Date: Sat, 1 Aug 2015 12:31:50 +0200
Mona Sewilam talks to experts John Rao Nyaoro and Khaled Abu Zeid about the controversial Nile River Basin Cooperative Framework Agreement
Saturday,01 August, 2015
The Nile Basin Initiative (NBI) was conceived as a transitional institution until the Agreement on the Nile River Basin Cooperative Framework Agreement (CFA) enters into force and a permanent institution, the Nile River Basin Commission, is created. The commission will be established after six countries ratify the CFA. The NBI is a regional intergovernmental partnership launched in 1999. It has been decided to follow two tracks since then: to pursue development projects and to work on the CFA. Today, the NBI includes 10 member states.
The CFA was signed by six countries in 2010 and 2011 and ratified by three in 2013 and 2015. Egypt and Sudan oppose the signing of the CFA. The Democratic Republic of Congo and South Sudan have not signed, and Eritrea is not an NBI member state and only participates as an observer.
Until 2010, Egypt had been seeking joint agreement on the draft CFA text and working on options for the Nile Basin states to move forward together. During the meeting of the Nile Council of Ministers (Nile-COM) in Sharm El-Sheikh on 13 April 2010, seven NBI member states agreed to open the CFA text for signature. This position was rejected by Egypt and Sudan and was the last meeting held before the CFA was opened for signature on 14 May 2010 in Entebbe, Uganda.
Egypt and Sudan suspended their NBI membership when the CFA was opened for signature in 2010. Sudan reactivated its membership in 2013. Egypt has not boycotted Nile-COM, but is still boycotting technical level meetings. It has been trying to resolve the CFA problem peacefully and speedily and asked for the holding of an extraordinary meeting to discuss the legal and institutional consequences of signing the CFA in 2010. Egypt asked for this immediately after the signing in 2010, and it has been repeating its call since then.
Against this background, Mona Sewilam spoke to executive director of the Nile Basin Initiative (NBI) John Rao Nyaoro in Entebbe, Uganda. Nyaoro was director of Water Resources and Chief Negotiator for Kenya on the CFA and a member of the Nile Technical Advisory Committee (Nile-TAC) between 2008 and 2014. She also interviewed Khaled Abu Zeid, who is regional water resources programme manager at the Centre for Environment and Development for the Arab Region and Europe (CEDARE) in Cairo. Abu Zeid was team leader of the group of consultants that put together the conceptual design of the Nile Basin Decision Support System (NB-DSS).
Q: The Nile River Basin is shared by 11 countries. Has Egypt ever objected to the development of any of the Nile Basin states?
I do not think Egypt has ever objected. Even now with the Grand Ethiopian Renaissance Dam that is being built in Ethiopia, Egypt has just been saying it wants information about the Dam and to understand what is happening. It has been calling for agreement on principles and the basis for implementation. This is not the same thing as objecting.
The objective of the NBI shared vision is “to achieve sustainable socio-economic development through the equitable utilisation of, and benefit from, the common Nile Basin water resources.” But article 2(a) of the signed CFA states that the “term Nile River Basin is used where there is reference to environmental protection, conservation or development.” Article 2(b) says that the “term Nile River system (watercourse) is used where there is reference to the utilisation of water.” Is article 2 pertaining to the use of terms a breach of the NBI shared vision and objectives?
The vision is the overall draft of what the NBI member states want to achieve in the Nile River Basin. The issue of talking about which water is being referred to was there from the Helsinki Rules on the Uses of the Waters of International Rivers of 1966 until 1997 when the UN Convention was adopted. The key issue that made it take 30 years [to decide] was which waters were being referred to. That is why the term “watercourses” is in the title of the UN Convention on the Non-Navigational Uses of International Watercourses.
A watercourse is the carrier that carries the water that joins the Nile Basin states. The water leaves one country and flows to another, and it is therefore shared and transboundary in character. The water in the Nile River Basin serves many purposes. First, part of this water percolates as run-off to the watercourse and continues its journey to other countries like Sudan and Egypt whether from the Blue Nile or the White Nile. Part of this water just maintains the vegetation cover. There will be no Nile River if that water is not enough to reach the watercourse because there will be nothing which will be able to flow and form a river. But we cannot talk about article 2 relating to the use of terms in the signed CFA in isolation. We must also discuss article 4.
Q: Article 4 of the signed CFA deals with the equitable and reasonable utilisation of water. Article 4(1) of the signed CFA states that “each Basin State is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River System.” So article 4(1) stipulates sharing the water resources of the Nile River System or watercourse instead of the utilisation of the water resources of the Nile River Basin that is mentioned in the NBI vision.
The rainfall that falls on the entire Nile River Basin that can be partitioned amounts to 1,660 billion cubic metres per year (BCM/Y). Some of this is not even utilised by the Basin states. Some evaporates. In the case of Lake Victoria, for instance, this receives rainfall of 105 BCM/Y that falls on the Lake itself. There is nobody there – nobody grows crops on the Lake, and 95,000 BCM/Y is lost through evaporation. The same happens on land. 1,660 BCM/Y falls on the ground and a good part evaporates and cannot be used.
What is understood under best practices and the definition of transboundary water under the 1997 UN Convention is that the water which falls in the Basin and reaches a common terminus is the shared water that can be quantified. You cannot charge a country on water which falls as rain and evaporates after one hour. That is why the 1997 UN Convention divided the water and focused on shared water. Which water forms the transboundary water? It amounts to 84 billion cubic metres. This 84 billion is the water that leaves both the Blue Nile and the White Nile and flows downstream such that Egypt can see it. This is the water in the River Nile.
In law, you cannot talk about imaginary water; you can only talk about water that can be quantified. Rainfall falling on land cannot be quantified. You can say it rains this much or that, yes. If I do the arithmetic, it is 1,660 billion, but how much of that are you able to use? Evaporation takes another maybe 80 per cent. Article 4 of the signed CFA thus has subsections. Article 4(2) focuses on the factors and circumstances to be considered when interpreting equitable and reasonable utilisation. It calls for taking into account geographical position, hydrological factors, water alternatives, and aridness like in case of Egypt which does not have any other water sources, etc.
The fact that Egypt does not have rain water will be taken into account and Egypt will be given a different weighting: it will get a plus on this. So article 3 about general principles includes cooperation, and article 4 is about equitable and reasonable utilisation, and article 5 is about not causing significant harm. They all give very clear criteria. They also deal with the fact that if a country wants to apply the concept of equitable distribution, it must consult with the other Basin states to agree.
In my opinion, I do not think that the terminology used in the UN Convention can override provisions like article 4, article 5 and article 8 on notification and the exchange of information in the CFA. These definitions cannot override all those. The signed CFA is one document and one agreement. We have to read it all and come up with an interpretation based on all the articles in this cooperative agreement.
Q: But do articles 2 and 4 that stipulate utilisation of the water resources of the Nile River System contradict the NBI vision that deals with utilisation of the water resources of the Nile River Basin? In fact, the official title of the signed CFA is “Agreement on the Nile River Basin Cooperative Framework.” It is not called “Agreement on the Nile River System/Watercourse Cooperative Framework.” Also, article 4(1) of the 2009 draft CFA states that “each Basin State is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River system and the Nile River Basin.” But article 4(1) of the 2010 signed CFA only refers to the utilisation of the water resources of the Nile River System or watercourse. How would you explain this change in the CFA text and, accordingly, the amount of water to be utilised?
When the negotiations on the CFA started, there was a need for an accurate interpretation of international law and water law. The negotiations included Egypt, and we had a renowned professor of international law, Stephen McCaffrey from the United States, on board. He is one of the scholars who drafted the 1997 UN Convention, and the Nile Basin States tapped his knowledge and his ability to help. I was at that time Kenya’s chief negotiator on the Nile. McCaffrey said that under the UN Convention and when dealing with dividing shared water, one must talk about water that can be conserved and protected. And any activity within the entire Basin that could have a detrimental effect on the water that flows into the watercourse must be able to be taken care of, protected and preserved.
For instance, the Mau catchment in Kenya contributes 90 per cent of the river that enters Lake Victoria. If it is destroyed today, the Mara River will dry up. This will reduce the water reaching Lake Victoria. It will reduce the water that starts its journey at Jinja in Uganda and forms part of the 84 billion. So the Nile Basin states must have a mechanism to protect the Mau catchment which is within the Nile River Basin but not in the watercourse.
Q: Interviewing Mahmoud Abu Zeid who played a pivotal role in launching the NBI in 1999 and also took part in the CFA negotiations in his capacity as Egypt’s minister of water resources and irrigation between 1997 and 2009 recently, this is what he said on this: “as for the draft agreed by all the countries by 2007, when we talked about water sharing and utilisation we referred to the Nile River Basin, which means all the water in the Basin including the groundwater and rainfall. But we were surprised when we found out that in article 4(1) of the CFA text that was signed by the six countries, the wording “Nile River Basin” was replaced by “Nile River System” or watercourse, which is very different.”
I think the terms “Nile River Basin” and “Nile River System” were put down at the time when Egypt was leaving. The Nile Basin states decided they were not comfortable with the water that would be referred to when talking about use. The agreement was not really changed because we were still negotiating it. Egypt left when not all the provisions had been agreed. Until 2009, the text was unchanged, and we were still negotiating. The final document was the one drafted during the Nile-COM meeting in Kinshasa in the Democratic Republic of Congo on 22 May 2009 when the six Basin states agreed to sign the Agreement in 2010. Sudan was in that meeting but took off when it was being adopted. I was there, and that is when it actually left. And when it left, the other Basin states agreed to start the signing which was opened on 14 May 2010 here in Entebbe.
Q: According to the NBI Website, seven countries agreed on a revised CFA text with strong reservations by Egypt and Sudan during the meeting of country negotiators on 3 July 2009. This was the last meeting that dealt with the CFA text. So the Nile Basin states decided they were “not comfortable” and the term “Nile River Basin” that was in article 4(1) of the 2009 draft CFA was taken out before signing the agreement in 2010. Apart from the Nile watercourse, can the Nile Basin states measure the amount of the other water resources they have?
The water resources in the Nile River Basin are treated as other alternatives, and those outside the Nile Basin can be quantified. They will be taken into consideration when talking about the factors related to equitable and reasonable utilisation. For instance, Kenya and Ethiopia have them, but Egypt does not. They will be taken into account when talking about other or alternative uses. So that means that Egypt will get a better weighting factor when talking about equitable utilisation.
But I want to tell you that to my best knowledge and understanding I would not advocate today for the allocation of the water of the Nile River. This is because the water we are talking about i.e., 84 billion BCM/Y, cannot be allocated arithmetically. How the Basin states can best use it, agree to cooperate on it, come together and only use what they need should not cause harm to the other Basin states. So if one country decides it wants to use water for hydropower to build a new dam, it is obliged under article 8 of the signed CFA to inform the other Basin states in the form of a notification. The Basin states must sit together, analyse the situation, and look into the effects of that new dam.
If it is found that the dam will have detrimental repercussions, the state must come up with mitigation methods, which can include reducing use or compensation. The law is very clear on how existing and potential uses should co-exist.
Q: This is excellent. But don’t you think it is one thing to have a law and it is another thing to implement it? To tell you the truth, it looks like what is written in the signed CFA is utopian because Ethiopia surprised Egypt by announcing the building of the Grand Ethiopian Renaissance Dam in 2011 without any prior notification and without taking into account international law. At that time, the Egyptian people were busy with their revolution. And now there is a de facto dam that has appeared out of the blue, and Ethiopia has been continuing the construction of it in spite of the fact that the studies on the effects of the dam have not been finalised. One wonders if this will set a precedent. Where is the international law in all this?
When Ethiopia decided to build the Renaissance Dam, the CFA was not in force, but it will be after six countries ratify the Agreement. Right now, only three countries have ratified it. The CFA is therefore non-binding for Ethiopia and all other Basin states. What is binding for Ethiopia is international customary law.
There is no gap in international law. The law requires all states that share a water resource to conduct prior notification and inform all the other states which share that resource. So if Ethiopia did not do this, that is one reason that it found it necessary to negotiate with Egypt and sign the Declaration of Principles for the development and operation of the new dam. International law is very clear about any development of a shared water resource that could have some or significant effects on other states sharing the same resource.
In the case of the Renaissance Dam, Ethiopia should have notified others about the objectives, uses, the amount of water that will be utilised, etc. The other Basin states would then analyse and study the effects and see how existing uses and potential uses could co-exist. The state must resort to mitigation methods in cases where the dam has detrimental repercussions, as I previously mentioned.
Q: Ethiopia did sign the Declaration of Principles together with Egypt and Sudan in March 2015. But Ethiopia is continuing to build the dam in spite of the fact that the results of the consulting firms in charge of studying the effects of the dam on the downstream countries, Egypt and Sudan, have not been finalised.
What they signed in March 2015 did not stop the building of the dam. The text says that they will cooperate based on a number of principles and mitigation measures will be taken in case of damage. I think they are on the right track because agreeing on seeing how the dam will operate, and its effects, and how to provide mitigation is the key thing. I still believe they will continue to cooperate and agree to implement the findings of the independent consultancy to the letter so that they can avoid causing any harm to others.
Q: This brings me to what I mentioned before – the law is one thing and implementation is another.
But international law is still there, and that is why we have an International Court of Justice (ICC) to implement it. Anybody who feels there has been a breach of the law and that one country is not abiding by it can go to the ICC. It will interpret the law and give a binding mechanism which I think you know is being implemented in many ways and the fines are large for not abiding by it. If one state does not abide by internationally accepted norms and agreements, the ICC can do many things. But I do not think that the three countries here have reached this level. They are friendly countries, and they will reach an agreement. I think they are already on the road to finding a solution.
Q: Article 8 of the signed CFA deals with “planned measures” or prior notification. The principle is included in the Agreement, but the procedures are not mentioned, not even in the attachments. Egypt’s position is that the procedures should be agreed upon and included in the CFA. Do the procedures need to be added in order to avoid a repeat of the Grand Ethiopian Renaissance Dam problem?
The principles are substantive law, and the procedures are subsidiary legislation. An agreement is only based on substantive law that is articulated clearly under article 8 – the Nile River Basin Commission shall come up with rules and procedures on how that notification shall be effected and the rules cannot be developed before that Commission is established. The Commission will be established after six NBI member states ratify the CFA. The procedures and subsidiary law will then fill the gaps which were not there in the substantive law.
The procedures could not be included in the attachments of the Agreement. They come after there was an agreement on the substantive law that was included in the signed CFA. Even in establishing the Commission itself, there will be subsidiary rules and procedures to be developed on how it is going to operate. Even on article 4 pertaining to equitable and reasonable utilisation, there will be rules on how this will be implemented. All this cannot be in the substantive law, otherwise the Agreement will be too big. The substantive law can be 30 pages long, but the procedures and rules can be 500 pages long.
Q: The CFA will not be binding on the states that do not ratify it. But what will be the repercussions on a downstream country like Egypt if it does not ratify? In terms of water utilisation and sharing, will this affect Egypt’s share of the Nile’s water that amounts to 55.5 billion cubic metres per year?
I do not think it will have an effect. The CFA is very clear, and the two principles that override the Agreement are article 4 and article 5. The agreement is balanced, i.e., article 4 is about “equitable and reasonable utilisation” and article 5 deals with the “obligation not to cause significant harm.” Whether the Nile Basin State is a member and whether or not it ratifies the CFA, these two articles are still applicable. Any Nile Basin State that wants to develop must abide by these articles, and they are applicable irrespective of whether Egypt has ratified them or not. Egypt still has the right, when seeing any country developing the Nile’s waters under the CFA, to ask, even if it is not a party to the Agreement. If I am a member of the Nile Basin, and if I see the development of infrastructure that will affect me, my questions will be listened to.
But my advice, as I always say, is this: if you want to eat the wedding cake, go to the wedding. Do not wait for what people will bring you from outside. They could have eaten a delicious cake at the wedding but bought you another one because you wanted some kind of cake. My advice to all the Nile Basin States is that they become parties to the CFA. Let them raise any issues they want at that forum, and they will have a chance to know everything that is going on and raise any issue they think will affect them.
If I have a case against you and I go to court, the judges will still consider the law and facts even if you do not show up in court yourself. I might even lose the case even when the other party is not in court because the judges might feel to their best knowledge and based on the law and the facts that I am wrong. But it would be better if the other party were there to defend his/her case. So Egypt stands a better chance if it is a party to the CFA. Let it be in the same boat where the NBI is. If there is a hole that is bringing water into the boat such that it will sink, they will seal it.
Q: Speaking to Egyptian officials, they said that Egypt knew it would be very difficult to include the historical agreements in the CFA and therefore they came up with the concept of water security in article14 as a compromise from Egypt and Sudan. But when they tried to put the existing rights and uses of the Nile’s water in article 14(b), the other countries did not agree and the article is still unresolved.
The law is dynamic, and from time to time people come up with a proposal or solution to resolve article 14(b). As you already know, there is one proposal by the six Basin states that signed the CFA that says “not to significantly affect the water security of any other Nile Basin States.” There is another proposal by Egypt and Sudan that says “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” Both are included in the attachments of the signed Agreement. It was decided that article 14(b) will be resolved within six months of establishing the Nile River Basin Commission. If the Basin States agree to cooperate and find how best they can balance existing and potential uses, article 14(b) will be resolved.
Egypt is saying that it is already using 55.5 BCM/Y. Sudan is saying it is already using 18.5. This comes to 74 BCM/Y. The other 10 is left for evaporation at the Aswan Dam. If the Basin states agree to cooperate on all fronts of the Nile River and Nile Basin, we can realise more water than the 84 BCM/Y.
The NBI is developing a new monitoring network and will establish new stations to monitor any new developments in the Basin. Any increase is good for all of us. Sudan has confirmed for the past three years that 15 billion has now jumped to 18 billion, which means more water is going downstream. And I think the same will occur due to building the Grand Ethiopian Renaissance Dam.
Talking science, Egypt and Sudan will continue to get what they are calling their share, or existing uses or historical rights under article 14(b). The solution lies in cooperation and the use of science to effectively save more water from both the White Nile and the Blue Nile. It lies in how we monitor and regulate even our existing uses to be effective and more efficient. So for me I think there is a solution to article 14(b) so long as we agree and employ science to inform our policy and actually help ourselves come up with joint plans for development, which means we know what we have today and we know what we want to use. Why don’t we have a joint plan to save all this water?
Q: You are a lawyer and water resources engineer and you believe there are solutions to any problem. Do you think there is hope to resolve the problems pertaining to the CFA?
There are large hopes, and I have stated this categorically. Let the Nile Basin States agree to cooperate and use science to inform how to balance existing and potential uses. Let them agree to come to a forum where they will be able to solve any conflict. Let them support the establishment of the Nile River Basin Commission and NBI whose duties include capacity building and giving out non-partisan information about any future projects, etc. There is hope, and I can see it on the horizon.
Q: There is an Egyptian saying that goes, “the devil lies in the first lines of a document.” What do you think of the official title and articles 1 and 2 of the signed Cooperative Framework Agreement?
The title of the CFA document is about a Cooperative Framework Agreement on the Nile River Basin which should have noble objectives. Article 2, though, describes the use of the terms “Nile River Basin” and “Nile River System” in a way that reflects what is usually considered the result of a “negotiated text” to satisfy all parties, but as this is the case the definitions may be interpreted differently by different people. For instance, the term “Nile River Basin,” which is to be used in the CFA when there is reference to “protection, conservation, and development,” may be interpreted to be used for the “development” of water resources in the “Basin,” which eventually would be “utilised” directly or indirectly after contributing to the “Nile River System,” the term defined to be used for the “utilisation of water” as described in the CFA.
So it is obvious that the two terms should really be used for the utilisation of water because one cannot clearly separate between water in the River Basin and water in the River System, and every drop of rain that falls on the River Basin would either be utilised directly by the green cover in the Basin in the form of “green water,” which is the rainfall that is directly utilised by rain-fed agriculture, pasture land or forests, or would flow to find its way to the River itself in the form of “blue water,” which is the surface water in the river. Rainfall would also recharge the groundwater reservoirs within the River Basin. Any change in land use or land cover can transform water from one form to another. The continuous urban encroachment on green cover in the Basin actually transforms the “green water” utilised directly in the “Basin” to “blue water” eventually utilised from the “River”.
Even item “i” in article 4(2) considers the area of the drainage basin within the country as a factor to be considered in “equitable utilisation”. It makes no sense to consider the drainage basin and ignore the waters utilised by the green cover on that drainage basin, or the water that is recharging the groundwater in that drainage basin which are both beneficial to the country concerned and would relieve the pressure on the remaining water in the Nile River that may be the only water resources available for downstream countries to use.
Q: Do you see any contradiction between articles 2 and 4 of the signed CFA on the one hand and the NBI’s shared vision and objectives on the other?
I don’t only see a contradiction between the shared vision of the NBI and articles 2 and 4 of the signed CFA, but I have also noticed a change in the wording of article 4 between the negotiated text up to the meetings of 2009 and the signed text in 2010. The NBI vision aims at “equitable utilisation of, and benefit from, the common Nile Basin water resources,” while article 2 of the CFA tends to associate “utilisation” only with the “Nile River System” and not to the “Nile River Basin” and the article limits the “Nile River Basin” to “environmental protection, conservation, or development.” Although the separation between the two terms “Nile River System” and “Nile River Basin” reflects an intention to limit utilisation to the “Nile River System,” which is the watercourse or the river only, the definition of the Nile River System in the same article includes the groundwater related to the River, which is actually located in the Basin and not the River.
No matter how the terms are said to be used, there will always be substantial utilisation of rainfall directly for rain-fed green cover within the Basin, and with the removal of this green cover or with the change in land use from green cover to urbanisation there will be an increase in runoff and groundwater recharge, which is a natural transformation from water in the River Basin (green water) to water in the River System (blue water). So due to the fact that utilisation within the Basin is comparable to utilisation within the River and can sometimes even affect it, we have to look at the Basin as one unit with the River included, and this is what is being advocated in all water management schemes and principles such as Integrated Water Resources Management (IWRM), River Basin Management, and the Ecosystem Approach.
On the other hand, and despite the intention that was behind the separation in the use of the two terms, one can argue that the use of the term “Basin” when dealing with development actually means that the Basin is to be used for the “development” of groundwater and surface water resources for “utilisation,” which again contradicts the purpose of the separation of the two terms. But article 4 somehow took care of this contradiction up until 2009 and combined the two terms together when stating that the “Nile Basin States shall in their respective territories utilise the water resources of the Nile River system and the Nile River Basin in an equitable and reasonable manner... Each Basin State is entitled to an equitable and reasonable share in the beneficial uses of the water resources of the Nile River system and the Nile River Basin.” In the 2010 signed CFA, it was surprising to see that after Egypt and Sudan withdrew from the NBI and the CFA discussions, the signed version of the CFA was altered from the agreed version and negotiated text to date, where the term “Nile River Basin” was removed from the above text, limiting the sharing of Nile Basin waters to just the water in the Nile River System. This may be considered to be unreasonable and unequitable.
Q: There is a perception that article 14(b) is the only reservation that Egypt has about the signed CFA, which is not true. In fact, article 14(b) is the only article included in the attachment of the signed CFA to be resolved later by the Nile River Basin Commission. Is 14(b) the most important article? In other words, if article 14(b) is resolved, could Egypt sign the CFA?
I cannot really speak for Egypt’s official standpoint, but as an external observer I believe that the Nile Basin countries under the NBI used to abide by the NBI’s and the Nile Council of Ministers’ (Nile-COM) rules of procedures, which implies that decisions of the NBI Nile-COM are to be taken by consensus. Up until the decision to sign the CFA, all decisions were taken by consensus and agreed upon by all NBI member states. This included decisions to finance and implement projects, as well as decisions related to the agreement on the CFA text. The unilateral decision taken by six NBI countries to go ahead and open the CFA for signature without the consensus of Egypt and Sudan was considered by the two countries as a breach of the NBI’s and Nile-COM’s rules of procedure. And therefore Egypt had the right to express its reservations and concerns on the signing of the CFA at that time.
The agreed CFA text at that time included a pending unresolved article, namely article 14(b) which Egypt and Sudan wanted to resolve before signing the CFA. Egypt and Sudan did not agree to the original text of article 14(b), and Egypt proposed an alternative text that is agreeable to both Sudan and Egypt. I think Egypt’s proposed text is more concrete and eliminates ambiguity and vagueness. It calls for sharing the untapped water resources in the Nile Basin while maintaining the current uses by all countries, not just Egypt and Sudan.
I call upon the Nile Basin countries to carefully explore the merits embedded in this proposed text that calls on jointly developing additional water resources within the Nile Basin, and to jointly develop additional benefits of what is already being utilised, where maybe additional non-consumptive uses such as hydropower may be developed without affecting current consumptive uses.
Egypt’s other concern is related to article 8 on exchanging information on planned measures, also known as “prior notification,” especially before attempting to construct any infrastructure on the Nile River. The article as it stands calls for the Nile Basin Commission which is yet to be established to set out the rules and procedures for exchanging information on planned measures. Some senior Egyptian officials believe this article is so important that it has to be elaborated within the CFA itself or in an annex to the CFA before signature. It is a legitimate concern for Egypt, especially after what Egypt has experienced with the unilateral decision taken by Ethiopia in 2011 to start constructing the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile, which is the main source of the Nile water flowing to Egypt and Sudan, contributing about 54 BCM/Y.
The similar article on the rules and procedures of prior notification on planned measures was thoroughly elaborated in the main body of the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses, and the UN Convention was not voted for or signed before the elaboration of these procedures. So why is there the hassle in signing the CFA before including these procedures? It will take substantial negotiations to reach an agreement on these rules and procedures in the CFA, and whether it is prepared by the NBI Technical Advisory Committee or the Nile Basin Commission that will be established, it is important to include it in the CFA before signature.
I also think that in addition to the pending article 14(b), it was internally agreed that these rules and procedures should be annexed to the CFA before signature. These were the main Egyptian concerns announced on several occasions based on the 2009 version of the CFA. Now that the signed CFA is a different version than the negotiated CFA due to the alterations that took place right before signature, the situation may be different and more concerns may arise.
Q: What are Egypt’s concerns related to article 36(3)?
It seems that article 36(3), which addresses the Amendment of the Framework and Protocols, also underwent some changes in the negotiated text of the 2009 CFA right before it was signed by the six countries. The changes to article 36(3) added two more articles to the 12 articles that could be amended only by consensus as per the previous version of the CFA, whereas the remaining articles may be amended by two-thirds majority if consensus is not reached.
Some Egyptian officials are of the opinion that article 36(3) should indicate that all 45 articles of the CFA, not just the 12 or 14 most important articles, if amended should be done by consensus among all the Nile Basin countries. It should be noted also that article 23(5) indicates that all decisions of the Nile Basin Council of Ministers “shall be taken by consensus,” which may imply that any amendments to any articles will eventually have to be approved by the consensus of all the Nile Basin ministers and not by majority.
Q: As it stands today, does the signed CFA contradict article 44 ofEgypt’s 2014 Constitution which states that “the State shall protect the River Nile and preserve Egypt’s historical rights... The State shall also protect groundwater and adopt the necessary means for ensuring water security”?
We have to realise that article 14(b) as it stands now is still unresolved, and it has two proposed wordings. The first wording, which Egypt and Sudan do not agree to, indicates that the Nile Basin States agree “not to significantly affect the water security of any other Nile Basin State,” where “water security” is defined as “the right of all Nile Basin States to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment.” The second wording proposed by Egypt indicates that the Nile Basin states agree “not to adversely affect the water security and current uses and rights of any other Nile Basin State.”
It is obvious that if the Nile Basin countries agree to the second wording, article 14(b) will be explicitly in line with article 44 of the Egyptian Constitution. The first wording of the article, though, is not directly in line with the Constitution in terms of preserving Egypt’s historical rights to the Nile. However, it does not contradict the Constitution or the ability of Egypt to preserve, using other means, its historical rights or its current formally recognised uses of 55.5 BCM/Y.
Q: What is Egypt’s position on the 1966 Helsinki Rules and the 1997 UN Convention? Have any of the NBI member states ratified the UN Convention?
I cannot speak for the government of Egypt, but from what I see there may be a preference to the 1966 Helsinki Rules in the way these addressed explicitly the whole “International Drainage Basin” rather than just an “International Watercourse” as is the case in the 1997 UN Convention. This enlarges the water volume to be shared, including all water resources within the whole Basin rather than the water in the River only.
Also the factors to be considered for “equitable and reasonable utilisation” in the Helsinki Rules are more concrete in the way they consider the “availability of other water resources” to emphasise the issue of “dependency” where a country that has other water resources should be less dependent on the transboundary river concerned and the other way around.
The UN Convention may be viewed in terms of another reservation related to the status that is given to regional economic organisations, which may allow for the interference of countries that are non-riparian to an international river in decisions made on that river just by being members of these regional economic organisations. On the other hand, the UN Convention is considered positive in its elaborate procedures of prior notification of any planned measures on an international watercourse. The Helsinki Rules are just guiding principles, whereas the UN Convention is a binding agreement only on the countries that have ratified it.
It took the UN Convention 17 years from 1997 to 2014 until 35 countries ratified it, which was the condition for its entering into force. However, we must note that some of the ratified countries so far do not have international watercourses, and some do not even have a watercourse, so their membership of the Convention does not affect them one way or another. The 1997 UN Convention was not ratified by any of the 11 Nile Basin countries, so they are actually not yet bound by the UN Convention.
Q: Interviewing NBI executive director John Rao Nyaoro recently, he said that the amount of water that leaves both the Blue Nile and the White Nile and that makes up the Nile watercourse is 84 BCM/Y. But according to article 2 paragraph 3 of the 1959 Agreement between Egypt and Sudan, “the net benefit from the Sudd Al-Aali Reservoir shall be calculated on the basis of the average natural River yield of water at Aswan in the years of this century, which is estimated at about 84 milliards of cubic metres per year.” How would you explain this?
As stipulated in the 1959 Agreement associated with building the Aswan High Dam (HAD), the 84 BCM/Y was the annual average flow of the Nile measured at Aswan based on the historical data available at that time. Before that time, Egypt’s acquired right through actual utilisation was 48 BCM/Y, and Sudan’s acquired right through actual utilisation was 4 BCM/Y. The HAD made it possible to utilise an additional amount of 22 BCM/Y which used to be wasted flowing into the Mediterranean Sea. This amount of 22 BCM was divided as per the 1959 Agreement into 14.5 BCM/Y for Sudan and 7.5 BCM/Y for Egypt. This makes the total share of Sudan equal 18.5 BCM/Y, and the total share of Egypt equal 55.5 BCM/Y, which if added to the estimated evaporation losses of 10 BCM/Y from Lake Nasser behind the HAD adds up to the 84 BCM/Y.
It is a big mistake to limit the perception of the Nile River’s annual average flow to the 84 BCM/Y that is measured at one location in its most downstream country, i.e., Egypt. The Nile River passes through several environments from source to terminus, taking several forms including tributaries, rivers, lakes, swamps, and even groundwater aquifers, receiving within the River basin a total amount of rainfall averaging 1,660 BCM/Y along its course of about 6,825 km.
Q: Is there any accurate and reliable data about the amount of water that leaves the Nile River sources, whether the Blue Nile or the White Nile, and makes up the Nile River System or watercourse as a whole?
There are historical and reliable data regarding several locations that can give us good estimates. For instance, Lake Victoria, which is at the upstream of the Nile River System shared between Kenya, Uganda, and Tanzania, is considered the second largest freshwater lake in the world with a surface area of about 68,800 km2, and it is the eighth largest by volume, holding a freshwater volume of about 2,760 BCM/Y, which is about 33 times the Nile flow originally measured at Aswan. Lake Victoria alone receives about 100 BCM/Y of rainfall and evaporates about 94.5 BCM/Y, which is more than the 84 BCM/Y of Nile flow downstream. It also sustains abstractions by the riparian Nile Basin countries on the Lake sufficient to maintain their livelihoods.
Lake Albert in the upstream Nile has a surface area of 5,300 km2 and holds a volume of about 132 BCM of freshwater. Lake Edward has a surface area of about 2,325 km2 and holds a volume of about 39.5 BCM. Lake Tana in Ethiopia has a surface area of about 2,156 km2 and holds a volume of about 28 BCM. Lake Kyoga has a surface area of about 1,720 km2 and holds a volume of about 8 BCM. The Sudd Swamp in South Sudan has a surface area of about 57,000 km2 and holds a volume of about 570 BCM and evaporates a volume of about 30 BCM/Y.
It is important to note that all these lakes within the Nile River System, reaching a surface area of about 140,000 km2, are located in tropical areas and are holding an approximate volume of water of over 3,500 BCM, and they receive about 200 BCM/Y of direct rainfall on their surfaces in addition to about 132 BCM/Y of surface runoff from the Nile System tributaries that feed into the Nile River System.
This Nile River System is also used by all Nile Basin countries through various abstractions that are not accounted for, which proves again that the potential of the Nile River System is much more than just the 84 BCM/Y that flows at the very downstream end of the River and that more is actually being used by the Nile Basin countries. The potential is even bigger if we consider the Nile River Basin that receives average annual rainfall of about 1,660 BCM/Y, and that most of it is actually being used through evapotranspiration of green cover through rain-fed agriculture, pasture land and forests.
Such information and data do not negate the fact that there is also a problem of sharing data between countries on flows and abstractions and a problem of the continuity of data collection at stations that were destroyed and neglected due to political unrest in areas such as South Sudan and others. There is also a need to increase the points of measurement within the Nile River Basin.
Q: According to the NBI executive director, the amount of rainfall in the Nile River Basin is 1,660 BCM/Y, and this cannot be utilised and shared. He said that “you cannot charge a country on water which falls as rain and evaporates after one hour. That is why the 1997 UN Convention divided the water and focused on the shared water. Which water forms the transboundary? It amounts to 84 billion cubic metres. This 84 billion is the water that leaves both the Blue Nile and the White Nile and flows downstream and that Egypt can see. This is actually the water in the River Nile.”
The Nile River Basin indeed receives on average rainfall of about 1,660 BCM/Y, which should be the amount to be “considered” when the issue of sharing water in a transboundary river basin is discussed. In fact, other renewable water resources available to each country should also be considered, which means that we should also note that the 11 Nile Basin countries as a whole within the Nile Basin and outside receive on average an amount of rainfall of about 7,000 BCM/Y.
We have to realise that big portions of these amounts of rainfall are actually being used. Upstream Nile countries depend mainly on rainfall for their agriculture and their livestock grazing and wood production from forests. Ethiopia, for instance, is the largest country in Africa in livestock production and entirely depends on rain-fed pasture land which consumes more rainfall water than Egypt and Sudan use for all their uses from the Nile River.
In an assessment that we recently did at CEDARE, we estimated that rain-fed agriculture in the Nile Basin countries utilises about 375 BCM/Y, and pasture land consumes about 1,190 BCM/Y, and forests utilise about 1,635 BCM/Y. So we cannot say that rainfall cannot be utilised, especially when most of the Nile Basin countries depend on it for their livelihoods.
There is a big difference between beneficial rain-fed evapotranspiration that reflects rainfall utilisation by rain-fed green cover and evaporation losses that are not utilised. I must say also that even the evaporation losses could be minimised and eventually utilised, and there are potential projects that have been studied to make use of about 18 BCM/Y of evaporation losses to increase the flows of the Nile River by that much. The Jonglei Canal is one of these projects: it is 70 per cent completed and could increase the River flow by four BCM/Y in its first phase. Unfortunately, the project has been halted since 1984 due to political unrest in South Sudan. And the sky is the limit to what research could develop to reduce evaporation losses that are estimated at about 220 BCM/Y from surface water bodies in the Nile River Basin.
When it comes to water sharing, one has to look at how much of the 1,660 BCM/Y is actually being utilised by each country in the form of green water directly from rainfall over the Basin and in the form of blue water from the River and the groundwater aquifers within the Basin. Then we look at the remaining potential that could be harnessed for the benefit of everybody.
This should be how to interpret the principle of sharing. It does not mean that a downstream country has the right to the rainfall that is being utilised in the Basin by a country upstream, but it also does not mean that an upstream country has the right to the River flows that are being utilised by a country downstream. It just means that in order to reach a win-win solution, countries should consider the full pie in their sharing criteria, rather than fight over a small piece of the pie that may have already been put on someone else’s plate.
Q: Do you think that the Nile Basin Decision Support System (NB-DSS) established by NBI needs to work on these issues?
I happened to be the team leader of the group of consultants that put together the conceptual design of the NB-DSS that was supposed to study the impact of any infrastructure project in the Nile Basin and to evaluate several parameters that would reflect the impact of that project. It would also assess the benefits that would result from the project and how much each country would benefit from or would be affected by that project.
But what we are talking about here is the need for a detailed water resources potential assessment and a water allocation model that should be designed based on equitable utilisation criteria that would prioritise the criteria related to maintaining existing uses, whether they are green water utilisation upstream or blue water utilisation downstream, and focus on harnessing the remaining potential for the benefit of all.
Q: The signed CFA does not mention any figures for the amount of water in the Nile River Basin or the Nile River System. Do you think that figures need to be included in the signed CFA or can this be left to the Commission after its establishment?
Although it would be preferable, the CFA does not have to mention figures, especially since some of the figures related to the Nile countries’ current utilisations, except for Egypt and Sudan, are either not quantified or disclosed or are commonly agreed among the countries. The CFA can set the principles for cooperation on the Nile. But these principles should be clear about the extent of the water resources and uses to be addressed under this cooperation. Although there are very good estimates of most of these figures, what needs to be done, for the purpose of confidence building, is that the Nile Basin countries together or through the Commission, if formed, work on the accurate quantification of the water resources within the Nile Basin and the current country utilisations to set the baseline for future cooperation where current utilisations may be maintained and future potentials may be explored.
Q: So you do not think that the signed CFA in its totality including article 3 on “general principles”, article 4(2) on “equitable and reasonable utilisation”, article 5 on “obligation not to cause significant harm”, and article 8 on “planned measures”, is enough to deal with all the issues that have been raised and to allay Egypt’s concerns?
With the changes made to article 4(1) after the negotiated CFA text was agreed, and with the remaining procedures on the exchange of information on planned measures in article 8, as well as the unresolved article 14(b), I think that Egypt’s concerns will still remain.
Q: In your opinion, what are the solutions for resolving the CFA problem and reaching a win-win situation for all the Nile riparian countries, including Egypt and Sudan?
To reach a win-win solution, the Nile Basin countries could consider the current level of consumptive utilisation from the Nile Basin by all the countries as the baseline that should be maintained. They could assess the untapped potential for future consumptive and non-consumptive use of water resources available within the Basin for the benefit of the Nile Basin countries. They could negotiate on how to jointly share in the investment and benefits from these future potential uses or projects based on where each country is situated relative to each project. The Nile Basin states would have to make sure that any new utilisation would not cause any negative impacts on the current uses, which would have been previously identified by the baseline status. These simply stated principles, if carefully translated into the articles of the CFA, would form the basis for a win-win CFA.
*The interviewer is a senior news anchor and correspondent for Nile TV International, part of Egyptian Television, and a member of Transcend International founded by Norwegian professor Johan Galtung in 1993 to promote peace throughout the world.