Egypt's constitution, article 44: Historic wrongs or rights?
BY
ZERIHUN ABEBE YIGZAW, CONTRIBUTING WRITER
Part II
Why
is the phrase in the constitution?
Knowing what Egypt is claiming as “historic rights”
have no international legal ground and knowing that upstream states
on the Nile are against this nominal doctrine, why the politicians
are adamant to include it in the constitution? There is no perfect
answer for this but we can infer from experiences and current
situations in the Nile Basin. Firstly, the current constitution of
Egypt is drafted in a time where the Nile Basin is undergoing a
dramatic shift from a one-country show of unfairness and monopoly
into a basin which embraces all riparian states under the umbrella of
a fundamental principle of international water law called equitable
and reasonable utilization. The Cooperative Framework Agreement on
the Nile (CFA) signed on May 14, 2010 is such a reflection and a
historic moment.
Furthermore,
Ethiopia is undergoing construction of the GERD, which eventually
will become Africa's biggest hydropower dam, is part of such a
dramatic change on the Nile basin. Hence, the inclusion of the
so-called “historic rights” is a mere reaction of attempting to
maintain the unfair past. In my view, the Egyptian's seem frustrated
and unnecessarily feared the developments on the Nile and are in
state of unstable mind. Hence, they seemingly include the phrase
having in mind that this might help them undermine the truth.
Secondly, the inclusion of the “historic rights”
phrase in the constitution might have to do with the ongoing domestic
instability in the country following the ousting of President Mubarak
and later Morsi. The Nile issue had been used by Egyptian leaders as
a playing card to divert attention from their internal crisis to an
international agenda. This was what Mubarak and Morsi tried to do but
failed and what the current regime is doing will be doomed to fail as
their narration is a groundless accusation of upstream states.
Thirdly,
it could be due to the personalities of members of the constitution
drafting committee and their attitude. In this regard, highlighting
the perception and attitude of the chair of the committee, Amr
Moussa, regarding the Nile and its riparian is important. In 1997 in
his interview with the now defunct Amharic magazine Ifoyita
Moussa as the Minister of Foreign Affairs of Egypt stated that “his
country has a good attitude for Ethiopia as far as the latter do not
encroach upon the former's right.” His definition of Egypt`s right
on the Nile is nothing but those based on the 1929 and 1959
“Agreements” discussed above. For obvious reasons, foreign
relations matter in the constitution and the inclusion of the
“historic rights” phrase are the works of this man. Among the
committee members, it is also worth mentioning the Grand Mufti of
Egypt Shawky Allam from Al-Azahar and other members from the Salafist
Nour Party whose perception of upstream water development on the Nile
is linked with Israel and America`s involvement and conspiracy.
Furthermore, people from the Al-Aharam Center for Political and
Strategic Studies have been viewing upstream water developments as a
violation of international law despite their baseless claim. These
people also dare to say that the colonial and partial bilateral
“agreements” on the Nile and their declaration of the so-called
“historic rights” of Egypt “are binding on the non-signatory
upstream states.
All the members of the committee, I can say, are children of the same
mother who have grown victimized hearing and learning the historic
wrongs of colonial powers and emotional military generals since the
1950s as “historic rights.” And it is not a surprise that they
have included the phrase in the constitution. So the question is:
What are its effects?
The
effect of Article 44 on the Nile Basin
Despite
the controversy, one can argue that ‘the foreign policy of a state
is the continuation and/or extension of its domestic politics and
policy.’ In this regard, the prime effect of the inclusion of the
so called “historic rights” in Egypt's constitution is, it will
make discussions on the Nile tougher. Egyptian negotiators will
possibly appear more rigid and unyielding than ever before in
discussions regarding the Nile either pertaining to the CFA or the
GERD. But it must be clear also that the reactions of upstream states
for sure is what they have been saying and they will never accept any
imposition of such arrogance which would have deprived them of their
natural rights of utilizing the Nile waters for the benefit of their
current and future generation. The result of such a situation will be
nothing but a hydropolitical deadlock which could further fatten
suspicion and mistrust which [was]/is the norm than exception in the
Nile Basin. This will, however, not stop upstream states from
utilizing the Nile waters as evidenced in their mega hydropower
projects.
Article 44 of the constitution of Egypt is in fact -
especially the phrase “maintaining Egypt’s historic rights” -
tantamount to insulting the upstream states of the Nile and their
people. It is equivalent to saying “you have no Nile waters and the
Nile is a property of Egypt.” In addition it is meant to say that
those countries that are the sources of the Nile are a bunch of
colonies that live with and accept the scars of the colonial powers
manifested in the form of the 1929 “Agreement” that deprived them
of their interest from their own waters and could do nothing. What
should this countries therefore respond to such an insult? It is
plain clear that the ball is in their court. Upstream states have
gone further in calling Egypt and Sudan to come on board to join them
and sign the CFA which can answer the question of all riparian
states. It is time for the signatory states to ratify the CFA and
those which do not ink their signatures follow their African brothers
and maintain their rights on the Nile River. The CFA is the best
instrument that the Nile Basin have to solve problems associated with
the Nile waters. It is based on basic and accepted principles of
international water law mainly equitable and reasonable utilization
of the Nile waters for the benefit of all riparian states and enhance
win-win situation in the Basin.
Furthermore,
from the perspective of international law, Article 44 is nothing but
a provision of one state's national law. Its legal effect is within
the boundary of the concerned state and it has no international legal
effect. By the same token, it should be clear that international laws
have supremacy over domestic laws. In this context, as clearly stated
in the 1969 Vienna Convention on the Law of Treaties and analyzed by
Malcolm N. Shaw (2008), “A particular provision within the internal
legal structure of a state, including its constitution if there is
one, cannot be applied to evade an international obligation.” This
obligation includes, among others, principles of customary
international law. By no means can the doctrine of “historic right”
be invoked to escape the principle of equitable and reasonable
utilization of transboundary waters. In addition to this, the
upstream Nile riparian states which are signatories of the CFA have
international obligations of this agreement which has a binding
effect on them. Besides, as has been seen in the Cameroon vs Nigeria
case and viewed by the International Court of Justice, “There is no
general legal obligation for States to keep themselves informed of
legislative and constitutional developments in other States which are
or may become important for the international relations of these
States.”
To
sum up, Moussa, in his interview with Asharq Al-Awsat, stated that
the new constitution of Egypt “was written in the context of the
21st century.” The truth is though this constitution of Egypt
regarding the Nile issue is still in the early 20th century and not
yet brings itself to the developments of the 21st century. It has
repeated the then colonial power Britain and Egypt`s own historic
wrongs of the 19th and the early and mid-20th centuries to say the
least. In fact the new constitution is a codification of these
historic wrongs with no solution for the Nile controversy but fueling
suspicion and mistrust. Again as the late Prime Minister of Ethiopia,
Meles Zenawi plainly said in November 2010 during his interview with
Reuters, “The Egyptians have yet to make up their minds as to
whether they want to live in the 21st or the 19th century.”
In
fact the new constitution is a codification of these historic wrongs
with no solution for the Nile controversy but fueling suspicion and
mistrust.
Ed.'s
Note:
Zerihun Abebe Yigzaw is a lecturer at Dilla University and researcher
on the Hydro-politics of trans-boundary watercourses especially the
Nile. He is also head of the Public Relations and Communication
Department of Ethiopian International Professionals Support for Abbay
(EIPSA). He can be reached at zerihun.yigzaw@graduateinstitute.ch.
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