The Test on the Nile: Ethiopia and Egypt’s Conflicting Claims to the Nile River Waters
A view of the Nile running through Luxor, Egypt. Photo by Bionet.
Teddy Afro, Ethiopia’s biggest pop star, released a song this summer called “Demo Be Abay”—“If They Test Us on the Nile”—that criticizes Egypt’s claims to the Nile River Basin and exclaims “I own the Abbay.” His song is a musical testament to the political and cultural upheaval in the Nile River Basin between Ethiopia, Egypt, and Sudan regarding the ownership and operation of the newly constructed Grand Ethiopian Renaissance Dam (GERD). Ethiopia began filling the dam—which has the potential to obstruct both Egypt’s and Sudan’s sources of fresh water—this summer, and it is set to become Africa’s largest hydroelectric dam; it is projected that it will generate enough electricity to fuel the high demands of Ethiopia’s rapidly developing economy. Virulent nationalism on both sides, post-colonial issues, and a perceived zero-sum game situation characterize the conflict between Egypt and Ethiopia over access to life-giving water.
International law is too vague to solve this dispute. One might consider the universal theory of succession and the clean-slate theory to weigh the countries’ competing water ownership claims, but both theories have outdated applications. When theory and international water law are applied to the Nile River Basin, it is clear that Egypt’s claims of “natural and historical rights” to the Nile waters based on previous use and colonial-era treaties is illegitimate because international water law aligns with the clean-slate theory that a change in sovereign creates a new legal regime. However, Egypt’s appeals for sufficient water and protests against the rapid filling of the dam are effective under the “do no harm” principle and should be recognized by Ethiopia. During these negotiations, Ethiopia should gradually fill the dam over a fifteen-year period to minimize the reduction of water flow to the Nile River Delta and prevent a downstream human rights disaster.
Ethiopia launched the construction of the dam in 2011 after a secretive planning and design process that did not include any other riparian states. Some observers argue that Ethiopia intentionally began construction during the Arab Spring, when Egypt was too distracted by domestic issues to protest the unilateral decision to transform the waterway. During the first year, the GERD will retain 4.9 billion cubic meters of water, enough to activate the first two turbines, and over five to seven years, the reservoir will obtain a maximum capacity of 74 bcm. While the dam fills, water flowing to Egypt will be cut significantly, and even after the dam fills, a reduced flow will continue downstream. Ethiopia and Egypt face what they both consider an existential fight for water access, each perceiving the other as acting in bad faith.
Implications of Treaty Succession Theory and International Law
Egypt has predicated a large part of its diplomatic argument on its historical rights based on colonial treaties. Two different paradigms approach state succession in international law: the universal theory of succession and the clean slate theory, but neither are adequate to interpret the ownership claims to the Nile River Basin.
The universal theory of succession regards the state as immutable, with a fundamental character that is not affected by a change in the identity of its agents. Legal scholar Dr. Rosalie Balkin explains that once the leader of a state has made an agreement on behalf of that state, the commitment applies to the people from which he derives authority. Therefore, legal obligations are attached to the land, not the state, and bind any successor state. As colonial governments made agreements on behalf of colonies for their own exploitative objectives rather than the needs of the colonized land, many African nations correctly assert that acceptance of this theory is essentially an extension of colonial rule.
Modern international opinion supports the clean slate theory, or tabula rasa, in which the law is an expression of the sovereign will, and only applies while that will exists. The shift from colonial rule to a new sovereign state with a new sovereign will creates a legal vacuum. According to this paradigm, only the successor state should decide on the new legal regime. The new state’s decision to fulfill the obligations of the treaties of predecessor states is entirely voluntary.
When applied to the Nile River Basin’s treaty requirements, the clean slate theory is supported by the doctrine of rebus sic stantibus. This doctrine holds that if circumstances which are essential to the consent of the parties bound by treaty are radically transformed, the party may terminate the agreement. According to both clean slate theory and a rebus sic stantibus’ understanding of state obligations, the shift from colony to sovereign state renders the treaties signed by colonial powers on behalf of African states inapplicable to modern water management.
Neither the clean slate theory nor the universal theory of succession fully fit modern post-colonial treaty succession realities. Many post-colonial African states identified a period of two to three years after independence during which to renegotiate treaties and decide which treaties to keep and reject. The Vienna Convention on Succession of States in Respect of Treaties supports this approach, holding that post-colonial states have the option rather than a requirement to abide by pre-existing treaties. Approaching modern water management through a paradigm holding that post-colonial states possess an option, rather than an obligation, to abide by pre-existing treaties most fully recognizes the complex nexus of nationalism, identity, and self-determination inherent in post-colonial states. It is thus the best applicable paradigm to apply when considering states' competing claims for access to the Nile.
The UN Watercourses Convention provides a framework for management that can be transferred to the Nile basin. The most important article, 5(2), states that watercourse states shall participate in the use, development, and protection of an international watercourse in an equitable and reasonable manner.” However, “equitable and reasonable” is a vague standard, and the options offered as mechanisms to decide such are varied and at times contradictory. These mechanisms include past, present, and potential uses, social and economic needs, availability of other resources (which Egyptian representatives lobbied for during the Watercourses Convention negotiations), among other factors. Egypt, which is entirely dependent on the Nile for freshwater, can argue that “equitable and reasonable” must recognize Egypt’s “tyranny of dependency” on the waters as a mechanism to protest any reduction of water. Ethiopia can argue that the country’s “social and economic needs” justify a significant increase in its usage of the waters.
Article 7 of the convention states that “in utilizing an international watercourse in their territories,” all riparian states are required to “take all appropriate measures to prevent the causing of significant harm to other watercourse States.” This implied “do no harm” principle seems to argue for halting the GERD’s filling and for maintaining the current status quo in which Egypt gets nearly all of the water. However, Ethiopia argues that the “no-harm principle should only be invoked and made operational when a watercourse state ‘has exceeded its equitable or reasonable use.” Christina M. Caroll explains that incorporating both the “do no harm” principle and the principles of equitable and reasonable use “pit upstream and downstream states against each other.”
International law is vague and not prescriptive, leading to each party’s total confidence in the validity of their arguments, which incentivizes conflict and discourages compromise. The “do no harm” principle holds the most weight because unlike the historical rights argument, the “do no harm” principle has been affirmed by the UN and international legal scholars. Egypt should abandon its claims of natural and historical rights and base its negotiations and claims on this principle.
The Issue Today: Competing Claims for Access
The modern debates over Nile ownership are shaped by eight colonial-era agreements, treaties, and exchanges of notes that in part addressed water rights. The most important two colonial treaties were the 1902 agreement signed between the United Kingdom, acting for Egypt and Sudan, and Emperor Menelik of Ethiopia, and the 1929 Nile Waters agreement between Egypt and the United Kingdom. The English version of the 1902 agreement states, “Emperor Menelik II… has agreed to not do work… that could block flow to the White Nile or allow others to do work without prior agreement with the English government.” The 1929 agreement between Egypt and the United Kingdom, on behalf of Sudan and East African Riparians, too, was designed by the United Kingdom with the express intention of ensuring Egypt’s dominant control of the waters. Paragraph 4 (b) required prior agreement from the Egyptian government for any irrigation or power works constructed on the Nile. On November 8, 1959, Egypt and Sudan signed an agreement as two independent states. The new agreement drew directly from the colonial predecessors, providing Egypt with the majority of the water and a veto right over upstream projects. Ethiopia was not present for negotiations nor party to the agreement.
Professor of Law at Makerere University Emmanuel Kasimbazi supports Ethiopia’s position that the colonial-era treaties do not apply, arguing that the process of decolonization is such a significant change in circumstances that rebus sic stantibus applies to the 1902 agreement. Kasimbazi notes that the use of water itself has transformed so dramatically that the article on water is no longer applicable. Ethiopia insists that historical use does not equal future rights to water, a position rooted in self-determination and a desire for increased opportunity for its people. From the beginning, the Ethiopian government presented the GERD to the Ethiopian people as a symbol of national development. The dam is primarily self-financed by the Ethiopian people through the purchase of government bonds in a nationwide action to radically transform the economy. It will provide power to a nation where more than half of the citizens do not have access to electricity, allowing Ethiopia to trade renewable energy to other states, bringing in as much as $1 billion a year.
Egypt faces an existential threat if water decreases suddenly. In a September 2019 speech to the United Nations, President Abdel Fattah el-Sisi explained that “The Nile is a question of life, a matter of existence to Egypt.” Experts project that Egypt’s fresh water access could be cut by 25% during the filling of the reservoir. A 2018 Reuters report states that filling the dam in six years would destroy 17% of Egypt’s agricultural land, while a three-year fill would destroy 51% of the land and 75% of fish farms. The economic effect could cause the displacement of as many as 30 million Egyptians, leading journalist David Hearst to call the GERD “Egypt’s Nakba.”
Egypt clings to the universal theory of succession and the inheritance of the colonial-era treaties to defend its historical dominance over the waters of the Nile, but this theory no longer fits the realities of modern states. The 1959 agreement between Egypt and Sudan first laid out the legal position Egypt would stick to going forward, in which Egypt argued that its “natural and historical rights” are legal, vested rights based on the principle of prior appropriation recognized in international law. The doctrine of prior-appropriation has since evolved into the rule of natural flow, in which riparian owners were granted “the right to have water flow past the land undiminished in quantity or quality.” In this system of “first in time, first in right”, of which Egypt is a major proponent, land ownership is not relevant to water rights. Egypt pairs this narrative of “historical right” with an insistence that the colonial treaties remain valid, which is a hollow, illegitimate argument.
The Do No Harm Application
The universal theory of succession is illegitimate and the tabula rasa construction applies to colonial-era water treaties in the Nile River Basin. Thus, Egypt’s argument of historical rights is illegitimate, and Ethiopia’s right to equitable water use is legitimate. While international law is vague and not prescriptive about modern water management in the Nile, the “do no harm” principle has more valid applications. Egypt does possess a legitimate appeal for access according to “do no harm.” While competing nationalist priorities and incentives make solutions and compromise more difficult to identify, the best path to reduce regional conflict focuses on minimizing economic disaster downstream. Michael Asiedu proposes that a neutral mediator such as the African Union or the United Nations propose “a workable framework that will see Ethiopia fill the reservoir gradually over a 15-year period.” Filling the dam incrementally is the only way to lessen a human rights disaster in Egypt. Egypt must reorient its argument around potential devastation, and the international community should pressure Ethiopia to include considerations of Egypt’s needs as it fills the dam.
Maeve Flaherty is a staff writer at CPR and a senior at Columbia College studying English Literature and History. She is a Millennium Fellow at the United Nations and a former summer fellow at the Roosevelt Institute. She is the president of NYC Restrooms4All, a public bathroom advocacy campaign.