South Sudan signs Nile Treaty

What it means for river basin states

ANALYSIS | RONALD MUSOKE | Last month on July 8, the South Sudanese parliament – the Transitional National Legislative Assembly (TNLA) – ratified the Nile Cooperative Framework Agreement (CFA), a modern treaty that outlines the principles, rights and obligations for cooperation, management and development of the River Nile’s water resources.

In effect, the new treaty, if it goes into force this October, will replace the colonial agreements of 1902, 1929 and 1959. These have been said to favour both Egypt and Sudan on the use of the River Nile water resources. Not surprisingly, Egypt and Sudan are yet to sign the new treaty.

South Sudan’s signing of the treaty means that six countries of the substantive 10 Nile Basin member states have now signed the agreement which came into being on May 14, 2010. This was after Ethiopia, Tanzania, Uganda and Rwanda signed and endorsed it in Entebbe, Uganda. They were later joined by Kenya and Burundi. However, each of the signatories also had to ratify the agreement.

That process started in June 2013 with Ethiopia ratifying the agreement. Rwanda followed in August, the same year, while Tanzania ratified the CFA in 2015, followed by Uganda in 2019.

Last year, Burundi became the fifth member state to approve the agreement, leaving the treaty one country short of its entering into force. South Sudan did that on July 8 and its decision was particularly hailed by the Ethiopian Prime Minister, Abiy Ahmed, as a “historic moment.”

Now, as soon as President Salva Kiir appends his signature on the treaty and his government deposits the document to the African Union, the agreement will enter into force this October.

But transboundary water experts note that while the imminent entry into force of the Nile cooperative framework agreement could prove a turning point for the upstream Nile Basin states such as Uganda, Ethiopia, Rwanda and Tanzania, its continued rejection by the downstream states, Egypt and Sudan, could pose significant challenges fot cooperative management of the Nile watercourse.

In a recent blog for the European Journal of International Law, Dr. Mahemud Tekuya (PhD), the author of a book titled: “The Nile in Legal and Political Perspective: Between Change and Continuity,” noted that while the CFA represents a significant step towards institutional cooperation across the Nile Basin, its implementation could be “extremely challenging.”

He noted that under customary international law, a treaty does not create either obligations or rights for a third party without its consent. He said given that Egypt and Sudan have continued to reject the CFA, it is devoid of any legal relevance in relation to the two upstream countries.

Still, most members of the Nile Basin are in celebratory mood.

“With this latest development, we are well set to move forward with the establishment of the Nile River Basin Commission,” said Sam Cheptoris, Uganda’s Minister of Water and Environment who is also the current chairperson of the Nile Council of Ministers (Nile-COM).

Pal Mai Deng, South Sudan’s Minister of Water Resources and Irrigation said his country is committed to the Nile basin’s shared vision, and his country will work to support the Nile Basin Initiative’s (NBI) endeavours to promote joint investment and basin-wide cooperation.

The Nile Basin Initiative (NBI) whose headquarters are in the Ugandan lakeside town of Entebbe was formed 25 years ago to foster cooperation and sustainable development of the River Nile basin for the benefit of the inhabitants of the member countries.

Deng was speaking during the 32nd Nile Council of Ministers (Nile-COM) and the 27th Nile Equatorial Lakes Council of Ministers (NEL-COM) meeting held on Aug.2 in Uganda’s capital, Kampala.

He said the Nile Basin is experiencing the worst form of climate crises. He particularly mentioned South Sudan, Kenya, Burundi, and Ethiopia which have recently been “hugely affected by torrential rains, landslides and devastating flooding which call for a joint frontline action to combat and mitigate the risks.”

“This climate existential threat requires cooperation and collaboration among the Nile Basin countries for us to be able to adapt and mitigate the risks,” he said, adding that, “Accelerating basin investment in structural and non-structural measures and knowledge and experience sharing may help mitigate the impact of climate change in the region.”

“In addressing the problem of climate change, our strategy is now geared towards water, energy and food security; water resources development and management, with robust climate resilient water infrastructure,” he said.

Julius Korir, the Principal Secretary in Kenya’s State Department for Water and Sanitation in the Ministry of Water, Sanitation and Irrigation also noted that every effort must be made to protect, conserve and sustainably develop the Nile Basin’s water resources, both nationally and regionally.

He said Kenya, having almost half of its water resources within the Lake Victoria basin, considers the Nile Basin as a region of strategic importance in terms of meeting its water demands and improving livelihoods through regional integration.

“Kenya has not relented in its commitment to the ideals and aspirations of the Nile Basin Initiative; most of our water sources in the Nile River Basin are severely degraded, resulting into loss of essential environmental services.” Interestingly, although Kenya was among the first countries to sign onto the Nile Cooperative Framework Agreement, it is yet to ratify the treaty.

The Nile: a river in decline?

The Nile which comprises both the White and Blue Nile is a transboundary river which criss-crosses several countries right from its source in Uganda through South Sudan, Ethiopia, Sudan and Egypt. But it is also fed by tributaries from Burundi, Eritrea, Rwanda, Kenya, the DR Congo and Tanzania. These 11 countries form what is referred to as the Nile Basin.

The basin covers 10% of the African continent and is home to almost a quarter of the current African population. However, although the river is said to be the longest watercourse on Earth, when compared to other major rivers around the world, it does not provide an abundance of water.

In terms of discharge, for instance, the Nile flow is about 7% of the Congo River’s freshwater discharge that enters the Atlantic Ocean on the continent’s western coast. The Zambezi River which is 38% of the length (2,574 kilometres long), of the Nile, discharges 1.4 times more water than the Nile (4,134 cubic meters of water per second).

Dr. Florence Adongo, the Executive Director of the Nile Basin Initiative told the meeting that demand for water throughout the region is constantly growing due to economic development and population growth. Yet, intensive use by industry and urbanisation, and environment degradation, pollution and land use changes mount pressure on the finite resource.

Most parts of the basin is arid and semi-arid with more than 80% of the river flow originating from a relatively small part of the basin that is also prone to regular climate extremes like floods and droughts which exacerbate the existing water availability.

She said this gives the Nile Basin strategic importance and it explains why the states in 1999 agreed to cooperate for equitable benefit from the common water resources. Dr. Adongo explained that through NBI the platform has enabled countries to deliberate on how to cooperatively plan, manage and develop the Nile to benefit current and future generations.

‘Nile cooperation not an option’

Jessica Alupo, Uganda’s Vice President who was the Chief Guest during the opening ceremony of the meeting noted that the Nile basin’s environmental assets such as wetlands, forests, river banks are becoming increasingly under pressure from expanding economic activities and lack of effective cross-border mechanisms for protection, restoration and sustainable utilization of these ecosystem.

“The challenges the Nile Basin is facing require collective action by all the basin states,” she said, adding that, “No one country can address them alone.” Alupo noted that even when the Nile riparian states have differences, they should not lose sight of the need to work together to address common problems.

“The cost of inaction can be big as all of us know. Cooperation on the Nile is therefore not an option for the member states but a necessity,” she said.

“In particular, I wish to call upon Egypt that froze its participation in the Nile Basin Initiative activities, to resume its participation in order to provide an opportunity to discuss her concerns and find ways of effectively resolving any pending issues.”

Alupo told the meeting that President Museveni has offered to host the Second Heads of State Summit on Nile Basin “very soon” so that the issues and challenges facing Nile cooperation can be discussed and a way forward agreed.

Nile Cooperative Framework Agreement

In a recent blog for the International Water Law Project, Dr. Salman M.A. Salman, a researcher on water law and policy said the main objective of the NBI has been to conclude a cooperative framework agreement (CFA) that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all the Nile riparian states.

Work on the CFA facilitated by the World Bank, the United Nations Development Programme (UNDP) and other donors, started immediately after the NBI was formally established, and continued for over a decade.

However, the process ran into some major challenges as a result of the resurfacing and hardening of the respective positions of the riparian states over the Nile colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters. Egypt and Sudan demanded the explicit reference to their water security in the CFA, a demand that was rejected by the other states.

Despite those differences, on May 14, 2010, four of the upstream riparian countries (Ethiopia, Tanzania, Uganda and Rwanda) went ahead to sign the CFA in Entebbe, and were later joined by Kenya and Burundi raising the number of signatories to six.

The CFA lays down basic principles for the protection, sharing and management of the Nile Basin. It establishes the principle that each Nile Basin state has the right to use, within its territory, the waters of the River Nile Basin, and lays down a number of factors for determining equitable and reasonable utilization.

International water policy experts say the framework is modelled largely on the UN Convention on the Law of the Non-navigational uses of international watercourses. The CFA also includes the contribution of each basin state to the waters of the River Nile system, and the extent and proportion of the drainage area in the territory of each basin state.

Eng. Daw al-Bayt Abdul Rahman Mansour, Sudan’s Minister of Irrigation and Water Resources told the meeting in Kampala that more efforts are needed to consolidate cooperation among the member countries. “Sudan emphasizes that working in a consensus manner has to be put into consideration for the establishment of a strong and new organisation,” he said.

At the Kampala meeting, Dr. Aref Gharib who represented Hani Sewilam, Egypt’s Minister of Water Resources and irrigation, said the NBI has strayed from the founding cooperative principles among which include that of prior consultations when it comes to dealing with critical issues.

“This has been Egypt’s point of departure and the country made the decision about its participation in NBI technical activities.” Gharib said Egypt values the cooperation among member countries of the Nile Basin and has consistently been at the forefront of regional cooperation since the 1960s.

“Egypt also spearheaded the creation of the Nile Basin Initiative in the 1990s driven by a clear vision that emphasizes critical and inclusive cooperation aimed at sustainable development of our shared water resources,” he said.

However, Dr. Gharib told the meeting that “Egypt remains steadfast in its commitment to fostering cooperation with other Nile Basin countries and will continue supporting and implementing efforts geared towards prosperity.” “We reiterate our commitment to cooperation based on mutual respect for rights over the shared water resources,” he said.