EQUITABLE UTILIZATION OF THE BLUE NILE RIVER SUB-BASIN: CONTEXT, PROBLEMS AND PROSPECTS

Introduction to Doctoral Dissertation

Dr. Yosef Yacob**

The events of the last two decades have made people throughout the world understand that water is a scarce resource on earth. The Sahelian drought, which has continued for most of three decades, for example, is responsible for famines in Ethiopia, the Sudan, and the Horn of Africa more generally and, consequently, this part of Africa has been dependent on food aid for several decades. Even the USA, has suffered from drought in the arid western regions, especially in California, and from over-utilization of its water resources. Europe, another important source of cereal exports, suffered from severe drought conditions in 1990, not only causing Greece and France to intro­duce water rationing but also creating severe water shortages in England, Italy, Spain, Switzerland and Hungary. In 2001, Central America witnessed a food crisis because of “apocalyptic” drought[i] and the Middle East faced water rationing.[ii] In addition to a severe shortage in the quantity of water, there is a growing concern over water quality and the United Nations Environmental Program has called for a sustainable water development policy in which water develop­ment will be carried out within the context of environmental preservation and improvement.[iii]

According to the recent UN Freshwater Assessment,[iv] humans are currently using about “half the 12,500 km³ of water that is readily available;” yet, population is expected to double in the next 50 years and water consumption, during the twentieth century, increased at twice the rate of population growth.[v] If this pattern of water use continues, little water will be left for “in-stream uses,” such as maintaining healthy ecosystems, facilitating navigation or recreation, and generating hydroelectric power.

The situation is even more critical in certain countries and regions. Water is allocated unequally across regions, and many countries with a significant portion of the world's population do not have secure access to adequate supplies of freshwater. The UN Freshwater Assessment found that 460 million people, more than eight percent of the world's population, live in countries facing serious water shortages.[vi] A further one-quarter of the world's population lives in countries where water shortages are likely to become serious in the future.[vii] Access to fresh water is in fact one of the most pressing environmental, economic and health issues facing many developing countries.[viii] To further complicate matters, many fresh water basins cross at least one national boundary, thereby making the management, the use of and access to water subject to many disputes.

1. The Problem of International Rivers

The UN ECOSOC Center on Natural Resources’ Register of International Rivers, catalogues one hundred and forty international rivers that have river basins sufficiently large in size for joint use and development.[ix] There are forty-three such international rivers in the Americas, twenty in Europe, twenty-seven in Africa and fifty in Asia.[x] Two hundred and fifteen river basins are multina­tional, including fifty-seven in Africa and forty-eight in Europe.[xi] Many major rivers, such as the Amazon, Nile, Rhine, and Mekong involve five or more countries. Globally, forty seven per cent of all land lies within international river basins, and nearly fifty countries on four continents have above three-quarters of their total land in inter­national river basins.[xii]  Accordingly, in 1977, the UN Water Conference at Mar del Plata, Argentina, declared that in relation to the use, management and development of shared water resources, national policies should take into consideration the right of each state sharing the resources to ‘equitably utilize such resources as the means to promote bonds of solidarity and cooperation.’[xiii]

Geography also suggests that, by virtue of its physical unity, a river basin should be developed as a single, indivisible whole, irrespective of political divisions. This is so, because moving water, flowing toward an outlet (or outlets), binds land areas together, and interference with the water and its movement at any point has repercussions elsewhere in the basin.[xiv] Indeed, the river basin is a common property resource because exploitation by one riparian may diminish the benefits enjoyed by others.[xv] From an economic efficiency point of view, the basin should be treated as a unit so that “…an inventory of soils, feasibility of irrigation and drainage, values of alternative crops, domestic and industrial water needs, could be factored into a basin-wide model that might yield an 'optimal' pattern of water utilization.”[xvi]

However, while the ties of geography and efficiency prescribe the unitary development of an international river, basin states have been reluctant to relinquish control over land or resources that lie, even partially, within their borders.[xvii] Yielding sovereignty is always a dubious proposition and therefore, even under favorable circumstances, states shy away from cooperating. The situation in international river basins exemplifies the pervasive collective action problem: the pursuit of interests defined in purely individualistic terms, which may lead to socially undesirable outcomes. Hence, the challenge in international river basins remains the achievement of cooperative solutions to the provision of a common property resource, and avoidance of the tragedy of the commons.[xviii]

Of the first order international river basins listed by the United Nations (1972), seventy- two percent lie within developing countries in Latin America, Africa, and Asia, yet less than thirty three percent of international agreements negotiated since 1948 are from these areas. In terms of substance, few agreements anywhere directly address utilization, development and management issues. A review of one hundred and fifty two agreements signed between 1900 and 1972 shows that just twenty eight percent deal with project authorization,[xix] and seven percent make provision for data collection and exchange, which suggests that cooperation to develop shared water resources on a comprehensive basis is limited.[xx] Equally significant is the record of lengthy negotiations, which either ended in failure or modest accomplishment.[xxi] Unilateral development of these shared watercourses can therefore give rise to bilateral or multilateral disputes, particularly in a time of scarcity. The European Commission experts believe that if nothing is done at the international level by 2020-2030, a host of conflicts may ignite in high-risk regions.[xxii]

The World Commission on Environment and Development[xxiii] has also expressed concern over the potential increase in international conflicts in developing countries due to environmental degradation, increasing competition over shared resources and pre-emption of development options for co-riparians and future generations resulting from population growth and rising expectation for improved standards of living. If a limited supply of a shared natural resource is required to meet the increasing demand of several users, then competition between resource users will inevitably increase. Such competition may result in incompatible goals and conflict.[xxiv]

Conflicts involving shared resources such as international rivers can be understood in terms of disputes arising out of property rights, reciprocal rights and obligations, collective obligations and “equitable use” among and between states.[xxv] Property rights (legal rights) arise from state sovereignty and a claim to absolute title to that part of an international river, which flows within the state’s territory. Reciprocal obligations typically arise from negotiated agreements between states and/or derive from international law. Collective obligations are more difficult to define but typically relate to optimal utilization of commons and other widely shared resources.[xxvi] Equity (equitable utilization) is also an important principle that can be used to define the obligations between states[xxvii] to eliminate the injustice caused by the rigid application of the factors creating legal rights.[xxviii] Salmond defines equity as follows:

The term equity in its general sense is nothing more than a synonym for impartial or equal allotment of good and evil…the virtue of which gives every one his own… In a second and legal sense equity means natural justice not simply, but in a special aspect; that is to say as opposed to the rigor of inflexible rules of law…In individual case it may be considered useful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the dictates of natural reason.[xxix]

2. The Blue Nile Sub-basin

The river Nile is a paradigm case that “embodies all the challenges that transnational management of fresh water could possibly present.”[xxx] The second longest river in the world, it supplies ten countries[xxxi] “united by the Nile as a string threads together the beads of a necklace.”[xxxii] Besides Egypt, there are nine other co-riparians of the Victoria and Nile Drainage Basin - Sudan, Ethiopia, Eritrea, Congo, Uganda, Kenya, Tanzania, Rwanda, and Burundi. The Nile River and Lake Victoria together constitute one of the world's largest fresh water basins.

The major source of the Nile is the Blue Nile Sub-basin, which consists of the Atbara River, the Sobat River, and the Blue Nile River, which flow from the Ethiopian highlands.[xxxiii] The White Nile begins at Lake Victoria in East Africa, and then winds its way through the massive Sudd swamps of Sudan.[xxxiv] The Main Nile technically begins at the point near Khartoum where the Blue Nile from Ethiopia and White Nile from the equatorial lakes join.[xxxv] Gamal Moursi Badr of Egypt estimates that, of the total annual Main Nile discharge, eighty four percent is contributed by Ethiopia and only sixteen percent comes from the Lake Plateau of Central Africa.[xxxvi] Garreston offers the estimate that at the peak of its flood (April - September), the Blue Nile alone supplies ninety percent of the water passing through Khartoum, but that in the low season (January-March) it provides only twenty percent.[xxxvii] A broad estimate would be that the Lake Plateau of Central Africa contributes between twenty and twenty five percent of the water flowing north of Khartoum, while Ethiopia contributes seventy-five to eighty five percent. To Egypt, a lower riparian dependent on Nile waters for its survival, the contribution from Lake Victoria on an annual basis is minimal, compared to that from Ethiopia.[xxxviii] The Sudan contributes no water to the Nile and in addition to what it consumes for irrigation, there is a substantial volume lost in the Sudd Basin.

Like most international river systems, while large in terms its physical proportions, the Nile is a sensitive natural resource and the watershed from which it originates determines the quality and quantity of its water. The Nile is not only a natural drain through which surplus water reaches the Mediterranean, but also a means of redistributing water from areas with high precipitation in the Ethiopian Highlands to the arid regions of Egypt and Sudan. The Nile is used for drinking, household, industrial, agricultural, fishing, transportation, and energy purposes but the eco-system (wetlands, forests, vegetation and fish and wildlife) also depends on it. Any particular use of water has consequences for other uses. Water extraction (domestic, industrial and agriculture), water discharge and flow regulations (water diversion, dams and reservoirs), water quality (erosion and siltation, eutrophication, pollution, deforestation and pesticides), can have basin-wide consequences, seriously affecting the nature and extent of benefits realizable throughout the basin. Yet, for the last half-century, the basin riparians have unilaterally sought to establish exclusive rights of exploitation to that part of the river which is within their territory, for their own social and economic development.

To Egypt the ability to exercise control over the water resources in the Nile Basin is also of major importance to its national security and survival. Attempts by upper riparians to unilaterally exploit the shared resources, through expressions of sovereignty and in the pursuit of national self-interest have been met with Egyptian threats and resistance. Dr. Boutros-Ghali, the former Egyptian Minister of State for Foreign Affairs and former secretary-general of the UN, recognized the potential for conflict in the Nile Basin and predicted that the next war in the region would be over water.[xxxix] The Center for Strategic and International Studies predicts that water will become a dominant subject of conflict for the Middle East.[xl]

In the Blue Nile Sub-basin, rapidly growing populations, poverty, ambitious development programs, prolonged droughts and devastating famines since the mid 1970s have accelerated the prospect for disputes between Ethiopia and the lower Blue Nile Sub-basin riparians. The riparians recognize the potential for conflict and have made efforts to reach accords for the equitable utilization of the waters of the Blue Nile River Sub-basin. In 1991 Ethiopia and Sudan and subsequently in 1993 Ethiopia and Egypt signed framework agreements committing themselves to negotiate permanent agreements on the basis of rules and principles of international law. However, according to prominent Ethiopian Nile scholars, the contemplated negotiations to achieve permanent agreements have not been achieved because of dissension concerning “the facts and the law…” and because “there is neither international customary law nor treaty law that entitles Egypt to Nile waters within Ethiopian territory”.[xli]

3. The Customary Rule of International Law – The Helsinki Rules

In 1994, the United Nations International Law Commission, after intensive studies, concluded that the principle of equitable utilization as set forth in Chapter 2 of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers is a customary rule of international law[xlii] applicable to the utilization of international rivers.[xliii] The conclusion was the basis for the 1994 Draft Articles on the law of the Non-Navigational Uses of International Watercourses, subsequently adopted by the International Law Commission[xliv] and approved in 1997 by the General Assembly of the United Nations as the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses.[xlv]

Article IV in Chapter 2 of the Helsinki Rules,[xlvi] “The Equitable Utilization of the Waters of an International Drainage Basin,” explicitly states the principle that each basin state is entitled within its territory, to a reasonable and equitable share in the beneficial use of the water of an international river. Article V delineates that a reasonable and equitable share is to be determined in the light of relevant factors in each particular case including but not limited to:

(a) the geography of the basin including, in particular, the size of the drainage area in the territory of each basin state;

(b) the hydrology of the basin including, in particular, the contribution of water by each state;

(c) the climate affecting the basin;

(d) the past utilization of the waters of the basin including, in particular, existing utilization;

(e) the economic and social needs of each basin state;

(f) the population dependent on the waters of the basin in each state;

(g) the comparative costs of alternative means of satisfying the economic and social needs of each basin state;

(h) the availability of other resources;

(i) the avoidance of unnecessary waste in the utilization of the waters of the basin;

(j) the practicability of compensation to one or more of the co-basin states as a means of adjusting conflict among uses; and

(k) the degree to which the needs of the basin state may be satisfied, without causing substantial injury to a co-basin state.

The remaining Articles VI, VII and VIII of the Helsinki Rules provide guidelines for determining preference among competing, conflicting or incompatible uses; the protection, creation or termination of existing uses; and the reservation by a co-basin state of the waters of an international drainage for future use.

Article VI of the United Nations Convention incorporates the Helsinki Rules as criteria to assess whether utilization of an international watercourse is equitable and reasonable. These include factors of natural character, such as geography, hydrology, and climate. Other factors include social and economic needs, a population’s dependence on a particular watercourse and the effect of water usage on other basin states, consideration of conservation, protection, development and economy of use of water and availability of alternatives to a specific use. Article VII through Article XXVI concern the obligation to prevent the causing of significant harm to other basin states and provide for general obligations to cooperate; regular exchange of data; priority of uses; and the obligation for prior notification, consultation and negotiation when a contemplated use by one basin state affects another basin state; and provisions for protection, preservation and management of the watercourse including ecosystem protection, pollution control and the introduction of new species.

Sudan voted in favor of the UN Convention,[xlvii] Ethiopia and Egypt abstained from voting, and none f the sub-basin states has yet signed or ratified the Convention. Although Ethiopia and Egypt abstained, they did not express objection(s) to the principle of equitable utilization and the criteria set out in Article VI of the Convention.[xlviii] Rather, the abstentions were based on the perceived potential conflict between the Article VI entitlement and the qualification contained in Article VII “…to take all appropriate measures to prevent the causing of significant harm to other watercourse states.” Therefore, Egypt and Ethiopia acquiesced to Articles IV and V of the Helsinki Rules and the application of the equitable utilization principle to the waters of the Blue Nile Sub-basin when they explicitly agreed in 1993 to negotiate a permanent agreement “…on the basis of the rules and principles of international law.”[xlix]

4. Problem Statement and Goal of the Study

The sub-basin riparians have acknowledged the existence of differences of interest and values among them and have accepted the obligation to engage in negotiations aimed at resolving their disputes and to seek a compromise agreement based on principles of international law.[l] While international law is relevant to fixing the limits of the relationship, defining reciprocal rights and obligations, providing the means for dispute resolution, establishing boundaries of legitimate agreement and the means of ensuring that agreements are binding, negotiation among the sub-basin states determines the shape of the agreement itself.[li] However, despite the acceptance of customary rules and principles of law applicable to international rivers, the riparians have yet to negotiate a permanent agreement for a reasonable and equitable share in the beneficial use of the waters of the Blue Nile Sub-basin to which each is entitled.

This study argues that the failure of the Blue Nile Sub-basin’s riparians to negotiate a permanent agreement is a manifestation of the lower riparians’ preference for the status quo or “no agreement” alternative. The lower riparians, Egypt and Sudan, perceive disadvantage by negotiating a binding accord with upper riparian Ethiopia. Egypt and Sudan perceive the injury to lower riparians’ interest (which would result from negotiation, in light of the expressed demand, by Ethiopia, for a share of the water resource presently used exclusively by the lower riparians) outweighs the perceived benefit, which would accrue to lower riparians. The lower riparians perceive that in the absence of a binding accord the “no-agreement” alternative allows the lower riparians to continue to benefit from exclusive and full access to the sub-basins resources without serious consequence, penalty, cost, or risk. The lower riparians also perceive that there is neither mandate to negotiate nor penalties or sanctions imposed for failing to negotiate. Therefore, Egypt and Sudan perceive the “no-agreement” alternative and the status quo as offering the lower riparians a better outcome to a negotiated agreement.

The study further argues that in the absence of effective long-term alternatives to satisfy the upper riparian’s need to employ resources within its jurisdiction for domestic, agricultural and economic development, the absence of a comprehensive agreement for the equitable use of the sub-basin’s shared resources wll invite unilateral development by the upper riparian. The study therefore proposes the necessity for consensus building, to alter the status quo, for the sub-basin riparians to realize dividends through the equitable and sustainable development of the Blue Nile Sub-basin.

The goal of this study is to facilitate negotiations for a comprehensive and durable agreement for the equitable utilization of the waters of the Blue Nile Sub-basin by the sub-basin’s riparians. The study aspires to accomplish the goal by contributing to the understanding of the perception(s), condition(s), factor(s), or barrier(s), which impede negotiations among the riparians, and proposing an effective approach towards the realization of a sustainable, equitable and peaceful utilization of the shared resources.

5. Approach

In the framework agreements, the riparians officially selected negotiations, from among the other general procedures for resolving disputes, as the particular approach to reach a permanent agreement for the equitable use of the waters of the Blue Nile Sub-basin.[lii] According to Fisher and Ury, negotiation is a back and forth communication designed to reach an agreement when parties have some interests that are shared and others that are opposed.[liii] It is a process of potentially opportunistic interactions by which two or more parties with some apparent conflict seek to do better through jointly decided action than they could otherwise.[liv] There is voluminous literature relating to negotiation. Some books offer recipes for effective negotiations[lv] and personal transformation[lvi] and others which are based on rigorous studies of negotiation that draw on work in game theory, mathematics, economics, psychology and conflict studies to suggest ways of improving negotiating techniques.[lvii] There are also theories of negotiation which combine academic research with clear practical advice. These theorists view negotiation as a value creating, problem solving, integrative or win-win bargaining exercise in which all parties can win and approaches which argue that cooperative negotiation allows for better agreement that more effectively meet the parties’ real interests.[lviii]

Advocates of non-adversarial approaches to negotiation argue that all negotiation can be problem solving and value creating.[lix] The conception that negotiation is a win-lose zero-sum game in which the objective is to claim as much value as is possible and where gain by one party is necessarily at the expense of the other party is criticized as a “fixed pie” assumption that blinds parties to potential gains.[lx] Others argue that regardless of the merits of win-win or integrative bargaining most negotiations are distributive or win-lose[lxi] and the most demanding aspect of nearly every negotiation is the distributional one in which one seeks more at the expense of the other.[lxii] 

Notwithstanding theories, strategies and the debates between those who view negotiation as inevitably competitive and those who see potential for cooperative and integrative approaches, the essence of negotiation is to achieve a better outcome than is possible without a negotiated agreement.[lxiii] Implicit in negotiations is that each party’s best alternative without agreement is the lower limit of value that any acceptable agreement must provide.[lxiv] For each side, the basic test of any proposed agreement is whether the agreement offers higher subjective worth than that side’s best alternative without agreement.[lxv] Therefore, the decision to negotiate will depend on whether a negotiated agreement will offer greater value than the best outcome absent a negotiated agreement.[lxvi] Pruitt and Carnevale emphasize the concept that it is rational for negotiators to limit their concessions to what Fisher and Ury introduced and referred to as the “best alternative to a negotiated agreement” (BATNA)[lxvii] or the outcome in the absence of a negotiated agreement.[lxviii]

To advance one’s interest, it is therefore critical to analyze the “no-agreement” alternative and to assess how the other parties will perceive and value their “no-agreement” alternatives.[lxix] This focus on negotiation as one of several means for advancing one’s interests helps determine whether to negotiate, whether to continue the process, whether to accept a proposal, and whether an agreement, once reached, will be secure.[lxx] According to Pruitt and Carnevale, there is evidence that negotiator limits are indeed influenced by their BATNAs or “no-agreement” alternatives. Parties are more willing to enter into negotiations the greater is the perceived cost of failing to reach agreement and, conversely, parties are willing to take risks by failing to negotiate if there is little perceived penalty for no agreement.[lxxi] Bacharach and Lawler have also demonstrated that concession making and negotiation are more likely when BATNAs are less favorable.[lxxii]

Therefore, the “no-agreement” alternative or the “status quo” or BATNA may be perceived as favorable offering greater value to one or more parties and thereby impede or obstruct negotiations. It follows that chances of successful negotiation can be affected by understanding the perceived benefit, penalty, or cost associated with the “no-agreement” and alternatives available to each outside of negotiation. According to Raiffa the one theme that is shared by the literature on negotiation is that such an “analysis can help.”[lxxiii] Accordingly, an assessment of the benefit, penalty, or cost associated with the “no-agreement” alternative and the best alternative to negotiated agreement will first require an identification and understanding of the major interests[lxxiv] underlying the equitable utilization of the waters of the Blue Nile Sub-basin by the sub-basin states. It is only when a party has assessed its interests and those of other parties and reviewed potential dispute outcomes that an appropriate approach to reach the desired end can be selected.[lxxv]

6. Methodology

In the context of international rivers, disputes generally revolve around issues concerning property rights arising from state sovereignty; reciprocal rights and obligations arising from negotiated agreements, which exist among and between the sub-basin states; and principles of “equitable use” and collective obligations of the sub-basin states.[lxxvi] These principles will be relied upon to illuminate the major issues and interests in contention in the Blue Nile Sub-basin and to identify and explicate perceptions, factor(s), condition(s) or barrier(s), which impede negotiation among the sub-basin states in order to provide the context for the proposed approach for resolution. The principles will also provide the framework for organizing and structuring the dissertation.

The study identifies and explores issues concerning property rights, “equitable use,” reciprocal rights, and obligations by examining characteristics of the sub-basin, the socio-economic, political, historical and legal context and interactions of the sub-basin riparians. The study examines property rights and “equitable use” in light of the factors set out in Article V of the Helsinki Rules for determining the reasonable and equitable “share” since the riparians have accepted the relevance of these criteria in the determination of equitable use of the sub-basin’s waters.[lxxvii] These factors include the hydro-geography of the Blue Nile Sub-basin (geography, drainage area, the hydrology, and the climate); past, existing and planned uses of the waters of the sub-basin; the population dependent on the waters of the sub-basin; water supply and demand in the sub-basin; present and future water requirements of each sub-basin riparian; socio-economic needs of each sub-basin riparian; alternative means of satisfying economic and social needs and comparative costs; avoidance of waste; the degree to which the needs of the sub-basin state can be satisfied without causing harm; and the practicability of compensation to adjust conflict among uses.

The study will also review past and present efforts to achieve an agreement; and further examine reciprocal rights and obligations by focusing on the “legal regime” of the Blue Nile Sub-basin, including principles, norms, laws, treaties and accords applicable to the utilization of the waters of the Blue Nile Sub-basin. Finally, the study will explore issues concerning the collective obligations of the sub-basin riparians as members of the international community, the international law, principles and decisions applicable to consumptive uses of international rivers, the collaboration based approaches, which have been put forward to achieve equitable utilization of shared resources and the accepted norms for the peaceful settlement of international water law disputes. The study will conclude by encapsulating the barriers to achieving a permanent agreement in the Blue Nile Sub-basin and proposing an approach to facilitate peaceful resolution.

7. Overview of the Study

The study contains twelve chapters. The first part of the study, which consists of the first five chapters, focuses on property rights and “equitable use.” The second part of the study, which consists of chapters six and seven, focuses on reciprocal rights and obligations. The third part of the study, which consists of chapters eight through eleven, focuses on collective obligations of the sub-basin riparians and the options and means for settlement of international water law disputes. The study concludes by encapsulating the barriers, factors, and conditions impeding negotiations to achieve equitable use in the Blue Nile Sub-basin and proposing an approach to facilitate negotiations to achieve a permanent agreement for the equitable utilization of the waters of the Blue Nile Sub-basin.

Chapter 2 describes the Blue Nile Sub-basin geography, hydrology, climate, topography, and riparian contributions to the resource thereby incorporating the first three complementary variables in the Helsinki Rules. An understanding of the hydro-geography of the Blue Nile Sub-basin is very vital because it is the context which has defined and continues to influence the perceptions, attitudes and past and present actions and conduct of the riparians towards utilization of the sub-basin’s resources. The chapter begins by comparing the geography, hydrology, and climatic characteristics of sub-basin states. The chapter describes the contrast and significant variations of the climate and hydro-geography of the sub-basin states, the characteristics and drainage of the Blue Nile Sub-basin, total discharge of the sub-basin’s rivers and describes the availability of other resources in the sub-basin to supplement the water requirements of the riparians. This chapter demonstrates the relative importance of Ethiopia as the main contributor to the total discharge of the rivers in the Blue Nile Sub-basin and the riparian with the largest drainage area.

The chapter also demonstrates that Egypt, which contains the smallest drainage area and contributes very little water to the sub-basin’s drainage system, is the riparian which is comparatively most dependent on the resource. This hydro-geography of the sub-basin perpetuates the perception that Egypt’s near total dependence on the sub-basin’s resources establishes a comparatively greater need and therefore a superior entitlement to the waters than any other of the sub-basin riparians. Hence, this chapter illustrates the tension between the doctrines of absolute integrity and absolute sovereignty and the issue of perceived “property rights” between the sub-basin riparians. Specifically, the right of the upper riparian to utilize and dispose of the waters of an international river flowing through its territory as it sees fit and the lower riparians’ sovereign right to demand an undiminished supply of the natural flow of waters from the upstream riparian. Indeed, despite the expressed abandonment of the obsolete doctrines of absolute integrity and absolute sovereignty, the riparians continue to perceive the waters of the sub-basin in the context of “property rights” rather than equality of interest in the shared resource.

Chapter 3 describes the circumstances, which led to the prior appropriation of the entire flow of the waters of the Blue Nile Sub-basin by Egypt and Sudan and the present water utilization regime in the sub-basin. The chapter examines the past and present patterns of utilization of the sub-basin’s waters including opportunities for water conservation to increase the existing supply in the sub-basin thereby incorporating the fourth variable of the Helsinki Rules. The chapter further describes the early control works and development activities in the sub-basin as well as Egypt’s and Sudan’s reliance upon the waters of the sub-basin, since ancient times, for their agricultural, economic and social development. Both countries invested heavily in the infrastructure necessary to make effective use the Nile and floodwaters of the Blue Nile Sub-basin in particular. The chapter explains how Egypt, during the first half of the century, came to develop elaborate plans for integrated development of the entire Nile Basin, including diversion and conservation schemes, to increase output of the basin for the benefit of Egypt and to a lesser extent Sudan. The chapter also describes Egyptian plans, which called for the installation of ambitious projects along the Nile River and Blue Nile River Sub-basin in four sovereign states and which would have affected the regime of the river in four other sovereign states. Predictably, when the plan became politically complicated to execute, the circumstances galvanized Egyptian and Sudanese determination to proceed jointly and severally with plans and projects to use the waters of the entire Nile Basin for their respective needs. The chapter highlights the unrealized potential to increase the sub-basin’s water supply by approximately twenty-six percent through conservation. Despite significant socio-economic and political changes in the sub-basin and the apparent need of the upper riparian, the past utilization, prior appropriation and perceived entitlement to the entire flow of the sub-basins waters for the exclusive benefit of the lower riparians continue to instruct the position of the lower riparians towards sharing the sub-basin’s resources.

Chapter 4 applies the last five variables of the Helsinki Rules and examines the socio-economic requirements in the sub-basin, the sub-basin water demand and supply, the competing aspirations of the sub-basin’s riparians, the relative dependence of the riparians on the sub-basin waters and the benefits, which would accrue by cooperation. The chapter describes the increased utilization of the sub-basin’s waters by Egypt and Sudan during the second half of the twentieth century. Egypt presently uses its entire appropriation of the flow of the Nile River, under a 1959 Agreement with the Sudan, and has thus far been borrowing “surplus” waters from Sudan to meet its existing requirements. This chapter illuminates the lower riparian’ perception that there is no “surplus” water for diversion or new consumptive uses by the upper riparian. The chapter describes the rapidly increasing population in the sub-basin and the corresponding pressure on each riparian to increase irrigation, the agricultural yield and hydro-power generation to promote economic development, and the standard of living, as well as the increasing demand for water in each sub-basin state for domestic and industrial uses. The chapter further describes the sub-basin’s increasing reliance on international assistance for food imports and international aid to mitigate famine and the impending struggle by each sub-basin state for a greater share of the resource. The chapter describes the proposed major development schemes and projects for greater consumptive uses in the sub-basin states to promote self-reliance in food production, economic development, and improved standards of living, and the riparians’ conviction to proceed unilaterally. Even though the lack of economic resources and the inability to obtain international financing to undertake planned development in the basin has inhibited some capability to act unilaterally, the chapter notes the potential harm which could result from unilateral action. The chapter also illustrates the potential mutual gains from collaboration and consultation and the indispensability of effective cooperation in the sub-basin.

Chapter 5 examines the degree of effective cooperation among the basin states in recognizing the waters of the Blue Nile Sub-basin as a shared resource. The chapter traces the initial approach of the sub-basin riparians in developing the Nile Basin and the evolution and outcome of these efforts. The chapter describes the early disposition and the political and diplomatic initiatives of the riparians towards cooperation as well as the effects of the initiatives on contemporary attitudes and future collaboration. The chapter discusses the hostility, tensions and conflict in the sub-basin and the attempts to minimize conflict through dialogue to reduce tensions leading up to the creation of the Nile Basin Initiative to facilitate basin wide cooperation. The chapter further describes the riparians’ aspirations to secure international financing for joint sub-basin wide projects as well as individual development schemes by participating in the Initiative. The chapter observes Ethiopia’s perception that its development projects will be financed in the near-term through participation in the Initiative and equitable utilization of the sub-basin’s waters achieved in the long-term through cooperation and the integrated development of the sub-basin. On the other hand, Egypt perceives the Initiative as a means to gain a comprehensive understanding of the basin, by conducting scientific and technical studies for better protection and management of the watershed. These studies would include supply and demand forecasts, impact of ecological, environmental and climate change, impact of population and political developments, and environmental impacts of proposed developments in the basin, and an inventory of all alternative water supplies available to each riparian in the entire Nile Basin. Egypt in particular perceives the need for additional knowledge before any negotiations to change the present utilization regime. Notwithstanding the public pronouncements to cooperate, this chapter highlights the failure of the sub-basin’s riparians to acknowledge the equality, the needs, and the rights of each basin state in the utilization of the waters. The chapter illustrates the necessity to look beyond the mantra of cooperation and diplomatic and political initiatives to effectively resolve substantive and legal issues of equitable utilization of the shared resources.

Chapters 6 and 7 describe the evolution and historical context of the treaties and negotiations concerning the utilization of the sub-basin waters in order to understand the treaties themselves and the effect of the treaty making process on the present day attitudes and relationships of the riparians. The chapters also analyze the legal significance of the relevant treaties and their interpretations, identify the various non-treaty arguments asserted by the riparians in support of their respective claims, and describe the riparians’ attitudes towards the existing legal regime. The chapters examine the lower riparians’ perception that existing treaties grant lower riparians the exclusive right to utilize the entire flow of the Nile while imposing obligations on the upper riparian not to cause “appreciable harm” or use any of the sub-basin waters without the prior consent of the lower riparians. In addition to treaty rights, the chapters describe the evolution and examine claims of historic, natural, acquired, vested and established rights and of prior appropriation to the entire flow of the sub-basin waters by the lower riparians. Chapter 7 also reviews Ethiopia’s counter-claims and objections to lower riparians’ contentions, assesses the soundness of the various claims, and reviews the counterclaims. The chapters observes the absence of effective negotiated agreements between Ethiopia and the lower riparian, the absence of a legal regime or accepted legal norms in the sub-basin, which delineate reciprocal rights and obligations of the riparians.  

Chapter 8 surveys the general principles and doctrines of international law of water resources, describes the evolution and development of the doctrine of “equitable utilization” and surveys and describes the international state practice. The chapter examines the Helsinki Rules and reviews the significant international decisions since 1898, including the most recent Gabcikovo-Nagymoros decision, which presented the ICJ with an opportunity to issue a broad opinion on modern international environmental and watercourse law. The chapter also briefly examines the roles of the principles of sustainable development, state sovereignty over natural resources in the utilization of international water resources and the role and limitations of the 1997 UN Convention on International Watercourses. The chapter observes that international water resources law is still in the formative stage, remains vague, and does not offer an authoritative definition of rights and obligations or specific prescriptions for the equitable utilization of the waters of an international river basin. Instead, international water resources law promotes voluntary cooperation, negotiation, and optimal use through joint and integrated management of international rivers as alternative means to achieve equitable utilization. Therefore, the absence of specifications for equitable utilization empowers the riparian most likely to benefit in the absence of specific requirements (i.e. Egypt) to opt for a “no-agreement” alternative.

Chapter 9 examines the alternative theories and approaches for equitable utilization of international rivers and the assessment of the alternatives. The chapter explores the emergence, rationale and development of approaches such as arbitrary allocation, economic theory, optimal use through integrated basin wide management, and cooperation through institutional regimes as means to achieve equitable use of a shared resource. The chapter highlights conditions necessary for the successful application of the alternative approaches, identifies the limitations, and assesses the prospect for cooperative development of the Blue Nile Sub-basin. The chapter points out the absence of sanctions on states for refusing to engage in cooperative arrangements for the management and optimal utilization of shared resources as an inherent limitation of the alternative approaches. The lack of sanctions for non-cooperation permit the riparian who maintains or gains advantage by non-cooperation to prefer the “no-agreement” alternative, leaving aggrieved riparians to seek relief through accepted methods for resolution of international disputes.

Chapters 10 and 11 survey and assesses the options for the settlement of disputes involving the use of international rivers through unilateral action, diplomatic means, regional mechanisms and international organizations, consensus building, “super power” intervention, and technology. Chapter 10 focuses on unilateralism as a possible outcome of the present impasse and assesses the implications and possible responses. Chapter 11 observes the duty imposed on the sub-basin states to seek early and just settlement of differences by peaceful means and the duty imposed on each riparian to refrain from actions, which may aggravate differences. Chapter 11 also illustrates that as sovereign states, none of the sub-basin’s riparians can be compelled to negotiate or to participate in the existing international framework for dispute resolution without their consent or at least their acquiescence. The chapter examines the inherent strengths and limitations of the conventional mechanisms for international water law disputes as well as the limitations of intervention by super powers, international development institutions, and existing technology.

Finally, Chapter 12 encapsulates the primary barrier underlying the failure of the sub-basin riparians to negotiate a permanent agreement for equitable utilization. Because of the drive for food security and self-sufficiency by the sub-basin states, the utilization of the waters of the Blue Nile Sub-basin has taken on elements of a zero-sum game and a preference by Egypt and Sudan for the status quo or “no agreement” alternative rendering negotiations among riparians difficult. The absence of a permanent agreement among the Blue Nile Sub-basin states reflects, by lower riparians Egypt and Sudan, perceived disadvantage by negotiating a binding accord with upper riparian Ethiopia. Egypt and Sudan perceive that any consumptive uses of the waters by Ethiopia would result in a corresponding and injurious reduction to the lower riparians. To Egypt and Sudan, the perceived cost or injury in light of the inevitable and expressed demand by Ethiopia, for a share of the water resource presently used exclusively by the lower riparian, outweighs the perceived benefit, which would accrue to lower riparians by negotiation. This attitude is further reinforced by demand for increased consumptive uses of water in each sub-basin state and the uncertainty and lack of accurate knowledge and forecasts concerning the water supply and demand in the basin.

The chapter also identifies other factors which have contributed to the present stalemate. Under the existing legal regime, Sudan and Egypt perceive that they are entitled to claim the entire resources in the sub-basin and therefore would not gain additional water by further negotiations. The lower riparians perceive that in the absence of a binding accord and the “no-agreement” alternative, the lower riparians can continue to benefit from exclusive and full access to the sub-basins resources without serious consequence, penalty, cost, or risk. Furthermore, international standards and definitions of reciprocal rights and obligations to achieve equitable utilization of international rivers are vague and therefore it is difficult to measure whether a co-riparian has been deprived of a recognized and quantifiable right. Arguably, a riparian is not in violation of international obligations to a co-riparian by choosing to maintain the status quo and the “no-agreement” alternative. The asymmetry of influence in the sub-basin which restrains Ethiopia’s access to international financing for development projects in the sub-basin and the international food aid to the upper riparian have also appeased the urgency, which would otherwise compel a change in the status quo and therefore negotiations. Lastly, the absence of mandatory mechanisms for dispute resolution, the lack of sanctions for non-cooperation or negotiation, the favorable international attitude towards basin wide accords, and Egypt’s hostility towards upper riparians have reduced the pressure to alter the status quo or the advantage gained by a “no-agreement” alternative. Egypt and Sudan perceive the “no-agreement” alternative and the status quo as offering the lower riparians a better outcome to a negotiated agreement, i.e. the best alternative to a negotiated agreement, BATNA.

In conclusion, the chapter acknowledges the proposed treaty as the suitable alternative to the status quo or emerging unilateralism in the sub-basin. The study highlights the present political environment as a serious obstacle to negotiations and proposes inter-basin consensus building, to establish the requisite trust and understanding and to pave the route to a permanent agreement for the sustainable, equitable and peaceful utilization of the waters of the Blue Nile Sub-basin.

** Yosef Yacob, BA in Economics (Linfield College) Juris Doctor (Northwestern School of Law, Lewis & Clark College) LLM in International Law and Litigation (University of San Diego School of Law, Graduate Law Program) PhD in International Law and Dispute Resolution with specialty in International Water Resources Law (Osgoode Hall School of Law, Graduate Law Program & Faculty of Graduate Studies, York University Canada).

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