The last couple of days, Egyptians voted on a referendum to adopt or discard a new draft constitution that has been put in place after amending the suspended 2012 constitution

Time for Egypt to join the table whole heartedly

By Bereket Gebru 01/30/14

Recently, Egyptians voted on a referendum to adopt or discard a new draft constitution that has been put in place after amending the suspended 2012 constitution. Considering how closely Egyptians, especially since the news of the Great Ethiopian Renaissance Dam, follow developments in our country I decided to take a look at what the new Egyptian constitution is like.

It doesn’t take any time for someone reading the new draft constitution to come across the citation of the Nile. In fact, the very first line of the preamble of the constitution states: “Egypt is the gift of the Nile and the gift of Egyptians to humanity.” The constitution also includes an entire article dealing with the Nile. Article 44 is entitled “The Nile”. It states:

“The state commits to protecting the Nile River, maintaining Egypt’s historic rights thereto, rationalizing and maximizing its benefits, not wasting its water or polluting it. The state commits to protecting its mineral water, to adopting methods appropriate to achieve water safety, and to supporting scientific research in this field.

Every citizen has the right to enjoy the Nile River. It is prohibited to encroach upon it or to harm the river environment. The state guarantees to remove encroachments thereon. The foregoing is regulated by law.”

Although it is understandable that Egypt has accorded the Nile its utmost attention, the extent to which it considers itself as the guardian and protector of the river is somewhat inconsiderate of the national interests of the other ten riparian countries. In all fairness, what the draft constitution stipulates the state would do also works for all the states of the other riparian countries.

However, generically stating the state’s commitment to protect the Nile maintaining Egypt’s “historic rights” to the water indicates that Egypt is not talking just about the portion of the Nile that is within its territory. The statement shows that there is both internal and external context to the promise of “protection”. As stated further down the article, the internal sense of the protection applies to its own citizens.

The external sense, however, implies reference to anyone wasting and polluting the Nile and getting in the way of Egypt maximizing its benefits from the Nile. That could certainly include anyone of the other ten riparian countries. A generic stance by Egypt to “protect” the Nile even outside of its borders implies that it considers itself entitled to stand as the guardian of the section of the Nile that is in another country.

Considering Egypt has been conducting itself as the country in charge of overlooking and approving all sorts of projects over the Nile, no matter where, we can say that the section of new draft constitution that deals with the Nile is just an extension of that arrogance.

Legalizing such a potentially violent stance at a time when the rest of the riparian countries are taking significant steps to cooperate and work together on the Nile comes as a shocking breakaway of Egypt from the daunting effort of finding a lasting solution to the questions of the appropriations of the Nile.

The ever plummeting living conditions in the world along with exponential surges in population size have made governance even harder than it used to be for states to address. The wise thing to do would be for states to cooperate with each other and keep an atmosphere of solidarity especially on common issues. Treating others as one’s nemesis would only create a situation of suspicion and widening misunderstandings that keep states and the entire region on the wrong track to development.

Accordingly, the Egyptian “historic rights” claim seems to be an increasingly out dated and monopolistic one that does not consider the right of others to use the river. Its claim of “historic rights” entails independent use of the Nile by Egypt as stipulated by Article 4, Sub-article 2 of the 1929 agreement between Egypt and Britain. The section states the following:

“Except with the prior consent of the Egyptian Government, no irrigation works shall be undertaken nor electric generators installed along the Nile and its branches nor on the lakes from which they flow if the lakes are situated in Sudan or in countries under British administration which could jeopardize the interest of Egypt either by reducing the quantity of water flowing into Egypt or appreciably changing the date of its flow or causing its level to drop.”

Having been independent throughout its history, Ethiopia obviously does not belong to the group of African countries that were at anytime under British colonial rule besides the legally no brainer of not being a signatory to the treaty. Therefore, it follows that Ethiopia cannot be held accountable by the terms of this article even if the 1929 treaty was deemed the appropriate document to back Egyptian sole rights to the Nile waters.

On the other hand, it is the above stated provision that stands as the law backing Egyptian supremacy over the waters of the Nile in the entire basin extending from central to eastern and northern Africa. Despite the provision clearly stating its limits to “British administered” riparian countries, Egypt has not been bothered to extend its anointment by the British as the supervisor over the Nile to Ethiopia.

Accordingly, Egypt has been very much involved in activities affecting Ethiopian politics over the years by supporting armed opposition groups. It has also extended its position as one of the most important Arab states that have favorable relations with the west and the international financial organizations that operate on their behalf to ensure that Ethiopia does not get the required funds to construct dams over the Nile and its tributaries. The Egyptians also did not shy away from threatening all the riparian countries of their intent to use force to ensure their “historic rights” to the Nile.

Even when Egypt is taking part in the consultative meetings on ways of going forth with the panel of international experts’ report on the Grand Ethiopian Renaissance Dam (GERD) between itself, Sudan and Ethiopia, it has not refrained from using provocative comments against Ethiopia and its people. The melodramatic discussion of Egyptian high ranking government officials discussing about ways of attacking the GERD and Ethiopia on live national television during the short lived reign of Mohammad Morsi is one of the highlights of Egyptian aggression.

Apart from that, there have also been unrelenting comments that step way past diplomatic thresholds on the part of current Egyptian administration officials regarding Ethiopia and the GERD. It was just a couple of weeks ago that the Egyptian Minister of Water Resources and Irrigation, Mohamed Abdul Muttalib, boldly stated during an interview with an Egyptian media that Egypt would endeavor on all levels to foil the threat against its water quota.

It is, however, a fact that Egypt cut down on its independent use of the Nile waters granted by the 1929 colonial agreement in its deal with the Sudan in 1959. The 1959 document states that the average flow of the river is considered to be 84 BCM/yr. Evaporation and seepage were considered to be 10 BCM/yr, leaving 74 BCM/yr to be divided between the two states. The treaty finally saw Egypt allocated with a total of 55.5 BCM/yr while the remaining 18.5 BCM/yr went for the Sudan.

Heavy battering from the colonial powers along with deep rooted poverty, and socio-economic and political instability has rendered the upper riparian countries of the Nile off the developmental track. However, with bigger challenges looming in the coming years in relation with high rate of population growth and the resulting high demand for development, these states have started to assert themselves vis-à-vis the use of the Nile waters.

With international law on international rivers dictating equitable use of the water resources by riparian countries, Egypt’s attempt to ensure hegemony over the Nile would definitely prove to be ill-fated. The Helsinki Rules on the Uses of the Waters of International Rivers is an international guideline regulating how rivers and their connected ground waters that cross national boundaries may be used and was adopted by the International Law Association (ILA) in Helsinki, Finland in August 1966. The Helsinki rules led to the creation of the United Nations’ Convention on the Law of Non-Navigational Uses of International Water courses in 1997. In 2004, the Helsinki Rules were superseded by the Berlin Rules on Water Resources.

Although there are more international documents serving as guidelines for international water resources usage between riparian countries, they all lack enforcement capabilities. However, the one thing they all have in common is the assertion that all riparian countries have the right to a reasonable and equitable share of the water resources. Chapter 2, Article 4 of the Helsinki Rules states: "Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin".

In determining the reasonable and equitable share of riparian countries, the Helsinki Rules take into account various factors that stand starkly in favor of Ethiopia’s case. One of such factors is the extent of the drainage area in the territory of each basin state. The website states that the Blue Nile (Abay) basin covers about 32 percent of the national land area of Ethiopia, but accounts for a higher proportion of the total water resources.

Considering the total land area of Ethiopia is 1,116,100, the Blue Nile basin covers 357,152 With over half of the total water resources of the country located in this basin, the use of the Blue Nile river basin is obviously crucial to lift its 93 million people out of poverty.

The other factor considered in determining the reasonable and equitable share is contribution of water by each basin State. Various sources show that Ethiopia independently contributes to 85% of the total flow arriving at Aswan dam in Egypt. The other 15% is contributed by the other upper riparian countries. Considering Egypt does not contribute to the water but uses 75% (55.5 BCM/yr) of it, any attempts to stand in the way of Ethiopia realizing its rights for a reasonable and equitable share prove to be preposterous.

Yet another factor in Ethiopia’s favor is the degree to which the needs of a basin state may be satisfied without causing substantial injury to a co-basin State. As has been attested by the report of the committee of international experts (including Egyptians) dealing with matters on the GERD, the annual amount of water Egypt gets from the Nile would not be “significantly affected” by the construction of the dam.

Other factors such as the availability of other resources also pinpoint to the absence of oil resources in Ethiopia, stressing the need to rely on water resources of which the Blue Nile basin is the biggest one in the country. The economic and social needs of Ethiopia also rationalize the need for the use of the Nile waters.

Despite all the bad talk and ill-intents of some Egyptian officials, Ethiopia has time and again stood by its message of cooperation and increased understanding. The major gesture of such positive spirits by Ethiopia is expressed in its move to call upon lower riparian countries Egypt and Sudan to join it in studying the potential impacts of the Great Ethiopian Renaissance Dam.

Accordingly, the three countries set up a committee of international experts to review technical issues related with the GERD. Ethiopia has availed the committee with whatever sort of cooperation it needed and did its best for the committee to carryout its duties diligently.

Once the committee came up with its report boldly stating that the construction of the GERD would not “significantly affect” lower riparian countries, Ethiopia once again was willing to work with Sudan and Egypt in implementing the recommendations of the committee.

In spite of all that effort, Egyptians have still not managed, despite overwhelming evidence, to come in terms with the construction of the GERD. Instead, they have openly asked for the construction to be halted indefinitely and for the dam to generally be shriveled down to just about a quarter of what it now is. That obviously shows that the hope and transformation the GERD is expected to achieve does not mean anything to these Egyptians politicians who would rather hold Ethiopia anchored to their hallucinations than open their minds to the welfare of their neighbors.

The times call for Egyptians to come to terms with some concrete facts first. The first fact is that all the riparian countries of the Nile basin have a right to a reasonable and equitable share of the waters. The other thing is that it needs to dawn on them that whole hearted cooperation with the other ten riparian countries is the only way forward; contrary to their belief that a self-degrading colonial anointment would just be as effective.

Therefore, instead of coming up with ridiculous hurdles that can be taken as a mockery of Ethiopian sovereignty every time they want to delay mutual understanding, Egyptians should only come to the table when they are whole hearted about it.


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