TENSIONS between Ethiopia and Egypt have been mounting ever since the Grand Ethiopian Renaissance Dam (GERD) began construction in 2011. As the construction nears completion, the dispute is growing in intensity.
One of the most contentious issues is the duration of the filling period of the artificial lake that will be needed to contain the water of the GERD. The Ethiopian government plans to fill it during the wet season (July to August) over a period of several years and based on annual rainfall. This flexible time frame was decided upon to ensure that Egypt and Sudan were not adversely affected.
Egypt complains that the Dam will restrict their access to the Nile River’s waters on which their economy is heavily reliant.
Ethiopia maintains that the Dam will not adversely affect downstream states and stands by its legal right to use the natural resources within its borders.
Egypt considers that two regional agreements determine the governance of the Nile River. These are the 1929 Anglo-Egyptian Treaty and the 1959 Bilateral Agreement between Egypt and Sudan – often referred to as “the Nile River Agreements”. However, these are archaic colonial era documents with no relevance to current circumstances.
The 1929 Anglo-Egyptian Treaty, formally known as the ‘Exchange of Notes between His Majesty’s Government in the United Kingdom and the Egyptian Government in Regard to the Use of the Waters of the Nile River for Irrigation Purposes’ is the first documented agreement on the Nile River. It was signed when the British monarchy was the colonial power of the region and Britain the key player in the drafting of the content of the agreement. Ethiopia was not a signatory to the agreement, was not involved in the designing of its terms, and was not a British colony that was subject to the laws of the British empire. The Ethiopian government therefore justifiably claims it is not bound to the provisions of the Agreement.
Indeed, as write scholars Mwangi Kimenyi and John Mbaku: “…. it is hardly fair, reasonable, or equitable for Egyptian authorities to demand that Ethiopia accept an agreement that granted Egypt authority to control development policy in Ethiopia – for, by subjecting irrigation and other projects on the Blue Nile to prior approval and oversight by Egypt, the treaty effectively made Egypt an overseer of development policies in Ethiopia”.
Egypt does not accept the Ethiopian argument and points to paragraph 4(ii) of the treaty as the legal basis for which they should be consulted on any infrastructure projects built on the Nile. This provision states that “save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile and its branches, or on the lakes from which it flows, so far as there are in the Sudan or in countries under British administration, which would, in such a manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water arriving in Egypt, or modify the date of its arrival, or lower its level.”
The second Nile River Agreement was signed in 1959 by Egypt and Sudan. This supplemented the provisions of the 1929 Anglo-Egyptian treaty and gave Egypt the right to 55.5 billion cubic metres of Nile water a year and Sudan 18.5 billion cubic meters per year.
These two Nile Agreements notwithstanding, one of the cornerstone principles of public international law is the territorial sovereignty of nation states, as enshrined in the Vienna Convention on the Law of Treaties of 1969. As per Article 31 of the Convention “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty”. In simple terms, in order for a nation to be bound by the content of an international treaty it must first provide its consent.
” The outdated Nile Agreements have no relevance in modern day law.”
The 1929 and 1959 Nile Agreements were concluded between Egypt, Sudan and Great Britain (which at the time also represented Uganda, Kenya, Tanganyika (now Tanzania) and Sudan), without the involvement of other sovereign riparian states. “These non-party riparian states are total strangers to that contract and can neither be beneficiaries of any rights conferred under the treaty nor be bearers of any obligations imposed thereunder” writes the expert Patrick Lumumba. Indeed, Tanzania, Kenya, Uganda, Burundi and Rwanda have all announced their refusal to be bound by illegitimate colonial treaties and denounce the Nile Waters Agreements.
Ethiopia’s position with respect to the Nile Agreements is similar to the “Harmon Doctrine” principle. United States Attorney General, Judson Harmon coined this term in an 1895 declaration on the Rio Grande waters on the boundary between the United States and Mexico.
The Harmon Doctrine provides that each state, because of the absolute sovereignty it exercises over its territory, may use waters of an international river within it as it pleases. In conclusion, the out-dated Nile Agreements have no relevance in modern day law and Egypt has no justifiable legal basis for demanding Ethiopia alter its plans to build the GERD. Instead of debating over whether or not Ethiopia should go ahead with the Dam, riparian states would be better of putting in place a regional governance mechanism that allows for the reasonable and equitable distribution of the Nile’s waters in line with current realities and in the light of climate change.