The long-awaited Nile River Basin Cooperative Framework Agreement (CFA) is about to enter into force. Since it was made open for signatures on May 14, 2010, Ethiopia, Rwanda, Tanzania, Uganda and Burundi ratified the pact in 2013, 2015, 2019 and 2023, respectively. Kenya signed the agreement in 2010, but has yet to ratify it. South Sudan, admitted to the Nile Basin Initiative (NBI) in 2012 after gaining its independence in 2011, took a decisive step by officially acceding to the CFA in July 2024. This has made South Sudan the sixth riparian state to ratify the CFA.

Upon depositing the ratified instrument with the African Union, the CFA will enter into force in 60 days. Many are eager to witness this moment. However, bringing the agreement into force has not been an easy process. It took more than a decade (January 1997-May 2010) to broker the CFA. Moreover, it took an additional decade (May 2010-July 2023) to meet the minimum threshold of ratification, which requires the participation of six riparian states. Thus, it is imperative to review the course of the decades-long agreement and provide insight into the implications of the new reality in the basin.

The birth of the CFA

The Nile is an international river that flows from Lake Victoria to the Mediterranean Sea, passing through 11 riparian states – Uganda, Burundi, the Democratic Republic of Congo (DRC), Kenya, Rwanda, Tanzania, Ethiopia, South Sudan, Sudan and Egypt. While Egypt and Sudan are considered downstream riparian states and utilize the entire river flow, the remaining states are categorized as upstream riparian states. These upstream states generate almost the entire river stream but are not allowed to use it fully. Given the growing socio-economic demands and population growth, the upstream riparian states have been advocating for equitable and reasonable use of the Nile River.

Although several discussions took place under initiatives like the HydroMet project, the Undugu project, and the Technical Cooperation Committee for the Promotion of Development and Environmental Protection of the Basin (TECCONILE) from the 1960s to 1990s, significant negotiations began with the establishment of the NBI in 1999. This initiative is praised for bringing together the upstream and downstream riparian states for dialogue. After extensive roundtable talks that lasted more than a decade, the negotiating parties were able to broker the CFA in 2010.

The CFA resembles the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses. Like the U.N. Convention, the CFA outlines major principles such as cooperation, equitable-reasonable use, the no-significant harm rule, and data and information exchange, among others. However, the CFA introduces two additional principles: the community of interest and water security.

The community of interest is a constructive and innovative concept that ensures equality among riparian states and helps the integration of the hydro-socioeconomic livelihoods of all riparian states, making it widely welcomed. In contrast, the principle of water security has been less constructive, leaving a negative impact on subsequent dialogues between upstream and downstream states.

The CFA defines water security positively as "the right of all Nile Basin States to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment." However, this principle is not recognized among international law principles for transboundary watercourses. For instance, it is not mentioned in the 1997 U.N. Watercourse Convention. It is neither stipulated in the 1966 Helsinki Rules on the Uses of the Waters of International Rivers nor the 2004 Berlin Rules on Water Resources, both adopted by the collective of prestigious scholars of the International Law Association. Therefore, it is not considered a principle of international watercourse law.

The issue of Article 14(b)

In addition to the abovementioned ambiguous principle, the dispute over Article 14(b) of the CFA reveals why this principle was unusually included in the draft. There were diverging preferences among upstream and downstream states in Article 14(b), a provision of the agreement that outlines the parameters of water security. During the drafting, this sub-article was initially phrased as "The Nile Basin States agree, in a spirit of cooperation, not to significantly affect the water security of any other Nile Basin States." Reservations were submitted against the phrase "not to significantly affect the water security of any other Nile Basin States." The two downstream states – Egypt and Sudan, proposed a different text: "not to adversely affect the water security and current uses and rights of any other Nile Basin State." However, the upstream states vehemently rejected this proposal, refusing to accept the "current uses and rights" acquired through colonial treaties.

Aside from colonial treaties that have potential ramifications on the management of the Nile Basin, the most prominent one dealing with water allocations is the 1929 Exchange of Notes between the U.K. (the then protector of Sudan) and Egypt. According to this note, Egypt and Sudan receive almost 92% and 8% of the entire river flow respectively. After Sudan gained independence, the two downstream states negotiated the 1959 Agreement for the Full Utilization of the Nile River to amend the 1929 Exchange of Notes. In this agreement, Egypt and Sudan allocated the entire river flow between themselves, receiving 66% and 22% respectively, while accounting for the remaining 12% as lost to evaporation.

Contemplating the above allocation as an acquired historical right, the proposed reservation in Article 14(b) of the CFA, which states "not to adversely affect the water security and current uses and rights of any other Nile Basin State" is essentially a means of securing what was guaranteed in the colonial treaties of the 1929 Exchange of Notes and the 1959 agreement. This reservation would effectively allocate the entire river flow to the two downstream states, Egypt and Sudan. However, this outcome was contrary to the aspirations and negotiations of the upstream riparian states, potentially having a detrimental effect on their interests. Hence, as they have vehemently objected to those colonial treaties, they have also rejected reservations proposed against Article 14(b).

Defining the new paradigm

For the above reasons, an agreement could not be reached on the reservation due to opposing positions. As a result, Article 14(b) was left to be resolved by the Nile River Basin Commission (NBC), a permanent institution expected to replace the NBI after the CFA comes into force. Once NBC commences its work, the agreement requires it to establish a fact-finding commission and resolve the matter within six months.

Apart from addressing Article 14(b) expeditiously, the NBC will strive to implement the vision and objectives of the agreement by bringing the ratifying riparian states around the table for cooperation. The commission will also be responsible for the effective implementation of equitable and reasonable utilization of the Nile River among riparian states without causing significant harm to each other.

All the above awaits the CFA’s entry into force. Although there are challenges ahead, there is little doubt it will take effect among the ratifying riparian states. Except for the possibility of amending the CFA in accordance with the provided guidelines, it would be counterproductive to abandon this course of action and restart the process of crafting a new basin-wide legal agreement. Therefore, the remaining non-ratifying states – Kenya, Egypt, and Sudan – should carefully consider ratifying the CFA. The sooner this happens, the better it will be for the advancement of the Nile Basin.