The irony of the presence of Egyptian troops gathering on the Eritrean-Sudanese border over its objection to Ethiopia’s Renaissance Dam is not lost on legal experts aware of Egypt’s direct responsibility in signing away Sudan’s and its own legal right to permanent access to the Nile river waters.
In recent weeks, Egypt’s displeasure has turned to desperation at being unable to secure guarantees that its 80 per cent share of water would remain intact even after the dam is set to begin operating. Together with United Arab Emirates’ assistance, Egypt has reportedly stationed troops in Eritrea’s Sana port in preparation to strike the Ethiopian Dam before a single megawatt of power can be produced.
Although, Eritrea has denied the build-up of Egypt’s military on its soil, recent talks between Eritrean and Egyptian presidents and separately between Eritrea and UAE have taken place. In response, Sudan, renowned for its intelligence gathering capabilities, has closed its border with Eritrea and has sealed all points of entry and exit. The events are unprecedented and show no signs of de-escalating.
Media reports of a failed Egyptian attempt to sign a unilateral agreement with Ethiopia, bypassing Sudanese involvement, was dismissed by Egyptian media as “fake news”, but has served to fuel speculation that Cairo is looking for a new deal and is prepared to seize the Sudanese share of the Nile water in the process.
However, observers have been quick to point out that a meeting held to the exclusion of Sudan between then Ethiopian President, Meles Zenawi, and Egyptian Prime Minister, Hisham El-Sherif, in May of 2011 led to the agreement to commission the Renaissance Dam in the first place.
By the time Egypt’s and Ethiopia’s Ministers of Irrigation visited Khartoum to agree on a technical committee for the dam’s construction it was clear to Sudanese legal water expert, Dr Ahmed Al-Mufti, who later resigned from the committee overseeing the project, that the agreement was irretrievably flawed. Doubts surfaced about the project’s legal veracity; most alarmingly the question of the rightful allocation and entitlement of the shares of Nile water had been completely overlooked.
“Despite the presence of agreements stemming from meetings held as far back as 1995 to 2007 between the eight members of the Nile Basin about sharing the Nile waters, the meeting held in Khartoum between Sudan, Ethiopia and Egypt completely ignored legal entitlements to the water under international law and to my horror solely focused on the technical framework and specifications of the dam,” Al-Mufti told Al Jazeera news network in December 2015.
Moreover, Al-Mufti pointed out that the failure to agree a legal allocation of water before beginning the project meant that current and future generations of Egyptian and Sudanese citizens face the real possibility of being completely denied access to the use of the Nile – a move that threatened the lives of more than 135 million people. Sudan’s underground water supply may allow its population to access fresh drinking water, but Egypt’s population of 93 million could die of thirst!
However, this doomsday scenario did not seem to be at the forefront of the leaders’ minds when in March 2015 the three presidents signed a tri-partisan agreement effectively giving Ethiopia legal authority over the production of the 6,400 megawatts of electricity; sovereignty over the generation of the electricity, effectively meant sovereignty over the water that produces the power!
The signed agreement did three things that irreversibly threatens the livelihood of Sudan and Egypt: first, it effectively overrides the provisions of the 2010 Entebbe agreement, the 1959 water act and the 1947 British act, which allocated water share and protected the rights of water users; second, it made the terms of the new agreement non-binding and self-regulatory and third, it mandated that disputes between the parties could only be settled by trilateral mutual agreement.
The effect of the agreement meant that there was no binding legal treaty on water share. The non-binding, self-regulatory nature of the accord meant that any country was free to withdraw in the future from the deal at any time and there was no legal recourse given to any party to solve disputes through arbitration or mediation of a third party.
Sudan now finds itself in the invidious position of having to separate two conflicting opposing sides while trying to safeguard its own interests. Sunday’s meeting between Ethiopian and Sudanese foreign minsters confirmed the concerns about dangers looming on the Eastern border, “Sudan doesn’t talk about a specific build-up by a specific country, but we are talking about a threat to our territories from the eastern border,” Foreign Minister Ibrahim Ghandour told a joint news conference with his Ethiopian counterpart Workneh Gebeyehu in Khartoum.
The building of the dam will produce much needed electricity for the Nile Basin region but unless the 2015 Declaration of Principles is redrafted to set a legally binding allocation of the Nile waters and prevent the monopoly of the water by one country, the prospect of the dam being destroyed and the parties concerned going to war remains a highly realistic and potentially disastrous possibility.
