Blue Nile sub-basin legal regime in historical context: colonial treaties

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Yosef Yacob (AB, JD, LLM, PHD)

Generally, formal agreements and legal regimes provide a legal point of departure to contribute the general principles and rules that govern co-basin states’ legal relations in the utilization of international rivers.

This chapter begins the examination of reciprocal rights and obligations of the sub-basin’s riparians by reviewing the treaties, which form the legal regime of the Blue Nile Sub-basin. The chapter describes the evolution of the legal regime by reviewing the colonial as well as the postcolonial treaties and other significant negotiations concerning the utilization of the basin’s waters.

Colonial Treaties

The early treaties regarding the Nile basin were largely the products of British colonial intervention in the region. The British were anxious to preserve their position of control over the Suez Canal.  A major part of keeping Egypt satisfied was ensuring the permanent availability of Nile waters for Egyptian uses.  While the British had many colonial interests in the Nile basin, they usually chose treaty arrangements that favored Egyptian claims to the Nile, for the above mentioned reason.

The British at this time introduced the notion that Egypt's rights to the Nile were so long established that they should take precedence over all other schemes for use of the Nile.  The early colonial period treaties regarding the Nile basin show the British single mindedness on this issue. 

These older agreements emphasized certain tenets and attitudes regarding rights to the Nile that have persisted through the development of the current legal and institutional system operating in the Nile basin.  They have given weight to Egypt's claims to be the state with the greatest historic legal recognition of rights to the Nile waters.

This early colonial period was also the first in which Egypt was to admit that other states could potentially affect its claims to the Nile.  Without the water that the Blue Nile brought down from the Ethiopian Highlands and that the White Nile carried away from the central African lakes, Egypt would be a desolate land. 

Italy United Kingdom Protocol – 1891

Until the explorations of Baker, Speke, and Stanley in the latter half of the nineteenth century, no one knew where the source of the Nile was located, but all believed that interference with its water was possible.  Until Britain acquired interests in Egypt, however, speculation on such a diversion was left largely to scholars and travelers.  As long as no European power moved into the Sudan or established a position astride the Nile, the British believed that Egypt would have water and British domination of Egypt would remain secure.

In 1889, British complacency was shaken.  The first threat to the Nile by a European power loomed in the heights of the Ethiopian plateau. The Italians had long wished to establish a protectorate in Ethiopia, and after 1885, the British had even encouraged Italian moves into the highlands.  At first the British calculated that Italian penetration would not only keep the Ethiopians out of the Sudan but would also act as a counterweight to the French, who were strengthening their position at Djibouti.

In 1889, the Italians seized the first real opportunity to enlarge their prospective sphere of influence. On March 9, the forces of the Mahdist of Sudan stopped the Ethiopian expansion into Sudan at the Battle of A1-Qallabat, killing King Yohannes IV. In order to consolidate his internal position among the traditionally warring feudal factions, the new Emperor, Menelik, welcomed Italian offer of support and signed the Treaty of Ucciali in May. 

The Italians translated the treaty into action and laid claim to Kassala situated below the escarpment in the Nile Basin, which commanded the Atbara tributary of the Nile.  With this town as a base, the Italians could proceed towards Khartoum at the confluence of the White and the Blue Nile.

The British were concerned that the Italians may attempt “to tap the upper Nile” and proceed to occupy Sudan.”  In August 1889, the British announced against letting foreign Powers into the Nile Valley and authorized “... such measures as may be necessary for the purpose of protecting [the] Nile Valley against the dominion of any outside Power.”  Accordingly, the British warned Italy to stay away from the Nile.  In March 1891, Italy officially consented to remain out of the Nile Valley in return for British recognition of an Italian sphere of influence in the Ethiopian Highlands.

The Anglo Italian Treaty was signed in Rome, Italy on April 15, 1891.  The protocol protected Egyptian interests in waters of the Atbara River, a tributary of the Nile.  The British concluded this treaty before the major source of the Nile was identified as the Blue Nile, which originates in the highlands of Ethiopia.

Article III stipulated:
“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.”  This was followed by an exchange of notes between Italy and Britain signed in Rome on November 22, 1901 marking the frontier between the Anglo-Egyptian Sudan and Eritrea.

The next article, Part 2, will discuss the Frontier Treaty between Anglo Egyptian Sudan, Ethiopia and Eritrea - 1902