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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!