Egypt's constitution, article 44: Historic wrongs or rights?

 

BY ZERIHUN ABEBE YIGZAW, CONTRIBUTING WRITER                             Part I

Since the ousting of Hosni Mubarak, Egypt has seen some three governments either as transitional ones appointed by the military or popularly elected in a free election.

The first transitional government of Prime Minister Essam Sharaf was progressive and seemed to turn Egypt`s face to Africa where its origin and life relies on. Nonetheless, it was a transitional government and had no any constitutional ground. It was a handicapped one and its efforts were not fruitful. But this does not mean that Sharaf's government was unique in its orientation but its attempts to solve the Nile issue in a peaceful and civilized way that will establish a win-win situation was a good start.

Following a popular election in June 2012, Egypt's old organized Islamist group-Muslim Brotherhood`s political wing Freedom and Justice Party`s representative Dr. Mohammed Morsi won the presidential election from Mubarak's last Prime Minister Ahmed Shafik in a narrow vote difference (51.7 per cent to 48 per cent). The new president established his government and appointed a water expert Hisham Qandil as his prime minister-which shows the priority he gave to the Nile issue. In a parliamentary election Muslim Brotherhood with the conservative Salafists won the election and drafted a more Islamist and criticized constitution. This indeed led to the ousting of Mohammed Morsi in a military coup supported by a popular riot organized by young political activists called the Tamarod in July 2013.

The military chief of Egypt and Defence Minister appointed by Morsi himself, General Abdel Fattah Al Sisi announced that Morsi was ousted and the 2012 constitution suspended. Al Sisi further declared Adly Mansour, who was the chief justice of the Supreme Constitutional Court, as the president of the transitional government. Mansour, a lawyer by profession, appointed Ahmed Beblawi as prime minister and there was hope that the Nile discord would be solved as one of the criticisms against Morsi was that he could not handle the Nile problem well as he was busy of remarking war mongering speeches following Ethiopia's successful re-touring of Abbay (Blue Nile) to make clear of the river bed from water to undertake the civil works of the construction of the Grand Ethiopian Renaissance Dam (GERD). The new government under Mansour will be in power till a new government is established following the promulgation of a new constitution. President Mansour was authorized to form the constitutional drafting committee which he actually did.

Egypt's new constitution drafting body was composed of 50 people from different political groups and sectors and chaired by Amr Moussa, ex-minister of the Ministry of Foreign Affairs of Egypt and ex-secretary general of the Arab League. The committee was entrusted initially to amend the constitution introduced by Mohamed Morsi's government and was believed that it would only take sixty days. Yet, the constitution drafting committee which almost took three months came up with a new constitution. The new constitution is endorsed by the people of Egypt with a 97 per cent vote in the January 14 and 15, 2014 referendum. [...] the Egyptian people has the right to say whatever they want in their constitution, their politicians led them into a free fall and codified a historical wrong that their grandfathers did in the early and mid-20th century regarding the Nile. Let us compare the provisions of Egypt`s 2012 and 2014 constitutions on the Nile and say few words on how it is again a historical wrong than a right.

Egypt`s 2012 constitution under Article 19 declared that “The Nile River and water resources are a national wealth. The State is committed to maintaining and developing them, and preventing abuse. The use of such resources shall be regulated by law.” Hence there is no problem and no indication is made as to the trans-boundary nature of the river. When the constitution declares that it is ‘national wealth’ it refers to the water that flows to Egypt. And as any other Nile Basin country Egypt is entitled to say the Nile is its national wealth. The provision of the 2012 constitution on the Nile is purely of domestic nature and one can say that had no any complications. Nonetheless, it is a constitution suspended with the ousting of Mohammed Morsi.

Article 44 of the 2014 constitution on the other hand reads as that “The state [of Egypt] commits to protecting the Nile River, maintaining Egypt’s historic rights thereto, rationalizing and maximizing its benefits, not wasting its water or polluting it...” Now the problem is on the inclusion of the phrases “maintaining Egypt’s historic rights” which clearly shows and carries a message to the Nile Basin states. This made the provision under this article more controversial and, despite a national constitution which has no legal effect outside the Egyptian territory, the implicit meaning attached to it is worth of scrutinizing, as it has a trans-boundary message to the Nile Basin states. Before analysing the issue from the perspective of international law and the politics of the Nile waters in relation to other Nile Basin states it is worth zooming in on the meaning of “maintaining Egypt’s historic rights” from the Egyptian perspective.

Claim of “Historic Rights” on the Nile and International Water Law

For Egypt the so-called “historic rights” on the Nile are defined based on colonial or partial treaties of the 20th century. As repeatedly discussed Egypt considers the 1929 colonial “treaty” between Britain (on behalf of Sudan and its other colonies in East Africa) and Egypt as the base of its “right” on the Nile. In fact, it is difficult to call the 1929 “Agreement” as a bilateral agreement between Egypt and Britain as the former was still under tight political and economic control of the later. It can better be said that the 1929 “Agreement” was between Britain and Britain for Britain as concluded to make sure that its textile factories in Manchester had secured uninterrupted cotton from Egypt produced by the Nile waters. This “agreement” gave Egypt the lion's share of the Nile waters and veto power on upstream water projects which has been a ludicrous and irrational attempt of controlling the Nile. In fact, the idea was that the British administrators in upstream Nile British colonies would not do anything without consulting the British administrators in downstream of the Nile in Egypt. But Britain had left the Nile Basin long ago and Egypt's current call of claiming a “right” based on an obsolete colonial “treaty” is a self tomfoolery.

Following Sudan's independence from British colonial rule and issues precipitated following Egypt's decision to construct the High Aswan Dam in the 1950s, the Nile issue was again raised and the 1959 Agreement between Egypt and Sudan was signed. In fact, the process of negotiation for the 1959 Agreement was full of Egyptian trickery supported by Sudan's pro-Nasser president Ibrahim Abboud who came to power in a coup in 1958. Nonetheless, Egypt considers the 1959 Agreement as a consolidation of a self-claimed “historic right” on the Nile. The 1959 Agreement divided the entire flow of the Nile for Egypt, Sudan and evaporation at the Sahara from Lake Nasser behind the Aswan High Dam (55.5, 18.5 and more than 10 billion cubic meters of water respectively). Furthermore, the veto power of Egypt was still maintained in this agreement. It is worth noting here that many Sudanese are not happy with the way the 1959 Agreement is negotiated and signed. In addition, the recent policy shift of the Sudanese should be seen from such a perspective of latent opposition to the unfair 1959 Agreement.

Hence for Egypt, it is those partial, unfair and irrational “agreements” which are regarded as the basis of the self-claimed “historic right” on the Nile. No water is left for upstream states and their national pride was in fact insulted and they were considered as non-existent. Their water rights were neglected, undermined and ignored. This is what Egypt is claiming as its “historic right” which is a total absurdity, hydro-political arrogance and vindictive stance which will not solve the Nile problems but throw it in a vicious-circle of mutual suspicion and mistrust.

From upstream point of view the so-called “historic rights”, a recurring fanfare by Egypt, are rather historic wrongs on the Nile. Ex-British and other European colonies on the Nile, immediately after their independence in the 1960s, declared that agreements entered by colonial powers are null and void on newly independent states. This is famously known as the Nyerere Doctrine after Julius Nyerere of Tanzania who for the first time declared that Tanganyika will not abide by a treaty entered by Britain on the Nile. As for the 1959 Agreement it is a bilateral agreement entered between “two independent” states where the legal effect is only on the signatory states and as clearly declared in Article 34 of the Vienna Convention on the Law of Treaties of 1969 “a treaty does not create obligations or rights for a third party without its consent.”

As for Ethiopia, which was the only state on the Nile Basin that was not colonized, both “agreements” are of no concerns. In fact, Ethiopia has made its position clear in 1957 knowing that negotiation between Egypt and Sudan was taking place. Ethiopia asserted that it has the right to utilize the Nile waters for the benefit of its current and future generation. Furthermore, it has unequivocally declared that any attempt of making treaties on the Nile without involving Ethiopia has no legal effect on its utilization of its Nile waters.

From the above explanations one can note that the position of Nile riparian states are at odds and Egypt is standing alone upholding an obsolete doctrine in the utilization of trans-boundary watercourses. In fact, other Nile riparian states have the support of international water law which has tremendously evolved in the 20th century. In the eyes of international law “historic right” with its other names such as “ancient right, prior use, established right” and so on had been nominal ‘doctrines’ in the utilization of trans-boundary watercourses. A doctrine in this sense is defined as more of a theory and personal opinion of a few individuals with no legal base. As far as international water law is concerned the basic principle, which has the acceptance of leading scholars and is accepted as a basic rule in international courts, is the principle of equitable and reasonable utilization. This principle is capable of answering the water questions of any state in trans-boundary watercourses as evidenced, for example, in the decision of the International Court of Justice in Gabcíkovo-Nagymaros Project Case on the Danube between Hungary and Slovakia. This principle is, therefore, the most popular and widely accepted one and is developed into a status of principle of customary international law. As clearly stated in the works of leading international law experts there is nothing called “historic right, established right, ancient right” in international water law (For details, one can refer to A. H. Garretson, R. D. Hayton, & C. J. Olmstead (Eds.). 1967. The law of international drainage basins. Dobbs Ferry, NY: Oceana.).