Blue Nile Sub-basin Legal Regime in Historical Context: Colonial Treaties
By Yosef Yacob, AB, JD, LLM, PHD (Part IV)
Updated February 24, 2014
After the defeat of the Mahdi by Kitchener at Omdurman in 1898 and the re-establishment of order in the Sudan, a demand arose in the Sudan for the erection of pumps for irrigation on a small scale. With the approval of the Egyptian Government, certain areas of land were given pumping rights. The area under permit was increased from time to time, some pumps being installed to test the possibilities of cotton growing, and others for the purpose of producing food grains at a time of scarcity during the war.
1. Colonial Treaties
The area under irrigation in this way was inconsiderable, amounting to less than 40,000 feddans (41,520 acres) of which rather more than half was licensed for perennial irrigation, the remainder being restricted to the flood season. An area of some 80,000 feddans in the Northern Sudan had been formed into basins, but, owing to the high levels of the land, they were only partly filled, even in years of high flood.
It was then believed that such a scheme would permit irrigation of the cotton crop without detriment to Egyptian interests. However, further consideration of agricultural conditions and the exceptionally low river of 1913-14, demonstrated that the scheme should comprise a storage reservoir (Sennar Dam) rather than a diversion barrage.
With the addition of a storage reservoir, the water saved from the natural flow during the flood season could increase irrigation to 300,000 feddans without the need for taking water from the river at low stage. It was felt that such an increase in area was necessary to offset the extra cost of the dam. Simultaneously, the Egyptian Government was considering the construction of a dam on the White Nile at Gebel-Aulia, near Khartoum, for the dual purpose of controlling high floods, which threatened damage to Egypt, and of storing water for use during the summer season in Egypt.
The British proposal to expand irrigation in Sudan and the entry of an upper riparian, the Sudan (a British Colony therefore Britain), as a major user of the Nile waters greatly alarmed the Egyptian authorities who commissioned the Egyptian Nile Control Department to conduct a survey of the effects of this proposed expansion on Egypt.
The survey concluded that the water requirements of both Egypt and the Sudan could be satisfied and was embodied in a Report by Sir Murdoch McDonald, a British engineer. The Egyptian Government appointed a Commission (The 1914 Commission) to study the proposed schemes and to examine the results of the McDonald survey.
The Commission confirmed the survey findings and recommended the construction of the Sennar Dam on the Blue Nile and the Gebel-Aulia on the White Nile, both on Sudanese territory. However, the development plans for the Sennar Dam to begin perennial irrigation in the Gezira Scheme in the Sudan stirred sharp criticism in Egypt. Sir McDonald, the author of the survey and Sennar project for Sudan was accused of forging records of Nile River measurements to further British interests in the Sudan.
To quiet the uproar a new commission, The Foreign Office Commission of 1919, was constituted to study the dispute and subsequently reported that there was no justification for the statement that the Sennar project put forward by the British Government would injure Egypt. The report of the 1919 Commission also noted that the origin of water from particular control works is not the significant issue but rather the total amount of water available to Egypt.
The Commission further noted that Egypt’s established irrigation rights should not be permitted to hinder future development of Sudan so long as the amount of water available to Egypt was not reduced. Because of Egypt’s unwillingness to accept the recommendations, another commission, the Nile Commission of 1920, was established by a decision of the Egyptian cabinet and charged to conduct a further study.
The 1920 Commission also endorsed the proposals to build the Sennar Dam and to expand the Gezira scheme. The Commission concluded that Egypt had a right to “a supply of water sufficient to irrigate an area equal to the largest area which has been irrigated in any single year since the Aswan Dam in its present form was completed. Further, Egypt had an established claim to receive this water at the particular seasons when it is required.” The Commission added that the largest area, which Egypt could thus claim, would be 5 million feddans, which was the area under cultivation in 1916-1917.
The conclusions of the Commission met with great resistance in Egypt and the Egyptian Government therefore shelved the report. This did not please the British. In the wake of the Egyptian-Sudanese crisis precipitated by the assassination of the British Governor of the Sudan in Cairo in May 1924, the British High Commissioner in Egypt revived old fears.
The British High Commissioner threatened to go ahead with the plans to expand the areas of cotton cultivation in the Gezira scheme in the Sudan “to an unlimited figure as need may arise.” Alternatively, he demanded the Egyptian Government agree to the appointment of an impartial international commission to look into the matter of the apportionment of the waters of the Nile.
In this general atmosphere of alarm and anxiety, the Nile Commission of 1925 was constituted by an exchange of notes between Britain and Egypt on January 26, 1925
for the purpose of examining and proposing the basis on which irrigation (in the Sudan) can be carried out with full consideration of the interests of Egypt and without detriment to her natural and historic rights.”
The Commission acknowledged the right of the Sudan to agricultural expansion but stipulated that any increase in the use of the Nile waters in the Sudan should not “infringe Egypt's natural and historical rights in the waters of the Nile.” It apportioned the waters so that Egypt and the Sudan would receive enough water to irrigate the lands under cultivation at the time of the Agreement; this was estimated to be 48 billion m³ for Egypt and 4 billion m³ for the Sudan. The Nile Waters Commission of 1925 recommended a set of proposals and principles that, after much negotiation, political maneuvering and even violence, became the basis for the 1929 Nile Waters Agreement between Egypt and Britain.
The 1929 agreement preserved Egypt's traditional uses and introduced the notion that Egypt was the primary Nile riparian. It granted Egypt “a virtual right of veto on developments in the Sudan and in other upper basin territories.” The most often cited clause of the agreement reads:
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 so far as all these are 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.
Egypt had the right to 48 billion m³ of water annually and Sudan's yearly rights were increased from 1.5 billion m³ to 4 billion m³. The disparity was apparent, yet the agreement temporarily satisfied both parties and put an end to years of political discord and negotiation on the matter.
Despite the imbalance in entitlements for the parties, the agreement did not completely deny upper basin states the right to develop their portions of the Nile. The agreement specifically allowed such a future right for Sudan. It specifically noted that, in order to develop, Sudan would require more water than it was currently using.
Egypt's policy was to encourage such development, as long as the increase did “not infringe Egypt's natural and historic rights in the waters of the Nile....” With the sealing of these agreements the cotton plantations of Sudan, which supplied the British textile industry in Lancashire were assured of their water supply.
The Gebel-Aulia Compensation Agreement - 1932
The construction of the Gebel-Aulia Dam in the Sudan for the storage of Nile Waters for Egypt was the subject of the earlier agreement of 1929 between Egypt and the Sudan. This agreement was therefore a supplemental agreement to provide details of implementation of the dam. Egypt was obliged to negotiate with the Sudan on measures for safeguarding the “local interests” before undertaking the construction of the Gebel-Aulia Dam in the Sudan.
Under the terms of the agreement, Egypt was to provide compensation for damages to local interests, which would be adversely affected by the construction. The dam would submerge an estimated 17,000 to 107,000 feddans of cultivated and/or cultivable lands increase the menace of malaria and other waterborne disease and displace the local inhabitants and submerge their homes, property and their farms. The Egyptian Government therefore agreed to pay compensation and provide for alternative schemes for the displaced population.
Egypt also agreed to allow the local inhabitants to draw Nile waters with pump schemes to irrigate 23,000 feddans during the low flood seasons. To allow local inhabitants to adjust to the new way of life the reservoir was to come into full operation over a six-year period. The agreement further provided for the level to which the White Nile could be raised behind the dam with additional provisions to allow the Egyptian Government to raise the level to increase the reservoir, subject to an agreement with Britain and measures to safeguard local interests.
(Part 5 of the article will discuss the Lake Tsana Reservoir Project Negotiations and Egyptian and British sabotage of Ethiopia’s efforts to build the first dam in the country as well as facilitating Ethiopia’s invasion by fascist Italy)