The central challenge facing the Nile Basin states after ratification of the Comprehensive Framework Agreement (CFA) will be the establishment a new Nile Basin regime that will set clear procedures on water sharing, decide on all river projects in the region, and work for the benefit of all. Such an institution will replace the two colonial and post colonial-era imposed regimes or treaties that favoured Egypt and Sudan but were unfair to all upstream states. But the task ahead will not be easy because, unlike the status quo, the new Nile Basin regime will be negotiated among 11 nations including South Sudan, which will obtain its independence this coming summer.

In the past, Egypt’s hegemony over the status quo – namely the 1929 agreement with the UK representing the colonial upstream nations and the 1959 Agreement with Sudan – was facilitated by several factors. Among these are greater technical capacity to control, utilise, and allocate the water of the Nile; far more resources, materials, and bargaining and ideational power than other nations in the basin; greater levels of economic development, military might, and political stability; and access to international political and financial support. All these have contributed to Egypt’s ability to influence knowledge and construct a hegemonic discourse.

The main question is what will the emerging new Nile River regime look like? We don’t know, but we do know in international relations the importance of regimes in governing the global commons. First, regimes serve as means of international learning about critical functions and contribute to the convergence of policies of more than one state. They regulate many functional areas such as trade, finance and monetary policies, distribution of natural resources, and arms possession. Second, regimes are generally mixtures of negotiated and imposed orders. The former are usually led by a powerful state and the latter are fostered deliberately by a dominant power or an alliance of dominant actors. Regimes do not arise spontaneously; they evolve as the new Nile Basin regime is doing and they mature over time. Third, regimes create group norms that not only shape not the rational behavior of states, but also influence cooperation. In time, institutions such as the future Nile Basin Commission assist cooperation by embedding and sharing knowledge and norms, which can become international customary law.

A critical variable in the formation of a new Nile Basin regime will be the presence of institutions that translate the common vision. If it is to be viable, the new regime will need institutional support programs that may evolve out of the sub-programs of the Nile Basin Initiative. Such institutional support programmes (ISPs) come in many forms. Some may be civil society groups like the Nile Basin Discourse (NBD), which gathers input. Others may have a legal standing and be able to borrow, disburse funds on mutual projects, and adjudicate disputes. Still other ISP institutions may provide venues for gathering data and disseminating information. The most sophisticated may lay the foundation for basin-wide vision, becoming social planners. But at the end of the day, what makes negotiated regimes viable is institutional bargaining. That is, negotiated regimes focus on the specification of arrangements that all those engaged in the negotiations can accept. The reason is that institutional bargaining in international society operates on the basis of a unanimity rule in contrast to a majority rule or some other decision rule, justifying a focus on the development of winning coalitions.

In terms of institutionalising and constructing the Nile Basin Commission, the absence of data may be a challenge. Although the lack of technical expertise may be solved by expert knowledge, in general there may be many areas of ignorance that might influence the negotiation process. Accurate measurements of the geography of the Nile Basin, including the extent of drainage and of hydrology and the contribution of water by each basin state, may not be available. Indeed in the past, Egypt refused to renegotiate the status quo with upstream states due to lack of data. In other words, during the initial phase of the formation of a new Nile Basin regime the veil of ignorance might be useful, but the implementation phase requires significant details including costs, environmental impacts, and methods of monitoring for compliance. These details become significant because of relative gains.

Relative gains are the stuff of realpolitik because laws and norms are not of consequence in explaining inter-state relations; state behaviour is better explained purely in terms of what states can actually gain. This formulation fits Egypt and Sudan’s bilateral agreement of 1959, which re-formulated the 1929 status quo. At the same time, the liberal view that predicts that increasing interconnectedness and interdependence will lead to the creation of international institutions that enable absolute and mutual gains fits the efforts of Ethiopia and other upstream states that have worked very hard to realize a new Nile River regime, which in essence has to do with the regulation and sharing of water. A major challenge in regime building is that cooperation and institutions most often serve the interests of the powerful. In the past, Egypt as a powerful player in the Nile Basin has been able to extend its power through various institutions and hold on to its major hegemonic discourse regarding Nile River issues.

But this has changed because of a new norm that has emerged among the majority of Nile Basin states. The key actors in spreading this norm have been transnational agents and domestic civil society, leading to a collective new identity formation among Nile Basin states. Both the 1929 and the 1956 norms were lacking as they did not serve all members well. Thus norm re-interpretation, which is dynamic and involves localisation, and norm re-constitution have led to a counter discourse based on the Nyerere Doctrine, which does not hold sacrosanct colonial regimes or agreements. It is this re-interpretation and re-representation of the imposed regimes of 1929 and 1959 that has led to negation of Egypt’s hegemonic discourse of the Nile and to the eventual signing of the Comprehensive Framework Agreement (CFA) by the majority of Nile Basin states. This document is now headed towards ratification. It will establish, provided no one defects, the legal basis for the construction of a new negotiated regime that hopefully will work for the benefit of all Nile Basin nations.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Aaron Tesfaye is associate professor in the Department of Political Science, William Paterson University, Wayne, New Jersey, USA and author of ‘The Political Economy of the Nile Basin Regime in the 20th Century’.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.