What is the Nile Treaty? Who signed it in 1902 and 1929?

“His Majesty the Emperor Menelik II, King of kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed, any works across the Blue Nile, Lake Tsana or the Sobat, which would arrest the flow of their waters into the Nile except in agreement with his Britannic Majesty’s Government and the Government of the Sudan”

THE NILE TREATY, State Succession and International Treaty Commitments: A Case Study of The Nile Water Treaties

BY ARTHUR OKOTH-OWIRO

The Nile water treaties have been the subject of many studies and comments, most notably by Batstone (1959),Garretson (1960), Teclaff (1967), Okidi (1982 and 1994), Godana (1985) andCarrol (1999). As Godana (1985) observes, with the establishment of European colonial rule over most of the Nile basin in the closing decades of the 19th Century, it became necessary to regulate, through treaties and other instruments, the water rights and obligations attaching to the various colonial territories within the basin. In this manner, the colonial period came to witness a steady development of formal treaties and regulations as well as of informal working arrangements and administrative measures which, taken together, constituted the legal regime of the Nile drainage system. The treaties and legal instruments regulating the use of Nile waters may be divided into four categories. These are:-

(i)                Treaties between the United Kingdom and the powers in control of the upper reaches of the Nile basin around the beginning of the 20th Century;

(ii)              The 1929 Nile Waters Agreement;

(iii)            Agreements and measures supplementing and consolidating the 1929 Agreement; and

(iv)            Post-colonial treaties and other legal instruments.

The purpose of this section is to describe and analyze the treaties and legal instruments, which fall into the first three categories. These are the legal instruments whose devolution or inheritance is the subject matter of this paper. 


Treaties between U.K and the powers controlling the Nile Basin 
Between 1891 and 1925, the United Kingdom of Great Britain entered into five agreements on the utilization of the waters of the Nile. On April 15, 1891, the United Kingdom and Italy signed a protocol for the demarcation of their respective spheres of influence in Eastern Africa. Article III of this Protocol sought to protect the Egyptian interest in the Nile waters contributed by the Atbara River, the upper reaches of which fell within the newly acquired Italian possession of Eritrea. The Article provided as follows:

“The Government of Italy undertakes not to construct on the Atbara any irrigation or other works which might sensibly modify its flow into the Nile”.

On May 15, 1902, the United Kingdom of Great Britain and Ethiopia, the former acting for Egypt and the Anglo-Egyptian Sudan, signed at Addis Ababa, a Treaty regarding the Frontiers between the Anglo- Egyptian Sudan, Ethiopia and British Eritrea. Article III of the Treaty was concerned, not with boundaries, but with the Nile waters originating in Ethiopia. It provided:

“His Majesty the Emperor Menelik II, King of kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed, any works across the Blue Nile, Lake Tsana or the Sobat, which would arrest the flow of their waters into the Nile except in agreement with his Britannic Majesty’s Government and the Government of the Sudan”.

On May 9, 1906, the United Kingdom and the Independent State of the Congo concluded a Treaty to Re-define Their Respective Spheres of Influence in Eastern and Central Africa. Article III of the Treaty provided:

“The Government of the Independent State of Congo undertakes not to construct or allow to be constructed any work over or near the Semliki or Isango Rivers, which would diminish the volume of water entering Lake Albert, except in agreement with the Sudanese Government”.

 On April 3, 1906, the United Kingdom, France and Italy signed a tripartite agreement and set of declarations in London. Article IV(a) provided that:

“in order to preserve the integrity of Ethiopia and provide further that the parties would safeguard the interests of the United Kingdom and Egypt in the Nile basin, especially as regards the regulation of the water of that river and its tributaries …”.

Finally, in December 1925, there was an exchange of Notes between Italy and the United Kingdom by which Italy recognised the prior hydraulic rights of Egypt and the Sudan in the headwaters of the Blue Nile and White Nile rivers and their tributaries and engaged not to construct on the head waters any work which might sensibly modify their flow into the main river. Garretson (1960) and Godana (1985) observe that regardless of whether the above agreements were concluded by Britain with another European power seeking to establish a sphere of influence, or with an African state such as Ethiopia, they had the common objective of securing recognition of the principle that no upper-basin state had the right to interfere with the flow of the Nile, in particular to the detriment of Egypt.

The 1929 Nile Waters Agreement.

The Exchange of Notes between Great Britain (acting for Sudan and her East African dependencies) and Egypt in regard to the use of the waters of the Nile for irrigation purposes (“The 1929 Nile Waters Agreement”) is the most controversial of all the Nile Water agreements. It is also the most important. According to Batstone (1959), it is the dominating feature of legal relationships concerning the distribution and utilisation of the Nile waters today. Godana (1985) adds that the agreement” “has become the basis of all subsequent water allocations (but) has been viewed differently by various writers” (page 176).

The purpose of the 1929 Nile Waters agreement was to guarantee and facilitate an increase in the volume of water reaching Egypt. The Agreement was based on the outcome of political negotiations between Egypt and Great Britain in 1920s, and in particular on the report of the 1925 Nile Waters Commission, which was attached to the agreement as an integral part thereof.

The Agreement provided as follows:

(i)                Save with the previous agreement of the Egyptian Government, no irrigation or power works, or measures are to be constructed or taken on the River Nile or its branches, or on the lakes from which it flows in the Sudan or in countries under British administration, which would, in such a manner as to entail prejudice to the interests of Egypt, either reduce the quantities of water arriving in Egypt or modify the date of its arrival, or lower its level.

(ii)              In case the Egyptian Government decides to construct in the Sudan any works on the river and its branches, or to take any measure with a view to increasing the water supply for the benefit of Egypt, they will agree beforehand with the local authorities on the measures to be taken to safeguard local interests. The construction, maintenance and administration of the above mentioned works shall be under the direct control of the Egyptian Government. The Agreement also expressed recognition by Great Britain, of Egypt’s “natural and historic rights in the waters of the Nile”, even though the precise content of these rights was not elaborated.

The 1929 Nile Waters Agreement has been invoked by those who regard it as a praiseworthy recognition of the water rights of Egypt (Smith, 1931). To some Egyptian writers, it has merely recorded Egypt’s established rights over the Nile since antiquity (Khadduri, 1972). But the overwhelming weight of expert opinion appears to favour the view that the “The 1929 settlement of the Nile waters was a political matter and that it cannot be used as a precedent in international law““(Berber, 1959:96)”.

Agreements Consolidating and Supplementing the 1929 Agreement

The most important agreements falling into this category are the supplementary Agreement of 1932 (the Aswan Dam Project) and the Owen Falls Agreement. Given the effect of the 1959 Agreement for the full utilisation of the Nile Waters between Egypt and Sudan, only the Owen Falls Agreement merits analysis here. The last colonial-era treaty regulation of the Nile River System was the 1952 Agreement concluded by Exchange of Notes between Egypt and the United Kingdom (acting for Uganda) concerning the construction of the Owen Falls Dam in Uganda, then under British colonial administration. The purpose of the Agreement was two-fold:

(a) the control of the Nile Waters, and

(b) the production of hydroelectric power for Uganda. The most important point of the substantive legal regime created by Owen Falls Dam Agreement was the regulation of the Nile River flow.

The Agreement provided as follows:

“The two governments have also agreed that though the construction of the dam will be the responsibility of the Uganda Electricity Board, the interests of Egypt will, during the period of construction, be represented at the site by the Egyptian resident engineer of suitable rank and his staff stationed there by the Royal Egyptian Government to whom all facilities will be given for the accomplishment of their duties. Furthermore, the two governments have agreed that although the dam when constructed will be administered and maintained by the Uganda Electricity Board, the latter will regulate the discharges to be passed through the dam on the instructions of the Egyptian Government for this purpose in accordance with arrangements to be agreed upon between the Egyptian Ministry of Public Works and the a pursuant to the provisions of agreement to be concluded between the two Governments.”

The Agreement also provided that the Ugandan Government could take any action it considered desirable before or after the construction of the dam, provided that it did so after consultation and with the consent of the Egyptian Government, and provided further that:

“— this action does not entail any prejudice to the interests of Egypt in accordance with the Nile Waters Agreement of 1929 and does not adversely affect the discharge of water to be passed through the dam in accordance with the arrangements to be agreed between the two Governments —.”

 In other words, the Egyptian interests in the flow of the Nile waters, as defined in the 1929 Nile Agreement, remained predominant, and Uganda’s sovereign right to deal with its dam was made subject to the established and future Egyptian rights and interests. The Owen falls Dam was completed in 1954.

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