EGYPT AND THE NILE RIVER WATER DISPUTE BY AARON NAHUMI

The Nile River is considered as the world's longest river, although in recent years it was claimed by researchers in Brazil that the Amazon River is the longest one. The Nile River flows through the following riparian countries: Burundi, Democratic Republic of the Congo (DRC), Egypt, Eritrea, Ethiopia, Kenya, Rwanda, Sudan, Tanzania and Uganda, having, all together population of more than 400 million people. During the last decade, Egypt is in a very delicate and deteriorating situation, as far as, the dispute over the use of the Nile River water, and as we shall explain, Egypt has prime interest to end the dispute by reaching an agreed multilateral solution. Going back in general history, there is no doubt that the hundred year old Harmon Doctrine (on the name of Judson Harmon who was the US Attorney General on 1895) - with regard to the absolute sovereignty of each state on its territory, including international rivers that flow through it - is irrelevant nowadays. It seems that even at that time the U.S. did not fully applied that doctrine. On the other hand, the dispute over the use of the Nile River water, relates to opposite circumstances, pursuant to which the eight upstream riparian countries are subordinated to two other riparian countries (Egypt and Sudan) with respect to their use of the Nile River water. The 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses (although not yet in force) portrays the nowadays international recommended standards, with respect to the use of international watercourses. These standards can be summarized as an obligation of "equitable and reasonable utilization", while utilizing the international course (Article 5) and an "obligation not to cause significant harm" to the other watercourse countries (Article 7). These standards should not be ignored by any Nile River riparian country. A concise historical overview in respect to relations among the Nile River riparian countries is needed. On 1929, the Nile Water Agreement was signed between Egypt and Great Britain, which was acting also on behalf of its colonies, at that time, Kenya, Sudan, Tanzania and Uganda pursuant to which Egypt (48 billion cubic meters per year) and Sudan (4 bcm per year) were granted the utilization right of the Nile River flow. In addition, Egypt has received the right to launch Nile River related projects, without the need to receive the approval of other Nile River riparian countries and Egypt has also received the veto right with respect to any projects of any other riparian country, which adversely affect Egypt's interests. On 1959 an Agreement was signed between Egypt and Sudan in which both countries have agreed on new water allocations between themselves (Egypt 55.5 bcm and Sudan 18.5 bcm per year). This agreement was signed without consent of the other Nile River riparian countries. For decades the Nile River riparian countries criticized and challenged the validity and the fairness of the 1929 and 1959 agreements, which benefited only Egypt and Sudan. Consequently, and after preceding initiatives (such as Hydromet, Undugu and Tecconile) the Nile Basin Initiative (NBI) was formed on 1999. NBI is a partnership of the Nile River riparian countries and it aims to promote cooperation among these countries in connection with the Nile River water. On May 2010 the Nile Basin Upstream Countries initiated the signing of the River Basin Cooperative Framework Agreement (CFA) which if signed by all Nile River riparian countries will inevitably affect the current uses and rights of Egypt and Sudan, with respect to the use of the Nile River water. Egypt and Sudan have rejected the CFA claiming that it reflects an unilateral and illegitimate act. Egypt is almost entirely relying on the Nile River flow for its fresh water consumption (mainly for agriculture and, of course, for drinking) and it does not have any other significant water resources. That dependency explains the "national security" approach of Egypt, regarding any intention to change its utilization rights with respect to the Nile River water. Apart from the fact that Egypt relies on its historical rights combined with sovereignty aspects, the following facts, should not be ignored: In comparison with the other Nile River riparian countries, Egypt has the largest population (more than 80 million people) apart from Ethiopia, it has the highest percentage of population (approximately 85%) located in the Nile River Basin and has the lowest amount of annual average rainfall. However, Egypt has prime interest to promote a mutually agreed solution and not to expose itself in that respect to international pressure and to potential harsh and uncontrolled conflicts. As we shall detail below Egypt is facing certain circumstances, which impose significant burden on Egypt's freedom of action. It appears that Egypt is still the leader of the Arab World. Nonetheless, nowadays, Egypt's leadership is not undisputed, as it was in the past, mainly due to President Mubarak's succession issue, combined with internal political unease in connection with Islamic groups, especially the Muslim Brotherhood Organization, which is probably the world's largest Islamic (Sunni) political movement (see: Egyptian President Mubarak's Successor and the Middle East Praxis by Aaron Nahumi). Egypt was criticized over its November 2010 parliamentary elections, which were regarded as undemocratic and their severe irregularities have raised questions about their fairness and transparency. In that context, attention should be drawn to the fact that although the U.S. considers Egypt as an important political asset in the Middle East and in the Arab World and provides Egypt with substantial economic and military assistance, still the U.S. State Department participated in that criticism. This position is in continuation with the U.S. requests, during the last years, urging Egypt to democratize its political system. This position was reflected also in the speech of the U.S. President Barack Obama in Cairo, Egypt in June 2009. Moreover, the Iran's Pan-Islamism policy, combined with the Iran's military nuclear program, constitute a threat on Egypt's Arab World leadership. Finally, although Sudan shares the same interests as Egypt aiming to preserve both countries' current situation in connection with the use of the Nile River water, still due to Sudan's problematic internal political situation (see: New Civil War in Sudan by Aaron Nahumi) Egypt might find itself almost alone in handling the Nile River dispute and bearing the political consequences. It seems that Egypt, for defending its own interests, should reevaluate and adjust its historical position and hence adopt the appropriate measures in order to deal with the Nile River dispute, while taking into account also the international trend which is adversely to Egypt's position. It is evident that Egypt is not the only factor, and that a new agreement among all Nile River riparian countries will be the outcome of a conglomerate of very many ingredients, such as international funding, win-win multilateral projects (such as, desalination plants for human consumption as well as irrigation, sewage treatment projects and agricultural and industrial joint ventures). Therefore, if Egypt is not determined to solve the dispute over the Nile River, it might find itself in confrontation not only with the other Nile River eight riparian countries but also with other Africa's countries as well as global political powers which will utilize that opportunity to strengthened or establish their political and economical presence, involvement and influence in Africa and in the Middle East. [Aaron Nahumi, LL.B., LL.M. (LSE), is a business lawyer and negotiator and member of the Israel Bar and the New York State Bar.]