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Ibrahim Erdogan
Columnist
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Friday, 21 August 2009
At about 10 years ago, riparian countries to the Nile Basin, namely Rwanda, Kenya, Uganda, Tanzania, Democratic Republic of Congo, Sudan, Ethiopia, Egypt and Burundi, have embarked on a journey for cooperation over a vital resource, the river Nile. The primary goal was to collectively manage and develop resources of one of the world’s longest rivers.
It was hoped that multilateral cooperation in the basin would develop through a transitional mechanism based on a high-level political negotiations running in parallel with the activities of Nile Basin Initiative (NBI). The final goal of the negotiations was set to achieve a multilateral legal framework, Cooperative Framework agreement (CFA), which should have been adopted by all the basin states before June 2007. Ratification of the CFA was essential in order to form the foundation of a permanent river basin organization, the Nile Basin Commission (NBC), with powers to determining rights and obligations of the basin states.
However, the works of Nile Basin Initiative and 17 annual meetings that had followed proved insufficient for the ratification of the 39-article Cooperative Framework Agreement due to mainly the refusal of Egypt and Sudan. Ministers left the final meeting in Alexandria- Egypt on the 27th and 28th of July 2009 by reiterating
“the desire of the member states to move forward in the spirit of cooperation on the basis of ‘one Nile, one Basin and one Vision”
Still hoping that by allowing more time the most contentious part of negotiations could be overcome, a clause to allow member states an additional period of six months for formally ratifying the CFA was introduced at the last minute in the final statement of the meeting.
In view of member states’ enthusiasm for cooperation over the years and all such fancy words of “advancing cooperation, regional and global stability, peace and prosperity” one is led to wonder why no concrete step forward could have been taken in the basin. The answer appears to partly lie within the entrenched diverging upstream-downstream bargaining positions of the riparian countries with respect to the ambiguity created by the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses (UN 1997). A second explanation could be found within the utility of introducing ambiguous concepts into negotiations in an attempt to shortly conciliate diverging bargaining positions.
To start with, in retrospect it may be safe to say that the 1997 UN convention have created more confusion by juxtapositioning ‘equitable and reasonable utilisation’ and ‘not to cause significant harm’ as equal principles of Customary International Water Law. For, states with upstream riparian positions have begun to refer to the equitable and reasonable principle for renegotiating volumetric allocations that have usually been disadvantageous to them in previous agreements.
Meanwhile, downstream riparians that have usually been in advantageous position with regard to volumetric allocations have preferred the no harm principle in order to protect their existing rights. Whether giving equal weight to both principles may have been an attempt to facilitate the ratification of the convention by more member states, what is now clear is that in its existing form the convention has firmly entrenched downstream-upstream positions. It did so since upstream and downstream countries alike could now claim to be within international law.
The Nile basin is an exemplary of that since Egypt and Sudan refuse to renegotiate the 1959 agreement which had awarded Egypt annual 55 billion cubic meters of Nile water, the largest share of any country along the river. In a way “prior use” argument is placed within the “not to cause significant harm” principle. Downstream riparians, on the other hand, refuse the “acquired rights” argument and place their weight on the “equitable utilisation” principle in order to secure more water from the Nile.
Secondly, one may perceive a new tactic being developed and used by experts recently in order to draw diverging positions together in negotiations by introducing deliberate and timely ambiguities. The main objective of doing so seems to be encouraging conflicting parties to speedily move forward in negotiations prior to they entrench themselves in fix positions. As new tradeoffs are brought to the table, subjects that may have otherwise prevented progress could then be dealt with ease.
That tactic, nevertheless, proved unsuccessful during the Nile negotiations as downstream Egypt and Sudan have acceded all but one article, article number 14, in the 39 article draft Cooperative Framework Agreement. The article 14 stated that
"(...) 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"
The concept of ‘water security’ was introduced in an attempt to accommodate and harmonise the divergent claims of upstream and downstream riparians. The structure and wording of the draft deliberately used the tactic of ambiguity as a way to defuse conflictive positions and to de-block the stalemate in the enduring negotiations.
Unwilling to accept such ’degree of ambiguity’ both Egypt and Sudan instead insisted that the article should have the following wording:
"(...) 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 adversely affect the water security and current uses and rights of any other Nile Basin State"
Upstream countries though found that unacceptable, and the downstream’s inflexibility had been criticized in the media of the upstream riparians.
The recent stalemate appears show that however long the most contentious part of a dispute, conflict or negotiation is delayed, it would continue to exist somewhere in the minds of those bargaining, only to reappear at the first opportunity.
