International agreements on use of River Nile water

A NUMBER of international agreements over the Nile Waters have been signed, since the late 19th century. These include, for example, a 1891 protocol between the United Kingdom and Italy, agreements between the UK and the Congo (1906), the UK, France and Italy (1906), and the UK and Italy (1925), which all included provisions designed expressly to protect what the UK and its strategic ally/client state, Egypt, saw as Egypt’s ‘natural and historical rights’ to the flow of the Nile. These agreements, largely between colonial powers, are generally seen to have lost any legal basis with the end of colonial occupation of Africa. In the case of the 1902 Treaty, Ethiopia did not recognize the Treaty as binding once Haile Selassie’s government came to power in the 1950s. In any case, they do not affect Kenyan waters.
Today, the most talked-about document relating to utilization of the Nile Waters is the 1929 Nile Waters Agreement. This Agreement, which had been preceded by a number of hydrological studies and reports, consists of an ‘exchange of notes’ between Mohamed mahmoud Pasha, the President of Egyptian Council of Ministers, and Lord Lloyd, the British High Commissioner in Cairo. The Agreement had the following key terms:
•The Nile Waters were to be shared between Egypt and Sudan, with Egypt claiming rights to 48bn cubic m per year, and Sudan 4bn cubic m.
• The dry season flow, between the 15th of January and the 15th of July, was entirely reserved for Egypt.
• Egypt claimed the right to monitor the flow of Nile Water into and out of upstream riparian countries.
• Egypt claimed the right to veto any upstream engineering works that would affect the flow of the Nile.
• Egypt claimed the right to construct engineering works on the Nile without the consent of other riparian states. 
There was however some leeway over future re-negotiation, based on the political future of Sudan. Accordingly in 1959, after Sudan had gained its independence, Egypt entered into an Agreement for the Full Utilization of the Nile Waters, which is discussed below.
The 1929 Agreement was concluded without the involvement of any other riparian states. Following independence, Tanzania rejected the Agreement as not binding upon itself as an independent sovereign state. This was in accordance with the Nyerere Doctrine on State succession which considers colonial-era treaties to be non-binding if incompatible with state interests. Tanzania sent a Note to this effect to the Governments of the UK, Sudan and Egypt in 1962, to which Egypt replied with a Note submitting that the Agreement remained valid, though there may be room for negotiation.
Similarly, the Government of Uganda declared in a letter to the Secretary General of the UN in 1963 that all colonial-era Treaties would, after December 31st, 1963, would be considered ‘terminated’ unless modified by agreement with the Government.
However, this position has been complicated by the later policies of the Ugandan government, which has continued to seek consent of the Government of Egypt for all projects of the Nile (as per the terms of the Agreement), has continued to observe the 1949 Owen Falls Agreements, and signed a new agreement with Egypt, through an exchange of notes, in 1991, “affirming the so-called existing agreements”.
When Tanzania and Uganda were officially rejecting the Agreement, the Kenyan Government – at that time still a colonial machine – stayed silent. However, after independence, Kenya declared that it adopted the Nyerere Doctrine, and considered Treaties which were not modified by mutual consent within a 2-year period, and “which cannot be regarded as surviving according to the rules of customary international law” to be terminated.
A number of other international agreements on the Nile were entered into after 1929, the most relevant being the 1959 Agreement for the Full Utilization of the Nile Waters between Egypt and Sudan, which provided for the construction of the Aswan High dam, and modified the terms of use of Nile Waters. Under the 1959 Agreement, the two countries were to achieve “full utilization” of the waters: Egypt was to receive 55bn cubic m per year, while Sudan was to receive 18bn cubic m per year.
While some downstream powers consider the 1929 and 1959 Agreements to be binding legal documents, many lawyers, politicians, academics and politicians have argued otherwise.
There are many reasons put forth to argue that they are null and void. Some of the key arguments include:
• The 1929 Agreement was between the UK and Egypt, and thus became void following the end of the UK’s colonial control over East Africa.
• The 1959 Agreement was intended to replace the 1929 Agreement, which was then implicitly superceded.
• The statements of the Governments of Kenya, Tanzania and Uganda (notwithstanding any later bilateral agreements) rejecting colonial-era agreements are, arguably, upheld by international customary law.
• The 1959 Agreement between Egypt and Sudan did not involve any consultation with third parties such as riparian states, and cannot therefore be seen as binding upon them.
For reasons such as these, the East African Legislative Assembly chose not to refer to the Agreement in a set of resolutions on Lake Victoria and Nile Waters issues in June 2003, because they feel that the Agreement ‘does not exist’.
Despite these arguments, many Kenyan officials and politicians have identified the 1929 Agreement as a constraint to development of irrigation, hydroelectric power generation, and flood-control structures. In off-the-cuff remarks during a speech to the East African Legislative Assembly in June 2003, the Minister for Water Resources Management and Development, Hon. Martha Karua wondered if some people had not used the Agreement as an ‘excuse’ for lack of action. Others have pointed out that many references to the effects of the Agreement on Kenya have been made in ignorance of its historical and legal context.
Notwithstanding formal and informal discussions around the use of the Nile waters in Kenya, Kenya continues to participate in the NBI and negotiate on the Nile Basin Cooperative Framework and related issues of access to Nile waters.