Egypt maintains legal and political position on Nile water crisis

Ahmed Eleiba , Friday 11 Mar 2011

Military sources indicate that Egypt is not in a position to address the issue of Nile water distribution for now

Yesterday's cabinet meeting headed by Prime Minister Essam Sharaf was unable to discuss the water issue between Egypt and Nile Basin states as previously announced.

Unraveling conditions in the country cut short the meeting and took it from cabinet headquarters to the Supreme Council of the Armed Forces. 

Earlier in 2010, several riparian states signed an agreement between them calling for a redistribution of Nile waters, threatening Egypt's disproportionate share based on prior treaties. Signatory states argued the need for a greater share of Nile waters to drive domestic development. 

The Egyptian Minister of Irrigation and Water Resources Hussein El-Atfi had said at the time that there must be consensus among all Nile states to amend any standing arrangement. Neither Egypt nor Sudan signed the new agreement. El-Atfi added that the agreement did not abrogate the commitments of signatory states towards Egypt, and that he was surprised by the signing.

Al-Atfi said he needed the help of all related ministries and civic groups. Despite previous calls by the Egyptian Council on Foreign Affairs for the creation of an Egyptian national agency responsible for the issue, to include technical water specialists at the ministries of agriculture and irrigation, representatives from the National Security Agency and the Ministry of Foreign Affairs, no action was taken.

Meanwhile, Egypt's legal adviser on the matter, Mohamed Sameh Amr, identified seven problems obstructing the implementation of the framework agreement by source countries without the participation of Egypt and Sudan. 

First, it is an incomplete agreement among Nile Basin countries because the draft did not fully meet all legal requirements. There are still some outstanding issues, most prominently the text of Article 14b remains under discussion, which pertains to Egypt's rights to river water based on previous international agreements.

Also, there are diverging opinions. Legal committees had agreed to follow a consensual not a majority decision-making model, as is the rule for adopting resolutions. 

At the same time, the signing of the agreement was a clear violation of standing rules, since it was opened for signatures before reaching consensus. The fact that some source countries have already signed unilaterally is a breach of procedure.

Amr revealed that the future of the agreement is being studied, noting that the new Sudanese reality of partition into two states poses a new legal situation. Mustafa El-Feki, former Egyptian assistant foreign minister, agreed, saying that talks between Egyptian and South Sudan officials were reassuring before the partition, but this does not mean that after separation problems won't arise.

Amr noted that international donors play a critical role in the issue, and Cairo has presented many of them with detailed legal briefs proving the prerequisite of Egypt's approval for any water project in the Nile Basin area. At the same time, Egypt is looking into ways of cooperating with Nile Basin countries, as indicated by Ambassador Reda Bebars, the official responsible for the issue at the Egyptian Foreign Ministry. 

However, Amr argued: “How can we reach out to these countries at a time when they are drafting agreements against Egypt's interests? This cooperation will not be fruitful because of them.”

Amr asserted that international instruments underscore Egypt's right to reject any changes to its current quota of Nile water, such as the principles of the Helsinki Conference (Article 66, Paragraph 3) regulating the principles of fair use and prior notification. Also, the Berlin Principles and the UN agreement of 1997 stipulate the fair use of water and without harm, as well as negotiations and prior notification. 

Regarding the legal repercussions of source countries unilaterally signing the agreement without upriver states, Amr explained that according to international law the agreement is not binding except for on its signatories, and that they alone are responsible for its stipulations. This means that legal action is confined to the signatories and anyone else is considered a third party, even if they had participated in the negotiation process.

At the same time, source countries cannot discard the international rule of prior notification of any development project they intend to construct; Egypt must be informed and consulted beforehand.

Ibrahim Nasruddin, the director of the Centre for African Studies and Research, points to the fractured relationship between source countries and upriver states, especially Egypt. Nasruddin noted that Ethiopia has played an antagonistic role, and that irrespective of Cairo's policies it will be difficult to change this role. The Ethiopians routinely claim Egyptian imperialism, he said.

Khaled Ouda, a geologist at Assiut University, blames the previous regime for mismanaging the issue. Hani Raslan, the head of the Nile Basin Unit at Al-Ahram Centre, concurred and said previous policies were muddled and blurred.

Ouda believes that the next crisis that will result in conflict and catch everyone unawares is the demarcation of the border between North Sudan and South Sudan. He described it as the worst possible border demarcation in the history of the region, because it was a political delineation that will negatively influence Egypt-South Sudan ties.

Military experts doubt Egypt can resort to military threat or action. Sameh Seifelyazel and Brigadier General Safwat Al-Zayyat assert that Egypt needs at least four to five years to prepare itself for any such action, and that it should not make any moves in the interim. Instead, it needs to stand fast and recover its diplomatic position.

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