Establishing a New Treaty Relating to Upstream Use of the Nile River: The need, the gap and a way forward Yoseph A. Abate 1

I: Introduction

A. Statement of the problem

The Nile River Basin has been instrumental in human civilization and development with applications ranging from supply of water for domestic and industrial uses, generation of electric energy, and contribution to food security through irrigation. During the colonial era, various 2

agreements were concluded to protect the access and use rights of lower riparian states in the Nile Basin. While the 1929 and 1959 Treatise on the Nile have been governing the allocation and utilization water between Egypt and Sudan to assert their water rights over the Nile, the upstream states posit that the treaty is irrlevant and non binding. As such, the upstream nations have proactively pushed for a new agreement that recognizes their equitable access and uses rights over the Nile. The downstream riparian states object to upstream riparian utilization and contend that their natural and historical rights should be respected. Currently, there is no formal and binding treaty on the water rights to the Nile between upper and lower riparian countries. This study predominantly focuses on the Nile Basin to determine whether water resources can be shared and utilized in an equitable and reasonable manner. As a common heritage of the Countries in the basin, this paper argues that transboundary freshwater riparian resources should be shared and utilized in a fair manner. Such an equitable sharing

1 LL.B Addis Ababa University Law School (2011), LL.M George Washington University Law Center (May,2017). 2Messenger, R. (1924). Professor Giddings's Theory of History as Applied to the Ancient World. The Classical Weekly, 17(21), 161-166.

would be beneficial to all riparian states, both upstream and downstream. Additionally, it argues 3

that the beneficial sharing should enhance and maintain water security for all. Therefore, the purpose of this study is, to discuss an alternative binding legal instrument that advance the interest of all stakeholders and formalizes the relationship between upper and lower riparian countries specifically among Egypt, Sudan, and Ethiopia.

B. Geography of the Nile River Basin The Nile River is the world’s longest watercourse that flows for 6,700 kilometers through eleven countries in north- eastern Africa - Rwanda, Burundi, Zaire/Congo, Tanzania, Kenya, Uganda, Eritrea, Ethiopia, South Sudan, Sudan, and Egypt- before reaching the Mediterranean, and is the longest international river system in the world. Two of these rivers, the White Nile, whose 4

ultimate sources are in Burundi, and the Blue Nile, which originates in the Ethiopian highlands, are the main sources of the Nile River’s waters. The White Nile provides about 15 percent of the 5

waters that flow into the Nile River, and the Blue Nile, whose tributaries include the Abbay, Sobat, and Tekeze Rivers, provides 85 percent of the water flowing into the Nile River as measured at Aswan in Egypt . The confluence of the Blue and White Nile is in Khartoum, Sudan 6

where they form Nile proper.

3 See Article 6(1) of the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses and Article V (2) of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers. Both legal frameworks underline the importance of equitable and reasonable allocation and utilization of transboundary freshwater resources. Equity principles should be informed of the socio-economic needs of the riparian nations, the effects on other riparian states, and demographic needs of the riparian states. 4 Swain, Ashok. “Ethiopia, the Sudan, and Egypt: The Nile River Dispute.” The Journal of Modern African Studies, vol. 35, no. 4, 1997. See Salman M.A. Salman, The Nile Basin Cooperative Framework Agreement: A Peacefully Unfolding African Spring?, Water Int’l vol. 35, no 17, 2013. 5 Kimenyi, M., & Mbaku, J. (2015). parties of the Watercourse and Basin States. In Governing the Nile River Basin: The Search for a New Legal Regime (pp. 5-23). Brookings Institution Press. 6 Kimenyi, M., & Mbaku, J. (2015). Physical Description of the Watercourse and Basin States. In Governing the Nile River Basin: The Search for a New Legal Regime (pp. 5-23). Brookings Institution Press.

C. Geopolitical contention over the Nile among the riparian countries

Ethiopia is the source of the Blue Nile, which provides 86 percent of the waters in the Nile whereas Sudan and Egypt contribute very little to the Basin. The Nile is “a vital component of the economic, social and strategic viability of both the Sudan and Egypt.” Apart from that, the 7

African Union is headquartered in Addis Ababa Ethiopia, giving Ethiopia an impetus to leverage on historical diplomatic access to further its agenda. Some politicians argue that Ethiopia's decision to construct the Grand Ethiopian Renaissance Dam (GERD) flouts its obligations not to affect the riparian rights of downstream states. The Grand Ethiopian Renaissance Dam (GERD) is a hydropower generation project which will increase the amount of electricity produced in the country by 270% and strengthen Ethiopia's role as an energy exporter to neighboring countries. 8

The construction company described the project “nothing short of revolutionary” based on the impact on the country's economy. Ethiopia is expected to generate $2 billion in revenue per year by exporting electric power to Sudan, Djibouti, South Sudan and Yemen. 9

Egyptians authorities initially considered the Grand Ethiopian Renaissance Dam both a threat to their energy security and national pride. In an interview with Washington Post in July 2013, Egyptian President General Abdel Fatah al-Sisi said, Egypt’s control over the Nile is an issue of “national strategic interest,” and any reduction should be interpreted as an “existential threat” to the Egyptian national interest. The late Egyptian President Anwar Sadat proclaimed several 10

7 MILKIAS, P. (2004). U.S. Foreign Policy Towards Africa with Emphasis on Ethiopia and Eritrea. International Journal of Ethiopian Studies, 1(2), 58-81 8 GERD and Koysha: The Dams of the Future - Salini Magazine, 14/12/2016 9 Ibid. 10 "Damned if you don’t”: Egypt and the Grand Ethiopian Renaissance Dam Project, Harvard political review, February 27, 2014.

times “any action that would endanger the waters of the Blue Nile will be faced with a firm reaction on the part of Egypt, even if that action should lead to war." However, the Ethiopian government claimed the GERD project would not reduce the share of Nile water to the downstream countries; rather will benefit both Egypt and Sudan by providing a regulated flow of water throughout the season and will reduce a significant amount of siltation for the good of both countries. 11

Overall, the treaties concluded during the colonial era mainly protected the interests of the lower riparian states. The treaties ensured lower riparian states had water security. President Sadat underlined the importance of the Nile Basin by proclaiming that interference with the volumetric capacity of the Blue Nile would lead Egypt to issue a declaration of war. Currently, there is a fear that GERD project has adverse effect to downstream on the volumetric capacity of Nile water flowing into Egypt prompting Egyptian authorities to declare water availability an issue of national security. On the other hand, Ethiopia contends that the GERD project is critical for its overall national development and insisted the non existence of a significant harm. The competing claims over the Nile waters among Egypt, Ethiopia, and Sudan produces geopolitical concerns of enormous magnitude. Egypt and Sudan insist on their "acquired rights" that flow from the previous treaty agreements on the Nile Basin. On the other hand, Ethiopia rejects the principle of "acquired rights" on the use and utilization of the Nile River.

D. Need for a new tripartite treaty between Egypt, Sudan, and Ethiopia. Egypt and Sudan withdrew from the CFA based on a controversy over the provision of Article 14 (b) . Dissatisfied with the CFA, Egypt and Sudan approached Ethiopia to negotiate an 12

agreement concerning the Ethiopia's Grand Renaissance Dam on the Nile River. The three failed to formulate a binding agreement. Rather, they agreed on the declaration of principles that might not be binding under international law. Against a background of the regional power play and water needs, the contemporary competing claims of energy needs, food security concerns, and water availability between Ethiopia, Sudan, and Egypt necessitate a functional treaty that balances state's regional power and equitable utilization of the Nile Basin. Therefore, this research discusses the elements of a tripartite legal framework that would balance the competing claims of equitable and reasonable utilization of

11 Yihdego, Zeray, and Alistair Rieu-Clarke. An exploration of fairness in international law through the Blue Nile and GERD. Water International 41, no. 4 (2016) 12 Kimenyi, M., & Mbaku, J. (2015). The Cooperative Framework Agreement: A New Legal Regime for the Nile River? In Governing the Nile River Basin: The Search for a New Legal Regime (pp. 83-89). Brookings Institution Press.

the Nile River. Such a framework should espouse the principles of equitable utilization and not causing significant harm. Rules relating to transparency, accountability, and cooperation in the utilization and governance of the Nile waters are necessary. In the second chapters, the paper will appraise different legal regimes governing the Nile River, and the gap to a binding treaty, procedures, and sources to formulate a new binding agreement. The paper adopts a comparative perspective to discuss the theoretical and conceptual framework adopted in successful governance of transboundary water resources in the US-Canada, India- Pakistan, and the Mekong water treaties. Additionally, the comparative approach shall be integral in the formulation of a model tripartite treaty for the governance and utilization of the Nile waters among Egypt, Ethiopia, and Sudan. The paper shall also consider the place of negotiation in the successful formulation and implementation of a functional tripartite water sharing agreement. II. The Gap: Current Legal Regime for the Nile River

A. 1902 Anglo-Ethiopian Treaty Few years after the bloody fight between Ethiopia and Italy at the battle of Adwa, Great Britain, sent its delegation to Addis Ababa with the aim of designing and determining frontiers between Sudan and Ethiopia. However, apart from its primary purpose, Article III of the agreement 13

showed a long-established British aim to safeguard the unrestricted flow of waters from the Blue Nile and Lake Tana to downstream countries . 14

Ethiopia agreed to the 1902 treaty with Britain not to construct any works arresting the flow of Blue Nile. Therefore, downstream countries referred to Article III of the 1902 treaty to justify their position towards noninterference duty on the Nile River by Ethiopia.In many instances Ethiopia claimed the non-existence of present day binding treaty by invoking the disparity of Article III in the Amharic and English version of the treaty and on the account of "fundamental change of circumstances which occurred with regard to those existing at the time of the conclusion of an agreement and which was not foreseen by the parties" The controversy lies in 15

the interpretation of the phrase in this Article of the English version which reads "not to construct a work on the Blue Nile which would arrest the flow” and the Amharic version ‘ወንዝ ተዳር እዳር የሚደፍን ሥራ እንዳይሰሩ’. The debate particularly lies on whether this refers to any construction project including hydropower dam or this is a complete diversion of the flow. In the case of the Amharic version the word ‘yemidefn’ which denote ‘to stop up’ or ‘block passage

13 Ullendorff, E. (1967). The Anglo-Ethiopian Treaty of 1902. Bulletin of the School of Oriental and African Studies, University of London, 30(3), 641-654. 14 Swain, A. (2008). MISSION NOT YET ACCOMPLISHED: MANAGING WATER RESOURCES IN THE NILE RIVER BASIN. Journal of International Affairs, 61(2), 201-214. 15 United Nation Vienna Convention on the Law of Treaties (1969), Article 62.

entirely’ whereas the English version refers to uninterrupted flow… Ethiopia understands that 16

Emperor Minelik’s pledge, more unequivocally conveyed in Amharic text, only stipulated a duty not to stop or divert the flow of the river completely. At any rate, this agreement is all about boundary demarcation and does not deal the issue of transboundary water use specifically.

B. 1929 Anglo-Egyptian Treaty The British interest highly motivated the 1929 Nile agreement for long-staple cotton production, which was the primary source of raw material for the British cotton textile industry . By 17

representing the then colonies Uganda, Kenya and Tanganyika, British colonial rulers signed a treaty with Egypt. Ethiopia is not a party to this treaty. The 1929 Nile Agreement between Britain and Egypt granted Egypt the rights to use the basin for the Sennar Dam. Additionally, it barred any works along the Basin that stood to threaten Egyptian interests. Therefore, this treaty obliged Uganda, Kenya, and Tanganyika to issue a notice on any projects on the White Nile or tributaries to Egypt . Besides, this treaty allocated 4 Milliards of cubic meters of water to Sudan 18

and 48 Milliards of cubic meters of water to Egypt per annum . 19

After independence, all of the signatories of this treaty manifested an unwillingness to be bound by colonial treaty citing international law provisions such as "the newly independent state acquires sovereign authority over its territory and international relations, which previously was the responsibility of a predecessor power" However, Egypt showed an unwillingness to 20

concede even after independence. Surprisingly the then Irrigation Minister, Mahmoud Abu Zeid, at the March 2004 Entebbe meeting of the Nile Basin Initiative (NBI), reportedly stated that any tampering with the 1929 Agreement would be “tantamount to an act of war.” Egypt also 21

intended imposing these agreements on Ethiopia based on prior use doctrine and historical use right. Nevertheless, this agreement was non-binding on Ethiopia as it was not a party.

C. 1959 Bilateral agreement between Egypt and Sudan The 1959 bilateral agreement between Egypt and Sudan was signed with the primary aim of

16 Tadesse kassa, International Watercourse Law in the Nile River basin, legal regimes regulating utilization of the Nile water, 72 17 Haynes, K., & Whittington, D. (1981). International Management of the Nile. Stage Three? Geographical Review, 71(1), 17-32. 18 Exchange of notes between his majesty's government in the United Kingdom and Egyptian government in regard to the use of the waters of the river Nile for irrigation purpose, 7 May 1929. 19 Ibid. 20 Andrew M. Beato, Newly Independent and Separating States ' Succession to Treaties: American University International Law Review.(1994) 21 Milas, S. (2013). Who Owns the Nile Waters: The Legal Context. In Sharing the Nile: Egypt, Ethiopia and the Geo-Politics of Water (pp. 61-79)

redistributing the share of the Nile between the two nations. Sudan was dissatisfied with the 1929 Agreement that favored Egypt because of the importance of Suez Canal to the commercial interests of the British. The previous (1929) colonial treaty gave Egyptians a complete of control the Nile River by prohibiting upstream riparian states from using substantial volumes of the Nile. The 1959 Agreement sought to cure any provisions that were not in the interests of Sudan. It is imperative to note that colonially concluded treaties were binding on all colonies under British rule. Interestingly, the 1959 Agreement subsumed the sovereignty of other riparian states in the Nile Basin by amending allocation of water in a manner that ignores the customary international law on binding power of bilateral treaties. Under international law, a bilateral agreement only binds the two parties and cannot be imposed on third parties. That any provision of the 1929 Agreement, which was not revoked by the 1959 Agreement remains in force, is an abrogation from principles of international law that require that respect of sovereignty demands that bilateral treaties cannot apply to a non-state party. Therefore, upstream riparian nations object the validity of the 1959 Agreement: “the two downstream countries thought they could create international law between themselves; then force others to accept it. That was a serious miscalculation on their part”. 22

In reallocating volume of waters, the 1959 Agreement revised the previous arrangement by increasing Sudan’s average flow from 1.5 bcm to 18.5 bcm of water. It also accorded Egypt an average flow of 55.5 bcm of water. A key highlight of the 1959 Agreement was Article 5, which obliged the two state parties to initiate collaboratively projects for water conservation in the swampy White Nile region. Applying equitable sharing of benefits, the parties agreed to share any benefits arising from the preservation projects equally. Another main feature of the 1959 Agreement was the establishment of a Joint Technical Commission. The Commission was charged with technical duties of implementing knowledge and benefit-sharing measures. The Agreement placed an administrative on the Commission of re-allocating water sharing ratios concerning water shortages. Besides, Egypt agreed to pay to Sudan 15 Million Egyptian Pounds as full compensation for the damage resulting to the existing Sudanese properties as a consequence of the storage in the Sudd el Aali Reservoir. 23

In signaling its objection to the 1959 Nile Agreement, the then ruler of Ethiopia Emperor Haile Selassie was aggrieved by the fact that Ethiopia was not consulted and parted of this agreement. He commissioned a project to build several dams on the Blue Nile and put $10 million dollars from the Ethiopian treasury towards U.S. Department of Reclamation which produced seventeen-volume report completed in 1964 titled "Land and Water Resource of the Blue Nile

22 Ibid. 23 1959 bilateral agreement between Egypt and Sudan, art. 2(6). Sudd el Aali Reservoir- also called Aswan High Dam located in Aswan, Egypt,

Basin: Ethiopia." Ethiopia also ended 1600 years of institutional close relation between 24

Ethiopian Orthodox Church and Orthodox Church in Alexandria. 25

D. 1993 Ethio-Egypt Accord

The Egyptian President Hosni Mubarak and Ethiopian Prime Minister Meles Zenawi (then President of the Transitional government) signed an agreement on the titled ‘Framework for General Co-operation between the Egypt and Ethiopia’ on July 1993 in Cairo, Egypt. The agreement contains eight Articles. Three of the articles provide for good-neighborliness, mutual trust, and understanding and economic cooperation. Article 5 discuss the principle of not to cause "appreciable harm" while using the Nile Six Commissioners would constitute the Commission. The functionality of this accord was limited since both Egypt and Ethiopia did not conduct proper way of accepting this treaty to their jurisdiction and both of the countries have not seen commenting or raising any issue about this agreement.

E. 2012 cooperative framework agreement on Nile When it was established in 1992, The Nile Basin Initiative (NBI) aimed among other policies to develop the water of the Nile Basin in a sustainable and equitable way and to ensure prosperity, security and peace for its entire people . The initiative was taken by water ministers of the basin 26

state to promote cooperation, development and to find a solution to the standoff between lower and upper riparian states on the basis the 1959 bilateral Agreement between Egypt and Sudan. The Cooperative Framework Agreement (CFA) is the result this Initiative. The Cooperative Framework Agreement (CFA) espouses principles for the allocation and utilization of Nile waters. The agreed principles ." in Article 3; and they include equitable and reasonable utilization of Nile water resources, co-operation, sustainable development, prevention of significant harm, riparian rights within territorial boundaries, and conservation of the Nile Basin and its ecosystem. It provides for the equitable and reasonable utilization of the Nile. The principle of equitable and reasonable use is espoused in Article 4 of the CFA. It seeks to infuse best practices of use and management into the Nile Basin governance by replacing the existing colonial water treaties. The CFA has been ratified by four nations and signed by six Nile basin states located in the upstream:

24 Andrew Carlson, Origins vol. 6 issue 6, Who Owns the Nile? Egypt, Sudan, and Ethiopia’s History-Changing Dam. 25 Ibid. 26 Milas, S. (2013). The Nile Basin Initiative: Efforts at Cooperation in the Nile Basin. In Sharing the Nile: Egypt, Ethiopia and the Geo-Politics of Water (pp. 97-110). Pluto Books.

Uganda, Kenya, Tanzania, Rwanda, Burundi, and Ethiopia. The negotiation took over 10 years where all parties were actively involved. Unfortunately, both Egypt and Sudan withdrew from the CFA due to a controversy over Article 14(b) of the draft CFA which states:kl;

"Having due regard to the provision of Articles 4 and 5, Nile Basin states recognize the vital importance of water security to each of them. The States also recognize that cooperative management and development of the waters of the Nile River System will facilitate achievement of water safety and other benefits. Nile Basin states, therefore, agree, in a spirit of cooperation: (a) to work together to ensure that all States achieve and sustain water security (b) not to significantly affect the water security of any other Nile Basin State".

Essentially, the debate was about the meaning of the term "water security." This new concept was contentious, and yet it was defined under the agreement. The other riparian countries found it unacceptable changing the provision of Article 14 (b) and the draft called for signature in 2010. The upstream states Burundi, Ethiopia, Kenya, Rwanda, Tanzania and Uganda signed the agreement. In their opposition to the Cooperative Framework Agreement of Nile Basin States, the downstream states are reliant on their historical claims based on previous agreements. However, the contention that the upstream states may affect the water rights of downstream riparian states represents by CFA Article 14(b), which requires upstream use "not to adversely affect the water security and current uses and rights of any other Nile Basin States."

F. Declaration of Principles among Ethiopia, Egypt, and Sudan The Declaration of Principles is a tripartite accord between Egypt, Sudan and Ethiopia signed in 2015. The Declaration is a non-binding agreement mainly focused on Ethiopia's Grand Renaissance Dam (GERD). It outlines ten principles and takes a generalist approach that fails to establish conclusively rights and duties relating to control and access to the Nile waters. The preamble of the DoP reads that:

Mindful of the rising demand of the Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of Sudan on their transboundary water resource, and cognizant of the significance of the River Nile as the source of livelihood and the significant support to the development of the people of Egypt, Ethiopia and Sudan, the three countries have committed to the following principles … (emphasis added)

The Declaration is laudable to the extent of its cognizance of increasing demand for water and its centrality in food security, energy generation, and industrial economic activities. The Declaration seeks to strike a balance between the competing interests of the state parties. The desire to balance competing national interests is captured by Principle I of the Declaration. It states that the state parties are supposed to cooperate for mutual benefit and in good faith in line with international law. Principle II establishes the economic component of the Principles by outlining, "The Purpose of GERD is for power generation, to contribute to economic development, promotion of transboundary cooperation and regional integration through the generation of sustainable and reliable clean energy supply." Principle III in outlining the obligation of state parties to refrain from causing significant harm provides that the state parties should “take all appropriate measures to prevent the causing of significant harm in utilizing the Blue/Main Nile." Principle III further provides that "…where significant harm nevertheless is caused to one of the countries, the state whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures in consultations with the affected state to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation". According to Principle IV, the state parties have a duty to utilize the water resources in an equitable and reasonable manner. The factors evaluated in determining a fair use of water include the social and economic needs of the social services; existing and potential uses of the water resources; conservation among others. This corresponds to the assertion by Judge Hudson that equality should characterize redistribution of resources: "equality would promote equity by the reliance on objective criteria that correspond with need, capacity, and symbiotic mutuality". 27

Brownlie defines equity in international law as "considerations of fairness, reasonableness, and policy often necessary for the sensible application of the more settled rules of law. 28

There is a growing need to strike a balance between Principle III which obliges state parties not to cause significant harm and Principle IV which requires an equitable and reasonable use of water resources. The Declaration of Principles is silent on the threshold of determining when upstream “equitable and reasonable use” would amount to a “significant harm” to downstream state parties or state party. Another glaring limitation of the Declaration is the absence of an

27 Diversion of Water from the River Meuse Case. See also F. N. Botchway, The Context of Trans-Boundary Energy Resource Exploitation: The Environment, the State, and the Methods Vol 14 Colorado Journal of International Environmental Law and Policy 191, (2003) 28 I. Brownlie, Principles of Public International Law, (4th Ed.), (OUP, Oxford, 1979) at 26.

elaborate mechanism for dispute resolution. III. Relevant Sources for Designing a New Treaty

United Nations International Watercourses Convention

In 1970 the United Nation General Assembly (UNGA) mentioned that “despite the great number of bilateral treaties and other regional regulations […] the use of international rivers and lakes is still based in part on general principles of customary international law.” The quest for a 29

universal convention on international watercourse arose at the UN level when there was a consensus on the idea of "creating a guideline for future watercourse agreements." 30

….According to UNGA Res. 2669 (XXV) (21 July 1971) the codification of International Watercourses Convention was necessitated by the following factors:-

(1) The need to codify and progressively develop, in a convention, the content of customary law, with a view to reducing the potential for interstate conflict over regulatory gaps and uncertainties;

(2) The need to address the increasing pressures on the quality and quantity of the waters of international watercourses, acknowledging that “the preservation and protection of those water resources are of great importance to all nations”;

(3) The need to strengthen the law in support of the goals and principles of the UN, in particular, international peace and security;

(4) The need to better address, through written law, the fragmented system of basin/bilateral treaty practice. 31

ILC’s Draft Articles

In 1970 The UN general assembly recommended the International Law Commission (ILC) to "take up the study of the law of the non-navigational use of international watercourse to (or "intending to") its progressive development and codification." ILC commenced working on the 32

international watercourse topic in 1974 and on the same year decimated questioners to United 33

Nations Member States to grasp perspectives on various issues associated with watercourse

29 United Nations General Assembly,GA Res. 2669, 127. 30 http://www.un.org/law/cod/watere.htm 31 Progressive development and codification of the rules of international law relating to international watercourses, GA Res. 2669(XXV) (21 July 1971) 32 Stephen C. McCaffrey, 2008, CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES 33 Ibid.

topic. 34

Before adopted on 21 May 1997, the article took more than 20 years and was led by a succession of five special rapporteurs. Some causes describe why the negotiation necessitate such a long 35

time to be completed such as, the nature of the topic that demand countless complex studies, lack of continuity of ILC representatives in charge of drafting the Convention, and the taking of considerable time for UN members to reach agreement on the main contentious issues, for example, the relationship between the Convention and existing and future water-related agreements. 36

The UN Convention on the Law of the Non-navigational Uses of International Watercourses (UN Watercourses Convention)

The convention is divided into seven parts containing 37 articles. I. Introduction (Article 1-4); II, General Principles (5-10); III Planned Measures (Article 11-19); Protection Preservation and Management (Article 20-26); V. Harmful Conditions and Emergency Situations (Article 27-28); VI. Miscellaneous Provisions (Article 29-33); and VII. Final Clauses (Article 34-37). An Annex to the Convention contains provisions on arbitration based on Article 33. The goal of the Convention is to make use of transboundary water resources in a reasonable and sustainable way while paying particular regard to essential human needs and the interests of the other watercourse states . To encourage member states to take part "actively and equitably" in 37

the expansion and conservation of international watercourses and to participate in "good-faith and mutually beneficial cooperation," such as, through the regular give and take of relevant information ; to deal with a procedure of negotiation, consultation, and data exchange before 38

executing any action that could have a significant adverse effect on other watercourse states ; to 39

bring all relevant measures to “prevent and mitigate” detrimental conditions related to transboundary watercourse, further, to address emergencies, including by notifying other states that could be jeopardized and international organizations as quickly as possible, and by preventing, mitigating, and eliminating their harmful effects to address the water-related 40

dispute between watercourse states in a peaceful manner. "The 1997 United Nations 41

34 Ibid. 35 Ibid. 36 Wouters, Patricia. The Legal Response to International Water Conflicts: The UN Watercourses Convention and Beyond. German Yearbook of International Law 42, (1999): 293-336. 37 Flavia L., Alistair R.and Marie-L. "Everything you need to know about the UN Watercourses Convention." 38 General Assembly resolution 51/229, Convention on the Law of the Non-navigational Uses of International Watercourses, A/51/49 (17 August 2014), Articles 5, 8, 9, 25. 39 Ibid.,Articles 11-19. 40 Ibid.,Article 27-28. 41 Ibid.,Article 33.

Convention on the Law of the Non-Navigational Uses of International Watercourses represents a significant contribution to the strengthening of the rule of law in this increasingly critical field of international relations and to the protection and preservation of international watercourses". 42

States Parties to the Convention

The UN Watercourse Convention was adopted at UN General Assembly on 21 of May 1997 by 106 in favor, 26 abstentions, 3 against and 31 absent. Based on article 34 of the convention, it was open for signature for three years until 21 May 2000. 16 countries (signed the convention 43

before the completion of signing process in May 2000 and other 6 countries ratified the convention. None of Nile River Basin countries are party to this convention. As such, the Nile 44

Basin parties cannot use the UN Convention as an overarching framework on the usage of the Nile. Customary International Law on International Watercourses

1. The Principle of Fair and Equitable Utilization in IWL

The principle of fair and equitable utilization of transboundary water resources is one of the most applicable principles in the legal paradigm of international water law. Most upstream countries favor this principle to make use of water resources in their geographical location. In this principle, fairness represent, giving ultimatum to the needs of downstream countries whereas, equitable utilization represents recognizing the water share and interest of downstream countries and not to make use beyond the ideal limit. 45

Convention on the Law of the Non-navigational Uses of International Watercourses also requires states to utilize an international watercourse in an equitable and reasonable manner in their respective territories. Further, States shall also participate in the use, development, and 46

protection of an international watercourse in an equitable and reasonable manner. "Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof" State parties shall also consider geographic, hydrographic, 47

hydrological, climatic, ecological and other factors of a natural character when they make use of international watercourses.

42 Stephen C. McCaffrey, Convention on the Law of the Non-Navigational Uses of International Watercourses New York, 21 May 1997 43 https://treaties.un.org 44 Ibid. 45 X. Fuentes, The Criteria for the Equitable Utilization of International Rivers, 67 British Yearbook of International Law 337, (1996) 46 Convention on the Law of the Non-navigational Uses of International Watercourses 1997, PART II, Article 5. 47 Ibid

The new "treaty shall also address equitable and reasonable utilization of the Nile River." The Declaration does not elaborate on the issues to be considered in determining the province of equitable principles applicable to allocation and use of the Nile waters. Article 6(3) of the 1997 Watercourses Convention provides: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what a reasonable and equitable use is, all relevant factors are to be considered together, and a conclusion reached on the basis of the whole". Concerning the ICJ decision in the Tunisia-Libya Continental Shelf Case, relevant circumstances are to be considered in the application of equitable principles. Accordingly, it is important for the Declaration to enunciate itself on the relevant circumstances that may be considered in its interpretation. Lowe observes that

“equity also represents a fruitful approach to questions concerning access to shared resources, such as international watercourses, where it is more important to secure a solution which can be sustained in the future than one based upon a strict vindication of legal rights and duties which arose in the past. These contexts are in combination in cases where the need is not for a once-and-for-all allocation of rights, but rather for the establishment of a flexible framework for the building of a continuing relationship between the parties." 48

2. The principle of not to cause significant harm in IWL

The obligation not to cause significant harm is a principle enshrined under international watercourse convention. It entails watercourse states to take all appropriate measures to prevent causing significant harm to another watercourse States . In other words, in exercising the use 49

right of the watercourse, upstream or downstream countries shall make it without jeopardizing the interest of the other. In many instances, the expression "significant" could be unclear. The following diagram taken from the watercourse convention guide differentiate impact and adverse effect from harm and separate severe and substantial from trivial and perceptible and put "significant" between the two. The new treaty shall also ensure that the equitable and reasonable utilization of the Nile River does not cause any significant harm. The Gabčíkovo-Nagymaros case recognized environmental conservation as an element of sustainable development as enunciated inequitable utilization of water resources. In the utilization of the Danube waters, the International Court of Justice 50

observed that equitable use of international riparian resources should be in agreement with environmental obligations under Article 5 of the 1997 UN Watercourses Convention, which

48 V, Lowe, The Role of Equity in International Law,12 Australian Yearbook of International Law (1992) 49 Ibid.,at 37, Article 7 50 ICJ Rep. (1997) 7.

requires "optimal and sustainable utilization thereof." Therefore, the treaty shall have provisions obliging the parties to protect and conserve the environment.

Addressing other Water Systems

1. 1909 Boundary Waters Treaty (U.S./Canada) US and Canada share about 12 transboundary drainage basins namely, Alaska-Yukon Rivers, Fraser River, Columbia River, Old Man River and Milk River, Big Muddy River, Souris River, Red River, Rainy River, Great Lakes-St. Lawrence River, Lake Champlain, St. Croix River, St. John River. About half the waterways flow from the United States into Canada and about half 51

from the Canada into the United States. The Boundary Waters Treaty was signed in 1909 and 52

celebrated 100 years of successful water management with the motto of “sharing hundreds of lakes and rivers along their border without conict” and the treaty is a “model of effective 53

cooperation in the history of United States- Canada relationship”. 54

The “clarity and simplicity” of the treaty have contributed considerably to its success. The 55

Treaty laid down general principles, as opposed detailed prescriptions; this helped the two countries to make an open dialogue in situations like approving dams that could affect the natural water volume or flows across the boundary. The main feature of this Treaty is the establishment 56

of International Joint Commission (IJC) based article VII of the treaty. The Commission would

51 http://ijc.org/files/publications/ID1629.pdf 52 Encyclopedia Britannica, Facts About the Red River of the North, http://www.britannica.com/facts/5/469432/Red-River-of-the-North-as-discussed-in-North- America. 53 Ibid.,at 50 54 Canada-United States Law Journal; 2010, Vol. 34 Issue 2, p477-483, 7p 55 Ibid.,at 52 56 Ibid.

be constituted by six Commissioners, three to be named by the President of the USA and three to be appointed by the Prime Minister of Canada. It is unique that after the commissioners swear their allegiance to the Commission they will not specifically see as a representative of their respective countries . The other unique feature of the treaty is it contained the concept of a 57

“permanent watchdog that would give the Treaty teeth.” The Treaty also outlines priority use of 58

the boundary waters “for domestic and sanitary purposes”; “for navigation, including the service of canals for the purposes of navigation;” and “for power and for irrigation purposes.” 59

Similarly, the state parties to the new treaty shall embed cooperation as a key principle in the implementation of the new treaty. Borrowing from US/ Canada, the parties shall initiate mutually beneficial projects where the generated revenue shall be used to produce socio-economic benefits to the state parties. Also, it is imperative that the commissioners operate to optimize the implementation of the Treaty rather than maximizing the individual interests of appointing member states.

2. 1960 Indus Waters Treaty (India/Pakistan) "The Indus Water Treaty 1960," was signed on 19th September in Karachi, by Shri Jawaharlal Nehru (Prime Minister of India) on behalf of India and by Field Marshal Mohammad Ayub Khan (President of Pakistan) on behalf of Pakistan the signature of the Treaty “marks the end of a 60

critical and long-standing dispute between India and Pakistan, and opens the way to the peaceful use and development of water resources on which depends the livelihood of some 50 million people in the two countries” . 61

Like the US- Canada water agreement of 1909, having succeeded three wars between India and Pakistan, the Indus Water Treaty is a model agreement for cross-water management, the Indus water Treaty is also a comprehensive cross-border water agreement for integrated management that granted rights for both countries and established duties. The Treaty grants the control of the 62

Eastern Rivers to India while and empowers Pakistan to control the Western Rivers . The treaty 63

concurrently prohibit the parties from interfering with the flow of the water and the citizens of Pakistan and India can only draw water for domestic use, non-consumptive uses and irrigation from the Eastern Rivers and Western Rivers respectively as they flow within a country’s

57 Ibid.,at 53 58 Ibid. 59 1909 Water treaty between the United States and Canada, Article 8 60 THE WORLD BANK. (1960). Indus Water Treaty. World Affairs, 123(4), 99-101. 61 Ibid. 62 Ibid. 63 1960 Indus Waters Treaty, Article II and III

territory. Treaty gives the parties an unqualified right to engage in "schemes of drainage, river 64

training, conservation of soil against erosion and dredging, or from removal of stones, gravel or sand from the beds of the Rivers." However, India enjoys a special privilege in that it enjoys the power to construct non-consumptive storage works on the Western Rivers unlike Pakistan, which is prohibited from carrying such works . 65

The Permanent Indus Commission (PIC) is established according to Article VIII of the treaty. The commissioners in PIC are drawn from both Pakistan and India. The two commissioners serve as representatives of their governments, the purposes and functions of the Commission is to "establish and maintain co-operative arrangements for the implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers, and to study and report to the two Governments on any problem relating to the agreement of the waters of the Rivers". The PIC is tasked with resolving questions that may arise between Pakistan and 66

India during the interpretation or implementation of the treaty. In case the two commissioners cannot arrive at a mutual agreement, either of the Commissioners of the PIC may refer the issue to a neutral expert . 67

A salient feature for the IWT was the involvement of the World Bank. “The drafting of the Treaty began...under the auspices of the World Bank, directed toward securing agreement on the many complicated technical and financial details which had to be specifically incorporated in any final document”. The World Bank acts as a neutral arbitrator in case of disputes. 68

Additionally, it contributes to the preservation of the Treaty by conducting studies into best practices of coordinated management of the Indus waters. The involvement of the World Bank contributes to the creation of synergy associated with peaceful management of transboundary basin water resources. Despite the fact of their past political hostility, India and Pakistan proactively participated in activities that conserve drainage and the Indus ecosystem. Similarly, the parties to the proposed Nile Treaty should disregard their past political differences and should engage in cooperation to form successful treaty and protection the environment of the Nile River 3. Mekong River Basin Agreement

Cambodia, Laos, Thailand and Vietnam concluded the Mekong River Basin Agreement, in 1995.

64 Ibid., at, Articles II (2) and III (2) 65 Ibid., at Article IV (2) 66 Ibid.,. Article VIII, Paragraph 4. 67 Ibid.,. Article IX, paragraph 2 68 Ahmad, A. (2011). Indus Waters Treaty A Dispassionate Analysis. Policy Perspectives, 8(2), 73-83

With an aim of providing a legal and institutional framework to govern the trans-boundary 69

sustainable use and exploitation of the Mekong River Basin water and related resources. Cambodia, Laos, Thailand and Vietnam are lower riparian states on the Mekong. The Mekong Agreement establishes a framework necessary for the sustainable development, utilization, management and conservation of the Mekong River Basin . 70

The Agreement establishes the Mekong River Commission (MRC) as the institution responsible for the management of the lower Mekong basin. The Commission is constituted of three organs namely the Council, Joint Committee, and Secretariat . The Council is tasked with approval of 71

the Commission’s budget. Additionally, the policy-making organ provides guidance on equitable utilization, conservation, and management of the Mekong River Basin. The Council is also mandated to resolve issues and arising from the application and interpretation of the Agreement 72

. The Joint Committee is responsible for implementation of policies to further the objects of the Agreement. It also conducts regular assessments and studies on the conservation of the Mekong ecology . The Secretariat bolsters the integrated water resources management through provision 73

of technical and administrative expertise necessary for maintaining the balance between ecological conservation and socio-economic development . 74

To enhance its efficiency, the Agreement provides for concise dispute prevention and resolution mechanisms. For instance, the obligation that parties share quality scientific data and information eliminates uncertainties that may trigger conflicts. Additionally, the Agreement provides for participatory governance through the involvement of the upper-riparian non-state parties of China and Myanmar . Overall, the Treaty seeks to optimize benefit sharing through rational and 75

equitable utilization, as well as reduction of environmental pollution on the Mekong Basin.

Egypt, Sudan, and Ethiopia can take a good lesson from the success of Mekong River agreement in terms of establishing a strong and structured Commission.

V. Proposal to ameliorate Declaration of Principles to a Comprehensive water sharing Treaty among Egypt, Sudan, and Ethiopia

69 CAMBODIA-LAOS-THAILAND-VIETNAM: AGREEMENT ON THE COOPERATION FOR THE SUSTAINABLE DEVELOPMENT OF THE MEKONG RIVER BASIN. (1995). International Legal Materials, 34(4), 864-880. 70 Menon, P. (1971). Financing the Lower Mekong River Basin Development. Pacific Affairs, 44(4), 566-579. 71 AGREEMENT ON THE COOPERATION FOR THE SUSTAINABLE DEVELOPMENT OF THE MEKONG RIVER BASIN, 5 April 1995, Article 12. 72 Ibid., Article 15-19 73 Ibid.,Article 21-27 74 Ibid.,Article 28-33 75 Ibid.,69

The Declaration of Principles signed by Egypt, Sudan, and Ethiopia in 2015 laid a crucial step towards a universal betterment of cooperation and integration towards the use of Nile River. However, the document is only a declaration of consensus on Ethiopian Renaissance Dam Project than a comprehensive binding treaty. The terms of the principle only have a value of manifestation of intent to cooperate than intent to govern. The terms of the principles are narrower in scope and function so to use as a treaty. Therefore, this section is to propose the signatories of the principles to ameliorate to a comprehensive binding document to solve the Nile issue once and for all.

A. The Process of developing the new treaty The draft treaty will be sent by International Law Commission's (ILC) to each of the heads of states of Egypt, Sudan, and Ethiopia . This proposal chooses Khartoum, Sudan to be a place where active negotiations and the final signing of the treaty to be conducted. The reason why Sudan is chosen to host the negotiation and the signing of the agreement is due to the same role played in the course of negotiation and signing of Declaration of Principles. After receiving of the draft, each of the countries will choose the first delegation to negotiate on the draft consists of 4 parties. Each of the delegation represents the cause and interest of the countries in which they represent. Drafting of a treaty should be guided by the intent of the parties. Presently, this behooves the three states to appoint a committee of legal, environmental, and development experts to coordinate a full stakeholder analysis of the desired output of the treaty. A skilled team of experts drawn from various technical and professional disciplines ensures that any technical documents or agreements drafted reflect reality and any wider implications of the treaty. The treaty making shall be hinged on an analytical framework for benefit sharing. First, the treaty shall ensure that there is cooperation in the generation and transmission of knowledge related to the Nile Basin system. The team shall also put in place a mechanism to administer and share revenues generated from future income generating project jointly undertaken by the state parties. Provisions for benefit sharing and undertaking joint ventures increase the willingness of the parties to ratify the treaty because they all stand to benefit from the resulting energy and socio-economic benefits. To ensure that the new treaty is acceptable to the state parties, it should balance equality of access to riparian rights with equitable rights of use. If the volume of water fluctuates to lower levels that make it impractical to share the water volume on an equal basis, the state parties should design an equitable formula for sharing that is reasonable and beneficial to all state parties.

B. Substantive elements of the proposal The treaty shall address the water need and interest of all the parties concerned. The Treaty shall address the particular needs of respective states and the negotiation and shall consider the following matters. 1. Financing The treaty shall provide for clear-cut sustainable funding mechanisms. This is essential for the functional running and operationalization of the treaty implementation. The Treaty shall require the state parties to contribute financially in agreed upon quotas. A Trust Fund shall also be established. The Trust Fund shall be used to facilitate any research undertaken to increase the efficiency of the Nile Basin. The Treaty shall empower the council of ministers of the state parties to approach development partners with a view to fund activities under the treaty. The treaty shall promote regional integration by co-opting representatives from the African Union and international institution (the World Bank). This will ensure that the party states will show their commitment to the international community and have easy access to a wide range of funds and loans for approved mutually beneficial projects. 3. Dispute resolution The Treaty shall establish mechanisms for dispute resolution. Before developing a project on its riparian space, a state party shall be required to notify the other members of its planned action. After that, an Environmental Impact Assessment shall be instituted to determine the spillover benefits accruing to other state parties as well as the latent disadvantages of the project. The state party undertaking the project shall be required to exercise good faith in sharing all the data and research output associated with the EIA as well as any other study that has been commissioned with respect to the proposed project. If the project is disputed, the issue shall be placed before a dispute resolution institution. The Treaty shall require that any dispute arising from the Treaty be forwarded for mediation. The mediation team shall consist of 4 members recommended by the World Bank and the African Union. If any of the party is dissatisfied with the decision by the mediating team, the issue shall be referred to the ICJ for a final binding ruling. 3. Administration The treaty shall establish a new commission. The Commission shall be tasked with the transfer of knowledge and benefits accruing from the Nile Basin, advising the governments on technical issues associated with projects related to the basin, and enhancing working cooperation among

the state parties. The Commission shall have 3 commissioners, with every state party appointing a single commissioner. An appointed Commissioner shall serve at the pleasure of the government of appointing state party. The Commission shall employ the services of experts in engineering, law, development studies, and environmental matters in its technical and advisory work. The Commission shall study and report to the Governments on any problem relating to the development of the waters of the River which may be, referred to the Commission by the Governments. It shall make every effort to settle any question arising out of use and access of the Nile River. It shall also undertake general tour of inspection of the River for ascertaining the facts connected with various developments and works on the River. Lastly, the treaty shall oblige state parties to share necessary data and information to the commission so that the commission performs its task correctly. 4. Consumptive uses of the Nile Apart from the non-consumptive use of the Nile River such as dam or navigation, the treaty shall also address equitable and reasonable utilization of the Nile River for consumptive uses such as irrigation and freshwater. Considering the historic need and right of Egypt and Sudan on the Nile, the treaty shall grant the overwhelming portion of the Nile River to both states. Also, considering the availability of other water resources in the country, Ethiopia shall only be allowed to divert a limited amount of water of the Nile River and its tributaries for consumptive use during only peak seasons (June, July and August). 5. Draft Treaty among Egypt, Sudan and Ethiopia.

AGREEMENT ON THE COOPERATION FOR THE SUSTAINABLE DEVELOPMENT OF THE NILE RIVER BASIN

The Governments of Egypt, Sudan, and Ethiopia, being equally desirous of realizing the most comprehensive framework for mutually beneficial scheme for utilization, conservation, management and recognizing the need of delimiting the rights and obligations of each in relation to the other concerning the use of these waters, and amicable resolutions of any disputes arising from interpretation of this Agreement have resolved to conclude this Treaty in furtherance of these objectives.

Article 1 DEFINITIONS

As used in this Treaty:

1) The term “The Nile,” “The Nile Basin,” “The Nile Basin,” “The River,” “The Basin” means the named river and all its Tributaries

2) “Agricultural Use” means the use of water for irrigation, except for irrigation of household gardens and public recreational gardens. 3) “Domestic Use” means the use of water for:

a) drinking, washing, bathing, recreation, sanitation (including the conveyance and dilution of sewage and of industrial and other wastes), stock and poultry, and other like purposes; b) household and municipal purposes (including use for household gardens and public recreational gardens); and

4) “Industrial purposes” include generation of hydroelectric power. 5) The term “Non-Consumptive Use” means any control or use of water for navigation, floating of timber or other property, flood protection or flood control, fishing or fish culture, wildlife or other like beneficial purposes, provided that, exclusive of seepage and evaporation of water incidental to the control or use, the water (undiminished in volume within the practical range of measurement) remains in, or is returned to, the same river or its Tributaries; but the term does not include Agricultural Use or use for the generation of hydroelectric power.

Article 2 AREAS OF COOPERATION

The parties undertake to cooperate in all fields of sustainable development, utilization, management and conservation of the water and related resources of the Nile Basin including, but not limited to irrigation, hydropower, navigation, and tourism, in a manner to maximize benefits of all parties and to minimize harm to the Nile Basin from either human activities or natural activities.

Article 3 PROTECTION OF THE ENVIRONMENT AND ECOLOGICAL BALANCE

The parties shall protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Nile Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin, the parties will take all the necessary procedures to avoid causing significant damage while using the Blue Nile.

Article 4

SOVEREIGN EQUALITY AND TERRITORIAL INTEGRITY State parties undertake to cooperate on the basis of sovereign equality and territorial integrity in the utilization and protection of the water resources of the Nile River Basin.

Article 5 PROVISIONS REGARDING THE BLUE NILE

1) Each Party agrees that any Non-Consumptive Use made by it shall be equitable and reasonable to the extent that it does not materially change, on account of such use, the flow in any channel to the prejudice of the uses on that channel by the other Party under the provisions of this Treaty. 2) Ethiopia shall be under an obligation to let flow all the waters of the Blue Nile, and shall not permit any interference with these waters, except for the Generation of hydroelectric power in the Grand Ethiopian Renaissance Dam. 3) Ethiopia shall be under an obligation to let flow all the waters of the Blue Nile, and shall not permit any interference with these waters, except for the restricted domestic Use, Non-Consumptive Use; and Agricultural Use during only peak seasons (June, July, and August).

Article 6 PROVISIONS REGARDING BENEFIT SHARING

1) Ethiopia shall in good implement all recommendations related to the Renaissance Dam's security in the reports of the international technical experts. Downstream countries will be given priority to purchase energy generated by the Grand Ethiopian Renaissance Dam.

Article 7 PERMANENT NILE COMMISSION

1) The parties shall create a Permanent Nile Commission, and shall appoint to this post, as often as a vacancy occurs, a person from each state party who should ordinarily be a high-ranking engineer competent in the field of hydrology and water use. The three commissioners, each representing his state's Government, shall form the Permanent Nile Commission. 2) Unless either Government should decide to take up any particular question directly with the other Government, each Commissioner will be the representative of his Government for all matters arising out of this Treaty, and will serve as the regular channel of communication on all matters relating to the implementation of the Treaty, and, in particular, with respect to

a) the furnishing or exchange of information or data provided for in the Treaty ; and b) the giving of any notice or response to any notice provided for in the Treaty.

3) The purpose and functions of the Commission shall be to establish and maintain co-operative arrangements for the implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers and, in particular,

a) to study and report to the two Governments on any problem relating to the development of the waters of the Rivers which may be jointly referred to the Commission by the two Governments; b) to make every effort to settle any question arising out of use and access of the Nile River; c) to undertake, once in every four years, a general tour of inspection of the Rivers for ascertaining the facts connected with various developments and works on the Rivers

4) The Commission shall meet regularly at least twice a year, alternately in Sudan, Ethiopia, and Egypt. The Commission shall also meet when requested by either Commissioner.

Article 8 SETTLEMENT OF DIFFERENCES AND DISPUTES

1) Any dispute arising from this Agreement shall be resolved through talks or negotiation based on the goodwill principle. 2) If the parties do not resolve the dispute, the Commission shall refer the issues to a Neutral Expert for mediation or refer the matter to their heads of states or prime ministers.

Article 9 GENERAL PROVISIONS

1) This Treaty governs the rights and obligations of the Parties concerning one another with respect only to the utilization, conservation and management of the River and matters incidental to it. 2) Nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a recognition or waiver (whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the Parties other than those rights or claims which are expressly recognized or waived in this Treaty. 3) The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.

VI. Conclusion The population of the Nile region is increasing and the need for food and energy security also the same. Basin states are interdependent, and their development is linked to the river’s hydrologic cycle. Coordinated management of the waters of the Nile is beginning to create synergy in different countries and sectors, and contribute to overall cooperation. Starting the beginning of the 20th century, attempts were made to formalize the use and access of the Nile River by the respective countries.

Upstream countries mainly Ethiopia claimed there was no fair and equitable use and access agreement on the Nile and those entered previously by colonial powers without legal effect. On the other side, downstream countries Egypt and Sudan relied on the validity of those agreements and claim “historic use right” over the Nile river. The Nile Basin Initiative, a partnership among all the Nile riparian states that “seeks to develop the river in a cooperative manner, share substantial socioeconomic benefits, and promote regional peace and security” the Cooperative framework agreement proposed by the initiative was a success in bringing all the riparian state to the common cause. However, the withdrawal of Egypt and Sudan from the framework agreement due to a dispute over a provision diminished the effort for basin-wide agreement. The new state of South Sudan also confounds the utilization of the Nile Basin by riparian countries. There is a question whether South Sudan should insist on historical claims based on customary international law norms that provide that state succession does not affect territorial obligations or it should assert its sovereignty to accede to the Cooperative Framework Agreement that provides for new equitable uses and access rights over the Nile. Under Article 12 of the 1978 Vienna Convention, there is the automatic succession to territorial rights. Water rights are territorial rights and South Sudan may be required under customary law to maintain and respect any territorial rights that it succeeds too. The Grand Ethiopian Renaissance Dam symbolizes Ethiopia's growing interests in the utilization of the Nile River. The construction of the Grand Ethiopian Renaissance Dam on the Nile upsets Egyptian hegemony. However, Ethiopia insists it has rights of access and uses over water resources in its geographical location. Moreover, it argues that as the highest contributor to the capacity of the Nile it has rights of use over the Nile waters. Present economic, as well as social realities, suggest the need for cooperation and integration among Egypt, Sudan, and Ethiopia. The principles of fair and equitable utilization of water resources necessitate cross-boundary management that generates socio-economic benefits for State Parties. A clear and functional binding treaty will not only help the signing countries to utilize the Nile River for their developmental need but also chart the way for amicable resolution of disputes in the utilization of riparian resources.