By Zeray Yihdego
Egypt and Ethiopia are in a war of words concerning the damming of the Blue Nile. Ethiopia intends the dam to generate 6000 megawatts of electricity, which is equivalent to six nuclear power plants, in order to support and improve its sustainable development standing, thereby increasing the living standards of millions of its citizens, and has already completed 21% of the dam’s construction. Egypt opposes the project, fearing that the dam will reduce the flow of the water. Interestingly, Sudan sees the dam as beneficial to all downstream and upstream Nile Basin countries. Egypt has declared that “all options are open” to stop a reduction of “even one drop of Nile water” as a result of the construction of the dam, including involving the military, arming opposition groups and sabotaging the dam, although it says that it does not want to go to war with Ethiopia. This controversy poses several critical legal issues.
The first concerns the legal basis of both sides for using Nile waters and resources. Egypt argues on the basis of “inherent” or “historic” title, as enacted in colonial treaties, including in the 1929 and 1959 Nile Water Treaties between Egypt and Sudan. The latter treaty entitles Egypt to use 87% of the Nile which amounts to 55 billion cubic meters of water per annum, while Sudan is entitled only to 18.5%. The rest evaporates into the air. Ethiopia and other upstream riparian counties including Kenya, Tanzania, Burundi, Uganda, Rwanda, the Democratic Republic of the Congo rely on the principle of “equitable and reasonable use and utilization” of the Nile River waters and resources. This principle has been codified in Article 5 of the 1997 Convention on the Law of Non-Navigational Uses of International Water Courses, which is considered a codification of customary principles. In the River Oder Case of 1929, the Permanent Court of International Justice (PCIJ) explicitly proclaimed that the “community of interest of riparian States” forms the “basis of a common legal right…of all riparian States…” It must be noted that Ethiopia had opposed the colonial treaties on the Nile since their inception, and all upstream countries oppose relying on colonial treaties, considering them unfair and discriminatory.
Egypt argues, however, that colonial treaties must be honoured, including those agreements entered into between the British colony and upstream countries, committing them not to use or “arrest” the Nile waters without receiving permission from Egypt and Sudan. This argument is rather weak, as Ethiopia had persistently objected to the treaties, and all upstream (and downstream) countries were under colonial rule and thus not legally bound by such treaties as newly independent countries; the “clean state” doctrine, as codified under Article 16 of the Vienna Convention on Succession of States in Respect of Treaties of 1978, states that countries that have gained independence are not obliged to adhere to colonial treaties, excepting those concerning boundary issues.
The exception of “special regimes” such as Article 13 of Rome Statute of the ICC, which imposes obligations on non-party states, is less likely to apply to these colonial treaties which were created to pursue self-interest rather than common values and shared interest among the Nile Basin states. This is why most Nile riparian countries acceded to the Nile Basin Cooperative Framework Agreement in 2010. The agreement is based upon equality and cooperation, rather than the status quo ante, and it will establish a joint commission to oversee the river’s management. From this, it can fairly be argued that contemporary international law does not recognize the “inherent” or “historic” use “principle” to exclusively utilize a water course without ensuring the fair share of other riparian states. For that matter the 1997 UN Convention expressly rejects the “inherent” use claim as a bar to the equitable and reasonable use of international waters.
However, as a second legal issue, upstream countries must not inflict significant harm upon downstream states in their use of an international river like the Nile, as stated in Article 7 of the UN Convention 1997 and Article 12 of the Berlin Rules. For example, the “minimum individual water requirements” of the people in upstream countries must not be jeopardized by a dam or other projects in downstream countries. Ethiopia insists that its Blue Nile mega dam project will not affect the flow of the water, and thus not only that it will not significantly affect Egyptian or Sudanese interests but also that will be beneficial to most riparian countries.
Ethiopia also claims that the electricity generated will be exported to neighbouring countries and the project will increase the flow of water to both countries. Conversely, Egypt argues that Ethiopia has not carried out enough studies on the impact of the dam on downstream nations, especially on fishing, crops and developing new and major hydro-electric power plants in Egypt.
This problem seems to be related to the first legal controversy; Egypt is not willing to risk a reduction of “a drop of water” from the Nile as that is contrary to its “inherent” or “historic” title to fully use and utilize the Nile waters. However, the duty not to inflict a significant harm is founded on the principle of “equitable and reasonable use” of a trans-boundary river and thus does not rely on the prior will or permission of one concerned party. It does not allow one party to expand its projects while denying others to use the water for their sustainable development and poverty reduction endeavours. Of course, establishing “a significant harm” is a technical matter, but what seems to be clear is that Ethiopia is vindicated by the Tripartite Commission’s findings in that its project will not harm Egypt and Sudan significantly.
However, this poses a third legal issue. Egypt appears to call upon Ethiopia to halt its project, without providing a legal ground. It may well be justified to urge halting a significantly harmful project based upon evidence and reason but not based on a threat of violence and intervention. Even if the project will significantly harm Egypt, according to the 1997 UN Convention, Ethiopia may only be required to: “take all appropriate measures…, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.”
Finally but most importantly, Egypt vows to use all available options including military force, intervention, sabotage, etc. As the country’s economy and livelihood is dependent on the Nile, it may argue, even if remotely, that the Blue Nile dam is a threat to its survival and thus entitled to defend itself under Article 51 of the UN Charter. In light of Article 2 of the UN Charter, however, states can only use force to defend themselves if and when they are militarily attacked. Moreover, using force as a means of national policy including securing water interests is totally banned under current international law.
However, whether Egypt has violated its Charter (or African Union) legal duties is not entirely clear. It may be said that Egypt threatened to use military force in violation of Article 2 of the Charter and Article 4 of the AU Constitutive Act, and thus responsible for such persistent military threats against Ethiopia, in accordance with Articles 1, 40, 41, and 42 of the International Law Commission Draft Articles on the Responsibility of States 2001.
The opposing, and maybe a more sound argument, is that what (some) Egyptian politicians have done, and are doing, is a sheer propaganda to intimidate and frighten Ethiopia, and thus no concrete breach is committed by Egypt of its duty owed to Ethiopia and the International Community at large. In fact, The Egyptian Nobel Peace Laureate Mohamed ElBaradei called upon the President to make an apology to Ethiopia and Sudan for “the irresponsible utterances” made against them. It cannot be concluded at this point therefore that Egypt has, or has not, violated international law, as this will depend on how the situation progresses.
As the African Union and the USA rightly urged, and as codified in Article 13 of the 1997 UN Convention and related rules, the way forward is to settle all problems peacefully, and to work together to maximize the benefits to all and minimize any possible harm of the dam to downstream nations and peoples. The solution lies in Egypt accepting the rights and entitlements of riparian countries in accordance with 21st century international law, while Ethiopia making sure that its dam does not significantly impact Egypt and Sudan; if diplomacy fails both parties must opt for judicial or arbitral settlement.
Zeray Yihdego is a Senior Lecturer in Public International Law at the University of Aberdeen, Scotland where he teaches various postgraduate and undergraduate courses of public international law.
This article was originally published on jurist.org