Addis Abeba — The Nile River, a storied lifeline for millions, has long been a source of both sustenance and strife. While its length is impressive, its volume is modest, and its waters must sustain a rapidly growing population. This factor has created a hydro-political landscape where antiquated, colonial-era treaties clash with the modern-day imperative for equitable and sustainable resource management. The completion of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia represents a pivotal moment, challenging the historical status quo and serving as a quintessential example of distributive justice in action for the Nile Basin.
This article argues that for the region to achieve true stability and shared prosperity, it is essential for downstream states, particularly Egypt and Sudan, to move beyond their claims of historical rights and embrace the principles of international water law and cooperative frameworks.
Flawed concept of "historical rights"
Egypt's perception of "historical rights" over the Nile stems from a series of treaties forged during the British colonial era in the late 19th and early 20th centuries. These agreements, notably those from 1902, 1929, and 1959, were designed to secure the flow of the Nile for Egypt and Sudan, often at the expense of other riparian states. The 1902 treaty, for instance, restricted Ethiopia from undertaking any waterworks on the Blue Nile, while the 1929 and 1959 agreements allocated the majority of the river's flow to Egypt and Sudan, leaving the upstream nations with no defined share.
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These colonial-era agreements are widely regarded as illegitimate and non-binding by upstream states like Ethiopia. The principle of pacta tertiis nec nocent nec prosunt (a treaty cannot impose obligations or confer rights on a third party) is a fundamental tenet of international law, and it applies directly to these colonial-era agreements. Furthermore, these treaties were signed by colonial powers on behalf of subjugated territories, making their legitimacy in a post-colonial world highly questionable. The Constitution of Egypt, which enshrines the protection of "historical rights" to the Nile, further entrenches a position that is fundamentally at odds with modern international water law and the needs of a basin-wide cooperative framework.
Equitable, reasonable utilization of Nile
The legal and ethical foundation for a new approach to the Nile is rooted in the principle of equitable and reasonable utilization, a cornerstone of international water law. The 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC) formalizes this principle, stating that states have an obligation to use a shared watercourse in a way that is equitable and reasonable, taking into account factors like geography, hydrology, socio-economic needs, and the effects of use on other riparian states. The UNWC also includes the "no-harm" obligation, but this is not an absolute prohibition. As Professor Stephen McCaffrey, one of the world's foremost authorities on international water law, argues, harm can be interpreted in two ways--harm caused by an upstream state's new use or harm (foreclosure of future use) caused to an upstream state by a downstream state's extensive prior development.
The GERD is a prime example of an upstream country exercising its right to equitable and reasonable utilization."
The GERD is a prime example of an upstream country exercising its right to equitable and reasonable utilization. Ethiopia, which contributes a significant portion of the Nile's waters, has historically been unable to utilize this resource for its own development due to the colonial-era restrictions. The GERD, a hydroelectric project, is a non-consumptive use of the river's water and is designed to provide electricity for a country where the majority of its population lacks access to it. It also offers significant benefits to downstream states, including a more regulated flow of water, reduced siltation in their reservoirs, and a buffer against future droughts and floods. This is the very essence of distributive justice, where the development of one nation confers benefits upon the others, leading to a more equitable distribution of the river's resources and opportunities.
To move forward, it is imperative that Egypt and Sudan abandon their rigid stance and sign the Cooperative Framework Agreement (CFA). The CFA is a product of years of negotiation among the Nile riparian states and represents a modern, basin-wide approach to water governance. It is a legal instrument that embodies the principles of equitable and reasonable utilization and the "no-harm" rule. It is a departure from the antiquated colonial treaties and provides a path to shared water security for all riparian states. The CFA has already been ratified by several upstream nations, and its full implementation would create a legal and institutional framework for managing the Nile as a single, interdependent system. The CFA, unlike the old treaties, recognizes the rights of all riparian states to utilize the river for their development, paving the way for a more just and cooperative future.
Lessons from international watercourses
The Nile Basin states can draw valuable lessons from other international watercourse agreements that have successfully navigated complex hydro-political challenges. The first example is the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin. The Mekong River Commission (MRC), established under the 1995 Mekong Agreement, promotes regional cooperation and sustainable development among the Kingdom of Cambodia, the Lao People's Democratic Republic, the Kingdom of Thailand, and the Socialist Republic of Viet Nam, with a focus on joint planning and management. This model demonstrates how a basin-wide institution can facilitate data sharing, joint studies, and coordinated decision-making, even among states with differing interests.
Secondly, the Indus Waters Treaty between India and Pakistan offers an important example. Despite a history of intense conflict, these two nations have successfully managed the Indus River system for over 60 years under the 1960 treaty. Brokered by the World Bank, this agreement allocated specific rivers to each country, ensuring a predictable and reliable supply of water for both. The treaty's resilience in the face of political tensions provides a powerful example of how water can be a tool for peace, not conflict.
Finally, there is the U.S.-Canada Treaty on the Columbia River. Signed in 1961, this treaty governs the development and management of the Columbia River. It established a framework for cooperation on flood control and hydropower, resulting in significant economic benefits for both countries. The treaty's focus on reciprocal benefits and joint management serves as a powerful testament to the value of cooperation between upstream and downstream riparians.
These examples underscore the fact that successful transboundary water utilization and management is not about one country's "historical rights" but about shared responsibility and mutual benefit. They highlight the importance of establishing a modern legal framework, creating a dedicated institutional body for management, and focusing on a shared vision of prosperity.
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Conclusion
The GERD represents a fundamental shift in the hydro-politics of the Nile. It is a bold statement that the era of colonial-era entitlements is over and that a new, more just and equitable order is emerging. The dam is not an act of aggression but rather a rightful exercise of Ethiopia's legal right to develop its resources for the benefit of its people within the context of transboundary watercourse usage. The path forward for the Nile Basin is not through clinging to an outdated and unjust past, but through embracing the principles of distributive justice and cooperative utilization. By signing and ratifying the Cooperative Framework Agreement and drawing lessons from other successful transboundary water treaties, Egypt, Sudan, and all other riparian states can transform the Nile from a source of potential conflict into a catalyst for shared prosperity and sustainable development for all.
To sum up, I draw on the insights of Herbert Arthur Smith, a scholar renowned for his contributions to the study of international rivers and water law. As he wrote in his work, "[w]e must begin by recognizing that every river system forms a single and indivisible physical unit, however much it may be intersected by political frontiers," and that "political interference, although it may be seriously disguised, can never abolish the permanent unity which rests upon physical facts." AS
Editor's Note: This op-ed was written by Hassen Mama Muse, a lawyer based in Addis Abeba. He can be contacted at [email protected]
