A COOPERATIVE APPROACH TOWARDS TRANSDBOUNDARY RIVER MANAGEMENT

A COOPERATIVE APPROACH TOWARDS TRANDBOUNDARY RIVER MANAGEMENT: THE CASE OF THE NILE RIVER BASIN

  Mark J. Mwandosya**

Introduction

At the very outset I wish to admit that you have done me honour, to invite me to address this august assembly of Ministers of Honourable Ministers responsible for foreign affairs; Honourable Ministers responsible for water; Honourable Ministers responsible for energy; Excellencies Ambassadors; Researchers, scientists and academicians from the Nile River Basin riparian states and beyond; Ladies and Gentlemen.

I have been requested to share some perspectives on ‘A Cooperative Approach Towards Transboundary River Management: The case of the Nile River Basin’. The Nile is the one river that binds us together as 11 riparian states (Egypt, Sudan, South Sudan, Eritrea, Ethiopia, Uganda, Kenya, Tanzania, Rwanda, Burundi, and Democratic Republic of Congo). Mention must be made of a scarcely mentioned riparian state, the Central African Republic which contributes a tiny area to the basin of the Nile River.

Having participated in the highest decision-making body of the Nile Basin initiative (NBI), the Nile Council of Ministers’ (NILE-COM) meetings as Minister for Water, and negotiations which resulted into the Agreement on the Nile River Basin Cooperative Framework (CFA), and having led those negotiations on behalf of upper riparian states, my remarks will be restricted to the vital requirement for an institutional and legal mechanism to promote cooperation among the riparian states.

In the Preamble to the CFA the States of the Nile River Basin proclaim their conviction that the framework agreement will promote integrated management; sustainable development; conservation and protection of water resources for the benefit of present and future generations. Nile River Basin Member States are also convinced that it is their mutual interest to establish an organisation to assist them in the management and sustainable development of the Nile River Basin for the benefit of all.

Historical Context

 A brief history of the evolution of cooperative structures among riparian states of the Nile is necessary in order to appreciate the present situation in the Basin.

The unusually high precipitation of 1960-1961 in the equatorial lakes region led, in 1961, the Governments of Kenya, Uganda, Tanganyika, working together under the East African Nile Waters Coordinating Committee, to initiate consultations with Sudan, Egypt, the World Meteorological Organisation (WMO) and the United Nations Development Programme (UNDP) in order to conduct hydrometeorological surveys of Lake Victoria, Lake Kyoga and Lake Albert (Hydromet Survey Project). Agreement to this effect was entered into in 1967 by Egypt, Kenya, Sudan, Tanzania and Uganda, with the aim being to evaluate the water balance of the Lake Victoria catchment in order to control and regulate the lake levels. Later on, in 1972, Burundi and Rwanda joined the Hydromet Survey Project, followed by Zaire (now Democratic Republic of Congo) in 1978. The Hydromet Survey Project was the first initiative for cooperation among independent riparian states of the Nile Basin.

In August 1977, the Kagera Basin riparian states: Burundi, Rwanda, and Tanzania formed the Organization for the Management and Development of the Kagera Basin (KBO). Uganda acceded to the treaty in 1981. For geopolitical reasons the dream was not to be realised. The Rusumo bridge linking Burundi, Rwanda and Uganda, and Tanzania, and the Regional Rusumo Hydroelectric Project (RRFP), a joint development of Burundi, Rwanda and Tanzania, however, testify to the success of cooperation among riparian states of the Akagera, a tributary of the Nile. The 80MW of the Regional Rusumo Hydroelectric Project will be shared equally among the three states. The project is almost complete.

The Undugu Group was founded in November 1983 by Egypt, Sudan, Uganda, Zaire (Democratic Republic of Congo) and the Central African Republic as an informal group to promote political, economic, social and cultural cooperation among the Nile Basin countries. Burundi, Rwanda and Tanzania later joined the Undugu Group. Kenya and Ethiopia remained as observers. The Group was disbanded in 1993 without achieving its objectives.

At the meeting of Ministers responsible for Water in the Nile Basin and with oversight over the Hydromet Survey Project, held in Kampala, Uganda, in December 1992, it was decided to turn the project into a more formal cooperation mechanism. The Technical Cooperation for the Promotion of Development and Environmental Protection of the Nile Basin (TECCONILE) was established. Its founder members were: Egypt, Rwanda, Sudan, Tanzania, Uganda and Zaire (Democratic Republic of Congo). The rest of riparian states were observers. TECCONILE lasted until 22 February 1999 when the Council of Ministers at its extraordinary meeting that was held in Dar es Salaam, Tanzania, transformed TECCONILE into the Nile Basin Initiative (NBI) with its headquarters in Entebbe, Uganda.

The NBI inherited the administrative format of TECCONILE, its Ministerial Council (NILE-COM), the Technical Advisory Committee (TAC) and the Nile Basin Action Plan. NBI also inherited the TECCONILE projects, including the famous Project D3 whose main objective was to lay the foundation for an agreement for a permanent legal and administrative framework for cooperation among the Nile Basin states.

The Nile River Basin Cooperative Framework Agreement

The Preamble to the CFA sets the intent of the Member States to cooperate. This intention is captured in the General Principles as articulated in Article 3 of the CFA as follows: Cooperation; Sustainable development; Subsidiarity; Equitable and reasonable utilization; Prevention of the causing of significant harm; The right of Nile Basin States to use water within their territories; protection and conservation; Information on planned measures; Community of interest; Exchange of data and information; Environmental impact assessment and audits; Peaceful resolution of disputes; Water as a finite and vulnerable resource; Water has social and economic value; and, Water security.

Of the 15 Principles; three are most pertinent to the theme of this paper: Cooperation between States of the Nile River Basin on basis of sovereign equality, territorial integrity, mutual benefit and good faith; the principle of equitable but reasonable use of the waters of the Nile; and the principle of preventing the causing of significant harm to other states of the Nile River Basin. These principles are frequently discussed and debated.

Frequently Discussed Issues about Nile River Basin Cooperation

At the end of an institutional website, more often than not, one encounters an item referred to as ‘Frequently Asked Questions’, or simply, FAQ. With respect to Nile River Basin cooperation, I will paraphrase the phrase FAQ to Frequently Discussed Issues (FDI). These are the issues that seem to be challenges and opportunities leading to the adoption of the Nile Basin Cooperative Framework Agreement.

Equitable and reasonable use

Equitable utilisation is the most basic concept in the use of shared waters. It allows individuals, societies and nations through which the shared river passes to use and benefit from the water of the basin. This right to use water, however, is neither absolute nor immutable. The use must be reasonable. The share of water rights is governed by agreed upon rules, obligations and responsibilities.

The right to equitable but reasonable use of water in transboundary river basins is a rejection of the principle of absolute territorial integrity which usually lower riparian states apply to assert the right to use water regardless of the needs of upper riparian states. In doing so they exercise hegemony over water use in a particular basin, the Nile River Basin being a case in point. The right to equitable but reasonable use is enshrined in Article 5 and Article 6 of the United Nations Convention on the Law of Non-navigational Uses of International Watercourses (UN Watercourses Convention), and in Article 4 of the CFA.

Prevention of the causing of significant harm

In transboundary waters, it is a legal responsibility and an obligation that riparian states use water in a manner that does not cause significant harm to other riparian states. This obligation, which largely falls on upper riparian states, is a negation of the principle of full or absolute territorial sovereignty (Harmon Doctrine). Applying the Harmon Doctrine means a nation has full sovereignty over waters flowing within its boundaries. The Harmon Doctrine is outmoded and is rarely invoked by upper riparian states. Were it to be applied it would be to the detriment of lower riparian states. This principle has been overtaken by the concept of preventing the causing of significant harm to other riparian states. The obligation on the riparian states of not causing significant harm is the subject of Article 7 of the United Nations Watercourses Convention, and Article 5 of the CFA.

Planned Projects in the Nile Riparian States

The main concern of member states of the Nile basin is what would be the impact to some or all states if major projects were to be planned for implementation and/or implemented by one or more member states. The paramount concern in this regard would be what harm would befall downstream riparian states. The CFA takes into account such and similar situations. Foremost, the CFA has enshrined the principle of preventing the causing of significant harm to other states of the basin (Article 3(5)). Secondly, Member States of the Nile River Basin, will be required, as a matter of principle, to exchange information on planned measures through the Nile Basin Commission (Article 3(8)). Thirdly, Member States of the Nile Basin will be facilitated by the Commission to exchange data and information regularly on measures being undertaken that have a bearing on the waters of the Nile River (Article 3(10)). Fourthly, Member States of the Nile Basin have undertaken to be guided by the principle of environmental impact assessments and audits.  Sufficient assurance is, therefore, provided in the CFA to make sure that planned projects are beneficial to the implementing state and cause no significant harm to other states. Upon the CFA coming into force, implementation of this Article could be the basis for further discussions leading to a protocol(s) to the CFA.

Water Security

The CFA has gone farther than the United Nations Convention on the Law of Non-navigational Uses of International Watercourses in the assurance by riparian states of not causing significant harm. The CFA has come up with a novel, but I am advised not so legal a principle, but, nonetheless, an important political concept of water security. On the basis of the doctrine of Community of interest, no riparian state can harness or use the waters of the Nile River in a manner that can significantly threaten the Water Security of any other nation. Article 14 of the CFA reads as follows: Having due regard to the provisions of Article 4 and Article 5, Nile Basin States recognize the vital importance of water security to each of them. The states also recognize that the cooperation, management and development of the waters of the Nile River System will facilitate achievement of water security and other benefits. Nile Basin States therefore agree, in the spirit of cooperation:

(a) To work together to ensure that all states achieve and sustain water security.

By consensus, Article 14(b) of the CFA should have read as follows: not to significantly affect the water security of any other Nile Basin State. However, an alternative formulation has been proposed by Egypt: not to adversely affect the water security and current uses and rights of any other Nile Basin State. ‘Current uses and rights’ arise from the Anglo-Egyptian Agreement of 1929, and the 1959 United Arab Republic (Egypt) and Sudan Agreement for the Full Utilization of the Nile Waters. Acceptance of this wording would be a negation of the justification for the negotiations themselves. Again, in the spirit of cooperation, it was decided to annex Article 14 (b) to the CFA on the understanding that the controversy on the matter be resolved by the Nile Basin Commission.

Decision making

Cooperation or in simple language togetherness is the ‘thread’ which joins the mosaic of Nile River Basin States. The beauty and strength of that mosaic is to be maintained by the participation of Member States in the affairs of the basin through the coordination and oversight of the Nile Basin Commission.  Consensus is the hallmark in decision making, cutting across many parts of the CFA. Amendment of specific Articles of the CFA, for example, can only be made by consensus. These include: Article 1 (Scope of the Present Framework); Article 2 (Use of Terms); Article 3 (General Principles); Article 4 (Equitable and reasonable utilisation); Article 5 (Obligation not to cause significant harm);  Article 8 (Planned measures); Article 9 (Environmental impact assessment and audits); Article 14 (Water security); Article 23 (Procedures (Council of Ministers)); Article 24 (Functions (Council of Ministers)); Article 34 (Settlement of disputes); Article 35 (Supplementary instruments); Article 36 (Amendment of the Framework or Protocols); and, Article 37 (Adoption and amendment of Annexes)). In amending other Articles and those of Protocols to the CFA, efforts shall be made to reach consensus, failing which voting will be resorted to, with a two-thirds majority.  It is also stipulated that decisions of the Council of Ministers shall be taken by consensus. As a term, consensus is not defined in the CFA. However, consensus is generally defined as, ‘general or widespread acceptance of a decision’. Some quarters have taken consensus to mean unanimity, which is defined as, ‘agreement by all, undivided opinion’. Unanimity can mean consensus, but the converse is not true. Consensus as stipulated in the CFA does not confer a veto on any one Member State.

Colonial Era Agreements

Another frequently discussed issue relates to the validity or otherwise of colonial era agreements. These include, mainly, the following: The Anglo-Ethiopian Treaty of 1902; The Agreement Between Britain and the Government of the ‘Independent State’ of the Congo of 1906 (modifying the Agreement signed at Brussels, May 12, 1894); The Tripartite Britain-France-Italy Treaty of 1906 on Ethiopia; The Anglo-Egyptian Agreement of 1929; and The United Arab Republic (Egypt) and Sudan Agreement for the Full Utilization of the Nile Waters of 1959.

In respect of colonial era agreements, upper riparian states of the Nile River Basin have been guided by the ‘Nyerere Doctrine on State Succession’. A corpus of written material on the thoughts and widely held beliefs of Mwalimu Julius Kambarage Nyerere on State Succession was based on national interests of the then emerging nation of Tanganyika, to give it the necessary space and time to shape its destiny. The Doctrine has been applied by many emerging states.

On 9 December 1961, the day of Tanganyika’s independence, Mwalimu Nyerere transmitted a declaration to the Secretary General of the United Nations to the effect that: "…..As regards bilateral treaties validly concluded by the United Kingdom on behalf of the territory of Tanganyika or validly applied or extended by the former to the territory of the latter, the government of Tanganyika is willing to continue to apply within its territory, on the basis of reciprocity, the terms of all such treaties for a period of two years from the date of independence…unless abrogated or modified by mutual consent. At the expiry of that period, the Government of Tanganyika will regard such of these treaties….as having terminated…..” Put simply, all bilateral agreements entered into by the United Kingdom on behalf of Tanganyika Territory were to terminate in two years unless abrogated or modified by mutual consent. This action would be a precursor to similar declarations by Kenya, Uganda, Rwanda, Burundi, Zambia, Fiji, Lesotho, Nauru, Tonga, Guyana, Barbados, Mauritius, and the Bahamas upon their attainment of independence.

On 4 July 1962 the Nyerere doctrine was applied in setting Tanzania’s policy direction on the utilisation of the waters of the river Nile. In a message to the United Kingdom, Egypt and Sudan, Mwalimu Nyerere declared that “…… the Government of Tanganyika has come to the conclusion that the provisions of 1929 Agreement purporting to apply to the countries “under British Administration” are not binding on Tanganyika. At the same time, however, and recognising the importance of the waters of the Nile, that have their sources in Lake Victoria, to the Government and peoples of all riparian states, the Government of Tanganyika is willing to enter into discussions with other interested Governments, at the appropriate time, with a view to formulating and agreeing on measures for the regulation and division of the waters in a manner that is just and equitable to all riparian states and of the greatest benefit to all their Peoples.……”.

Four key principles stand out in Mwalimu Nyerere’s declaration:

(1) The Nyerere Doctrine on State Succession is broadly accepted by many nations, and by upper riparian states in particular, as it applies to the Nile Basin;

(2) Recognition of the importance of the Nile River to the riparian states;

(3) The imperative to enter into discussions on cooperation among riparian states, and cooperation must be of greatest benefit to all.

(4) The agreement resulting from the discussions has to be just and equitable to all.

These principles have been the pedestal upon which riparian states in all transboundary basins stand in the quest for just, equitable and sustainable the management of their rivers.

It took 37 years after Mwalimu Nyerere’s call for discussions for the Nile River riparian states to agree, on 22 February 1999 in Dar es Salaam, on a framework for negotiations on cooperation (and Mwalimu Nyerere died eight months later).

These negotiations were to take place for 10 years before agreement was reached on the Nile River Basin Cooperative Framework Agreement (CFA). Four countries, Ethiopia, Rwanda, Tanzania and Uganda signed the CFA in Entebbe, Uganda on 14 May 2010 when the CFA became open for signature. Kenya signed the CFA on 19 May 2010, followed by Burundi on 28 February 2011. Signing of the CFA is an intermediate stage towards ratification. Signatories are, however, obliged not to undermine the objective and purpose of the CFA.

The CFA was adopted in Kinshasa, Democratic Republic of Congo (DRC) on 22 May 2009, on the basis that no one country had a veto over decisions concerning the basin. Hegemony over the use of the waters of the Nile would not be allowed. In addition, it was decided to go along on issues agreed upon by all, mindful of the fact that other current or emerging issues would be addressed through the Nile Basin Commission.

Present situation

Like all international treaties, the CFA is subject to ratification or accession. It will enter into force 60 days after ratification or accession, and deposition of the instruments of ratification or accession with the African Union, by six countries.  As of now, 13 years later, four countries have ratified the CFA. These are: Ethiopia (13 June 2013), Rwanda (28 August 2013), Tanzania (26 March 2015), and Uganda (15 August 2019).

As a transitional arrangement the NBI continues to exist and function. All basin states, with the exception of Egypt, actively participate in the activities of NBI. It is worthwhile to note that, despite its reservations about the CFA, Sudan continues to be actively involved in NBI. In the meantime, investment, aid and 'other incentives' have been used, and are being used to scuffle the ratification/accession process and ultimate realisation of the CFA.

Which Way Forward?

I would like to make a few suggestions by way of looking forward and by way of conclusion:

1.    Two riparian states have signed but have not yet ratified the CFA. These are Kenya and Burundi. In the same spirit they signed the CFA, they should be encouraged and be requested to ratify the CFA. Kenya and Burundi participated actively and positively in the negotiations, and were instrumental in the conclusion of the CFA negotiations. I understand Kenya is in the process of ratifying the CFA.

2.    South Sudan and DRC should, in the context of East African and Basin-wide cooperation and solidarity, accede to the CFA. It is inconceivable that those states which have ratified or are in the process of doing so could not have taken the interest of South Sudan and DRC into account. It is worthwhile to note that it was in Kinshasa that negotiations for the CFA were concluded. 

3.    Riparian states of the Nile should continue with efforts to engage Egypt in further discussions on basin-wide cooperation without compromising the principles that underpin the CFA.

4.    On 22 February 1999 member states of the Nile Basin agreed to enter into negotiations for a permanent legal and institutional mechanism for cooperation. The implication of doing so was and is that colonial agreements were then, and are now, invalid.

5.    The CFA is a framework treaty. The CFA is not a treaty for the allocation of water shares and water rights. Framework treaties and Conventions are operationalised through negotiated protocols and/or other agreements.

6.    NBI was supposed to be and it still is a transitional arrangement towards a more permanent Nile Basin Commission. NBI has been in existence for 24 years now, a long transition by any standards.

7.    Riparian states of the Nile should engage in and strengthen bilateral trade and other engagements with lower riparian states, Egypt in particular,  on the basis of sovereign equality, territorial integrity, mutual benefit and good faith.

8.    Upper Nile states should continue to engage lower riparian states in talks aimed at enhancing basin-wide cooperation, within the context of the NBI, in transition, and again on the basis of sovereign equality, territorial integrity, mutual benefit and good faith.

9.    Lower riparian states have captured the narrative on the transboundary issues of the Nile River. It is imperative that upper riparian states regain/balance the narrative.

10.                       Ratification/accession of the CFA is a matter of urgent importance in Nile River transboundary cooperation and sustainab

**Prof. Mark Mwandosya is a former Minister of Water and Irrigation, and a former Minister for Water, United Republic of Tanzania. He is currently Chairman of the Energy and Water Utilities Regulatory Authority (EWURA)