
NILE WATERS AND THE NILE BASIN COOPERATION

3.1. Principal treaties and agreement regarding the
utilization of the Nile waters
A very good review of the treaties and agreements over the Nile waters is given in The Transboundary Freshwater Dispute Database (TFDD), which can be accessed at http://terra.geo.orst.edu/users/ tfdd/. Eleven bilateral treaties and agreements, dated from April 15, 1891 to November 8, 1959 are listed with summaries and the full text in many cases. Five of these treaties and agreements are signed between Great Britain and Egypt (May 31, 1949; May 7, 1929; July 16, 1952; December 5, 1949; January 19, 1950), and two between Great Britain and Italy (December 20, 1925; April 15, 1891). The remaining four treaties are signed between Great Britain and Ethiopia (March 18, 1902), Great Britain and Independent Congo (May 9, 1906), Great Britain and Belgium (November 22, 1934), and Egypt and the Sudan (November 8, 1959).All the above legal instruments were negotiated on a strictly bilateral basis and the one party to the treaty was always Great Britain except in the case of the 1959 Nile Water Agreement signed between Egypt and the Sudan. These treaties hence were based on British colonial aspirations, and were rejected after the independence by the states on whose behalf the British signed the agreements (Collins, 1990; Godana, 1985).An overview of the above listed treaties and agreements is given by Brunee and Toope (2002: 145–148); Caponera (1993: 657–659); Collins (1990); Jacobs (1993: 105–115) and Wiebe (2001: 746–47). A more detailed discussion is provided by Dellapenna (1997: 121–134); Godana (1985: 101–120, 169–199); Okidi (1990); and Waterbury (1990) while a broader historical context and political background in which these treaties and agreements were secured is examined by Collins (1990, 2000), and Tvedt (1993).The most relevant and debated treaty regarding utilization of the Nile waters is the Agreement of 1959 (UN, 1963). The treaty aimed at full utilization of the Nile Waters, allocating 48 billion m 3 to Egypt and 4 billion m 3 to the Sudan per year as measured at Aswan (Article 1), excluded all the other riparian countries. The treaty further committed the Sudan to undertake additional reclamation works in the upper Sudan with the water reclaimed to be allocated equally between the two nations (Article 3). The two countries also agreed to develop a unified view in the event where they have to discuss the treaty with other riparian countries (Article 5). The 1959 agreement institutionalized the cooperation between the two countries on Nile waters by the establishment of the Permanent Joint Technical Commission on the Nile (PJTC) with three principal functions:
To monitor the discharge at all storage sites to make sure they are in conformity with agreed upon allocation;
To negotiate any reductions in the basic allocation brought about by prolonged regional drought;
To commission and supervise the engineering studies for and the actual implementation of any joint projects for water storage and supply enhancement.

The PJTC has continued to function almost without interruption through various political crises for nearly forty years (Waterbury, 2002: 133). Background and prospects of the 1959 agreement is examined by Waterbury (1997a) in his article “Is the status quo in the Nile Basin viable?” While Egypt and the Sudan contend that the 1959 treaty is valid, the upstream countries led by Ethiopia reject it and stress that they have a right to exploit water resources within their borders. Consequently, the relationship between downstream countries, Egypt in particular, and most of the upstream countries led by Ethiopia have often been characterised by distrust, disagreement, adversarial actions, and threats (Godana, 1985; Kukk and Deese, 1996; Erlich, 2002). Differing perspectives on previous treaties and agreements are usually reflected in the works of writers from the respective countries. Samir Ahmed's article, for instance, is an attempt to show the validity and legality of these treaties and agreements vis-à-vis principles and precedents of international law. He further contends that the Egyptian Sudanese Nile Waters Agreement of 1959 “contains some ‘advanced’ ideas and principles governing cooperation and sharing of efforts and burdens relative to the international river” (1990: 231). Mokonnen (1997) and Kendie (1999), on the other hand, reject the validity of the Nile treaties signed during the colonial era, and underline the illegitimacy of the 1959 Nile agreement. They pointing out, that it was a bilateral agreement signed between Egypt and the Sudan to divide all the Nile waters between themselves, ignoring the rest of the riparian states.

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