The River Nile is a common river between eleven states; the Nile Basin states. The upstream countries are Kenya, Ethiopia, Uganda, Tanzania, Rwanda, Burundi, and the Democratic Republic of Congo, while the downstream states are Egypt, Sudan, and South Sudan, and Eritrea. Lately, and especially after the 25 January 2011 uprising in Egypt, the case of building the Ethiopian Renaissance Dam on the Nile has come to surface. The issue is that in 2011, Ethiopia announced publicly the initiative to construct the Grand Renaissance Dam, despite having been in the works since December 2010. The first negotiations between the two most concerned countries; Egypt and Ethiopia started in January 2014.
Opinions within and amid states directly concerned; Ethiopia, Sudan, and Egypt differ on whether Ethiopia has the right to build the dam. The discussions center on the interpretation of previous agreements, in addition to national security, political and economic reasons. This case has witnessed aired debates, research debates, political negotiations, technical meetings, and even popular visits to avoid what seemed to be an approaching clash after a rise in the tone of verbal statements from both Ethiopian and Egyptian officials.
Previous agreements regarding the use of the Nile waters were concluded in 1889, 1891, and 1902 between the British and the Italians and later Ethiopia that acknowledged Egypt’s natural and historic rights to its fair share of the Nile’s water. In 1929, Britain (during its military occupation of Egypt) concluded a treaty with Egypt that was the culmination of all the previous agreements that stated that “no work could be undertaken on the Nile and its tributaries without Egypt’s acceptance”. No specific cases or characteristics of work were mentioned. In 1959, Egypt and Sudan re-negotiated the 1929 agreement for building the High dam in Aswan. This treaty was beneficial for both countries and increased their shares of the waters. No other states of the Nile Basin (including Ethiopia) were included in either of the 1929 and 1959 agreements, and no other agreements were concluded after 1959 agreement concerning the waters of the Nile as per Egypt’s share.
In 1999, the Nile Basin Initiative (NBI) was formed as to enhance basin-wide technical cooperation in the Nile basin. In May 2010, the upstream basin states signed a Cooperative Framework Agreement (CFA), the Entebbe agreement provides that states are entitled to an equitable and reasonable use of the Nile waters subject to the principles of not causing significant harm to other basin states. Egypt and Sudan refused to sign this agreement with reservations related to the guarantee they would still have of their existent shares of waters. Also, Egypt had a reservation that conditioned a notice prior to constructing any projects on the Nile, (which according to the upstream perspective meant that Egypt and Sudan would have a veto).
The Grand Ethiopian Renaissance Dam (GERD)
In March 2011, and right after the uprising in Egypt and the toppling of the Egyptian president, Ethiopia started to build the Renaissance Dam on the Blue Nile; one of the two main tributaries of the Nile, without endorsement from either Egypt or Sudan. Opinions varied on the consequences of building this dam and its expected effect on the Egyptian share of water during and after constructing the dam.
In a visit to Ethiopia in May 2011, an official delegation consisting of a group of popular Egyptian figures managed to negotiate delaying the ratification of the CFA until the election of a new Egyptian parliament and president, and suggested the formation of a tripartite committee to study the effect of building the Renaissance dam and to give a technical opinion of its impact on water distribution. And according to Brooke Kantor in Harvard Political Review, the tripartite committee concluded that the dam will not do any significant harm to any of the basin states and that Ethiopia will use the water to generate electricity and not for irrigation; so, no water will be consumed. The Committee also concluded that studies were still needed and that Ethiopia had not presented enough studies to show that Egypt and Sudan would not be harmed. Also, it said that the current design of the dam was not optimal to avoid harm.
This issue has affected international relations between the riparian states for years, and it underwent many studies and researches as per the legality of building GERD. Legal perspectives considered interpretation of 1902 agreement, the impact of independence on the treaty, if the treaty binds non-party states, and if it is legal for Egypt and Sudan to practice monopoly over the Nile.
According to Vienna Convention on the Law of Treaties (VCLT), Article 31 deals with the interpretation of treaties and contains the principle of pacta sunt servanda; interpretation in good faith. But according to Africa Spectrum Journal, the problem in this agreement is that the meanings are different between the texts of the two different languages; English and Amharic. As while the English version reads:
“His Majesty the Emperor Men[e]lik II, King of Kings of Ethiopia, engages himself towards the government of His Britannic Majesty not to construct or allow to be constructed any work across the Blue Nile, Lake Tana, or the Sobat which would arrest the flow of their waters except in agreement with His Britannic Majesty’s Government and the Government of Sudan.”
The Amharic version reads:
“His Majesty, King of Kings of Ethiopia, has entered into the commitment of not giving permission to any work that fully arrests the flow of the Blue Nile, Lake Tsana or the Sobat, which empty into the White Nile, without making a prior agreement with the British government.” (Author’s translation)
So, the English version states that for Ethiopia to construct anything on the Nile, It must first take permission from both the British and the Sudanese government, while the Amharic version states that the permission should only be taken from the British government. Another point is that the English version prohibits any construction before taking permission, while the Amharic version states “any work that fully arrests the flow”. It shows then that this is a controversial issue already.
- Ethiopia’s Independence:
In The Vienna Convention on Succession of States in Respect of Treaties, Article 16, it is stated that the state does not inherit the treaty obligations of its colonial power. Applying this rule to GERD case, we find that the 1902 treaty was concluded by Ethiopia and UK while Ethiopia was a sovereign independent state. Also, the treaty is a boundary treaty, which remains in force according to article 11 of the Vienna Convention.
- Non-Party States:
According to Articles 34-38 of the Vienna Convention on the Law of Treaties of 1969 that deals with the relationship between treaties and third parties, the non-party states have no positive or negative relations as for the treaty; no rights and no obligations.
- Practicing Monopoly:
International law is about legally solving debates and disagreements between states. Ethiopia’s argument that a monopoly is being practiced by the downstream states is a matter that should be submitted to the International Court of Justice, which should settle the dispute according to the principles of international law.
Declaration of Principles
In March 2015, Egypt, Sudan and Ethiopia signed a Declaration of Principles that included principles of:
- Development, regional integration and sustainability
- Not causing significant damage
- Fair and appropriate use
- The principle of the dam’s storage reservoir first filling, and dam operation policies
- Building trust
- Exchange of information and data
- Dam security
- Sovereignty, unity, and territorial integrity of the state
- Peaceful settlement of disputes
The details of the principles are so vague with no certain commitments rather than the idea of further negotiations and communication. The declaration mentioned a preparation for two agreements to be concluded between the GERD concerned parties (Egypt, Sudan, and Ethiopia); one of them is for constructing and filling of the dam, while the other is for guidelines and annual operation policy. A time frame was specified for concluding these two agreements as per the reports of the international technical committee. This seems to be a positive development in ending the stalemate between the three states, but the fact that old agreements are still controversial shall be settled too.
This is not the first dam for Ethiopia to construct on the Blue Nile, but the others were medium in size and were not expected to affect the flow of water like the GERD. The river Nile is common between many states, and agreements between only three of those states will only act as an instant temporary short-sighted solution. I believe Egypt should submit this case to the International Court of Justice to solve it and that all parties have to submit a well prepared case studies for each of the states’ needed share in water, this in addition to negotiations between all basin states to reach an agreement or more that should be satisfying for each of them.