Why the World Bank Should Support Transboundary Water Framework Conventions

By Lauren Sillman, Staff Contributor

In 2011, then Egyptian president, Mohamed Morsi, declared that while he was not “calling for war” with Ethiopia, “all options are open.”[1] The statement was the latest threat in an escalating controversy over the waters of the Nile River. The war of words began when Egypt refused to sign onto a multilateral agreement to manage the vital waterway and Ethiopia announced plans for the Grand Ethiopian Renaissance Dam.[2] This Blue Nile dam, when completed, will be 1,800 meters long, 155 meters high and will have a total volume of 74,000 million meters,³ making it the largest dam in Africa.[3] It was in the context of this controversy that the World Bank initiated the Cooperation in International Waters in Africa (CIWA) program.[4] The program assists riparian governments with international water management using “a multi-disciplinary, integrated, and cooperative approach.”[5]

 

The CIWA program’s importance is only growing as water resources become increasingly precarious due to climate change, population growth, and pollution. Africa faces acute challenges, and on the continent, freshwater management is necessarily an international endeavor.[6] Every continental country has territory in at least one transboundary river basin, which together cover sixty-two percent of the total land area.[7] Broader cooperation in these basins has the potential to produce economies of scale (such as for hydropower), build on states’ comparative advantages, improve coordinated operation and optimize location of water infrastructure, and increase the possibility of jointly facing common external threats.[8] Unfortunately though, even where cooperation is mutually beneficial for riparian states, it may not be realized because leaders are restrained by uncertainties.

 

Kenneth Abbott and Duncan Snidal have presented a model for thinking about pathways that states can use to incrementally strengthen international policy cooperation.[9] Strong international agreements possess three criteria: substantive content, full participation by relevant states, and legal enforceability.[10] However, these criteria may produce too inflexible a commitment in the face of uncertainty.[11]

 

Each of these three criteria are especially risky given three corresponding types of uncertainty.[12] Committing to specific substantive content is risky where there is technical uncertainty about the nature and extent of the problem and its solutions.[13] Full participation may be undesirable where it is unclear which other states will uphold their commitments.[14] Finally, legal enforceability may be problematic where leaders are unsure about the political costs and benefits of an agreement’s commitments.[15] Technical uncertainty is often the most significant obstacle for transboundary water agreements because of the importance of data to management decisions and the evolving nature of climate change and population growth problems.[16]

 

Abbott & Snidal’s proposal intentionally limits the problematic criterion—substantive content, participation, or legalization—in an initial agreement and gradually strengthens that criterion as uncertainties are reduced.[17] They describe a pathway for situations of technical uncertainty, which they call the framework convention.[18] This framework convention may mandate information gathering and exchange, or it may establish institutions and processes to facilitate normative dialogue, participation in a normative community, and activation of domestic supporters.[19]

 

The case study for the framework convention pathway is the 1985 Vienna Convention for the Protection of the Ozone Layer.[20] When the Convention was adopted, there were significant uncertainties about the processes and extent of ozone depletion, but states had a common interest in learning more about the problem.[21] The Convention also established procedures for future substantive commitments, leading to the Montreal Protocol on Substances that Deplete the Ozone Layer in 1987, which has since been altered to account for new scientific information.[22] Similarly, all riparian states in a transboundary water basin have an interest in learning more about water supply, use, and pollution throughout the basin. It is also beneficial, if a mutually agreeable solution exists, for there to be information gathering processes in place to facilitate agreement.

 

The multilateral treaty rejected by Egypt in 2011, the Agreement on the Nile River Basin Cooperative Framework (CFA), had many elements of an effective framework convention.[23] These included an elaboration of a new institutional structure[24] and provisions related to a variety of procedural requirements.[25] In fact, according to a former Egyptian minister of water resources and irrigation, “everybody agreed to more than 95 percent of the articles.”[26]

 

A few hotly debated provisions, however, ultimately derailed the CFA, in particular Article 14(b).[27]  Article 14 refers to “Water Security,” and the chapeau recognizes “the vital importance of water security” to the member states and the benefits of cooperative management.[28] The unresolved 14(b) is attached as an annex.[29] Burundi, the Democratic Republic of the Congo, Ethiopia, Kenya, Rwanda, Tanzania and Uganda agreed to the wording “Nile Basin States agree . . . not to significantly affect the water security of any other Nile Basin States.”[30] Egypt and Sudan, on the other hand, wanted the provision to read, “Nile Basin States agree . . . not to adversely affect the water security and current uses and rights of any other Nile Basin State.”[31] This latter version would recognize  Egypt and Sudan’s rights under prior agreements struck in 1929 and 1959 that give them almost ninety percent of the river’s water even though upstream countries provide eighty-five percent of that water.[32]  The upstream countries have no intention to recognize these agreements, to which they were not even parties.[33] In short, a largely procedural agreement that could have equipped water managers with crucial data and institutional resources was prevented by substantive content that not all of the riparian countries could agree upon.

 

This is not a minor dispute for Egypt. A commentator at the time of the 1929 Nile Waters Agreement recognized that “Egypt may literally be described as ‘the river which is Egypt’ . . . The Nile is its life. Deprive it of the waters of that stream and it would at once become a desert.”[34] That statement has become no less true in the intervening decades. Water is a paramount concern.[35] The dispute is also pressing for upstream states, who consider their development plans as subject to a veto from Cairo under the existing treaties.[36] Following the breakdown of the CFA, the status of the prior treaties remained unresolved, and the basin was primed for the Grand Ethiopian Renaissance Dam controversy. Fortunately, in 2015, Egypt, Sudan, and Ethiopia agreed to allow the dam to move forward.[37] However, this agreement is limited in scope and participation, only addressing the dam but not the broader conflicts that still plague the basin.[38]

 

Although a comprehensive convention may have been impractical, the Nile Basin states should have mandated data collection, technical cooperation, and procedures for future negotiation and dispute resolution. Leaders are uncertain about how to ensure sufficient water for their populations, in large part because of information deficiencies and the limited pool of water resource experts. Framework conventions can respond to these needs and lay the groundwork for increased cooperation in the future. The World Bank should learn from this missed opportunity and recognize the value of framework conventions for the CIWA program’s work across the continent.

[1] Mwangi S. Kimenyi & John Mukum Mbaku, The limits of the new “Nile Agreement,” Brookings (Apr. 28, 2015), https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the-limits-of-the-new-nile-agreement/.

[2] Id.

[3] Grand Ethiopian Renaissance Dam Project, Salini Impreglio, https://www.salini-impregilo.com/en/projects/in-progress/dams-hydroelectric-plants-hydraulic-works/grand-ethiopian-renaissance-dam-project.html.

[4] Brochure, World Bank, Cooperation in International Waters in Africa 2 (last accessed Nov. 6, 2017) http://www.worldbank.org/en/programs/cooperation-in-international-waters-in-africa#2.

[5] Id.

[6] Economic Vision for Africa, The Africa Water Vision for 2025: Equitable and Sustainable Use of Water for Socioeconomic Development 1 (2000).

[7] Jonathan Lautze & Mark Giordano, Transboundary Water Law in Africa: Development, Nature, and Geography, 45 Nat. Resources J. 1053, 1054 (2005).

[8] Ashok Subramanian, Bridget Brown & Aaron Wolf, Reaching Across the Waters: Facing the Risks of Cooperation in International Waters, Water Papers 2 (Mar. 2012), https://openknowledge.worldbank.org/handle/10986/17256.

[9] See generally, Kenneth Abbott & Duncan Snidal, Pathways to International Cooperation, The Impact of International Law on International Cooperation: Theoretical Perspectives (Eyal Benvenisti & Moshe Hirsch, eds. 2004).

[10] Id. at 51–52.

[11] Id. at 62.

[12] Id. at 63–71.

[13] Id. at 63.

[14] Id.

[15] Id. at 69.

[16] Mark Giordano et. Al, A Review of the Evolution and State of Transboundary Freshwater Treaties, 14 Int’l Envtl. Agreements 245, 255 (2014).

[17] Id. at 55.

[18] Id.

[19] Id.

[20] Id. at 57.

[21] Id.

[22] Ozone Layer Protection: International Treaties and Cooperation, Environmental Protection Agency (last accessed Nov. 6, 2017), https://www.epa.gov/ozone-layer-protection/international-treaties-and-cooperation.

[23] See generally, Agreement on the Nile River Basin Cooperative Framework [hereinafter CFA], http://www.nilebasin.org/index.php/nbi/cooperative-framework-agreement.

[24] CFA, art. 15–31.

[25] CFA, art. 32, 34, 35.

[26] Geof Magga, Uganda: Ethiopian led river Nile agreement signed without Egypt and Sudan, Afrik-news, May 14, 2010, http://www.afrik-news.com/article17639.html.

[27] Ashenafi Abedje, Nile River Countries Consider Cooperative Framework Agreement, Voice of America, Mar. 17, 2011, https://www.voanews.com/a/nile-series-overview-11march11-118252974/157711.html.

[28] CFA, art. 14.

[29] CFA, annex 1.

[30] Id.

[31] Id.

[32] Ashenafi Abedje, Nile River Countries Consider Cooperative Framework Agreement, Voice of America, Mar. 17, 2011, https://www.voanews.com/a/nile-series-overview-11march11-118252974/157711.html.

[33] Yeheyes Wuhib, Egypt Favors Pragmatic Solution to Nile Water Sharing, Says Analyst, Voice of America, Mar. 29, 2011, https://www.voanews.com/a/egypt-favors-pragmatic-solution-to-nile-water-sharing-says-analyst-118916679/157796.html.

[34] Pierre Crabitès, The Nile Waters Agreement, Foreign Affairs (Oct. 1929), https://www.foreignaffairs.com/articles/sudan/1929-10-01/nile-waters-agreement.

[35] Nile Debate Emphasizes Conservation, Water Sharing, Voice of America, Mar. 28, 2011, https://www.voanews.com/a/upstream-vs-downstream-the-nile-basin-initiative-118079584/157700.html

[36] Mwangi S. Kimenyi & John Mukum Mbaku, The limits of the new “Nile Agreement,” Brookings (Apr. 28, 2015), https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the-limits-of-the-new-nile-agreement/.

[37] Id.

[38] Id.

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