Emerging Voices: International Water Law – Preventing Conflict on the Nile

[Scott McKenzie is a lawyer in private practice.  His scholarship focuses on water policy in the context of sustainable development.]

The Nile River is currently one of the most contentious transboundary water hotspots.  As Ethiopia begins construction of the Grand Renaissance Dam (GERD), it forces Egypt and other basin states to re-examine how the Nile’s water is allocated.  This situation has the potential to result in conflict, but modern international water law can help these states settle their differences peacefully.  At the heart of water law are principles regarding the allocation and management of these resources.  These principles are designed to promote cooperation, prevent conflict, and provide needed stability.  The Nile is a timely case study to see how these principles can be applied.

The conflict over the Nile’s water pits the more developed downstream countries Egypt and Sudan against the still developing upstream countries including Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, the Democratic Republic of Congo (DRC), Eritrea, and South Sudan. The downstream countries are almost completely dependent on the Nile’s water and have historically received a large portion of the Nile’s flow.  However, as the upstream countries begin to develop they need more water for their drinking water, agricultural irrigation, and hydropower production.

In June, Ethiopia began diverting a portion of the Nile as part of its plans for the construction of the GERD. Egypt was alarmed by this move because the GERD is a stunning size.  When complete, it will be the largest dam in Africa and have a generating capacity of 6,000 megawatts (the equivalent of 6 nuclear power plants).  Egypt is concerned that such a dam could reduce the amount of water it receives from the Nile, and because it is a signal that in the future the upstream countries will wield greater power over the Nile.

Neither Egypt or Ethiopia has gone to war over the Nile’s water, but both sides are engaging in a tremendous amount of saber-rattling.  For example, at a recent forum of Egyptian politicians, it was suggested that the country could sabotage dam construction though a covert military campaign.  Ethiopia has long been concerned about such a plot.  As former Prime Minister Meles Zenawi said he was not “worried that the Egyptians will suddenly invade Ethiopia … Nobody who has tried that has lived to tell the story.”

Governing this conflict are competing legal instruments, which also reflect the evolution of water law.  Egypt and Sudan rely on antiquated treaties.  Egypt has two principal claims.  First, it wishes to maintain the oversized quota of water it was allocated by the 1959 Agreement for the Full Utilization Waters.  Second, Egypt wants to keep its veto option on upstream development as provided by the 1929 Exchange of Notes between Her Majesty’s Government in the United Kingdom and the Egyptian Government on the Use of Waters of the Nile for Irrigation.

The upstream countries fiercely challenge the legality of these treaties. The 1929 treaty was concluded when many of the upstream countries were still colonies. Additionally, these countries were not even parties to the 1959 treaty.  Following from the Vienna Convention on the Law of Treaties, the upstream countries are likely not bound by these treaties.

Contrasting those treaties, the other basin countries have begun ratifying the Cooperative Framework Agreement (CFA).  This instrument is the result of the Nile Basin Initiative and is designed for the “mutual benefit and good faith…to attain optimal utilization for the development of the Nile’s water resources.”  The CFA has been signed by Ethiopia, Uganda, Kenya, Burundi, Tanzania and Rwanda and soon South Sudan.  Ethiopia became the first country to ratify the treaty on June 13, 2013.  Uganda anticipates ratification soon.  Egypt has not yet signed this instrument, citing concerns over its existing quota of water.

The CFA has roots in international water law and incorporates many of its main principles.  Water law itself has long encouraged countries to cooperate over the use of their shared resource.  Like much of international law, water law once allowed states total sovereignty over activity in their borders.  This was reflected in the late nineteenth century Harmon Doctrine.  This position stated a state could exploit natural resources within its borders without interference.  This relic has been has been rejected by most states.

A starting point for the evolution of water law’s cooperative framework was the 1911 Madrid Declaration, which stated that countries sharing a water resource are “in a position of permanent physical dependence on each other.” Today, international law contains norms for sharing a water resource and how it should be allocated and used.

There are two major principles of modern water law that are relevant to the Nile.  The first principle is the equitable use doctrine, which outlines the quantum how much water each state should be allowed to take from the shared resource.  This was stated in the 1966 Helsinki Rules on the Uses of the Waters of International Rivers which describes the principle as entitling each state “within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.”  Later international conventions and declarations have endorsed this principle.  This doctrine anticipates that a river may not contain enough water for all states, but that a balance can be found where the needs of all states can be addressed.  The CFA endorses the equitable use doctrine.

The second doctrine is basin wide management.  As described by the first U.N. Secretary General, Dag Hammarskjöld all states which share the resource should be jointly included in the management of the river.  This was reiterated by the International Law Association which described the river basin as “an integrated whole” and discouraged “piecemeal” development.  A common way that this common management is carried out is though the creation of a joint institution.  The CFA provides for the creation of the Nile River Basin Commission (NRBC) to address the needs of basin states.

It is clear that the 1929 and 1959 treaties likely do not bind the upper riparian states, and that they do not reflect contemporary law.  In contrast, the CFA does represent modern water law, though it has not yet gone into force.  However, the principles outlined above do indicate some solutions to the present conflict.

First, Egypt’s attempt to control well over half of the Nile’s water violates the equitable use principle.  This is obviously far more than its share, though it understandably has a claim to a sizeable amount.  For its part, Ethiopia can not claim more of the water or its use than it is entitled to.  This may be particular relevant in the issue of hydropower production, and it could be required to provide some of this electricity to other basin states.

Second, Ethiopia’s unilateral construction of the GERD without the other Nile Basin states’ approval violates the concept of basin wide management.  The same could be said for Egypt’s attempt to maintain the status quo water allocations.  Although the NRBC has not yet been created, there are still organizations such as the Nile Basin Initiate which are intended to facilitate such management.  Egypt needs to fully engage with the NBI and sign the CFA.  Ethiopia needs to secure the agreement and cooperation of its co-riparian states.

The Nile defies attempts to find a simple solution.  The river does not have enough water for the needs of all basin states yet all countries need water to continue economic development.  The construction of the Grand Ethiopian Renaissance Dam is among the first unilateral developments that will significantly impact the Nile’s water, but it is hardly the last.  The risks for conflict are high, but international water law’s principles of equitable use and basin wide management provide guidance for Ethiopia and Egypt as they attempt to share this common heritage of mankind.