V. The Defects and Effects of Past Treaties and Agreements on the Nile River Waters: Whose Faults Were they ?
By Kefyalew Mekonnen (Engineer)

This article will critically analyze the major bilateral and multilateral agreements on use of the Nile River waters during the colonial period.

By taking each of the major treaties and agreements, the article will examine:

Major Nile Water-Related Treaties and Agreements made during colonisation

Most of these consist only of an article in the treaties and agreements about colonial boundaries and economic territories. In chronological order:

The Anglo-Italian Protocol of April 15, 1891

Only Article III of this treaty refers to the Nile water. The remaining define the colonial territorial claims of Great Britain and Italy in East Africa. Article III states the following: "the Italian government engages not to construct on the Atbara river, in view of irrigation, any work which might sensibly modify its flow into the Nile". Neither this river flowed in the territory claimed by Italy nor was Italy colonizing a country near the Atbara river, in order to have a claim over the river. The reference to the Atbara River on the part of Britain made some sense as the Sudan and Egypt, through which the Atbara flows within colonial territory. The reason for Italy to sign such an agreement foregoing its irrigation development without receiving any benefit in return is unclear. Moreover, for Great Britain to be interested in including this reference in a treaty with a country at a distance of some thousands of kilometers from the Atbara River makes the essence of the agreement more irrelevant.

Hence, it appears that the intent of the treaty was not use of the Nile water, but to establish a colonial boundary. Given this context, the treaty cannot be seen as an agreement over property rights to the river. Even if, say, the treaty is assumed to define use rights to the river, what it meant by the term "sensibly modify the flow into the Nile"? The volume of Atbara water used upstream to be considered as a sensible modification by downstream users of Britain colonies is undefined. The language used is too vague to provide the parties with clear property rights and guarantees for water use. It is not unreasonable, therefore, for the remaining riparian to see no reason for this treaty to provide an historical base for binding present and future cooperation on Nile water use.

The Treaty between Great Britain and Ethiopia of May 15,1902

The aim of this treaty was to establish the border between Ethiopia and the Sudan. One of its articles, number III, related to the use of Nile water. The English version, as reviewed by Britain and later by the Sudan, read: "His Majesty the Emperor Menilik II, King of Kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed any work across the Blue Bile, Lake Tana, or the Sobat, which would arrest the flow of their waters except in agreement with His Britannic Majesty’s Government and the Government of Sudan" (Okidi, 1994:324; Tilahun, 1979). The Amharic version, however, gave a different meaning and understanding to Ethiopia (Abebe: 1994) and "was never ratified by this country"

The treaty was understood by Ethiopia s follows: securing and maintaining the prior agreement of Britain before construction of any work on the Nile tributaries; not to stop (arrest) the flow of the Nile rivers did not mean not to use; and, that the treaty was made between Britain (colonizer of the Sudan) but not with the Sudan as it was under the colonial power of Britannia. As Britain is no longer ruling the Sudan, this agreement does not hold at present.

The 1902 agreement has been the most controversial treaty in the history of Nile agreements as both parties claimed that their own understanding of the treaty was correct. And, not only has the claim remained controversial but it has also been the cause of disputes, which threaten the socio-political and economic dynamics of the basin environment and efforts toward future cooperation. This is because; first, referring to this agreement, Sudan has argued that Ethiopia should not use the Nile water without the permission of the Sudan. Second, the Sudanese claim has been supported by Egypt with the possibility of military retaliation if Ethiopia used the Nile water. Third, there is the possibility that this threat has played some role in Ethiopia’s extremely poor record in food production. Though poor agricultural policies have no doubt played the major role.

This controversy remained a threat to present and future cooperation over the Nile waters. However, the true meaning of this treaty is of little relevance today; and further investigation of the treaty is not the objective of this article. It is rather to look at the essence of this treaty in relation to sustainable Nile water development. By forbidding the Nile water from being arrested by Ethiopia, the treaty inadvertently advocated the principle of sustainable development. Whether or not its intent was out of concern over the impact of development of Nile waters on the environment is subject of much debate. Stopping a flow of a river creates an artificial lake that destroys ecological systems and often results in the relocation of people. However, it is unrealistic to believe that this treaty was predictive enough to anticipate the impact of water impoundment on biophysical and social systems in the basin, looking at its objectives and the time it was constituted.

The Agreement between Britain and the Government of the Independent State of the Congo on 9th May 1906

This was an agreement on the colonial boundary of the Congo between Britain and Belgium. The Congo being called an ‘independent state’ when the treaty was signed by the Government of Belgium on behalf of this country was hypocritical. Article III of the agreement was about the Nile waters and it stated that: "The Government of the independent state of the Congo undertakes not to construct, or allow to be constructed, any work over or near the Semliki or Isango river which would diminish the volume of water entering Lake Albert except in agreement with the Sudanese Government". Belgium signed this unfair agreement on behalf of the Congo; despite the agreement entirely favoring the downstream users of the Nile waters and restricting the people of the Congo from accessing their part of the Nile water without presenting anything in return for Congo foregoing its Nile water use.

The agreement did not require downstream users to consult the upstream countries for anything that they might do to the Nile waters. In this treaty, it is difficult to find any incentive for riparian that might enhance their future cooperation since it involved neither the principle of equitable water use nor the approach of integrated water development.

The 1901 Agreement between Britain and Italy over the Use of the River Gash

The agreement states: "the Government of Erythraea, while recognizing all its rights on the waters of the Gash and having regard to the requirements of the Colony, sees no difficulty in declaring that, in so far as the regime of the waters of that river are concerned, it will regulate its conduct in accordance with the principles of good neighbourship". Evidence is scarce, however, on whether or not the parties to the agreement were bound by this treaty; nevertheless, of all the treaties and agreements made during the colonial period it could be said that this agreement was the most equitable. Because of difficulty in ensuring equitable water use the agreement was defined and reinforced later by the "the Anglo- Egyptian Exchange of Notes" with subsequent detailed arrangements of 1925.

The exchanges of notes included technical provisions suitable for practical implementation as follows:" Quantified allocation, to each party, of water from the river Gash, flow regime terms and conditions for water allocation, and the amount of annual payment by the Sudan to Eritrea as a proportion of Sudanese revenues from irrigated cultivation at Kassala". This treaty is held by some of the riparian not to be binding because the colonial signatory governments are no longer present in the Nile basin; nevertheless it can be used as a basis for the effort being undertaken to establish cooperation among the riparian.

The Tripartite (Britain-France-Italy) Treaty of December 13, 1906

Article 4 (a) of this treaty dealt with the use of the Nile water in Ethiopia’s sub-basin. It states: "To act together... to safeguard; ... the interests of Great Britain and Egypt in the Nile Basin, more especially as regards the regulation of the waters of that river and its tributaries (due consideration being paid to local interests) without prejudice to Italian interests". This treaty denied " the absolute sovereignty" of Ethiopia over its water resource. It resulted in Ethiopia immediately notifying its rejection of the agreement by indicating that no country had the right to stop it using its own water resource.

Neither Ethiopia’s military power nor its international political and economic influence was strong enough to protect Ethiopia’s sovereign rights over its water resource. Ethiopia’s rejection of this agreement was a revision, if not retraction, of the May 15, 1902 treaty signed between Ethiopia and Britain.

The 1925 Exchange of Notes between Britain and Italy Concerning Lake Tana

Britain and Italy had signed an agreement in 1919 over Lake Tana, of Ethiopia, which read in part as follows: "In view of the predominating interests of Great Britain in respect of the control of the waters of Lake Tana, Italy offers Great Britain her support, in order that she may obtain from Ethiopia the concession to carry out works of barrage in the lake itself..". In 1925, it was expanded as follows. "...Italy recognizes the prior hydraulic rights of Egypt and the Sudan... not to construct on the head waters of the Blue Nile and the White Nile (the Sobat) and their tributaries and affluents any work which might sensibly modify their flow into the main river." Ethiopia opposed this agreement and notified the parties of its objections as follows. To the Italian government:

The fact that you have come to an agreement, and the fact that you have thought it necessary to give us a joint notification of that agreement, make it clear that your intention is to exert pressure, and this in our view, at once raises a previous question. This question which calls for preliminary examination, must therefore be laid before the League of Nations.

And, to the Britannia government:

The British Government has already entered into negotiations with the Ethiopian Government in regard to its proposal, and we had imagined that, whether that proposal was carried into effect or not, the negotiations would have been concluded with us; we would never have suspected that the British Government would come to an agreement with another Government regarding our Lake.

When an explanation was required from the British and the Italian governments by the League of Nations, they denied challenging Ethiopia’s sovereignty over Lake Tana (Tilahun, 1970:90). Not withstanding, however there was no explicit mechanism enforcing the agreement. A reliable and self-enforcing mechanism that can protect the property rights of each stakeholder is essential if the principle of economically and ecologically sustainable international water development is to be applied.

The Agreement between Egypt and Anglo-Egyptian Sudan of 7th May 1929

According to Whittington and Guariso (1983:41), this agreement included the following:

Egypt was still under British influence in 1929. Neither Sudan nor the remaining riparians a side from Ethiopia (which was too poor and weak to challenge this agreement) were independent. The roles of both referee and player were taken, in the process of this agreement, by Britain in the name of its colonial territories in order to favor one, Egypt, over the remaining riparians. So, the agreement was mainly to secure the Nile water for Egypt by limiting the rights of the Sudan and rejecting those of the remaining riparians. The agrement became a base for the next agreement, called The 1959 Nile Water Agreement which opened a door for Egypt and the Sudan to acquire rights to Nile water resources and for the full utilization of these waters by developing the Aswan High Dam with its huge impact on the biophysical and social (disposition of human settlement) environment of the basin.

The 1959 Nile Agreement between the Sudan and Egypt for Full Utilization of Nile waters.

In the 1950s, Egypt was planning the Aswan High Dam project to collect the entire annual flow of the Nile water (Collins, 1993). The Objective of the 1959 Agreement was to gain full control and utilization of the annual Nile flow. Before implementing the project, Egypt found it was important to seek a guarantee from the Sudan and international recognition for financing and technology of the dam. One of the financiers of the project, the International Bank for Reconstruction and Development (IBRD) required a secure water allocation for Sudan and compensation for the population to be dislocated due to the project.

In 1956 Sudan had become an independent country (Okidi, 1994) and wanted previous agreements which it saw as being unfair to be changed, so that it could pursue another agreement on the use of Nile water with Egypt. At the beginning of the talks, both Sudan and Egypt claimed large areas of irrigable land and amounts of Nile water: Sudan claimed 44 billion cubic meters of Nile water to irrigate 2.22 million hectares, while Egypt claimed even more water than Sudan that irrigates 7.1 million hectares (Howell, 1988). The debate over the claims delayed the agreement, but whether or not Sudan agreed, the construction of the Aswan High Dam was seen as a development priority for Egypt. One way or the other, the Sudan had to come to commit itself to the agreement.

Finally, in 1959, although neither the Sudan nor Egypt were contributors to the Nile water but only users, the Agreement for the Full Utilization of the Nile Waters was signed between Sudan and Egypt without inviting them to join the agreement or otherwise obtaining the consensus of other riparian countries. The agreement contained the following main points:

Why the IBRD did not give greater consideration to the rights of the other riparian countries is a mystery. Irrigation, hydroelectric power, and water supply projects developed under the Aswan High Dam project have become the basis for Egypt to claim historical water rights over and above those of the remaining riparians in the basin. This claim has created an unfavorable climate for the development of future riparian cooperation in the basin.

Besides exacerbating the developing conflict over water allocation (equity), the dam has had adverse impacts on the basin’s ecosystems. Due to the large impoundment created by the dam, there are several species that are new to the basin’s environment. These include the malaria mosquito (Cope et al., 1995: 145) and Bilharzia parasites (Abdelwahab et al., 1993: 697-700). Also, since the construction of the Aswan High Dam in 1964, erosion in the delta has increased greatly, trapping Nile sediments in Aswan Lake (Fanos, 1995: 821-27).

In conclusion, as discussed above, none of the treaties and agreements dealing with the use of Nile waters signed during the colonial period involved all the riparian countries and they did not deal equitably with the interests of these riparians. Also they did not take in to account the impact of water development on the basin social and biophysical environment. In the next part, I will try to look at how the current generations of riparians have reacted towards the above problems after the end of the colonialism.