International Law Approaches to Ethiopian Water Rights
By Maryanne Mundy, Administrative Editor
This article is an overview of the international law issues that govern recent concerns regarding the Grand Ethiopian Renaissance Dam. It provides a brief look at the history of the region and the controversy over the dam. Then, it examines sources of applicable law and sources of water law concepts. Finally, it provides some insight into possible avenues for conflict resolution.
According to Justinian, river waters are without ownership: “And truly by natural right, these be common to all: the air, the running water, and the sea, and hence the shores of the sea.” Despite this noble assertion, the reality of water scarcity in some regions leads to complicated and often contested usufructuary regimes. The tension between idealism and practicality is evidenced in antiquity: roughly 2000 years before Justinian, the first known water treaty was carved on a clay tablet. Since that time, treaties governing the Nile Basin have attempted to control water rights, but the outdated concepts that contributed to these treaties do not adequately address current needs.
Although Egypt and the river Nile are intertwined in the Western mind, the main source of the Nile is the Blue Nile, which originates in Ethiopia. The land that is now Ethiopia was home to Lucy and is generally considered the birthplace of the human race. Inhabitants of that land were the first users of Nile waters, over 3 million years ago. Despite this original claim, the British colonialists of Egypt felt they had a right to steer water rights towards maintaining their colonial power and economic interests. Treaties between Britain and upstream states Sudan and Ethiopia heavily favored the downstream availability of water for the British cotton trade. Although colonial powers no longer control the region, the effect of British water law concepts can still be felt in the recent United Nations Watercourses Convention, and in Egyptian opposition to Ethiopia’s plans for Nile use. Pushing back against this focus on established downstream rights is the Nile Basin Initiative, which echoes the sentiments of environmental declarations and encourages cooperation in equitable use of water for economic development.
Lauded as the key to Ethiopian independence from foreign aid, and an instrument to escape widespread poverty, the Grand Ethiopian Renaissance Dam (“GER” dam) will be the largest hydroelectric power plant in Africa. Construction is underway on the Blue Nile, close to the border with Sudan. However, based on a perceived right to uninterrupted water flow, Egypt has gone so far as to threaten war against Ethiopia for constructing the dam. Ethiopia insists that the effects to downstream states will be minimal, but water security is understandably in the forefront of Egyptian concerns. As potential international conflict brews, it is crucial to analyze the treaties, water law concepts, and new trends in cooperation and resource allocation in order to chart a peaceful resolution.
At the heart of this conflict is a treaty between the United Kingdom and Ethiopia signed in 1902. The Nile is addressed in Article III. The English version states, in relevant part, that Ethiopia is “not to construct, or allow to be constructed, any work across the Blue Nile… which would arrest the flow of their waters into the Nile….” Under this treaty, the legality of the dam turns on the meaning of “arrest.” According to the Vienna Convention on the Law of Treaties (“VCLT”) Article 31, treaties should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” The ordinary meaning of arrest is “to stop the progress or movement of (something).” Secondary and tertiary definitions include concepts such as capture and slowing. But these meanings can be discounted upon analysis of the ordinary meaning under the Ethiopian version. Because this treaty was authenticated in both languages, the text is equally authoritative in each language. In the Amharic, the clause in question translates literally to “…construct a work that blocks up/stops up from river bank to river bank the water descending….” The controlling etymology is the Amharic root “dafanna” which is to “stop up, to fill, plug or close tightly, or to block passage.” It seems clear from the ordinary meaning of the text, in both authenticated languages, that the GER dam is legal unless it completely blocks the Nile’s water flow. The GER dam is not intended to nor projected to even come close to affecting a water stoppage. If the stated design and engineering goals are met, the dam will be legal under the language of this text.
Interpreting the treaty “in light of its object and purpose” as per the VCLT article 31 is a murkier undertaking. The treaty’s purpose as written into the text of the treaty is vague: “to confirm the friendly relations between the two powers.” But there is more under the surface. As a major colonial power, the United Kingdom was interested in two things: maintaining their political power and increasing their economic power. One of their motivations for securing this treaty may have been to reassure the Egyptians that Great Britain was using its power to protect their water interests, and thereby stave off any rebellion or move for independence. On the other hand, the Nile was crucial to the British cotton industry; by protecting its flow, the UK protected its trade routes. Additionally, the ports in the area were important to colonial trade, and the Suez Canal was the shortest route between India and England.
Another clause of the VCLT that could be applicable to this case is Article 62− Fundamental Change in Circumstances. If there has been a fundamental change in the circumstances surrounding the making or application of a treaty, that treaty might no longer be valid. Several former colonial states have already used the end of colonization to reject the treaties made by those powers, especially upper riparian states. The justification for this in part lies in an idea that because the countries had no role in the treaties, they are not successors to them. Under Customary International Law, newly independent states get a ‘clean slate’ and do not have to take over the debts and obligations of a former state. However, in an Egypt-Ethiopia dispute, it is the former colonial state (Egypt) that would want the treaty to stand to retain their advantage over water rights. Egypt may have an argument for this under VCLT article 61(2)(b): treaties that establish boundaries remain in force regardless of changed circumstances, including for newly independent states, and the 1902 treaty is mostly preoccupied with setting boundaries.
Regardless whether the 1902 treaty is in essence a boundary treaty, the notion of fundamental change might go farther than the clean slate doctrine. Fundamental change could encompass the availability of new technologies that allow a dam to be built without substantial interference on downstream water flows. Fundamental change could also be the emergence of a new jus cogens (preemptory norm of general international law.) Under the VCLT Article 64, when a new preemptory norm emerges, any treaty that conflicts with it becomes invalid. New trends towards supporting developing countries’ rights to exploit their own resources could be considered a new jus cogens. These concerns about advancement and equality have been articulated in Environmental Declarations as well as in rules regarding the commonly shared resource “Area” in the Law of the Sea Convention. This concern for developing countries’ economic independence is certainly a different norm than was in place during the British colonization of Africa. Until very recently, international law was written by and protected the strongest and the richest nations. Even the United Nations (“UN”), formed in 1945, has been criticized for its Eurocentricism and wealthy nations’ domination of the Security Council, even though it was ostensibly formed at least in part to protect smaller, weaker nations from aggressors.
Despite these criticisms, the UN could play a major role in settling questions about this treaty. Both the interpretation of operative language, and the idea that circumstances may have significantly changed, are disputes over which the International Court of Justice (“ICJ”) has jurisdiction, pursuant to Article 36. If adjudicated, it seems likely that Ethiopia could prevail and the GER dam controversy put to rest. Additionally, one of the parties could seek an advisory opinion from the ICJ, which could also end the controversy.
Most past treaty law and planning discussions for the Nile River basin have contemptuously excluded Ethiopia, and the current United Nations Watercourses Convention (“UNWC”) does not address Nile River basin issues adequately enough to entice Nile River Basin states, including Ethiopia, to sign it.
The first multinational scheme for the Nile River Basin was the Nile Projects Commission in 1920. This commission established the Nile’s flow in BCM/yr., Egypt’s projected needs, anticipated seasonal fluctuations, and both Egypt’s and Sudan’s rights to water. This Commission’s members, however, were the United Kingdom, the United States, and India. Ethiopia, home of the major Nile source, was not included.
Core assumptions about Egypt’s claim to designated quantities of Nile water flows stem from the Nile Water Agreement, begun in 1929 and ratified in 1959. This treaty was post-colonial and seems to take ideas about equity into account by including provisions designed to manage conflict and set objective benchmark limits on water use. However, this agreement was between Egypt and Sudan, and not Ethiopia. Under the VCLT article 34, a treaty cannot create obligations for a third state, without that state accepting the obligations in writing.
The latest agreement on the international stage is the newly ratified UN Watercourses Convention. However, none of the Nile Basin states are signatories. Ethiopia in particular has expressed dissatisfaction that the UNWC is “not balanced, particularly with respect to safeguarding the interest of upper riparian states.” Part II of the UNWC lays out general principles of equitable and reasonable utilization and participation, with a list of seven factors and an obligation not to cause harm but is mostly an aspirational framework agreement that does little to expressly protect upriver interests. Article 33 lays out a clear dispute settlement process that could be beneficial to resolution of the current GER dam dispute if Egypt and Ethiopia become parties to the UNWC.
Outside the hard law world of treaties, some inroads have been made towards communication and cooperation in water use through the Nile Basin Initiative (“NBI”), a regional intergovernmental partnership of which both Egypt and Ethiopia are member states. The NBI was created out of the Cooperative Framework Agreement (“CFA”), an aspirational document that has been influential in the UNWC. The NBI is a relatively new body and, like the Nile Waters Agreement, so far has focused more on the relations between downstream states of Egypt and Sudan than on Ethiopian issues. As the NBI and CFA gain in legitimacy, they will likely be applied more heavily to address the GER dam controversy.
The NBI is regarded as a “beacon of light” in the often-murky debate about water use in the region. Their mission is “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources.” One of the main functions of the NBI is to foster dialogue: A soft law arbitrament by the Nile Council of Ministers could be a good option for balancing the interests of both Egypt and Ethiopia, easing tensions, and possibly resolving this dispute. Although non-binding, the NBI is increasingly influential in developing usufructuary guidelines and strategic directions for Nile River management. Their work echoes a new trend, and perhaps a new jus cogens, that the development of impoverished nations is a priority when allocating resources.
Further evidence of a new jus cogens regarding developing nations can be found in the Rio Declaration on Environment and Development (“Rio Declaration”). Although considered “soft law” the Rio Declaration added an important new feature to the global environmental discussion. Principle 2 reflects a customary international law concept, also in the Stockholm Declaration, of national sovereignty over natural resources and the right to exploit them. But the additions of a right to development and a higher quality of life in Rio Declaration Principles 4 and 8 are departures from the weaker language of the Stockholm Declaration, which simply labels development as “essential.” The shift from a focus on protecting the environment, even if it means burdening developing nations, to a view towards just resources allocation for developing countries could be significant to justifying the GER dam project, which is considered by Ethiopia to be vital to its economic and social development.
Doctrines of surface water allocation have evolved, reflecting the growth and development of individual nations. These doctrines inform treaty parties’ understandings of water rights and are worth consulting when framing the GER dam debate. Largely a body of domestic law, river water management typically divides into three regimes: traditional riparian law, prior allocation doctrine, and regulated riparianism. Adoption of each regime is primarily dependent on regional meteorological factors. The United Kingdom’s approach to the 1902 treaty would likely have been rooted in traditional riparian doctrine, typical of states where water is abundant. This doctrine is based on common law for waterfront property owners and espouses reasonable use within the watershed and the preservation of natural flow. On the other side of the 1902 treaty is Ethiopia’s understanding of water. Although no traveaux can be found to shed light on that understanding, their view at the time was most likely rooted in a theory of territorial integrity and followed the prior appropriations doctrine that provides “the first user of water acquires a definitive right to it.” Based on the extremely long history of human settlement in the area that is now Ethiopia, a ‘first in time’ right for Ethiopian use of the Nile waters is likely easily established.
The prior appropriations doctrine does not favor states based on their location, but riparian doctrine clearly does. Riparianism benefits downstream states, but can be problematic in areas where water is scarce. British colonialism still seems to influence international water law as evidenced in the UNWC reasonable use provisions. This conflicts with the upriver state’s preference for prior appropriations and is perhaps one factor for Ethiopia’s abstention from the UNWC.
Former members of the British Empire, namely what are now the United States, India, and New Zealand, have taken the inherited British approach and modified it to suit their own needs. For example, in the western United States, Prior Appropriations is the norm, mostly promulgated by mining laws. Once enforced with firearms, now permitting processes and water courts regulate the system. The security of having a stable water claim was essential to enticing prospectors, investors, and settlers to the region. Similarly, Ethiopia’s claim to the Blue Nile has been perceived as strong enough to attract investors. It is a point of pride that the GER dam will be constructed without foreign aid. Codifying a Prior Appropriations doctrine could bring to Ethiopia the kind of predictability desired by businesses and entrepreneurs. However, issues of fundamental fairness to downstream neighbors and their rights to development would leave Prior Appropriations at odds with the principles of the NBI.
A middle ground, which combines ‘first in time’ permitting with resource regulation based on riparian reasonable use ideals, is Regulated Riparianism. India and New Zealand (and some eastern U.S. states) are among the former British colonies that have moved towards this regime. One of the main criticisms of Regulated Riparianism is that, although it lends predictability to water right while ensuring equitable uses, which can stimulate an economy, the bureaucracy required to do so is expensive and often unwieldy. Increasing bureaucratic expenses and systems in a large and developing nation such as Ethiopia is far from an ideal solution. It will be interesting to see what kind of water law system might evolve out of the challenges facing Ethiopia and her neighbors. Perhaps the NBI will develop a fourth approach suitable to this unique region, echoing the developmental prerogatives of international agreements.
Several courses of action are available to resolve the GER dam controversy. First, the ICJ can be consulted to interpret the 1902 treaty, either through adjudication or an advisory opinion. Second, the increasing influence of the NBI can be called upon to foster cooperation between Egypt and Ethiopia. Third, if Egypt and Ethiopia join the UNWC, that dispute resolution mechanism will be available to them. Finally, a reevaluation of riparian doctrine might ensure a more equitable distribution of rights for both downstream and upstream states. Before conflict erupts, international law provides Egypt and Ethiopia several peaceful courses for resolution and cooperation.
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