This article considers water security in the context of the Grand Ethiopian Renaissance Dam (“the Dam”). The Dam is being built by Ethiopia on the Nile River and is fiercely opposed by Egypt. The piece (i) gives a brief history of the Dam; (ii) outlines the role of the Watercourses Convention; (iii) explains the significance of the Nile Waters Treaties; (iv) sets out the main legal arguments for Egypt and (v) provides the main legal arguments for Ethiopia. It concludes that Ethiopia’s legal position is far stronger and that a negotiated agreement in its favour is the most likely outcome of the dispute.
The History of the Grand Ethiopian Renaissance Dam
For nearly a century, as a legacy of colonialism, Egypt enjoyed what Tekuya referred to as a “hydro-hegemony” over the Nile; despite Ethiopia contributing 86% to its waters. Given the importance of water to Ethiopian agriculture, it resulted in the tragic irony that, as Thurow put it, “the land than feeds the Nile is unable to feed itself.” The status quo started to change when Ethiopia began construction of the Dam, just east of its border with Sudan, in 2011. The Dam is used to generate electricity and went into partial operation in 2022. Egypt, which lies 1,600 miles downstream of the Dam, believes its operation will reduce the amount of fresh water available to it from the Nile. This is a matter of acute concern given that Egypt depends on the Nile for about 97% of its irrigation and drinking water.
Egypt has taken various efforts in a bid to secure its water security in the context of the Nile River. It has led a diplomatic initiative to undermine support for the dam in the region; as well as in other countries supporting the project such as China and Italy. There are suggestions that Egyptian officials in the World Bank managed to precipitate a policy that funds would only be awarded for non-contentious water projects, thus precluding funding for the Dam. More alarmingly, Egyptian president Hosni Mubarak allegedly even considered bombing the Dam. His successor, Mohamed Morsi, said that Egypt was prepared to “defend each drop of Nile water with … blood.” An armed conflict has not emerged, but there are suggestions that Egyptian intelligence services undermined Ethiopia internally by assisting the Oromo Liberation Front in its campaign of civil unrest in Ethiopia in 2016. This antipathy is not new, with Munzinger noting even in the nineteenth century that Ethiopia is “a danger for Egypt [which] must either take over Ethiopia and Islamize it or, retain it in anarchy and misery.” Still, the Dam brings the old enmity into sharp focus.
In contrast, other watercourse states on the Nile have lent their support to the Dam. This includes Sudan, another downstream nation that one might assume would oppose its construction. Indeed, Sudan had initially opposed the Dam but changed its position in 2012 after consultations with Ethiopia. These discussions highlighted benefits such as more consistent water flow, minimising the risks of flood and drought, and the potential for discounted hydroelectricity produced by the Dam. In terms of the current status of talks, in 2019, US Secretary of the Treasury Steven Mnuchin began facilitating negotiations between Egypt and Ethiopia which led to some tentative progress. However, Ethiopia ultimately refused to sign the draft agreement. Most recently, there have been suggestions that the African Union should resolve the disagreement. In any event, the dispute remains.
The Limited Role of the Watercourses Convention
In an effort to forestall potential water conflicts such as the one brewing around the Dam, an increasing number of bilateral and multilateral water agreements have been concluded in recent decades. The most important of these treaties is the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses (“the Watercourses Convention”). The Watercourses Convention aims to regulate the uses, as well as the conservation, of all transboundary waters above and below the surface. There are three key articles. Article 5 requires that watercourse states utilise an international watercourse in an “equitable and reasonable manner” and creates “the duty to cooperate in the protection and development” of the watercourse. Article 7 provides that watercourse states must take all appropriate measures to prevent “significant harm to other watercourse States” and that, where harm does occur, there shall be consultations “to discuss the question of compensation.” Finally, Article 8 requires that watercourse states “cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith.”
Crucially, however, neither Egypt nor Ethiopia are parties to the Watercourses Convention and so they are not bound by its terms. An argument could be made that some of its provisions have passed into customary international law, however, that would require clear general practice and opinio juris. However, the Convention took almost twenty years to enter into force (from 1997 to 2014) due to the lack of necessary ratifications by states. Even in 2023, there are only 46 state parties, with key actors such as the US, Canada and Brazil remaining outside the Convention’s regime. Hence, the customary law argument might be too ambitious.
The Nile Waters Treaties and Related Instruments
In the absence of the application of the Watercourses Convention, various other legal arrangements and political declarations must be considered to gain an understanding of the regulation of the Dam and the Nile River more generally.
The Nile waters have historically been governed by the “Nile Waters Treaties.” These colonial-era agreements comprise (i) the 1902 Anglo-Ethiopian Treaty (with the UK representing modern-day Sudan); (ii) the 1929 Anglo-Egyptian Treaty (with the UK representing modern-day Kenya and Uganda) and (iii) the 1959 Egypt-Sudan Treaty (with the UK now absent as a result of decolonisation). The latter, in Article 2(4), allocated “acquired rights” of 66% of Nile water to Egypt and 22% to Sudan (with the remaining 12% attributed to leakage). No water at all was allocated to Ethiopia. The treaties also purported to give Egypt veto power over upstream projects. In recognition of the fact that the Nile Waters Treaties had become an uncomfortable and anachronistic vestige of colonialism, ten watercourse states along the Nile (including Egypt and Ethiopia) agreed in 1999 to form the Nile Basin Initiative (NBI). This is an intergovernmental partnership to provide a forum for consultation and coordination for the sustainable management and development of shared water. Since its inception, there have been two, highly contentious, products.
First came the 1999 “Cooperative Framework Agreement” (CFA). This was an attempt at a wholesale replacement for the Nile Waters Treaties. The CFA was a political success for the eight upstream states such as Ethiopia as it favoured those states and isolated the downstream states of Egypt and Sudan and made them appear recalcitrant. It also created a counter message to Egypt’s powerful “the Nile is Egypt” narrative that is familiar around the world. Ultimately, however, Egypt did not sign the CFA (nor did Sudan) hence it does not resolve the dispute. Second came the 2015 Declaration of Principles (DoP) which concerned the Dam specifically (rather than the Nile more broadly). Here, for the first time, Egypt recognised Ethiopia’s right to use the Nile for development purposes. It also codified the principles of “equitable and reasonable utilisation” and “no significant harm” (essentially importing from the Watercourses Convention). The instrument was a success in terms of cooling tensions between the states which seemed increasingly likely to come to blows. Crucially, however, despite being signed by Egypt, Ethiopia and Sudan, the legal status of the DoP was left (deliberately) vague. Thus, as with the Watercourses Convention and the CFA, the DoP does not offer a clear legal resolution to the dispute.
Legal Arguments for Egypt
Faced with the anachronistic Nile Waters Treaties on the one hand and the absence of a suitable replacement on the other, discussions about the Dam have fallen into something of a stalemate. Both Egypt and Ethiopia could make arguments in support of their positions. We shall begin with the former.
Egypt’s main argument might be that, despite being unsatisfactory and anachronistic, the Nile Waters Treaties remain good law and are enforceable against the respective parties. This is on the basis of the principles of State succession as outlined in the Vienna Convention on the Succession of States (VCSS). According to Article 16, former colonies do not inherit the treaty obligations of their former colonial rulers and instead receive a “clean slate.” However, Egypt could argue that the “territorial treaty” exception, under Articles 11 and 12, applies whereby colonial treaty provisions concerning boundaries must survive the impact of succession and bind successor states. This exception was implemented to mitigate the risk of decolonisation leading to boundary wars. Helping Egypt’s cause, during the preparation of the VCSS, the International Law Commission stated that “treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties.” However, it must be noted that this would represent a generous interpretation of the territorial treaty exception. This is because it is traditionally understood to refer to waterways that form intrinsic parts of international boundaries. The Nile is not a boundary-delimiting river, hence Ethiopia would almost certainly argue that the exception should not be applied here. Still, if the exception was somehow activated, it would mean that Egypt remains entitled to 66% of the Nile River waters and that this figure should be used as the baseline for any future negotiations. Further, it means that this figure should be used to assess the impact of the Dam on the Egyptian economy for the purposes of calculating compensation resulting from loss of flow.
Another argument Egypt might adduce concerns the DoP. As noted above, the instrument concedes for the first time that Ethiopia has legitimate interests over the Nile. However, it also makes useful concessions to Egypt which it may wish to press. In particular, the DoP takes a very strict approach to the “no significant harm” rule. It states in Principle III that the parties “shall take all appropriate measures to prevent the causing of significant harm”. Moreover, it arguably prohibits any reduction of flow to Egypt by limiting Ethiopia’s use of the Dam to electricity generation alone. Indeed, Principle II notes that “the purpose of the [Dam] is for power generation … and regional integration through generation of sustainable and reliable clean energy supply.” This is crucial given that hydroelectricity generation simply involves holding water back behind a dam for a period of time, and then releasing it again in a managed manner so that the electric turbines can spin consistently. Ultimately, all the water is allowed to pass downstream such that there is no net loss of flow (with the exception of water lost to evaporation). In contrast, if water from the Dam were to be used for irrigation purposes by Ethiopia (i.e. to hydrate farmland), it would effectively be taken from downstream states like Egypt. Consequently, it suits Egypt’s interests in this context to argue that the DoP is binding, that it precludes any net loss of flow and therefore that the use of the Dam for irrigation purposes is prohibited.
However, as noted above, the trouble with relying on the DoP is that its legal status is not clearly defined. It could be a treaty or merely a political declaration as the name implies. Typically, treaties contain provisions on the identification and function of the depositary, entry into force, adoption and so on (Article 24(4) Vienna Convention on the Law of Treaties (VCLT)). However, the DoP lacks these key traits, and these omissions suggest that it may simply be a non-binding declaration designed to ease political tensions and to illuminate a way forward. Another difficulty for Egypt is that making this argument (i.e. casting the DoP as a treaty) has the potential to abrogate the Nile Waters Treaties that Egypt holds so dear. This is because the VCLT allows an older treaty to be rescinded by a new one if the new one concerns the same topic (Article 59). That seems unlikely given that the DoP concerns the Dam alone and was agreed only between Egypt, Ethiopia and Sudan; whereas the Nile Waters Treaties concern the whole Nile Basin and involve many more states. Still, Egypt may be playing with fire if it were to press the legal significance of the DoP.
Legal Arguments for Ethiopia
Turning then to Ethiopia. It too has legal arguments it could adduce in support of its position that the Dam is permitted under international law. Perhaps the most obvious argument that Ethiopia may want to make is a rebuttal to Egypt’s continued reliance on the Nile Water Treaties. First, Ethiopia could highlight that it was not a party to either the 1929 Anglo-Egyptian Treaty or the 1959 Egypt-Sudan Treaty. Consequently, under the principle of pacta tertiis nec nocent nec prosunt, it could demonstrate that those treaties cannot bind it as it was a third party and did not give its consent. Indeed, as Tekuya notes, Ethiopia persistently objected to the 1929 and 1959 treaties and made clear that its failure to exploit the Nile resulted from a lack of capacity rather than a lack of a legal right to do so. Second, regarding the 1902 Anglo-Ethiopian Treaty, although Ethiopia was a party and although that instrument does deal with the flow of water on the Nile, its terms are strictly limited. It merely provides at Article III that Ethiopia undertakes “not to construct … any work across the Blue Nile, Lake Tsana, or the Sobat which would arrest the flow of their waters into the Nile.” In other words, Ethiopia only agreed that it would not completely stop the flow of tributaries into the Nile. The 1902 Treaty did not preclude Ethiopia from undertaking works that might reduce, but not “arrest,” the flow of waters. In short, the Nile Waters Treaties do little to constrain Ethiopia’s ability to construct the Dam.
In the relatively unlikely scenario that the above points failed, Ethiopia could argue that there has been such a change of circumstances since the Nile Waters Treaties were concluded that they ought to be terminated. After all, the VCLT allows states to withdraw from or terminate a treaty owing to “a fundamental change of circumstances which has occurred … and which was not foreseen by the parties” (Article 62(1)). European countries including Italy, Belgium and especially the UK controlled the Nile as part of colonisation and the broader “Scramble for Africa.” These colonising states used the tactic of concluding treaties (often at gunpoint) to secure their interests and, in this case, essentially prohibit upstream states from using their own waters. Ethiopia could argue that those imperial powers did not foresee the decolonisation of Africa and that this represented a watershed event that profoundly changed the foundation on which the Nile Water Treaties were constructed. The colonial powers have departed and so to continue to enforce treaties agreed based around their interests would be irrational. The International Court of Justice (ICJ) takes an expansionist view towards decolonisation as seen in the Chagos Islands Advisory Opinion, in which it allowed the decolonisation agenda to trump the UK’s lack of consent to any contentious proceedings. Hence, it seems that such an argument would receive a warm welcome from the current bench were the matter ever to be adjudicated there. Note that, under Article 62(2) VCLT, territorial treaties are excepted from the change in circumstances rule. However, for the reasons given above, the Nile Waters Treaties are unlikely to be considered territorial treaties.
Finally, Ethiopia could make a strong case that the operation of the Dam is in alignment with the core principles of international water law, namely “equitable utilisation” and “no significant harm.” These are found in Articles 5 and 7 of the Water Courses Convention respectively and, despite the scepticism outlined above, arguably form part of customary international law. Indeed, the ICJ confirmed in Gabčikovo-Nagymaros Project that all riparian states have a “basic right to an equitable and reasonable sharing of the resources of the watercourse.” Moreover, these principles were pulled through into the DoP agreed by both Egypt and Ethiopia. Article IV of the DoP provides that the parties “shall utilize their shared water resources in their respective territories in an equitable and reasonable manner” and Article III provides that the parties “shall take all appropriate measures to prevent the causing of significant harm in utilizing the Blue/Main Nile.” Ethiopia can make a strong case that the operation of the Dam complies with each principle. First, as noted above, Ethiopia contributes 86% of the water in the Nile and so it seems only natural that it has an equitable claim to using Nile waters to aid growth in its impoverished economy. Second, as also noted above, the Dam is to be used for electricity generation, not irrigation. Therefore, all the water is eventually released downstream with the effect that there is no net loss of water to downstream states. In fact, the Dam arguably smooths out the flow and mitigates the risk of both drought and floods. The three fillings hitherto, with the most recent in August 2022, imposed no discernible harm on downstream states. Hence, it is hard to see how Egypt could make a compelling argument that it has been harmed by the Dam.
Ethiopia seems to have the legal upper hand in this dispute. In terms of the “old” or “anachronistic” law, two of the Nile Water Treaties do not bind Ethiopia meanwhile the third does not actually preclude the construction of a dam. In terms of putative “new” law, namely the Watercourses Convention and the DoP, the key principles of equitable utilisation and no significant harm seem to leave ample room to accommodate the construction of a dam for hydroelectric generation purposes. Ethiopia also seems to have the political upper hand given that the Dam is effectively a fait accompli and given that Egypt’s erstwhile downstream ally, Sudan, switched sides in the dispute leaving the Egyptians diplomatically isolated. Given these considerations, it seems that Ethiopia has all but won the dispute. Therefore, a negotiated position that favours Ethiopia is likely to be reached once it becomes politically palatable enough inside Egypt. The current global energy crisis may help in this regard in the sense that Egyptians may find the allure of discounted hydroelectric energy stronger than ever before.
* Elliot Winter is a lecturer (assistant professor) in international law at Newcastle University in the United Kingdom.