The Blue Nile dam controversy in the eyes of international law: Part 1

June 18th, 2013

Dr. Zeray Yihdego, University of Aberdeen, UK

This article is Part 1 in a series of 3 articles by the same author. Part 2 is available here and Part 3 is available here.

Ethiopia is constructing a mega dam on the Blue Nile River. The aim of the Renaissance Dam is to generate 6,000MW of hydro-electric power, equivalent to ‘at least six nuclear power plants’,1 as part of its quest to eradicate extreme poverty and become a middle income nation. It will be Africa’s biggest dam on completion.

Ethiopia has already begun diverting the river for the purposes of commencing construction. Sheikh Abdel-Akher Hammad, an Egyptian politician, said the Dam and the diversion of the Blue Nile amounts to ‘a declaration of war by Ethiopia on Egypt”.2 President Morsi has however, expressed his “respect to Ethiopia and its people”, adding reassurances that he will not engage in any act of aggression against Ethiopia.

In response Ethiopia reiterated that the dam shall generate electric power which will be exported abroad and shall prove beneficial to most downstream and upstream countries. Sudan agrees with Ethiopian assertions that it “would get many benefits from the dam, including better supply of electricity and year-long regulation of the Blue Nile’s flow”3 and called upon Egypt to stop provocations of a “water war” in the Nile Basin nations.

Historic legal claims and their validity

The Nile River is subject to the international law of transboundary rivers, primarily regulated by treaty law between interested parties. The Tripartite Treaty 1906 among Britain, France, and Italy proclaimed the need to safeguard “the interests of Great Britain and Egypt in the Nile Basin, especially as regards the regulation of the waters of that river and its tributaries” (Art 4). This was immediately rejected by Ethiopia as a denial of its sovereignty over the use of the Blue Nile. Regardless, the colonial Treaty 1906 was followed by an agreement between Egypt and Anglo-Egyptian Sudan of 1929 which stipulated that “Egypt and Sudan utilize 48 and 4 billion cubic meters of the Nile flow per year, respectively”. This was reinforced by the Nile Water Treaty 1959 signed between Egypt and Sudan for the “full utilisation of the Nile waters”,4 and the use of 18.5 and 55.5 billion cubic meters of water by Sudan and Egypt, respectively.

These treaties are often referenced by Egypt and Sudan to protect their interests although Ethiopia considers these treaties invalid, as they unjustly exclude the Nation contributing 85% of the River’s waters. However, in May 15, 1902 Ethiopia signed an agreement with colonial Britain. Article III of the Treaty stipulated:

“Not to construct or allow to be constructed any work across the Blue Bile, 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” 5

The Emperor signed the Treaty as a result of a mistranslation between the English and Amharic versions of the Treaty.

“According to the Amharic version, ‘arrest’ had been translated into ‘stop’, that is, as long as Menilek did not stop the waters the agreement did not prevent him from utilising and diverting Blue Nile water. Ethiopia has, moreover, ever since renounced this agreement – calling it illegitimate” 6

Such error of ‘a fact or situation’ rendered the Treaty void, as per Article 48 of the Vienna Convention on the Law of Treaties (VCLT) 1969 which mostly codified customary treaty rules.7 The Treaty was also never ratified by Ethiopia.

Arguably, Ethiopia and other upstream countries are bound by the colonial treaties, especially the 1929 and 1959 Treaties concluded between Egypt and Sudan. In principle, a treaty only binds those who subscribe to it as also termed as pacta tetiis nec nocent nec prosunt. Article 34 of the VCLT states that: ‘a treaty does not create either obligations or rights for a third Sate without its consent’.

Treaties must also not infringe the legal entitlements of third states without their express will. However, it is claimed that the creation of objective regimes such as the International Criminal Court (ICC) may justify a deviation from the rule.8 The same exception of creating an objective regime for transboundary rivers may also be applied to colonial treaties. If this argument holds true the aforementioned colonial treaties will be binding upon all parties in the Nile Basin.

Professor Crawford highlights, however, that:

“The ILC [International Law Commission] did not accept the view that treaties creating ‘objective regimes’ (e.g. the demilitarisation of a territory by treaty or a legal regime for a major waterway) had a specific place in the law of treaties”9

It is not certain whether the colonial treaties on the Nile were meant to establish an objective regime for the use of Nile waters. In fact, they imposed duties on third states, infringed on sovereign rights, and thus created a discriminatory regime of the Nile waters.

Most upstream countries were also under colonial rule at the time and thus not bound by them as a result of the ‘clean state’ doctrine as soon as they got their independence.10 Such colonial treaties were also instigated by self-interest rather than shared interest of the Nile Basin countries, and therefore were ‘discontinued in international law’, as illegitimate treaties.11 Importantly, they conflict with the right to self-determination of peoples in upstream countries and their entitlement to fair use and utilisation of the river’s resources as their tributaries contribute 100% of the Nile water.

However, this may be challenged on the grounds of local custom12 and the principle of uti possidetis. The 90% use (the rest being evaporated in the air) of the Nile river for several decades by Egypt, and to some extent by Sudan, on the basis of their colonial rights may be said to become a local custom. Colonial Britain signed unilateral agreements to protect its interests with upstream countries, a fact which may well reinforce this. However, Ethiopia did not only refuse to consent to the treaties but also strongly and persistently rejected their legality from the outset. Post-colonial independence countries in the Nile Basin also rejected the discriminatory regime and made practical steps to create a new regime as evidenced by the 1999 Nile River Initiative.

As such there was no consistent state practice and opinio juris (i.e. intent of concerned states to be bound by such a custom) to make a claim of local custom. It is therefore doubtful to establish local custom on the use of the Nile river even between Egypt and Sudan, let alone among all Nile Basin countries. Further, even if there was local custom, most, if not all, Nile riparian countries are opposed to it, and thus subject to establishing a new and a fairer regime beneficial to all.

The same is true with applying the principle of uti possidetis,13 the idea that colonial territories cannot be altered unless by agreement with concerned parties. This principle was widely endorsed by tribunals as a means to avoid territorial disputes in Africa.14 The Nile river treaties were not about delimiting territories, they were rather about empowering one or two downstream states to use Nile waters and resources and did not attempt to include the Nile to any sovereign territory.

In addition, the use of Nile waters poses the question of sustainable development of all riparian nations. From the Egyptian side the risk of reduced water will be a serious challenge for the country’s growing population. However, absolute denial of the use and utilisation of the tributaries of the Nile by upstream countries denies their right to sustainable development, thereby preventing them from eradicating extreme poverty. This is contrary to the global agenda set by the international community15 with legal connotations to the fundamental universal human rights and needs of millions of people in upstream countries.16

It appears that the British Empire recognised such injustice and arbitrariness as early as the 1950s, and began to question the absolute ownership of the Nile by downstream countries, particularly Egypt. The 1959 UK declaration on the subject submits that:

“The territories of British East Africa will need for their development more water than they at present use and will wish their claims for more water to be recognised by other states concerned” 17

In closing, Egypt’s assertion of its entitlement to use 55 billion cubic meters of the Nile on an annual basis while denying any use of the Nile by upstream states cannot be justified on the basis of relevant colonial treaties. Such treaties are either illegitimate, illegal, or obsolete as the British Empire does not exist and newly independent states are not bound by them; they are in conflict not only with treaty law but also the principles of self-determination, sovereign equality, and the right to development. For these reasons local custom or uti possidetis based arguments do not seem to be credible. There is also no treaty which can be directly applied to the Ethiopian-Egypt tension over the dam and finally, there is a serious question as to whether the colonial treaties at issue are compatible with customary international law of transboundary rivers as shall be explored in Part 2.

Also see:

The Blue Nile dam controversy in the eyes of international law: Part 3, 1 July 2013

The Blue Nile dam controversy in the eyes of international law: Part 2, 24 June 2013

How ‘soft power’ shapes transboundary water interaction, 3 June 2013

The Grand Ethiopian Renaissance Dam and the Blue Nile: Implications for transboundary water governance, 18 Feb 2013

The implications of climate change for water resource development in the Blue Nile River, 27 November 2012

References:

1. ‘Ethiopia diverts Blue Nile for controversial dam build’ (BBC News, 28 May, 2013) available online at http://www.bbc.co.uk/news/world-africa-22696623

2. ‘Ethiopia dam is ‘declaration of war’: Al-Gamaa Al-Islamiya’ (Ahram Online, 30 May, 2013) available online at http://english.ahram.org.eg/NewsContent/1/64/72730/Egypt/Politics-/Ethiopia-dam-is-declaration-of-war-AlGamaa-AlIslam.aspx

3. MOHAMMED AMIN, ‘Sudan and Egypt clash over Ethiopia’s Nile dam’ (African Review, 8 June, 2013) available online at http://www.africareview.com/News/Sudan-and-Egypt-clash-over-Ethiopia-dam/-/979180/1874356/-/k2bqs7z/-/index.html

4. See for details at http://www.ethiopians.com/abay/engin.html#1959

5. Summary available online at http://www.ethiopians.com/abay/engin.html#1902

6. Jon Harald Sande Lie, ‘Supporting the Nile Basin Initiative: A Political Analysis ‘Beyond the River”, Norwegian Institute of International Affairs, 2010, p.7, available online at http://www.academia.edu/2243972/Supporting_the_Nile_Basin_Initiative_A_Political_Analysis_Beyond_the_River

7. See e.g. J. Crawford, Brownlie’s Principles of Public International Law (8 ed., OUP, 2012) ch 16.

8. Under Article 13 (b) of the Rome Statute of the ICC the United Nations Security Council has been empowered to refer cases to the Court even if a case implicates a State who is not a party to the Statute.

9. Crawford, Brownlie’s Principles, above, p 385.

10. M. Shaw, International Law (Six edn, CUP, 2008) pp.977-79

11. A. Boyle & C. Chinkin, The Making of International Law (OUP, 2007) pp28-29

12. For the notion of custom under international law see Crawford, above, pp 23-30.

13. For details see e.g. M. Shaw, ‘Peoples, Territorialism and Boundaries’, 8 European Journal of International Law (1997)

14. See e.g. Eritrea-Yemen Arbitration 1998-1999, available online at http://www.pca-cpa.org/showpage.asp?pag_id=1160

15. Philippe Cullet , Water Law, Poverty, and Development: Water Sector Reforms in India (OUP, 2009) p. 18

16. For the link between extreme poverty and human rights see http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx

17. Garrestson 1960, p143 as quoted in OKOTH-OWIRO, ‘THE NILE TREATY: State Succession and International Treaty Commitments: A Case Study of The Nile Water Treaties’ Occasional Paper # 9, East Africa (2004) available online at www.kas.de/wf/doc/kas_6306-544-1-30.pdf

Dr Zeray Yihdego is a Senior Lecturer in Public International law at the University of Aberdeen where he teaches international law, humanitarian law and international criminal law; he is the author of ‘The Arms Trade and International Law’ (Hart; Oxford, 2007) and many other peer-reviewed articles on African peace and security and humanitarian law issues. He also serves as a member of the UN Group of Experts on the Global Firearms issues.



The views expressed in this article belong to the individual authors and do not represent the views of the Global Water Forum, the UNESCO Chair in Water Economics and Transboundary Water Governance, UNESCO, the Australian National University, or any of the institutions to which the authors are associated. Please see the Global Water Forum terms and conditions here.