A BRIEF NOTE ON THE NILE BASIN COUNTRIES COOPERATIVE FRAMEWORK AGREEMENT (CFA)

The cooperative framework agreement document on the use of the Nile River, or CFA as it is normally referred to, is the first agreement in the history of the Nile Basin which came to fruition with the full participation of all the Nile Basin countries. It is also the first agreement in the basin which explicitly states that the utilization of the Nile should be based on the principles of equitable and reasonable utilization, the principle of causing no significant harm and the obligation to cooperate, which are foundational principles in international water law.

The discussions on the CFA began in 1997, even before the formation of the Nile Basin Initiative (NBI). It took 13 years of persistent negotiation among all the then 10 riparian countries. The agreement finally came to completion in 2010. For the CFA to come to force, it needs to be signed and ratified by at least six (6) riparian states. To date, it has been signed by six countries (Ethiopia, Tanzania, Rwanda, Uganda, Kenya, and Burundi) and ratified by four, i.e., Ethiopia, Tanzania, Rwanda, and Uganda. The new addition, South Sudan, as the eleventh riparian country which became an independent state officially separating from Sudan on July 9, 2011, has also expressed interest to ratify the CFA.

Despite fully and actively participating for 13 years, Sudan and Egypt, have notably not signed the agreement over disagreement on Article 14B. To elaborate further on these two countries incongruity, a brief note on the organization of the CFA is provided below.

The CFA has 45 articles which are organized into 4 parts. As mentioned earlier, the CFA firmly places the principles of equitable and reasonable use and the causing of no significant harm as foundations for sustainable Nile water use. This is a major departure from earlier trends and agreements in the Nile basin which were un-inclusive, un-equitable and fostered the continuation of hegemony of downstream countries. This breakthrough was welcomed by all countries in the basin except Sudan and Egypt, both of which have not signed the agreement over disagreement on Article 14B, though it is welcomed by the other riparian countries. Article 14B, as agreed by all countries except Egypt and Sudan, reads “Nile basin states therefore agree, in a spirit of cooperation, not to significantly affect the water security of any other Nile Basin States”. Nevertheless, Egypt and Sudan propose the article to read as “not to adversely affect the water security and current uses and rights of any other Nile Basin States”. The implication of the difference between these two phrasings is significant. By demanding the inclusion of the phrase, “current uses and rights”, Egypt and Sudan insist on keeping their current water uses, which practically implies 100% of the water use, which they claim the 1959 agreement entitles them to.

The 1959 agreement “for the full utilization of the Nile”, a bilateral agreement between Egypt and Sudan, among other things, fully allocates the total flow of the Nile waters, which at the time was estimated at 84 Billion Cubic Meters (BCM) per year, between Egypt and Sudan. In this biased, un-inclusive agreement, Egypt gets 55.5 BCM, and Sudan is allocated 18.5 BCM, and based on the estimate at the time at the Aswan High Dam (AHD), 10 BCM left as evaporation loss, ignoring the rightful shares of other riparian countries, including the major contributors to the Nile River water, Ethiopia. It may be unnecessary to state that this agreement completely disregards the rightful fair shares of the water contributing riparian countries and goes against the principles of equitable and reasonable use and the causing of no significant harm.

The insistence to hold on to the current status quo established by this archaic and heavily biased agreement exclusively by Egypt and Sudan, as seen in their disagreement over Article 14B, is the core of the issues in the ratification process of the CFA and in the broader Nile water use discussions. It may be appropriate to mention here that, though not so many but still yet important voices from Sudan and even Egypt had recommended that the 1959 agreement must be replaced by an inclusive arrangement where all riparian countries are involved in its development. For example, Dr. Ahmed M. Adam, a well-known Sudanese water resources development and management specialist, had stated in a recent professional forum that the 1959 agreement between Sudan and Egypt was made in order to use the water that otherwise would have been wasted to the Mediterranean Sea for the other riparian countries didn’t show interest or didn’t yet develop the capability to use their share of the Nile water.

Dr. Adam, who, incidentally, was part of the delegation representing his country in the CFA negations, stated that in the new reality, a new agreement that considers the needs and development aspirations of the other riparian countries should be deliberated upon. Also, just to mention one of a few such voices, a notable Egyptian journalist, Mr. Mahmoud Salem (Daily News Egypt, June 3, 2013), in his article had advised the Egyptian government to come out of its rigid and obsolete stand and start working with a spirit of cooperation and collaboration with the other riparian countries based on the principle of equitable and reasonable use and causing no significant harm. Reportedly, a former high-ranking Sudanese government advisor and a respected professional, Dr. Salman M. A. Salman, had published a paper in a well reputed international journal (Water International, Vol. 35, No.4, July 2010) that boldly puts forward a fair statement with respect to this issue: “It is commonly believed that only upstream [riparian countries] can harm downstream [riparian countries] by affecting the quantity or quality of water flow to them. It is not generally realized that downstream [riparian countries] can also harm upstream [riparian countries] by foreclosing their future uses of water through the prior use of, and the claiming of rights to such water.” In this article, Dr. Salman included his analyses on the concept of foreclosure of future uses and concluded that cooperation between riparian states can adequately address the concerns and interests of all riparian countries.

Incidentally, Article 14B was set aside to be resolved by the Nile River Basin Commission, a river basin organization established by Article 15 of the CFA, within six months of its establishment. However, since the CFA has still not been ratified and come into force, the Nile River Basin Commission is still not established. The ratification and ascension into law of the CFA would usher in a new regime of Nile water use in the basin based on internationally agreed water sharing principles which are in the interest of all basin states. It is of the utmost importance that countries which have not signed or ratified this agreement be encouraged to do so. If done without delay, this wise and bold move by these countries will usher in an era of cooperation and collaboration among the Nile riparian countries to bring about a greater common good for their people who are badly in need of alleviation from their abject poverty due to the lack of the basic necessities such as security in energy, food and water.