Ambiguity as the Ambiguity as the solution for the solution for the

Nile Legal Deadlock?Nile Legal Deadlock?

ANA CASCÃOKing’s College of

London/London Water Research

Group

Presentation to:NBDF 2008

Khartoum, Sudan17-19 November

Legal Milestones in the Nile Basin

1959 Bilateral Nile Agreement between Egypt and Sudan

(1959)

Nile riparians and the UN Water Convention

(1997)

D3 Project/Cooperative Framework Agreement (CFA)

(1997-2007)

Nile Basin Act

(2002)

Conclusion of the

CFA Draft Agreeement

(June 2007)

1959 Egypt-Sudan Agreementfor the Full Utilization of the Nile Waters

• Bilateral agreement• Including specific volumetric

water allocations• Basis for claiming “prior

use” and “acquired rights”• “Red line” for negotiations• Contested by upstreamers

The Nile riparians and UN Water Convention

UN Water Convention 1997

IN FAVOUR:KenyaSudan

AGAINST: Burundi

ABSTENTION:Egypt

EthiopiaRwandaTanzania

None of the Nile riparians have yet sign or ratified the Convention

NBI & Cooperative Framework Agreement Nile Cooperation inspired by UN

Convention

2 Tracks of CooperationNBI + CFA

Multilateral Negotiations (1997-2007)

External legal advisors

Influenced by international water law [1997 UN Convention]

Goals: Legal Framework and establishment of the Nile Basin

Commission

COOPERATIVE FRAMEWORK AGREEMENT(CFA)

Negotiating water law principles...

Bill of PrinciplesBill of Principles Equitable and reasonable utilisation

Obligation not to cause significant harm

Regular exchange of data and information Information concerning planned measures

Notification and consultationProtection, preservation and management

of ecosystems Prevention and mitigation of harmful

conditions and emergency situations Arbitration

Priority?

Meaning?

Application?

Existing Agreements?

... Legal Deadlock – what happens to existing agreements?

“Old” Agreements

New Agreement

Maintenance of existing agreementsMaintenance of current allocations

Principle: No harmPrinciple: No harm“Prior Use” & “Acquired Rights”

1959: Valid Agreement

Supersession of old agreementsRenegotiations of Volumetric Allocations

Principle: Equitable UtilisationPrinciple: Equitable UtilisationDo not recognise the 1959 AgreementCall for a new all-inclusive agreement

Long-lastingLong-lastingDeadlockDeadlock

Entebbe, June 2007: CFA Draft Agreement

• 39 Articles, mainly derived from relevant provisions of international water law, in particular the 1997 UN Water Convention

• Consensus on 38 Articles

• No consensus on Art. 14 [on status of existing agreements]

Article of Discord

Solution:

Ambiguity!?

Source: NBI website

Article 14 - Deliberated Ambiguity...

“WATER SECURITY”

Article 14: “(...) the Nile Basin States therefore agree, in a spirit of cooperation, to work together to ensure that all states achieve and sustain water security

and not to significantly affect the water security of any other Nile Basin State."

Deliberated Ambiguityin Water Negotiations &

Agreements

1994 Israeli-Jordan

Water Agreement

1993-1995 Israel-Palestine

water negotiations

1954India-Nepal

water agreement on the Kosi River

1954India-Nepal

water agreement on the Mahakali

River

1996India-

Bangladesh Ganges Treaty

2007Nile Cooperative

Framework Agreement

Pos & Cons of Using Ambiguity in Treaty Design and Negotiations

Increase flexibility in stiff negotiations

Accomodate divergent interests

Defuse conflictive positions

Create room for political compromise

Resolve long-lasting deadlocks

Facilitate conclusion of agreements

Delay the process ad eternum

Induce different and divergent interpretations

Increase legal controversies

Difficult implementation of the agreement

Encourage non-compliance

Contribute to prolongation of conflicts

Keys to unlock the political deadlock

Ambiguity,if Constructive

Serious Political Commitment

at the highest level

Signature & Ratification

of the Agreement

Acceleration of the cooperation

process

Sharing benefits BECAUSE OF and BEYOND political commitment

Establishment of Establishment of Nile Basin Commission (NBC)Nile Basin Commission (NBC)

Full Legal StatusFull Legal Status

Positive message to donors Positive message to donors and investorsand investors

Increased investmentIncreased investment

Projects on-the-groundProjects on-the-ground

Intensification of cooperation Intensification of cooperation processprocess

Need to accelerate the Need to accelerate the cooperation processcooperation process

Ambiguity as Ambiguity as thethe solution solution for the for the

Nile Legal Deadlock?Nile Legal Deadlock?

Legal deadlock

Constructive Ambiguity

PoliticalCommitment

Disambiguation& Compliance

“BindingCooperation”

Ambiguity is an Ambiguity is an intermediary step towards intermediary step towards

political commitment!political commitment!

Thanks for your attention!

ana.cascao@kcl.ac.uk