The Nile Basin Initiative and the Cooperative Framework Agreement: failing institutional enterprises? A Script in legal history of the Diplomatic Confront (1993?2016)

Author:Tadesse Kassa Woldetsadik
Position:Tadesse Kassa Woldetsadik (LLB, LLM, Ph.D), Associate Professor of Law and Human Rights, Addis Ababa University, College of Law and Governance Studies (CLGS); Advisor: Institutional Support Program World Bank Group, Ethiopian Investment Commission; Email: <tadkas1@gmail.com>
Pages:196-228
SUMMARY

Nearly two decades since its inception, the Transitional Mechanism of the Nile Basin Initiative (NBI) has been credited for fulfilling several components of its institutional undertaking –building an atmosphere of trust and dialogue among riparian states. Yet, the negotiations pursued under the auspices of the NBI have failed to realize one of organization’s most fundamental missions:... (see full summary)

 
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196
The Nile Basin Initiative and the
Cooperative Framework Agreement:
Failing Institutional Enterprises?
A Script in Legal History of the Diplomatic Confront (1993–2016)
Tadesse Kassa Woldetsadik
Abstract
Nearly two decades since its inception, the Transitional Mechanism of the Nile
Basin Initiative (NBI) has been credited for fulfilling several components of its
institutional undertaking –building an atmosphere of trust and dialogue among
riparian states. Yet, the negotiations pursued under the auspices of the NBI
have failed to realize one of organization’s most fundamental missions:
establishing a permanent legal framework and institution ‘acceptable’ to all
states across the basin. The diplomatic enterprise leading to the adoption of the
Agreement on the Nile River Basin Cooperative Framework (CFA) was beset
by multifaceted challenges. I argue that in spite of the unparalleled heights in
cooperative dialogues that were largely depicted as a ‘political triumph’ from
upstream perspective, the legal and hydro–political discourse leading to the
CFA’s final framing failed to mollify the ‘expectations’ of two key stake–
holding states: Egypt and Sudan. This preordained an existential threat to the
institutional future of the NBI itself and the noble objectives it sought to
realize. All the same, the organizational predicament in the basin also evinced
that the Nile riparian states have little choice but to revive the ‘dwindling’
momentum and ensure that the NBI’s undertaking is concluded in an
‘inclusive’ and ‘equitable’ manner. Else, this author submits, the alternative
would not only present a bleak future from the point of view of cooperation and
optimum development of the Nile resources, over the long range, it also stifles
the basin states’ enduring riverine interests.
Key terms
Nile Basin Initiative, Nile River Cooperative Framework, Negotiations history
of the CFA, Legal positions of Ethiopia, Egypt and Sudan, Future of the NBI.
DOI http://dx.doi.org/10.4314/mlr.v11i1.7
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
Tadesse Kassa Woldetsadik (LLB, LLM, Ph.D), Associate Professor of Law and Human
Rights, Addis Ababa University, College of Law and Governance Studies (CLGS);
Advisor: Institutional Support Program World Bank Group, Ethiopian Investment
Commission; Email: <tadkas1@gmail.com>
The Nile Basin Initiative and the Comprehensive Framework Agreement197
Introduction
Organized as a sequel to the studies published in Mizan 8(2) and 9(2) focusing
on legal history of the Nile (1902–2013),1 this article reconstructs in
multidisciplinary investigation fundamentals of the political and legal setting of
the processes leading to the adoption of the ‘Agreement on the Nile River Basin
Cooperative Framework’ (CFA) in 2010,2 and endeavors to foster a critical
understanding of why the NBI/CFA schemes stalled in the post–2010 period.
Working on a gradual transformation of riparian cooperation in the region, the
first section presents on milestone collaborative measures espoused by the basin
states since the early 1990’s –following on the Nile-2002 Conference Series
pursued under the auspices of the TECCONILE, and eventually, the NBI.
Section 2 submits details of the negotiations history on the CFA, the core
challenges and key achievements of the ‘Panel of Experts’, the ‘Transitional
Committee’ and the ‘Negotiations Committee’ in pursuing works on the drafts
and formal structuring of the CFA, and the polarized debates that extended to
date over certain aspects of the CFA. Section 3 deals with stalled processes of
the NBI in relation to the CFA –discussing the concentrated efforts, actions and
counteractions adopted by the basin states, and it highlights the ramifications of
the ‘fractured’ enterprise which detracted the CFA’s chances from becoming a
comprehensive legal instrument.
The fourth section discusses the most contentious legal issues ‘addressed’
under the CFA –focusing on three themes: the characterization of the
‘international watercourse’ conception, ‘water security and the fate of pre–
existing uses/rights’ and the exchange of ‘information concerning planned
measures’. The last section dwells on the analyses of key factors that accounted
for the NBI’s ‘less promising future’ as a collective institutional platform, and it
examines whether, in light of the contemporary circumstances, the NBI’s overall
undertaking and the CFA itself could be read as ‘failing enterprises’ impacting
the organization’s efficiency and sustainability.
1 See: Tadesse Kassa Woldetsadik (2014), ‘The Anglo-Ethiopian Treaty on the Nile and the
Tana Dam Concessions: A Script in Legal History of Ethiopia’s Diplomatic Confront
(1900-1956)’, 8.2Mizan Law Review, pp.271–298; and ‘The Grand Ethiopian Renaissance
Dam and Ethiopia’s Succession in Hydro–legal Prominence: A Script in Legal History of
Diplomatic Confront (1957-2013)’, 9.2 Mizan Law Review, pp.373–411.
2 On 13 April 2010, an Extraordinary Meeting of the Nile–Council of Ministers (Nile-COM)
held in Sharm El Sheikh passed a resolution to proceed, at a later date, with a formal
signature of the CFA; the document was opened for signature in Entebbe, Uganda, from 14
May 2010 for a period of not more than one year.
198 MIZAN LAW REVIEW, Vol. 11, No.1 September 2017
1. The Advent of a Cooperative Exercise under the Nile Basin
Initiative
Since the early 1990’s, the Nile River basin witnessed milestone cooperative
steps –steadily transforming the legal and political setting of cooperation in the
region. Consultative forums had already been organized since 1993 under the
auspices of the ‘Nile–2002 Conference’ series. Alternately hosted by riparian
countries, the conventions worked as ‘venting spaces’ –congregating politicians,
legal scholars, technical experts, non-governmental organizations, stake-holding
institutions and academics to converse and exchange views on the legal, socio–
economic, political and institutional aspects of basin–wide cooperation,
regulation and management of the Nile River water resources.3
From 1993 to 2002, the annual conferences were held under the umbrella of
the Technical Cooperation Committee for the Promotion of the Development
and Environmental Protection of the Nile Basin (TECCONILE) –an institutional
platform established in 1993.4 The themes of deliberation of the series were
diverse –coalescing technical, political, legal and developmental studies
presented by national and international experts; the thematic concentrations
covered issues relating to national water resources management plans,
opportunities for cooperative management of the Nile water resources through
permanent legal and institutional frameworks, and the challenges faced in
coordinating national schemes with the broader outlines for integrated use and
management of the Nile River water resources.
2. Negotiations on the Cooperative Framework Agreement
The outcome of the Nile-2002 proceedings was generally progressive. The
platforms stimulated further cooperation and provoked thoughts about
instituting permanent operational models through an inclusive organizational
arrangement and regulatory framework for equitable and sustainable utilization
of the Nile. In February 1995, the Nile-COM undertook the first crucial step in
this direction –adopting the Nile River Basin Action Plan with support of the
Canada International Development Agency (CIDA)– which comprised about
3 For more detailed treatment of the historical and political processes leading to the
establishment of the Nile Basin Initiative itself, please refer to: Ashok Swain (1997),
‘Ethiopia, the Sudan, and Egypt: The Nile River Dispute’ 35.4 The Journal of Modern
African Studies, pp.690-694; The Nile Basin Initiative (Nov.2013), ‘Cooperation on the
Nile’, DEV COM Publications, Serial No.01, p3-5.
4 It was formally launched following a Nile–COM resolution adopted in Kampala in 1992 as
initiative to promote cooperation and development in the basin; it involved the DRC,
Sudan, Egypt, Rwanda, Uganda and Tanzania. Ethiopia held an observer status.
Nile Basin Initiative, http://www.nilebasin.org/index.php/about-us/nile-basin-initiative

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