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«43, 1, 2002 VOLUME NUMBER WINTER The Changing Nile Basin Regime: Does Law Matter? Jutta Brunnee Stephen J. Toope** 1. INTRODUCTION Daily the Nile ...»

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43, 1, 2002


The Changing Nile Basin Regime:

Does Law Matter?

Jutta Brunnee"

Stephen J. Toope**


Daily the Nile seemed to increase in grandeur and magnitude, and for a

whole series of days we found our path running across something like

an inland sea or delta, full of lovely tufted islands, some sinking and some emerging under the vibration of the waters. They had the lonely fragility of dreams in which one could only half believe. I could see now how it must be in the other great rivers of the world, the Yangtse or the Ganges or old Amazon. A whole world passing by in a kaleidoscope of color, yet always changing, always impermanent.

-Lawrence Durrell, Monsieur orthe Prince of Dareness" Just as the sensual aspects of the Nile are constantly changing, so too are the actors and social structures that shape its fate, and that of the millions of people who rely upon its life-giving waters. Only a few years ago the regime of the Nile Basin was one of unremitting and open conflict; or at least of incipient and barely camouflaged competition. Journalists, as well as political and legal analysts, delighted in quoting a succession of regional statesmen, especially Egyptians, who spoke of the threat of war over scarce Nile resources. In the 1970s, Egyptian President Sadat and Ethiopian leader * Professor, Faculry of Law, rhe Universiry of Toronto. Ref. iur., Rhineland Palatinate, Germany, 1985;

LL.M., Master of Laws, Dalhousie Universiry, 1987; Ass. iur., Hessen, Germany, 1989; Dr. iur., Johannes Gurenberg-Universitar, 1989.

**Professor, Faculry of Law and Institute of Comparative Law, McGill Universiry. A.B., Harvard Universiry, 1979; LL.B., B.C.I., McGill Universiry, 1983; Ph.D. in Law, Triniry College, Cambridge, 1987.

We wish ro thank Richard Wodnicki, Hiroko Sawai, and Sasha Nowicki for their excellent research assistance. Mr. Wodnicki also provided English translations of materials in Arabic. Challenging comments were offered by Michael Byers, David Dyzenhaus, Ellen Hey, El Obaid A. El Obaid, and Roderick Macdonald. Our work also benefited from the insights of a number of commentarors close ro Nile Basin negotiations who wish ro remain unnamed. Early stages of research for this Article were financially assisted by the Cooperarive Securiry Program of the Canadian Department of Foreign Affairs and International Trade. We also gratefully acknowledge the support of McGill Universiry and the Universiry of Toronto, in the form of sabbatical leaves, and of the Social Sciences and Humanities Research Council of Canada. J urra Brunnee benefited from the opportuniry to conduct research at the Max Planck Institute for Foreign Public and International Law in Heidelberg.


–  –  –

Mengisru Haile Miriam exchanged threats over the apportionment of Nile waters.? President Sadat warned that "[rjampering with the rights of.a nation to water is tampering with its life; and a decision to go to war on this score is indisputable in the international community.'" In 1988 the Egyptian Minister of State for Foreign Affairs, Boutros Bourros-Ghali, asserted that the next war in the Middle East would be over the Nile. 4 As recently as 1991, media reports suggested that Sudan aimed missiles at the Aswan.

High Dam in Egypt during the Gulf War, rendering the Egyptian political hierarchy "apoplectic."? These threats may never have been as serious as pundits feared, for most credible work on conflict management involving scarce resources suggests that the interstate use of force is, perhaps surprisingly, not a common feature of such setrings.f Nonetheless, the threats reflected the strongly competitive political and legal environment that dominated the Nile Basin for generations.

Consider, then, the more recent public actions and pronouncements of regionalleaders. In July 1993, Egypt and Ethiopia concluded a cooperation agreement that focused on the Nile Basin as a "center of mutual interest.'?

2. Ashok Swain, Ethiopia, the Sudan, and Egypt: The Nile River Dispute, 35 J. MOD. AFR. STUD. 675, 685 (1997). Swain goes further to suggesr that the Egyprian invocation of war was entirely strategic:

"Caito has never hesitated to me the rhrear of war ro prevent upsrream countries from taking any actions

that mighr adversely affect the lives of all Egyptians:'

3. Raj Krishna, The LegalRegime of the Nile River Basin, in THE POLITICS OF SCARCITY: WATER IN THE MIDDLE EAST 23, 34 (Joyce R. Starr & Daniel C. Stoll eds., 1988). See also Niveen Tadros, Shrinking '\'later Resources: The National Security Issue of This Cmtnry, 17 Nw. J. INT'L 1. & Bus. 1091, 1092-93 (1996); Daniel Kendie, Egyptand the Hydro-politics of the BilleNile River:Part I,' ADDIS 1'IuBUNE, Aug. 6, 1999 (quoting Sadat saying, "Any action that would endanger the waters of the Blue Nile will be faced with reaction on the part of Egypt, even if thar action should lead to war.").

4. John Vidal, Readyto Fight to the Last Drop,GUARDIAN WEEKLY, Aug. 20, 1995, at 13.

5. T. Hundley, '\'later: New Crisis is '\'1aiting to Grip the Middle East, [MONTREAL] GAZETTE, Feb. 8, 1992, at Bl. Seealso Nurudeen Bahatunde, Cooperation and Conflict in International Regimes: Water Resource Management in the Nile Drainage Basin 124 (1994) (unpublished Ph.D. dissertation, University of South Carolina) (on file with the Harvard International law Journal).

6. See, e.g., Thomas Homer-Dixon cited in Jutta Brunnee & Stephen J. Toope, Environmental Security and Freshwater Resources: A Casefor International Ecosystem Law, 5 Y.B.lNT'L ENVTI.. 1. 44 nn.9-1O (1994) [hereinafter Ecosystem Law). See also Greg Shapland, Policy Options for Downstream States in the Middle East, in WATER IN THE MIDDLE EAST: LEGAL, POLITICAL AND COMMERCIAL 1MPLICATIONS 301, 312 (J.A.

Allan & Chibli Mallat eds., 1995) (arguing that Egypt does not have the military capacity to wage an allout war against Sudan as well as other up-stream states beyond its border with Sudan, and suggesting that Egypt would not be inclined to do so in any event, given the threat to its all important political arid security relationship with the United States); Joseph w. Dellapenna, Treaties as Instmments for Managing Internationally-Shared '\'later Resources: Restricted Sovereignty vs. Community of Property, 26 CASE W. REs. J.

INT'L 1. 27, 30 (1994). But see Peter H. Gleick, \\'later and Conflict: Fresh '\'later Resources and International Secrrrity, 18 lNT'L SEC. 79, 83 (1993) [hereinafter Conflict] (arguing that if the use of force is to result from resource conflicts, it will most likely be "on the local and regional level and in developing countries where common property resources may be both more critical to survival and less easily replaced or supplemented"). Gleick's comments could certainly fit the Nile context. See also Christopher 1. Kukk & David A. Deese, At the '\'later's Edge: RegionalConflict and Cooperation Over Fresh '\'later, 1 UCLA J. lNT'L 1.

& FOREIGN AFF. 21, 46 (1996) (suggesting that the fact that many of the Nile countries view "water scarcity and water resources in solely nationalistic and national security terms" could lead to "guerilla attacks, such as occurred in Sudan, or even a full blown war").

7. Framework for General Co-operation, July 1, 1993, Egypt-Eth., pmbl., hrtp://www.fao.org.docrep/ w7414b/w74140p.htrn.

Electronic copy available at: http://ssrn.com/abstract=1182962 2002 / The Changing Nile Basin Regime 107 In November of 1994, in a speech at a conference in Cairo, the Ethiopian Environment Minister Mesfin Abebe declared that the Nile was not a source of conflict, but rather a means for regional cooperation.f In May 1999, after a meeting between Prime Minister Meles Zenawiand Egyptian President Hosni Mubarak:, Ethiopian Foreign Minister Seyoum Mesfin told a press conference that the issues of the Nile "will never be the cause of a war" between Ethiopia and Egypt.? The Egyptian Minister of Public Works and Water Resources, Mahmoud Abu Zeid, had previously declared that "[rjhere is.no conflict or struggle between Egypt and any other Nile Basin country 'J10.

Of course, simple declarations of peaceful intent do not in themselves signal a regime transition, but more concrete evidence of a striking shift in attitudes and approaches is growing. In January 1994, the Nile 2002 Conference!' held in Khartoum specifically focused on means of furthering cooperation among the Nile Basin states. During the Conference, a group of technical specialists was able to discern "a new spirit of cooperation" among the Nile riparians.P That same year, a seasoned Nile specialist argued that although the increasing potential for Ethiopian exploitation of the Blue Nile would seem to threaten greater conflict, Egypt had already altered its policies to such an extent that the prospect for direct conflict was actually diminishing.P In 1998, reports of tension between Ethiopia and Egypt over access to the Nile waters were denied at the highest levels. The Ethiopian Prime Minister admitted that the history of conflict was significant, but he suggested that Ethiopia's positions were changing because Egypt had shown "more... understanding of the Ethiopian viewpoint" in the previous year. 14 After its annual meeting in May 1999, the Nile Council of Ministers, a high-level political body charged to pursue information sharing and to promote coordination, announced that it had passed resolutions "to facilitate the transition from the era of confrontation to cooperation among the Nile Basin counManuel Schiffler, Konjlikte 11m den Nil oder Konjlikte am Nil?, in WASSER-KoNFRONTATION ODER


ROHSTOFFS 263;269 (Jorg Barandat ed., 1997).

9. Ethiopia RillesOut \Vttrwith EgyptOver Nile Water, XINHUA NEWS AGENCY, May 28, 1999. See also Ethiopian Minister Denies \Vater Disputewith Egypt, MENA NEWS AGENCY, May 28, 1999 (reporting the comments of the Ethiopian Minister of Econornic Development and Cooperarion, Ghirma Biro).

10. Egyptian Minister Rrdes Ollt \Vttr Over Nile \Vaters, Apr. 27, 1998, LEXIS, News Library; BBC Summary World Broadcast.

11. See infra Parr V.A.

12. Aly M. Shady er al., The Nile 2002: The Vision Toward Cooperation in the Nile Basin, 19 WATER 77, 77 (1994).

INT'L 13. ].A.

Allan, Developing Policies for Harmonised Nile Waters Development and Management, in THE NILE:

SHARING A SCARCE RESOURCE 385, 386 (P. P. Howell & J. A. Allan eds., 1994) [hereinafter Policies). See alsoNURIT KuOT, WATERRESOURCES ANDCONFLICTIN THE MIDDLEEAST 90 (1994) (suggesting that despite past threats of war, Egypt was very concerned about the possibilities of Ethiopian developments on the Blue Nile and had therefore "tried to maintain good relations").

14. Ethiopia Moves Ahead onNile Dams,MIDDLE EASTECONOMIC DIGEST, Apr. 24, 1998.

108 Harvard International LawJournal I Vol. 43 tries." Over the last two years, Ethiopia, Sudan, and Egypt have agreed to increase their cooperation with respect to the Blue Nile,16 while nine. Nile riparian (or water-supplying) states have agreed to the creation ofa joint Nile Basin Initiative (NBI) and have established an NBI secretariat in Uganda.!? The NBI is designed to foster not only information sharing and

technical assistance, but also joint development initiatives. It is cast as a:

"transitional arrangement," intended to facilitate basin-wide discourse until.

a "permanent legal framework" is in place.l" At a meeting of water resources ministers from all ten Nile riparians, held in Khartoum, Sudan, 'in early August 2000, Osman el Tom, vice-chairman of Sudan's Water Resources Authority, reported "remarkable convergence toward future co-operation."19 One year later, it appears that consensus on many parts of the framework is' emerging. Indeed, at a June 2001 meeting of Nile Basin states, the international donor community, and NGOs, participants expressed hope that the NBI will emerge as "an example of how international waters can become catalysts for cooperation, development, and stability."20 Although this new spirit is just that-new-and therefore hard to assess as to its long-term impact, anyone interested in regime transition can discern an emerging pattern that is worthy of notice." The recent developments in the Nile Basin provide an opportunity to consider the processes that surround the emergence and evolution of regimes. In particular, these developments provide a unique opportunity for international lawyers to examine the role of legal norms in these processes and to apply the rich theoretical insights that have emerged from the recent literature in the fields Of international relations (IR) and international law.

It has already been argued that international lawyers can learn much about how international law actually functions by heeding the work of.15. Nile Basin Council of Ministers' Meeting in Ethiopia Ends, RADIO ETHIOPIA EXTERNAL SERVICE, May 15, 1999.

16. Ethiopia, Slidan, Egypt to Join Hands in WIater Project, XINHUA NEWS AGENCY, Sept. 16, 1999 ("Ethiopia will cooperate with Sudan and Egypt in sharing and utilizing the water resources of the four rivers rising in Ethiopia, the Ministry of Water Resources and Development said.").

17. Nile Basin Initiative Secretariat Launched at Ceremony in Uganda, NEW VISION, Sept. 6, 1999. The participating states are Burundi, Democratic Republic of Congo, Egypt, Ethiopia, Kenya, Rwanda, Sudan, Tanzania, and Uganda. Eritrea has not formally joined, but now participates as an observer. See infra note 190 and accompanying text. Note that the predecessor organization, TECCONILE, also had a secretariat. The NBI secretariat is housed in the old TECCONILE building and effectively replaces that organization's secretariat. On TECCONll.E, seeinfra notes 177-185 and accompanying text.

18. NILE BASIN INITIATIVE, STRATEGIC ACTION PROGRAM OVERVIEW DOCUMENT, ch. 1 (2001), http://www.nilebasin.org/overview_chaptec1.htm (hereinafter NBI Overview}.

19. Nile Basin Ministers Discuss 'Vater Development, PANAFRICAN NEWS AGENCY (PANA), Aug. 7, 2000, http://allafrica.com/srories/200008070109.html.

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