Grand Ethiopian Renaissance Dam: A Study Into The Legal Principles Of Water Dispute

Table of Contents

Introduction.

PART I: Trans-Boundary Water Course Dispute.

Chapter One: Water Scarcity And The Dispute In Question.
Chapter Two: Ethiopia And GERD..

PART II: Legal Principles Pertaining To The Issue.

Chapter Three: Legal History Of The Nile.
Chapter Four: Transboundary Water Network and International Law..
Chapter Five: International Legal Principles When Perusing Other Water Treaties.
Chapter Six: What Could Reduce The Dispute.
Conclusion. ​

Introduction​

Competition over the Nile waters is nothing new. For millennia, the river has been the cradle of civilizations such as that of Egypt, and has paced the socio-economic, political, and cultural aspects of its riparian countries. Despite its strategic importance, the Nile is one of the major transnational rivers which to date lacks an inclusive legal framework regulating its use and exploitation. The river is the lifeline for riparian countries most notably Egypt whose 90% of the population is situated in the surrounding of the river with many of them related to the agricultural profession. Agriculture is a major component of the Egyptian economy, contributing 11.3 percent of the country’s gross domestic product. The agricultural sector accounts for 28 percent of all jobs, and over 55 percent of employment in Upper Egypt is agriculture-related. Egypt’s agriculture sector is dominated by small farms.[1]​

Due to this the Egyptian government has categorically stated that the issue of water flow in the Nile is an existential threat and Egypt will take every step possible, including war, to make sure that the Nile flows freely. In 1979, Egyptian President Anwar Sadat said, “The only matter that could take Egypt to war again is water”.[2] A few years later, in 1988 it was the Egyptian Minister of State for Foreign Affairs, Boutros Boutros Ghali who predicted that the next war in the Middle East would be fought over the waters of the Nile, not politics. Although some academics such as Ashok Swain doubt Egypt’s real intentions of going to war over such matters and rather see the threat of war as being purely strategic.[3]​

Ethiopia has always contested the claim of Egypt over the whole of Nile and has repeatedly tried to assert its sovereignty over the river. The path of the Nile is such that it is the composition of two rivers and is being fed from the White Nile which flows from Lake Victoria located in Tanzania and Uganda, flowing across Uganda into South Sudan and enters Sudan to meet the Blue Nile at Khartoum. The White Nile provides little water flow to the Nile whereas the Blue Nile, Originating from Lake Tana, the Ethiopian Highlands, cross into Sudan and after joining the White Nile at Khartoum, enters Egypt to all the way to the Mediterranean sea. This provides the desert country with fresh water and arable land, both of which solely depend on the Nile.​

The construction project of the Grand Ethiopian Renaissance Dam ( to be called GERD from now on), the largest hydroelectric dam on the African continent, with an electrical capacity of 6,450 MW and a water capacity of 74km, has revived old tensions between Ethiopia and its downstream co-riparian (Egypt and Sudan). nd put the spotlight back on the delicate issues of the Nile river water management. As the matter of fact, the political and economic situation, and the balance of power in the Nile Basin are no longer what they were fifty years ago. Historically Egypt has dominated the region but in modern times, Egypt has struggled to establish the age-old hegemony and with the growing population and the rising economic demands and energy demands, Ethiopia, has started to assert its dominance over the River and has made it an issue of national sovereignty. The legal principles, historic factors, customs and acquired rights have made this issue all the more complicated. The purpose of this research study is to understand the legal principles of the dispute thus this research will not delve deeply into the economic or social issues that surround GERD.​

PART I: Trans-Boundary Water Course Dispute​

This part will contain two chapters which shall look to discuss and research the conflict from a non-legal perspective and have us understand to the issues raised by all three nations, Egypt, Sudan and Ethiopia, and through that allow us to understand the water issues that exist between them. The point of the research is not just to talk about the Grand Ethiopian Renaissance Dam but to understand he very conflict of water itself since the dam is a mere part of the conflict and a myopic study on the dam alone will yield no positive result and will not provide us with a proper solution, since, for example, Sudan doesn’t have a problem with the dam itself but the lack of security guarantees provided by Ethiopia and its outright rejection in coordinating the water flow during the rainy season, The dam is located 20 kilometers away from Sudan and any water release endangers the barrages and dams that Sudan has built and increases the chances of floods manifold.

So this research cannot must look into the issues that are present in the region and which gave air to the Nile Conflict. This Part looks to do exactly that and presents to you the case by all three parties.

​

Chapter One: Water Scarcity And The Dispute In Question​

Before we delve into the legal principles relating to water issues that surround the dispute, we must first understand the dispute and the issues that are present in the dispute. The next two chapters will look into these issues and try to explain it from each countries perspective. This chapter shall deal with the issues relating to Egypt and Sudan whereas Chapter 2 will deal with the issues relating to Ethiopia and how they perceive the dam and through this we will be able to understand as to why this issue is often considered as non-negotiable due to the rigidity of the parties and why war is being threatened over the building of such.

In the introduction, we learned about the Nile and how it impacts the three countries, Access to freshwater is a fundamental human right as it is essential for sustaining life with dignity and health, the running of households, the production of food and agriculture, and development of energy and industry. Simultaneously, water is an increasingly scarce natural resource. The United Nations (UN) estimates that 2 billion people live in countries experiencing high water stress, whilst nearly two thirds of the world’s population, about 4 billion people[4], experience extreme water scarcity for at least one month per year. With strong population growth, increasingly water-dependent agriculture, and climate change reducing available freshwater across the globe, water scarcity is set to heighten. [5]

The Intergovernmental Panel on Climate Change’s Fifth assessment report predicts that access to freshwater will decrease in many mid-latitude and dry subtropical regions. Further, the report draws a clear line between climate change, water scarcity, and the on-going crisis in food production. This underscores the ways in which water is a fundamental resource for the sustainment of life. Due to these developments, the UN Children’s Fund (UNICEF) estimates that by 2040, one in four children will live in areas of extremely high water stress.[6] High in demand and increasingly low in availability, freshwater is potential source of tension and even conflict. The bulk of the evidence, however, suggests that even countries with tensions often find a way to have continuing conversations over water resources, even when in dispute on other issues, and even when publicly criticizing each other over the issue of Transborder water sources. Yet, given that the natural resource of water cannot be replaced or substituted, and water needs are generally such that local sources are found to be critical, transboundary watercourses and the management of these watercourses can be a source of tension between states. Mandel argues watercourses ‘have been transformed into tense arenas for competitive exploration by neighbouring nations’. It is increasingly difficult to distinguish between water as a development issue, water as an environmental issue, and water as a national security issue because all of these issues interconnect in the issue of water management. Ethiopia sees it no different and like so many countries, links the economic and social survival of its country to the GERD. In 2011, Ethiopia launched the building of what is set to be the eighth largest dam in the world. For Ethiopia, which has a high level of poverty and food insecurity, the project represents an opportunity for significant economic development. Conversely, Egypt sees the construction of GERD and any interference with the Nile in general as a significant national security issue. The dam threatens to reduce the downstream flow of the River Nile because 82 per cent of the Blue Nile flow comes through Ethiopia. Given that Egypt is dependent on the Nile for 90 per cent of its water, a potential reduction in downstream flow caused by the dam, in conjunction with lower water quantities due to climate change and growing water demand due to population growth, will have devastating impacts on Egypt’s economy and population. Accurate estimates of the down flow water reduction caused by the construction and filling of the dam are difficult to make due to the tense situation causing Ethiopia to share minimal information regarding the dam. In turn Ethiopia sees any interference in the matter as an attack on its national sovereignty and to make sure that on this project there is not international interference, Ethiopia has looked to fund the entire project from its own resource issuing government bonds and taking a full month of pay from all the government employees for the funding of the dam. The international community has tried to intervene and negotiate a settlement but there is little to show for it. n International Panel of Experts was established by Ethiopia with the cooperation of Egypt and Sudan, comprised of ten members – two members from each of the three riparian (Egypt, Ethiopia and Sudan), plus four international experts agreed upon by the governments, with a geotechnical expert group added later However, reporting in 2013, the panel failed to fully address downstream and upstream impacts of the dam. Regardless of exact water measurements, this brief overview shows that the conflict is fundamentally characterized by both states attempts to meet domestic demands and sustain the lives and livelihoods of their citizens through the utilization of a resource that is at once inherently transnational, irreplaceable, and limited in quantity. The conflict exemplifies how the issue of water connects to competing demands related to national and international trade, development, environment, culture (water connected to sense of place and history and traditional sovereign relationships), and security (where water serves as a national boundary or water security issues come into play). In this particular case, the main tension is between Ethiopia’s right to development and Egypt’s national security concerns. These competing issues are difficult to manage within States, much less in transboundary environments. Before we go any further, let us look into the issues that the lower riparian countries have brought to the table.

Issues Pertaining to Egypt​

For Egypt, which relies on the Nile for domestic hydropower, agriculture, and most of its water needs, the prospect of upstream countries controlling the river’s flow has become an existential issue. Egypt argues that the dam, once filled, will limit the flow to Egypt to below its traditional share.

In July 1970, Egypt completed the construction of the Aswan High Dam which is one of the largest dams in the world. Egypt has negligible rainfall and is entirely dependent on irrigation for its agriculture and the Aswan dam plays a major role in this however with the building of the GERD, the Aswan dam will see reduced water levels impacting its ability to irrigate and produce hydroelectricity. The dam has also played a major role in reducing floods and droughts. The water levels decreased from 0.40 m to 0.75 m when discharge decreased from 90% to 80% of the maximum outflow. In summary, previous researches showed impacts of GERD on Egypt are[7]: –

The Nile water levels will decrease from 0.40 m to 0.75 m when discharge decrease from 90% to 80% of the maximum outflow.

The Nile water velocities will decrease so the sedimentation process may increase, which may affect the water surface pro- file.

Agriculture lands in Upper Egypt will decrease by 29.47% and in Delta will decrease by 23.03%

Reducing Egypt water share up to 5% produces small effect on the safe navigation

Hydropower losses from the AHD will be between 20–30%

The annual losses from AHD Lake will increase to 12 BCM instead of 11.25 BCM in case of AHD alone

Evaporation losses will increase by 5.9% which will affect at the Nile water quantity and quality downstream of GERD by increasing the Nile water salinity

Impounding of GERD at Normal flow case through 6, 3, and 2 years will decrease the active storage of Lake Nasser by 13.29 and 37.26 BCM through each year.

Egypt has also highlighted how the Ethiopian agriculture thrives on abundant rainfall whereas the Egyptian agriculture is entirely dependent on Nile. That’s why, for food production, Ethiopia mainly depends on rain fed agriculture, while Egypt mainly depends on irrigated agriculture. This is also reflected in Ethiopia’s largest livestock population in Africa with over 106 million heads, feeding on vast rain fed grazing lands, while Egypt, due to its water scarcity, is importing the majority of its livestock and meat products, and is the largest importer of wheat in the world. Livestock in Ethiopia is estimated to consume about 84 BCM/year of virtual water embedded in its natural rain fed (green water) feed and fodder.
That’s equal to the whole natural Nile river flows at Aswan, and more than Egypt’s and Sudan’s Nile annual water shares combined (74 BCM). Egypt, on the other hand, with about 19 million heads of livestock, consumes one-sixth of Ethiopia’s livestock water consumption, with only 14 BCM/year of virtual water embedded in the irrigated feed (blue water) and mostly imported fodder.

Comparing the impact of rainfall on land cover in Ethiopia and Egypt which are of the similar surface area of around one million square kilometers, and according to the European Space Agency (ESA) satellite land cover imagery analysis, about 94% of Ethiopia’s surface area is green cover (rainfed agriculture, pasture, and forests) using “green water”, while about 94% of Egypt’s surface area is desert lands, with a thin valley running through, along the “blue water” of the Nile River. Egypt sees the issue of the Dam as an existential crisis for it and a luxury for Ethiopia.

For nearly a century, Egypt has been the main beneficiary of international agreements apportioning shares of the Nile’s waters. The upstream countries were not parties to those agreements, made while most of them were still under colonial rule. The most recent treaty, the 1959 Nile Waters Agreement between Egypt and Sudan, divided the river’s entire average annual flow between the two countries. Roughly 85% of the water flowing into Egypt comes from the Nile’s main tributary, the Blue Nile, which originates in Ethiopia and merges in Sudan with the White Nile. Ethiopia was not party to the 1959 deal and does not recognize it. These agreements will be studied in part 2 of this research.

Political implications exist as well since Egypt sees it as a shift of power from Northern Africa to Central Africa and an end to its hegemony over the water resource. With the growing Turkish hegemony in eastern Mediterranean and ventures into Northern-Eastern Afrrica and the hegemony of Israel in Levant, losing significance in Northern Africa, is a strategic crisis for Egypt.

Issues Pertaining To Sudan​

The issues pertaining to Egypt have often taken the limelight especially considering the fact that Egypt has multiple times asserted that it will enter into a military conflict if any project is undertaken on the Nile without its express consent. Egypt has historically enjoyed Nile dominance and has signed several pacts, under colonial influences which allowed it an astonishing amount of hegemony over the river and this hegemony witnessed Sudan losing its due share of the Nile water, some of those clauses explicitly mentioning that Egypt shall have the power to enter into Sudan and build any structure that will increase the flow of water to Egypt. Sudan has repeatedly called to question the old treaties that governed the flow of the Nile and due to this sees the action of Ethiopia as no different as the actions of Egypt during the Colonial days. Being a lower riparian country, the country is threatened by the building of dam as reports have shown that it may lead to droughts to areas surrounding the capital Khartoum and many have cited that the building of the dam will also contaminate the fresh water flow from the Nile. Sudan itself has repeatedly contacted Ethiopia for sharing of data so that it can oversee the impact it will have on its irrigation networks and hydroelectric power producers but Ethiopia has neither shared any credible data nor has allowed any panel of experts to properly assess the impact of the dam. While Sudan has no love for Egypt and this shows in their failure of providing a united front against the GERD, it has looked to cooperate against the building of the dam but in the end remains the only party among the three who have not made it an existential issue or a question of sovereignty. Reports have also shown that Sudan may even benefit from the electricity generation from GERD. Sudan has criticized Egypt of inflaming the issue by making it an existential crisis.

With the non-legal issues pertaining to GERD faced by Sudan and Egypt, understood, let us look into how Ethiopia sees the issue of GERD and why it has made it an issue of national sovereignty.

Chapter Two: Ethiopia And GERD​

For Ethiopia, where almost 70% the rural population lacks access to electricity, the GERD would significantly expand domestic power capacity and allow the country to sell excess electricity to its neighbors. When construction began on the $4 billion project in 2011, then-Prime Minister Meles Zenawi pledged that Ethiopia would finance the project itself, funding it through government bonds, donations, taxes, and a portion of civil servants’ salaries. He envisioned the 6,000-megawatt GERD as powering Ethiopia’s development and helping to lift its population out of poverty. The project has been a source of national pride for Ethiopians, and a rallying point amidst recent domestic troubles.

Ethiopian National Sovereignty​

Ethiopia sees the interference into the Dam as an extension of Egyptian hegemony and has repeatedly stated that Egypt is trying to maintain its dominance over the Nile based on Colonial era treaties. With its 110 million population, Ethiopia looks to change the dynamics of Central-North Africa by not only securing the water resources but also changing the hydroelectric influence of Egypt. The primary concern of Ethiopia is to produce hydroelectricity and provide energy to its growing population as studies have shown that nearly 60% of Ethiopia is not connected to the national grid. It also looks to export the huge energy influx providing much needed energy to its neighborhood countries who also suffer power shortages. Due to this neighboring countries like Tanzania, Uganda, South Sudan, Somalia and Kenya have supported the wishes of Ethiopia. The reasons are not just Energy driven as many of these nations wish to bring the African power to Central Africa and for this purpose have looked to establish strong relations with each other and support.

The recent hostile attitude undertaken by Egypt has made it an issue of pride for Ethiopia where Egypt has repeatedly hinted at airstrikes and war if the dam is built and Ethiopia has declared that it will not stop the building of the dam no matter what. We must understand that while the economic prospects are playing an important role in the construction of the dam and they are important, but what we cannot ignore are the strategic and regional impact. If Ethiopia backs down then not only will it lose a lot of domestic support in a volatile region but will also cement the Egyptian Hegemony not only over the Nile but also in the neighborhood. The recent rise of military government in Egypt has only aggravated the situation as even the Turkish-Egyptian hostilities have come to play a role most recently being the statement of Turkish foreign minister Ahmet Davutoglu who offered Turkish expertise for the building of the dam and this was not well received by the Egyptian authorities who declared that all enemies of Egypt are involved in the making of the dam and we can see here how much of an existential crisis Egypt sees the dam as.

Ethiopia also sees it as a question of fundamental right over a major resource originating from its country and the people of Ethiopia definitely see it as a form of great hope and one that could change the future of the country. Whether it can or not, is not relevant to the topic at hand.

Challenging Egyptian Monopoly​

While the economic and social reasons have played an important role, many see the Ethiopian dam as a way to challenge the Egyptian monopoly not just on the River Nile but also the Egyptian influence in Central Africa and this is doubled when we consider that Egypt is trying to become an hydroelectric exporter for some time. For this purpose, it has built 4 major dams and has been working on a policy of exporting produced hydroelectricity. It has looked to tap the European and African markets. Ethiopia plans to make a similar impact with the GERD as it looks to become an energy exporter itself and the dam can produce excess energy that can be exported to neighboring countries and considering the energy capacity of the dam and the lack of connective grid lines in Ethiopia, it seems exporting energy would need to be the priority before a proper national grid can be setup.

It is without a doubt that Egypt has enjoyed hegemony over the River Nile and this can be seen in definite if we peruse the International Treaties signed pertaining to Nile. The Nile river basin has served as Egypt’s economic hub, political power and growth since ancient times. Egyptian hegemony was plausible for long time in North East Africa and the Middle East. For several decades, Egypt has denied other riparian countries complete access to water resources along the Nile and for that matter it has exercised a hegemonic power over the use of water resources in the Nile river basin. This has made Egypt no friends and even Sudan, a nation impacted by GERD, looks to Egypt in hostility and sees the Ethiopian dam as no different to the Egyptian hegemony. The Egyptian regimes felt the Nile belongs to Egypt and Egyptians and have historic and natural right while there are other ten riparian nations. Due to its powerful military and strategic location, it was able to dominate other riparian nations and force them not to build a hydroelectric dam let alone an irrigation dam along the Nile River. The upstream nations needed to ask permission for the construction of any dam along the Nile. While the river flowed from ten other countries through many tributaries, Egypt declared a defacto sovereignty over the River and this was cemented in 1929. After Sudan’s disapproval the treaty of 1959 was signed without Ethiopia, whose blue Nile contributed 86% of the water to Lower Nile and the treaty provided a lion’s share to Egypt. The 1959 agreement granted both countries Sudan and Egypt advantage, the lion’s shares of the Nile water was assigned only to Egypt. Cairo secured 55.5 billion cubic meters of water (or 66% of the total water flow), which would go to the Aswan Dam, Sudan received 18.5 billion cubic meters (22%) and the remainder, 12%, is lost to evaporation according to the 1959 Egypt Sudan Agreement. No share of the resource was left for the remaining riparian nations.

While an entire study could be recorded on the hegemonic battles between Ethiopia and Egypt, but briefly it can be said that Ethiopia has embarked on a quest to make itself the hegemon of Central Africa and influence Northern Africa. For this Ethiopia has looked to bring political and economic stability in the country as well as diplomatic influence in the region. The Ethiopian military has also looked to play a role into this.

PART II: Legal Principles Pertaining To The Conflict​

This Part is divided into 4 Chapters where we will look into the legal issues relating to the conflict as well as the history of the dispute to understand why the countries have such a rigid approach to the conflict and we will also research into the legal treaties signed pertaining to the River Nile. The Colonial influence and how Egypt became the Hydro-hegemon and how the other countries are now challenging this position.

Later on we will look into the legal principles and doctrines pertaining to Transboundary Watercourses and how these principles have been utilized in other Water disputes. International Legal Frameworks will also be discussed as well as the customs set by other countries when providing resolutions to their transboundary watercourse disputes. The Part will climax with what is the best possible approach to the water dispute between the nations of the Nile and how that approach has helped other nations in mitigating water conflicts. The legal doctrines that have historically been used and how they have impacted the conflict of the Nile will also be mentioned.

It must be stated that the River Nile is the only Transboundary Watercourse which, to this day, has no proper framework to govern the rights and responsibilities of upper riparian and lower riparian nations. The threats of war and bombing run shows us that time is of the essence and the international community should look to intervene and help the nations form a proper framework.

Chapter Three: Legal History Of The Nile​

The Nile basin is one of the rivers in the world which to date lack the comprehensive and inclusive legal framework encompassing all the riparian countries despite its regional importance. This however in no way insinuates that the Nile River is not the subject of international legal instruments, quite the contrary. With the establishment of colonial powers in the Nile Basin region at the end of the 19th century, there emerged the need to regulate the use and management of the waters of the Nile Basin. Thus, on April 15, 1891, in Rome, there was a convention between the Italian Empire and the British Empire where a protocol on the demarcation of the respective zones of influence of the two countries in the Horn of Africa was signed. Both powers wanted to increase not only their influence on land but also on the sea and by now Italy started to have those nationalist tendencies for the return of the Great Roman Empire. A desire that would be emulated by Mussolini half a century later however the British Empire was an unrivaled power on the seas during this time and Italy, only recently unified, came late for the scramble for Africa and was considered as the least of the great European powers. It held holdings in the Horn of Africa and wanted to expand over there to colonize Central-Eastern Europe. This brought Italy to one of the tributaries of the Nile called the Black Nile and dangerously close to British Influence in the region whose jumping point was Egypt.

The protocol in its article 3 states:

“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.”[8]

Although the treaty did not cover the Nile, it is today considered to be the very first international legal instrument, regulating the use of the waters of the Nile River Basin. This first protocol already indicated the manifest concerns of the British crown in ensuring an unobstructed flow of the Nile waters reaching Egypt. This also shows the importance of the Nile in the eyes of the British as the great river with its easier navigation path and fertile access way, could allow the British to secure its influence in the Region. On May 15, 1902, Britain signed a treaty with Ethiopia on the border between Sudan and Ethiopia on the one hand, and between Ethiopia and Eritrea on the other. In addition to the border issue, as was the case with Italy, the British crown used this opportunity to obtain from King Menelik II of Ethiopia, a guarantee of the continuous flowing of the waters of the Nile river basin to Sudan and Egypt.

This guarantee was enshrined in article 3 of the treaty which stipulates,

“His Majesty the Emperor Menelik II, King of kings of Ethiopia, engages himself towards the Government of His Britannic Majesty not to construct or allow to be constructed, any works across the Blue Nile, Lake Tsana or the Sobat, which would arrest the flow of their waters into the Nile except in agreement with his Britannic Majesty’s Government and the Government of the Sudan.”[9]

The novelty in this article was the subordination of the realization of a project that may obstruct the flow of waters going into the Nile to the prior agreement, of the British crown or of the downstream states of the basin, in this case Sudan which was ironically represented by the British as well since it was a Colony of the British Empire.

Nearly 4 years later, in April 1906, a tripartite agreement among the United Kingdom, Italy and France enshrined the recognition by the latter of the importance of the waters of the Nile basin for Great Britain and Egypt. And it undertook to safeguard these interests Article IV of the 1906 tripartite agreement between the United Kingdom, France and Italy signed in London on the 3rd of April 1906. The article stipulates,

“In order to preserve the integrity of Ethiopia and provide further that the parties would safeguard the interests of the United Kingdom and Egypt in the Nile basin, especially as regards the regulation of the water of that river and its tributaries …”

It must be stated that all these powers were looking forward towards their own interest and not for the people. For the British Egypt was far more important than Sudan or the interests of Ethiopia and even had the colony as the Sultanate of Egypt and Sudan for ease of management. For them the flow of Nile in Egypt was paramount. The other powers also looked at their own interest, happily giving any water resources for concessions elsewhere.

On May 9 of the same year, in London, the agreements of May 9, 1906 were signed between Great Britain and the Independent State of the Congo, which was personally managed by King Leopold II of Belgium, of which the Congo was the private property. This agreement, which modified the previous Brussels agreements of May 12, 1894, relating to the spheres of influence of the two states, stipulated in article 3:

“The Government of the Independent State of Congo undertakes not to construct or allow to be constructed any work over or near the Semliki or Isango Rivers. This would diminish the volume of water entering Lake Albert, except in agreement with the Sudanese Government.”[10]

This article, which is almost identical to that contained in the treaty signed by King Menelik II in 1902, had the same objective, ensuring the continuous and constant flow of water from the other Nile basin rivers to Sudan, then to Egypt. These treaties are important to understand since they undertake, at a small and unfair manner, the regulation of the Nile River and how Egypt has seen the Nile. Egyptian monarchy happily supported the Colonial powers in securing the Nile for itself.

The 1929 Nile Waters Agreements are arguably the most consequential agreements from a hydro political and legal perspective, and the most controversial because of the rights it conferred to Egypt over the waters of the Nile. It was signed in 1929 between the Kingdom of Egypt and Great Britain (acting on behalf of its colonies and protectorates Sudan, Kenya, Tanzania, and Uganda). This agreement, which in fact is an exchange of correspondence between Lord Lloyd (the British High Commissioner) and Muhammed Mahmoud Pasha, President of the Egyptian Council of Ministers, was intended to guarantee and facilitate an increase in the volume of water reaching Egypt.

“The Agreement was based on the outcome of political negotiations between Egypt and Great Britain in 1920s, and in particular on the report of the 1925 Nile Waters Commission, which was attached to the agreement as an integral part thereof.”[11]

The agreement which recognized Sudan’s water needs for its development, confirmed the recognition by the British crown (acting on behalf of Sudan, Kenya, Tanzania and Uganda) of the natural and historical rights of Egypt on the waters of the Nile and it affirmed the will of the United Kingdom to ensure its implementation at any time and in any place. In his correspondence to Mahmoud Pasha, Lord Lloyd, the British High Commissioner said,

“…I also assure to your Excellency from now on, the British government – in spite of being interested in the welfare of Sudan – does not intend to harm the historical and natural rights of Egypt in the Nile. We acknowledge these rights today as we have acknowledged them in the past” …. “. . . “Finally, I would like to remind your Excellency that the government of his highness the king has already acknowledged the national and historical rights of Egypt in the Nile, and I assert your Excellency that the government of his highness the king considers securing those rights as one of the major principle of the British principles. And I assure Your Excellency that this principle and the details of the agreement will be implemented at every time regardless of the circumstances that may take place.”[12]

Moreover, the agreement allowed Egypt, under authorization from the local authorities in Sudan, to undertake infrastructure projects in Sudan in order to increase the volume of water flowing to Egypt. It also confers the right to Egypt to supervise the construction of any Nile related infrastructure project upstream of the river,

“The construction, maintenance and administration of the above-mentioned works shall be under the direct control of the Egyptian Government.”[13]

Establishing de facto and de jure a hydro hegemony of Egypt in the region. In 1934 the obligation of “Prior Notification” on projects to exploit the waters of the Nile was enshrined in the 1934 agreements between Great Britain (acting on behalf of Tanzania) and Belgium (acting on behalf of Rwanda and Burundi) regarding Water Rights on the Boundary between Tanganyika and Ruanda-Urundi. The agreement addresses the issue of the utilization as well of the waters of the Kagera River for irrigation and power generation.[14]

In 1949, a precedent of the direct implication of Egypt in the implementation of a Nile related project is established in a riparian country other than Sudan its adjoining neighboring country. In an exchange of Notes between Egypt and Britain (Acting on behalf of Uganda) on the construction of the Owen Falls Dam. This can be regarded as an example of collaboration between the Nile riparian states of a sort, in one hand as pointed out by Mohamed Salman Tayie[15] or the application in substance of an Egyptian hydro hegemony in a further located upstream country, in the other hand. The upper stream countries saw the agreements as Egypt taking over their water resources at the expense of their own water needs or development. This feeling has been carried on to this day.

The Agreement stipulates as follows:

“The two governments have also agreed that though the construction of the dam will be the responsibility of the Uganda Electricity Board, the interests of Egypt will, during the period of construction, be represented at the site by the Egyptian resident engineer of suitable rank and his staff stationed there by the Royal Egyptian Government to whom all facilities will be given for the accomplishment of their duties. Furthermore, the two governments have agreed that although the dam when constructed will be administered and maintained by the Uganda Electricity Board, the latter will regulate the discharges to be passed through the dam on the instructions of the Egyptian Government for this purpose in accordance with arrangements to be agreed upon between the Egyptian Ministry of Public Works and the Uganda authorities pursuant to the provisions of agreements to be concluded between the two Governments.”[16]

This agreement was the last colonial era agreement on the Nile as the age of the Colonial came to an end and the Colonies of the British Empire, began to breakaway but the Colonial influence and the promises made and the agreements signed would continue to make waves for generations to come for now Egypt was no longer dealing with a Colonial power supporting it over the rights of other countries but Sovereign Nations who had suffered under the Colonial rule and had seen the Colonial powers secure the hydro-hegemony of Egypt.

With the independence of countries formerly under British colonial rule, the denunciations of the various agreements on the Nile began through declarations of those treaties being signed between either the same party representing both sides or between powers that had no legitimate interest or legitimate right to the resources. Sudan was the first country to embark on a renegotiation of the 1929 treaty with Egypt. These negotiations culminated in 1959 on the Agreement on Full Utilization of the Waters of the Nile. To which we will return later. Other riparian countries, notably Ethiopia, Tanzania, and Burundi, also rejected the agreements made with or by Great Britain, most notably 1929 agreement.

Tanzania (Tanganyika) for example in 1962 expressed its desire not to be bound by the 1929 agreements which was subscribed in its name by the British crown. This position, which in fact extended to all colonial agreements, was based on what will be later known as the Nyerere doctrine which

“In the case of bilateral treaties, calls for provisional application, on a reciprocal basis, for a two- year period from the date of independence of those terms of treaties that are compatible with the sovereign rights of new states. In the case of multilateral treaties, there is no fixed period for the provisional application of their terms based on reciprocity.”[17]

Now the Nyerere doctrine has several scholarly works and published material on it however for sake of better understanding, I shall try to explain it in a single paragraph.

It was reformulated by Julius K. Nyerere, President of the United Republic of Tanzania, and commonly known as the “Nyerere Doctrine.” Generally, the Colonial Powers advocated that the new Eastern African States enter into inheritance agreements, and apply the pre-independence treaties concluded by the Colonial Powers on behalf of the colonial territories. Instead, the “Nyerere” doctrine calls for provisional application, on a reciprocal basis, for a two-year period from the date of independence of those terms of treaties that are compatible with the sovereign rights of new states. This period of time would serve as a time for reflection by the new state to pick and choose whether to be bound or renegotiate the treaties with the parties concerned. Inevitably, the various Eastern African States developed their own versions of the optional doctrine (the opting in; the opting out; the general declaration and non-committal or selective “specific treaty” formulae). So we can understand that the decolonization process within Africa was very different to the decolonization process in South Asia, whose states not only kept many of the treaties signed by the Colonial powers but drew legitimacy from it and argued for its implementation most notable being the border agreement disputes between Pakistan and Afghanistan or the agreements between China and India.

Other riparian countries like Kenya, despite having an unclarified position throughout the 1970-1980s on the Nile Basin treaties, will later in 2002, through its Minister for Water Development, make a comprehensive policy statement on the use of the waters of Lake Victoria and the River Nile where he reaffirmed their position.

Ethiopia, on the other hand, expressed its wish to no longer be bound by the 1902 treaty invoking the doctrine of “Rebus sic Stantibus”. This doctrine is another important doctrine in international treaty law and it is formed, like so many other International Laws, from Civil Law. According to Doctrine “Rebus sic Stantibus” (in Latin ‘Things Thus Standing

 also known as Doctrine of Change, is where a party to a treaty can unilaterally terminate the treaty in case the execution of the treaty is materially or morally impossible or which deprive one party of the advantages which the treaty intended to confer. As asserted by Pasquale Fiore

“All treaties are to be looked upon as null which are in any way opposed to the development of the free activity of a nation or which hinders the development of its industry or commerce. It prevents the exercise of any of its natural rights or which offends in any manner against the principles of absolute justice or the supreme law of right.”

The doctrine is actually part of International Law, however not mentioned by name but is stipulated in Article 62 of the Vienna Convention of the Law of Treaties which held

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

However, despite the fact that these treaties notably that of 1929 are defended by certain scholars( most notably from Egypt), as Arthur Okoth-Owiro pointed out, the overwhelming weight of expert opinion appears to favor the view that the

“The 1929 settlement ofthe Nile waters was a political matter and that it cannot be used as a precedent in international law.”[18]

Amid the 1950-1960 geopolitical shift in the region, was signed in 1959, the Agreement on Full Utilization of the Waters of the Nile Between Egypt and Sudan marked a new era into Nile Regulations as being the first treaty between two independent states of the Nile Basin. The pact which recognized the acquired rights of the two countries over the waters of the Nile, granted Egypt 55.5 BCM (Billion Cubic Meter) and Sudan 18.5 BCM of the total volume of the Nile waters as measured at Aswan High Dam in Egypt. The two states through this pact established a unified block of downstream States against the other riparian States (Upstream Riparian States). It was officially formulated in Article 5 of the treaty:

“Since other riparian countries of the Nile besides the Republic of the Sudan and the United Arab Republic claim a share in the Nile waters, both republics agree to study together these claims and adopt a unified view thereon.”

Moreover, this article clearly states an acknowledgement by both Egypt and Sudan of the claims or future claims of upstream riparian states over their share of the Nile waters however both of these countries utilized what other states would call, a colonial mindset when dividing the Nile. The other riparian countries denounced the treaty and held that their absence made the treaty void since they river flew and originated from the countries that were not part of the agreement and as anticipated, the agreement was denounced before it was even signed. In fact, while the agreement was being negotiated, Ethiopia denounced the non-inclusive nature of the negotiations in December 1957, and in response adopted the Harmon doctrine, declaring absolute sovereignty over all the waters flowing on its territory.

The Harmon Doctrine is perhaps one of the most rigid and controversial doctrines present in International Law especially International Law of Water. The Doctrine is named after the Attorney General Judson Harmon, who stated during the Chamizal Dispute Resolution in 1895, between United Sates of America and Mexico on the shift of Rio Grande;

“The fact that the Rio Grande lacks sufficient water to permit its use by the inhabitants of both countries does not entitle Mexico to impose restrictions on the USA […] The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory. All exceptions […] to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. […] [T]he rules, principles, and precedents of international law impose no liability or obligation upon the United States.”

Thus that country would be free to divert all of the water from an international watercourse, leaving none for downstream states. There is a lot of published material on the Harmon Doctrine as well which is worth a read.

The 1990s were characterized by a new regional dynamic of collaboration between the countries of the basin, a trend driven by the adoption in 1966 by the ILA of the Helsinki Rules on the Uses of the Waters of International Rivers and the preparatory work for the ILC which would culminate in 1997 with the adoption by the General Assembly of the UN, of the United Nations’ Convention on the Law of Non- Navigational Uses of International Watercourses. It is in this context that in 1991 Uganda and Egypt signed an agreement on the Ugandan project to construct a power station on Lake Victoria, after the IMF suspended the process of financing the dam following objections made by Sudan and Egypt.

In July 1993, Ethiopia and Cairo signed the 1993 Framework for General Co-operation, by this agreement, which is the first post-colonial agreement between these two countries on the Nile. The two countries in this framework refrained from engaging in projects which may harm the interests of the other, but to collaborate in the implementation of projects which may make it possible to reduce the loss of the waters of the Nile and to increase its volume. The two countries also agreed that the question of the use of the waters of the Nile should be the subject of detailed work, based on the rules and principles of international law which was held in Article 4 of the Framework for general co- operation between the Arab Republic of Egypt and Ethiopia signed at Cairo, 1 July 1993.

Following the Framework for General Co-operation between Egypt and Ethiopia, the Nile riparian state will go on to create on 22nd February 1999, the Nile Basin Initiative (NBI), an Intergovernmental partnership which seeks to achieve sustainable socio-economic development through the equitable utilization of, and benefit from, the common Nile Basin water resources. It is the first inclusive basin wide institution on the Nile. Long negotiations in the NBI framework culminated into The Cooperative Framework Agreement (CFA). The CFA formulates 6 fundamental principles of the Nile basin waters management, The principles of:

Cooperation

Sustainable development

Subsidiarity

Equitable and reasonable utilization

Prevention of the causing of significant harm

Right of Nile Basin States to use water within their territories.

The agreement was signed by all the riparian countries except Egypt and Sudan, who wanted to see their current rights and uses of the waters of the Nile enshrined in the final text. It is a way to ensure a continued benefit of the rights conferred to them under the 1959 bilateral agreement between the two countries, but also the volume of water currently used by each of the two countries. This is due to Article 14B of the framework which held

“Not to adversely affect the water security and current uses and rights of any other Nile basin state”

Sudan and Egypt desire for their water resources to be sufficiently accommodated especially Egypt even at the expense of the other riparian countries.

In this chapter we not only perused the legal history of the Nile but have also come to understand the legal rigidity displayed by the lower riparian countries and upper riparian countries, most notably Egypt and Ethiopia. Colonial influences and their treaties have left a terrible mark in Africa and the River promises be the start of what can be a massive conflict in the continent. In the next chapter we will look into the issue of Transboundary watercourse disputes from the perspective of International Human Rights Law to understand the relationship between upper riparian states and lower riparian states.

Chapter Four: Transboundary Water Network and International Law​

This chapter looks to address the issue of transboundary watercourse disputes from the perspective of International Law. This will include Human Rights Law and its intersection with environmental law, which also has some application and may further guide approaches to ‘equitable and reasonable use’ which we shall look into in Chapter 5. Let us look into the law from the legal perspective and Human Rights perspective and it must be held that International Law has made Human Rights the cornerstone of its legal aspect and has looked to incorporate as many principles pertaining to rights as possible.

International Waterway Law

The principal body of law governing transboundary watercourse disputes is international watercourse law. This body of law has, until recently, largely been uncodified. States have historically aligned themselves with either the principle of absolute territorial sovereignty or the principle of absolute territorial integrity. The first principle, known as the Harmon Doctrine described and explained above, argues that states may freely use the water within their own territory, without taking into consideration the needs of other riparian states. The principle argues upstream states have no responsibility for the ways in which their use of a transboundary watercourse may harm the use of the watercourse by downstream riparian. Consequently, this principle has historically been favored by upstream states.

In contrast, the principle of absolute territorial integrity has been advocated by downstream states because it advances the idea that every state is entitled to the ‘natural flow of river systems crossing its border’. This converse principle limits upstream riparian states use of transboundary watercourses, and effectively gives lower-riparian states veto over upper riparian states use or alteration of watercourses. In cases where downstream riparian have historically taken more advantage of their water resources, as is the case in the Ethiopia-Egypt conflict where treaties exist, the principle of absolute territorial integrity supports Egypt’s argument of a right to preserve pre-existing uses of transboundary watercourses. Both the principles of absolute territorial sovereignty and absolute territorial integrity take extreme stances in relation to the allocation and use of transboundary watercourses, anchoring themselves in a principle of sovereignty that is, as this report will show, somewhat out of date in ignoring the relational aspect of sovereignty in a globalized world. In doing so, both principles generate a zero-sum game approach to transboundary watercourse use. Concepts rooted in territorial sovereignty bring with them a range of complex issues when applied to a constantly moving resource, such as water.

The nature of the resource in question clearly calls for cooperation, a demand underscored also by an increasingly interrelated world. Therefore, there has been a shift away from these principles in the development and codification of international watercourse law from the late-twentieth century onwards. Before exploring the developments of watercourse law, however, it is necessary to note that these principles continue to be used as tools of advocacy in watercourse disputes, and are especially present in the rhetoric employed by state leaders. Whilst the nuances of the stances taken in the Egypt-Ethiopia conflict go beyond the relative simplicity of these principles, the principles of absolute territorial sovereignty and absolute territorial integrity reflect the core aspects of Ethiopia’s and Egypt’s positions on the river Nile dispute, respectively. This makes evident the continued influence of the principles, though they are no longer viewed as reflecting international law.

Today, the primary source of international law which applies itself to transnational watercourses is the UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC). The Convention came into force in 2014 and advances centrist concept of ‘limited territorial sovereignty’ approach to the use of transboundary watercourses. Neither Egypt nor Ethiopia are parties to the UNWC, and moreover Article 3 of the UNWC provides that

‘nothing in the present Convention shall affect the rights or obligations of a watercourse State arising from agreements in force for it on the date on which it became a party to the present Convention’,

A provision that would reinforce Egyptian treaty law arguments were they signatories. However, as this section goes on to show, key principles entrenched in the UNWC are argued to be customary international law and thus are useful to frame any attempt to resolve the dispute. The doctrine of ‘limited territorial sovereignty’ is also entrenched in the African Convention on the Conservation of Nature and Natural Resources (Algiers Convention), to which Egypt is party and the Revised African Convention on the Conservation of Nature and Natural Resources (Maputo Convention), which Ethiopia has signed. Further, the parties have signed a Memorandum of Understanding, which incorporates principles for the resolution of the dispute which are consistent and similar to the UNWC, which does bind the parties, and so the UNWC is therefore useful to guide their interpretation and implementation. Compromising between the doctrine of absolute territorial sovereignty and absolute territorial integrity, the doctrine of limited territorial sovereignty

‘Asserts that every riparian state has a right to use the waters of the international river but is under a corresponding duty to ensure that such use does not harm other riparians’. [19]

Accordingly, the principle tries to strike the balance between the interest of upper and lower riparian states through limiting states ability to only consider their own needs in relation to transboundary watercourse use. In the UNWC, this doctrine is embodied in Articles 5 and 7, two of the fundamental substantial obligations of the convention which also reflect international customary law.

Article 5 of UNWC states that

‘Watercourse states shall in their respective territories utilize an international watercourse in an equitable and reasonable manner.’

Article 7 of UNWC obliges states to

‘Take all appropriate measures to prevent the causing of significant harm to other watercourse states.

Through obligations to take into consideration the needs and rights of other riparian when seeking to use transboundary watercourses, both the principle of equitable and reasonable use and the principle of no significant harm, entrench limitations to a state’s own use of transboundary watercourses. The principles thus embody a move away from a state sovereignty-centered outlook, to one that recognizes the shared nature of transboundary watercourses and the need for cooperation in the successful management of it. Whilst sharing these common traits, the principles can come into tension with each other in certain scenarios.

McCaffrey demonstrates how, in a scenario where State A has a pre-existing use of water resources which may be argued to not be equitable and reasonable, the principle of equitable and reasonable utilization would allow State B to undertake changes to its own use of the transboundary watercourse as long as it upholds the obligations of Article 5 (based on equitable and reasonable use). Conversely, from the perspective of the principle of no significant harm, this change in use by State B potentially breaches State B’s obligations under UNWC Article 7, because it is likely to cause significant harm to State A by negatively affecting its pre-existing use. The inclusion of both of these principles in the UNWC allowed the UNWC to enjoy increased support in the international community.

Yet many transboundary watercourse conflicts, such as the one between Egypt and Ethiopia, are rooted in exactly this tension between the often disproportionate pre-existing use of one riparian and the wish of other riparian to increase their use of the transboundary watercourse. In these scenarios, the tension between the principles allows both parties in a conflict to argue that they have international law on their side, instead of guiding resolution of the conflict and fostering cooperation. This is the case in the Egypt-Ethiopian conflict. As is often the situation, the principle of equitable and reasonable use lends itself to upper riparian Ethiopia’s side, and the principle of no significant harm lends itself to lower riparian Egypt’s stance (which it also argues is backed up by historical treaties). The law thus contributes little to conflict resolution. In order to solve this, Paragraph 2 of Article 7 of the UNWC reads that,

‘Where significant harm nevertheless is caused to another watercourse State, the State whose use causes such harm shall…have due regard for the provisions of article 5 and 6…to eliminate or mitigate such harm.’

The inclusion of this paragraph sees scholars such as McCaffrey, McIntyre and Caflisch argue that the principle of equitable and reasonable use is the overall objective of UNWC, and that the principle of no-significant harm sits within this principle. This has been confirmed in the Gabcikovo-Nagymaros case, and in the 2004 Berlin Rules.

Transboundary Watercourse and Human Rights Law

In assessing states obligations flowing from their human rights commitments, and how these obligations may inform and add to the principles of watercourse law by requiring consideration of transboundary watercourse use from the point of view of actors and entities other than states, this chapter discovers that Human Rights Law has ordained that we utilize a human-needs approach to transboundary watercourse disputes. This also aligns with directions in International Environmental Law.

In doing so, human rights drive the focus away from the state centrism entrenched in international watercourse law and highlight the potential for mutual gains in treating watercourses as unitary wholes by highlighting the interdependence of human needs on both sides of borders. This chapter will primarily examine the human right to self-determination, human right to a dignified life and the human right to water. Both Egypt and Ethiopia are parties to the International Convention on Economic, Social and Cultural Rights (ICESCR) and the International Convention on Civil and Political Rights (ICCPR), without significant declarations or reservations for its application in this context.

Whilst watercourse law and the principle of equitable and reasonable utilization of transboundary watercourses continue to be state-centered, states utilization of watercourses affect the lives and livelihoods of the people and communities who depend on these watercourses. This is evident in the conflict between Egypt and Ethiopia, where, as Section 1 outlined, both the Egyptian and Ethiopian populations’ freshwater needs are at the heart of the conflict. This reality points to the existence of key interests and stakeholders in transboundary watercourse disputes beyond the state, and consequently the need to move beyond a state-centered approach to transboundary watercourse dispute negotiations. These are also, unhelpfully, zero-sum. The right to self-determination, as entrenched in Common Article 1 of ICESCR and ICCPR and Article 20 of the African Charter of Human and Peoples Rights, centers on the relationship between people and the state and may therefore inform what an approach to watercourse disputes which moves beyond state-centrism could look like.

Common Article 1 of ICESCR and ICCPR states that: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. This is now understood not just to refer to rights to form a state, but rights to participate in how that state is governed. The Human Rights Committee (HRC) stresses the interlinkage between the right to self-determination and the right to participation in public affairs and the right to vote. States have a duty to actively promote these participatory dimensions of the right to self-determination, and the obligation to consult local communities is also stressed in international environmental law. This conceptualization of the right to self-determination is based on a set of procedural rights which requires, as Klabbers argues, that people and communities ‘see their position taken into account whenever their futures are being decided’.[20]

This reading of Article 1(1) is reinforced by the reference to economic self-determination which in Article 1(2) requires that peoples are able to ‘freely dispose’ of natural resources such as water ‘for their own end’, thereby placing a duty on the state to exploit natural resources for the benefit of the people. Discharging this duty requires an understanding from the state of the needs and interest of local communities. In the case of transboundary watercourse use, the right to self-determination, at a minimum, requires that states which seek to reap benefit from natural resources such as transboundary watercourses must do so in line with the needs and rights of the affected population. In the case of the conflict on the Nile, this arguably means that to fulfil their obligation under international human rights law, Egypt, Ethiopia, and other involved riparian states, especially Sudan, should facilitate engagement from those local communities likely to be affected by the building of the dam during negotiations. The participatory qualities of the right to self-determination are fundamental in empowering peoples in relation to states, drawing the focus further away from state securitization of transboundary watercourse use towards human needs. It qualifies state sovereignty through necessitating that sovereign powers are used for the ‘greater good’ of the people. Framing the issue in terms of human rights law, including the right to self-determination, draws attention to the way in which the sharing of transboundary watercourse benefits should not only be between state entities but within states and the populace residing within the states, and requires that natural resources such as water are used in a way that aligns with the needs and interests of local peoples and communities. This requires inclusion of local actors, because it requires an understanding and consideration of how local peoples and communities are affected by state utilization of transboundary watercourses.

The obligation to include local actors is likely to increase local ownership of any potential agreements reached, and draw attention away from states sovereign rights towards the common concerns regarding human interests underlying the dispute. These common concerns can be addressed by a shared commitment to understanding the needs of local populations. The obligation also provides the opportunity to consider how the other human rights of local communities are affected by a state’s use of transboundary watercourses. On this basis, we shall now turn to one of the most clearly affected human rights in cases of transboundary watercourse use: the right to water, the most basic of fundamental rights. The right to self-determination has made evident the way in which states have an obligation to ensure the consideration and consolidation of the rights of entities within the state when using transboundary watercourses. A second key right at the heart of watercourse disputes iss the right to water. The Committee on Social, Economic and Cultural Rights (CESCR) established the right to water in General Comment No. 15, drawing it from the right to adequate housing and the right to health. It states that

‘The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’.[21]

The right to water is also enshrined in a range of human rights conventions protecting specific groups. Interestingly Article 24 of the African Charter provides that

‘All peoples shall have the right to a general satisfactory environment favourable to their development’,

as well as the self-determination provision of Article 20.

As a socio-economic right, the right to water does not require immediate fulfilment but rather progressive realization on the basis of each states resources. However, even in situations of water scarcity and few state resources, states have a minimum obligation to refrain from interfering ‘directly or indirectly with the enjoyment of the right to water’. In addition, states are obliged to take steps to progressively realize the right to water. These minimum requirements make evident how the right to water necessitates a consideration of people’s right to water when negotiating transboundary watercourse disputes.

As McCaffrey writes:

“If states are under the obligation to exercise their best efforts to ensure an adequate supply of water to meet basic human needs, it follows that they also manage their water resources and development as to ensure a supply of water for the benefit of present and future generations.”[22]

The right to water thus sits with the right to self-determination in that it makes evident the fundamental human needs considerations necessary when negotiating transboundary watercourse disputes. CESCR supports this line of argument, asserting that states are required to consider the right to water in international agreements. In doing so CSECR highlights the way states obligations under the right to water apply to internationally oriented issues. The application of the human right to water to international issues such as transboundary watercourse disputes is further strengthened by the extraterritorial element of states obligations in relation to the right to water: states are obligated to refrain from undertaking any activity within their own territory which will hinder the right to water in another territory. States extraterritorial obligation under the right to water requires that states do not only consider the needs of own populations where using watercourses, but also consider the needs of other riparian states and their populations. The obligation therefore reinforces a human needs-focused approach to transboundary watercourse use and dispute negotiations. Though states obligations flowing from the right to water are highly relevant in relation to transboundary watercourses, human rights law does not say much about how assessments of water needs should take place.

Recently links between human rights law and environmental law have been made. The Framework Principles on the Human Rights and the Environment (2018) produced by the UN Special Rapporteur on Human Rights and the Environment provide a more specific set of human rights duties with relation to the environment, as an application of existing standards in this area, some of which are relevant to the GERD dispute. Principle 7 asserts that states should provide public information and access to environmental information; and Principle 8 provides that states should: avoid undertaking or authorizing actions with environmental impacts that interfere with the full enjoyment of human rights. States should require the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights. Furthermore, Principle 9 states that states should ‘provide for and facilitate public participation in decision-making related to the environment, and take the views of the public into account in the decision-making process.’

Further guidance can be taken from environmental law itself, which sets outs processes to be undertaken as a way of ensuring that environmental issues are dealt with. States have obligations under environmental law to undertake an Environmental Impact Assessment (EIA). The obligation to undertake EIA is entrenched in a range of environmental treaties, including the Maputo Convention which Ethiopia has signed. An EIA is also argued to be required by key obligations of the Kyoto Protocol which both Ethiopia and Egypt have ratified, though the obligation is not as clear here as in, for example, the Aarhus Convention. However, most notably, in a case with clear relevance to the GERD dispute, the International Court of Justice (ICJ) established that the requirement to undertake an EIA was a requirement of customary international law in a case involving Pulp Paper Mills on the River Uruguay that were affecting transboundary water shared with Argentina.

The ICJ found that where ‘there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’, the requirement for an EIA was a requirement of customary international law. The judgement went on to note that ‘due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works’.[23]

An EIA embodies key procedural obligations, including the obligation to assess the effect of human-made interventions and projects on transboundary watercourses. Due to the interdependence between the environmental conditions of watercourses and people’s ability to enjoy their human right to water, such an assessment of the effect of intervention on the watercourse as a unit is likely to also shed light on the way in which human rights may be affected. It can thus be used as a tool for assessing the extent to which states are upholding both their internal and extraterritorial human rights obligations. Consequently, EIAs help further the human needs-centered approach to watercourse dispute negotiations. Moreover, through underscoring the interconnection between the environmental wellbeing of transboundary watercourses and people’s ability to enjoy their human right to water, EIAs make evident the way in which human rights interests may be best facilitated through approaching watercourses as ‘inseparable environmental units’. In other words, as units that cannot be dealt with as a series of separate or distinct in-country state resources. This unitary approach to transboundary watercourses suggests that inter-state cooperation can facilitate not only benefit sharing, but also benefit creation and mutual gains. Through state cooperation and joint management, the resources that states may draw from transboundary watercourses may be increased. The opportunity for mutual gains as a result of cooperation is crucial for successful conflict negotiation.

As Gyzbowski argue, through mutual gains agreements

‘The focus of negotiation can shift away from limiting impact on sovereignty, to planning and devising ways and means of maximising benefits.’[24]

A human rights approach draws attention to this opportunity. Together, the consideration of human rights in watercourse disputes requires a higher level of inclusion of local populations, and moves the focus away from the needs and right of states to the needs and rights of humans. Furthermore, states extraterritorial obligations flowing from the human right to water and their obligation to undertake EIAs have highlighted states obligations to also consider the human needs of other states populations when negotiation transboundary watercourse disputes. Human rights considerations bring attention to the ways in which international agreements and negotiations affect the lives and livelihoods of people on the ground, whichever state they reside in, by affecting the transboundary watercourse units they depend on. Approaching transboundary watercourses as a unit makes evident the way in which state cooperation may pave the way for benefit creation and mutual gains, a key step in any dispute negotiation.

In this chapter we have seen how International Law governs Transboundary watercourses however there is an evident lack of proper convention on the issue and for this we have also seen how Human Rights Law and Environmental Law can help cover some gaps. Hydro hegemony is playing a major role in the conflict for Nile but we cannot forget the International principles governing the Transboundary Watercourses nor can we ignore Human Rights Laws which have again and again sanctified the Right of Water. In the next chapter, we will look into other water disputes and how equitable use of water has played a role.

​

Chapter Five: International Legal Principles When Perusing Other Water Treaties.​

Other Water Treaties & Disputes​

This Chapter assesses the extent to which the principles of international law have been applied when negotiating watercourse conflicts that share many of the same characteristics as the Egypt-Ethiopia conflict. The section looks specifically at the disputes over watercourse resources in

(1) The Senegal River;

(2) The Euphrates-Tigris (ET) river system between Turkey, Syria and Iraq; and

(3) The Indus Basin between India and Pakistan.

It does so in order to examine whether, and consequently how, these principles are utilized in order to circumvent conflict-inducing issues and negotiate agreements. This is achieved, primarily, by assessing the Charter of the Waters of the Senegal River (Senegal Water Charter) , the Memorandum of Understanding (MoU) between Turkey and Iraq, the MoU between Turkey and Syria, and the Indus Water Treaty. These watercourse treaties and disputes are all characterized by many of the same conflict-inducing characteristics as the Egypt-Ethiopia conflict. All three involve infrastructure development and questions concerning quantity of water resources. All three arose between countries with historic enmities and all three were complicated by larger regional power-balances. Between Pakistan and India, and between Turkey, Syria and Iraq, there are also histories of ongoing distrust and even militarized conflict, and while this conflict has not been over water it means that water issues have to be managed in a way not to exacerbate or ignite other tensions.

The three conflicts differ on the level of resolution achieved, providing the opportunity to examine how the principles identified have or have not been utilized in disputes which have

(1) Largely been resolved;

(2) Stalled despite promising development; and

(3) Recently deepened

Despite acclamation of the long-standing treaty in place the Senegal Water Charter negotiated between Senegal, Mali, and Mauritania in 2002, explicitly incorporates the principle of equitable and reasonable use. As there were low levels of (human initiated, technological disruption triggered) conflict in the time leading up to the agreement. The Senegal example is limited in its ability to shed light on how implementation of the principle of equitable and reasonable use may drive a shift from hostility to cooperation. Nevertheless, lessons can be drawn from how the Charter operationalized the principle of equitable use. The Senegal Water Charter goes far in its cooperative approach to water management: it pools states sovereignty and gives significant authority to the Senegal River Basin Development (OMVS) and its Standing Committee for Water. The Standing Committee of Water consists of representatives of member states and is charged to define, in accordance with provisions of the charter, the distribution of water. This membership and role informs its operationalization of the principle of equitable and reasonable use. Rather than implementing the principle as a way of distributing benefits between state parties, the principle is used as a way of distributing the benefits between different sectors such as agriculture, environment and health.

This approach furthers an understanding of the transboundary watercourse as a unitary whole, and the necessity of treating it as such to be able to foster mutual gains for the riparian states. Of particular relevance for the GERD conflict relating to the Nile is the way in which this approach has facilitated joint hydrological projects on the river managed by the OMVS, from which all riparian states are deemed to benefit. This provides a clear example of the way in which a sovereignty-oriented approach to watercourse management is set aside in order to negate potential conflict and foster mutual gains. Whilst this type of sovereignty pooling goes beyond what is called for by the principle of equitable and reasonable use, the Senegal Water Charter provides a pioneering solution as to how the principle of equitable and reasonable use can be applied in order to foster peace and cooperation.

A more traditional, state-centered approach is evident in the MoUs between Turkey, Iraq, and Syria from 2008-9, relating to the ET river system. The MoU between Turkey and Syria does not reference the principle directly, opting instead for ‘effective utilization’ of the watercourse through cooperation on the basis of ‘equality, reciprocity and mutual benefit’. Though vague and not directly committing to the foundational principles of international watercourse law, the MoU recognizes the mutual interest of the parties in a sufficient and efficient cooperation. The MoU could, therefore, work as a springboard towards the adoption of the principle of equitable and reasonable use. The possibility of such adoption at a later stage is heightened by the reference to the term ‘equitable and reasonable sharing’. This is referenced in the MoU between Turkey and Iraq, albeit as a reference to ‘release equitable and reasonable river waters to Iraq’ rather than to sharing per se. This shows intention from Turkey to adhere to international watercourse law beyond the sovereignty concept. As a result, the states take a key step towards recognizing the necessity of considering other riparian’s needs, and the importance of cooperation in order to successfully manage transboundary watercourses, a key feature of the principle of equitable and reasonable use and key for successful negotiations. This is a significant step in the right direction for states with pre-existing hostile relations.

In contrast, the recognition of the need for cooperation in order to foster own gains guided by the principle of equitable and reasonable utilization is not present in the 1963 Indus Water Treaty between India and Pakistan. The treaty was signed before the relevant legal standards had developed, however, and has often been praised for its durability. This suggests there are alternative ways in which stability may be secured. Sharing the benefits of the Indus River System is achieved by division into the Wester Rivers (Chenab and Jhelum) and the Eastern Rivers (Ravi, Beas and Sutlej). The treaty gives Pakistan more or less ‘absolute territorial integrity’ rights over the western rivers (Pakistan is allowed unrestricted use and India must allow the flow unimpeded ), whilst the principle of ‘absolute territorial sovereignty’ is applied to the eastern rivers, granting India control over their resources. Through this system, water resource management is essentially split rather than shared. But the Treaty did provide for the monthly exchange of daily data (Article VI) future cooperation (Article VII), the establishment of a Permanent Indus Commission (Article VIII) as a mechanism of cooperation and dialogue and data exchange, and a dispute resolution mechanism (Article IX). These mechanisms, which require regular meetings and ongoing dialogue and technical exchange, have been very effective in ensuring ongoing technical cooperation even through periods of armed conflict and tensions relating to other border issues, and can be argued to even be beneficial due to the long-standing tension between India and Pakistan. However, the overall architecture for how river waters are to be used is dependent on the nature of the watercourse as able to be ‘split’ and governed by two states in its geography. This limits its conflict resolution benefits because there is little foundation for, or history of the cooperation for joint gains necessary to solve the current conflict, triggered by India’s dam constructions. India initiated the construction of the Kishanganga Hydroelectric Project on the Jhelum River in 2007, which Pakistan objected to, arguing that the project would decrease its own quantity of water. Whilst the two countries have followed the dispute resolution mechanisms provided for in the Indus Water Treaty, raised the issue in the Indus Commission, and referred the case to arbitration, these steps have done little to ease the disagreement between the states, although they have continued to meet at the technical level. This case emphasizes the way in which the principle of equitable and reasonable use is valuable exactly because of how it encourages reframing of the dispute around human need, thus highlighting cooperation. Cooperation over transboundary watercourses can create positive dependency between states, and may help negotiate any emerging points of tension also in the long term. The thing to notice and commend in the Indus Treaty is the fact that the Treaty has survived and is very much in function despite the constant conflict between Pakistan and India. The Treaty has survived wars and repeated border conflicts which shows the presence of humanitarian doctrines discussed in Chapter 4.

Equitable Reasonable Use​

Now the discussion so far in our research has brought us understanding to the political, historical and legal dynamics of GERD but for complete understanding we ask the question of what the substantial principle of equitable and reasonable utilization entails, and how it may help guide negotiations over quantity in transboundary watercourse disputes?

As McIntyre writes,

‘Substantial legal principles should be sufficiently detailed and definite as to lend some degree of predictability to the result of any dispute or process of negotiation.’

The principle of equitable and reasonable use, as argued above, makes evident the shared nature of watercourses and their resources, thus highlighting the need for cooperation between riparian states. Beyond this, however, the principle is vague. Whilst allowing for flexibility and consideration of context in its application, this also means, as McIntyre argues, the principle ‘must inevitably suffer from some legal indeterminacy’.

Wolf argues the lack of accepted measures for equitable division of shared water resources is the major hindrance to watercourse law’s ability to foster negotiations and peaceful relations among riparian states.

Instead, as Caflish argues, the principle as it stands today seems to ‘pre- suppose the ability of states to cooperate and work closely together’. In order to attempt to answer the question of how equitable and reasonable use should take place, this report now turns to environmental law and human rights law. Consideration of environmental and human rights factors are both called for by Article 6 of the UNWC.

Chapter 6: What Could Reduce The Dispute​

It is hard to suggest any possible framework or solution to the dispute, since the very conflict for Nile is not just about equitable use but of hydro hegemony, territorial sovereignty, existential crisis and International ambitions. Yet the most basic must be cooperation and the cooperation must not be based on a zero-sum game. We cannot declare one party to be right and formulate a legal case in their favor but utilize all the principles of historical treaties, the doctrines and Human Right Law, to truly bring forth a conflict resolution. As noted by Under-Secretary-General Rosemary DiCarlo in the UN Security Council Meeting on the dispute on 29 June 2020:

“Climate change, combined with projected demographic growth and socio-economic changes, will increase water management challenges worldwide…Cooperation is not a zero-sum game. It is the key to successful collective effort to reduce poverty and increase growth, thus delivering on the development potential of the region.”[25]

On the eve of the rainy season and on the brink of violent conflict, with domestic capabilities in all countries stretched further due to the ongoing Covid-19 crisis, the need for Egypt and Ethiopia to cooperate is evident. This research finds that the legal principle of equitable and reasonable utilization, the necessity of a human needs approach underpinned by states human rights obligations, and the recognition of transboundary watercourses as unitary wholes with vulnerability to climate change driven by environmental law, may foster such cooperation. At the heart of these observations lies the notion that successful negotiations over a transboundary watercourse on which hundreds of millions of people rely, needs to be human needs focused. Through a human needs focused approach to transboundary watercourse disputes, the opportunity for states to foster mutual gains and thus move away from the idea of transboundary watercourse use as a zero-sum game, is evident.

Conclusion​

Reading the various agreements on the Nile river basin from the colonial era shows how a one-sided perspective and the focus on the water needs of the two downstream countries (Egypt and Sudan) prevailed in the regional policy of the United Kingdom. This policy, which reached its climax with the 1929 Nile Waters Agreement between the United Kingdom (acting on behalf of Sudan) and Egypt, established Egypt, de jure and de facto, as a hydro- hegemon, by giving it a right of veto and scrutiny over any Nile related upstream project. Subsequently, in 1959 Egypt and Sudan, now both independent riparian countries, will perpetuate this policy of Prior appropriation through the Agreement on The Full Utilization of the Waters of the Nile, by distributing the total water volume of the Nile, without taking into account the needs of upstream states. Despite the fact that the current legal instruments of International Water Law in particular the Helsinki Rules, the UN watercourse Convention of 1997 and the Berlin Rules, seem to favor riparian states first developer through the attention paid to previous utilization, it is important to mention that the extensive use of Nile waters by Egypt. And the total distribution of Nile waters with Sudan constitutes a violation of the “no harm rule”, a violation that can lead upstream states to “proportionally” violate this same principle according to the decision of the ICJ in the case of the Gabcikovo-Nagymaros Project (Hungary v. Slovakia). The Nile water dispute today is an illustration of the difficulties pertaining to the fair distribution of water resource, but also “reflects the limited ability of International Water Law to provide appropriate response to water disputes” as argued by Meshel Tamar. In the current context of climate change and the projected growth of water demand, a regional transboundary watercourse cooperation is an imperative in order to maintain peace and security in the region and paramount in the implementation of the Sustainable Development Goals (SDG6). The Nile River Basin therefore needs more than ever an inclusive comprehensive legal framework for joint management and cooperation between all its riparian countries. One way to foster such cooperation would be the ratification by the basin countries of the UN Watercourse Convention 1997, to which none of the Nile riparian countries is a signatory. Furthermore, initiatives already taken by the countries to the establishment of such a framework, which led to the creation of the NBI in 1999 and later of the Cooperative Framework Agreement CFA must be carried on and be ratified by all the riparian stats to enable a mutually beneficial utilization of the Nile waters in an equitable and sustainable manner.

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[1]https://www.usaid.gov/egypt/agriculture-and-food-security
[2] P. Kameri-Mbote, Water, Conflict, and Cooperation:
Lessons from the Nile River Basin, Wilson International
Center for Scholars January, 2007, No. 4. Retrieved
from:https://www.wilsoncenter.org/sites/default/files/N
avigatingPeaceIssuePKM.pdf
[3] Ashok Swain, Ethiopia, the Sudan, and Egypt: The
Nile River Dispute, J. Mod. Afr. Stud. 35 (1997) 675,
685.
[4] Mesfin M Mekonnen and Arjen Y Hoekstra, ‘Four billion people facing severe water scarcity’ (2016) 2 Science advances e1500323, p. 1
[5] Olivier Dubois, The state of the world’s land and water resources for food and agriculture: managing systems at risk (Earthscan 2011), p. 21
[6] United Nations Children’s Fund (UNICEF) ‘Thirsting for a Future: Water and children in a changing climate’ (UNICEF; 10’7) Available at: https://www.unicef.org/publications/index_95074.html [Accessed 28 May 2020], p. 6
[7] Managing risks on GERD on Egypt by Walaa Y El Nashar, Ahmed H Elyamany
[8] M.S. Tayie (ed.), A. A. N., The Legal Aspects of the International Rivers: The Nile River as a Case Study, Springer International Publishing, 2017
[9] Art. 3 of The 1902 of the Treaty between Ethiopia and Great Britain. Retrieved from: https://hornaffairs.com/2011/06/08/read-the-1902- ethiopia-uk-treaty-share-your-view
[10] (Article III of the Agreement between Britain and the Government of the Independent State of the Congo).
[11] The Nile Treaty – State Succession and International Treaty Commitments: A Case Study of The Nile Water Treaties, published by Konrad Adenauer Stiftung and Law and Policy Research Foundation, 2004
[12] Egyptian Foreign Ministry, Egypt and the Nile river. The Egyptian Foreign Ministry, Cairo (in Arabic), 1983.
[13] xchange of notes between his majesty’s government in the United Kingdom, and the Egyptian government in regard to the use of the waters of the River Nile for irrigation purposes, Cairo, May 7, 1929. Source: League of Nations _ Treaty Series, Volume 93-94 (1929).
[14] Art 6 of the agreement between the United Kingdom and Belgium regarding Water Rights on the Boundary between Tanganyika and Ruanda-Urundi-London, November 22, 1934.1 Ratifications exchanged in London, May 10, 1938.
[15] Mahfouz MAM, Egypt’s rights in the waters of the Nile in the light of the international law of the rivers, PhD thesis, Faculty of Law, Assiut University (in Arabic), 2009.
[16] (Art. 4 of the Exchange of Notes Constituting an Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Egypt regarding the construction of the Owen Falls Dam, Uganda. Cairo, 31 May 1949).
[17] D.C. Turack, International Law and the New States of Africa, by Yilma Makonnen, Maryland Journal of International Law 8 (1984) 303. Retrieved from: http://digitalcommons.law.umaryland.edu/mjil/vol8/iss2 /7
[18] F.J. Berber, The Challenges of International Water Resources Law, A. J. I. L., 90 (1959) 384; Rivers in International Law, Stevens and Sons, London
[19] Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: perspectives on international water law’ , p. 627
[20] Jan Klabbers, ‘The right to be taken seriously: Self-determination in international law’ (2006) Human Rights Quarterly 186, p. 189
[21] UN Committee on Social, Economic and Cultural Rights (CESCR), General Comment No, 15: The Right to Water (Arts 11 and 12 of the Covenant), (23 January 2003) UN Doc E.C/12/2002/11 (General Comment No. 15
[22] Stephen C McCaffrey, ‘A human right to water: Domestic and international implications’ (1992) 5 Geo Int’l Envtl L Rev 1, p. 15
[23] Pulp Paper Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010,
[24] Alex Gryzbowski, Stephen C McCaffrey and Richard K Paisley, ‘Beyond international water law: Successfully negotiating mutual gains agreements for international watercourses’ (2009) 22 Pac McGeorge Global Bus & Dev LJ 139
[25] Secretary-General Rosemary DiCarlo, ‘Briefing to the Security Council on Peace and Security in Africa, Under Secretary-General for Political and Peacebuilding Affairs Rosemary A. DiCarlo’, (UN Political and Peacebuilding Affairs, 20th of June 2020), Available at: https://dppa.un.org/en/agreement-grand-ethiopian-renaissance-dam-possible-with- sufficient-political-will