Changing Tides Of The Nile: Analyzing Egypt's Claim To Preserve Its Historical Water Rights.

• Author: Hernandez, Jack

Introduction

Ethiopia has nearly finished construction of the Grand Ethiopian Renaissance Dam (GERD). (1) The GERD stretches across the Nile's largest tributary, the Abay River (Blue Nile), which contributes 85% of the main Nile's water flow. (2) Egypt, which lies downstream from the GERD, is understandably concerned. (3) Egypt relies on the Nile for 96% of its freshwater inflow and has historically had immense influence in apportioning Nile usage. (4) Although Egypt and Ethiopia engaged in negotiations over the filling of the GERD's resevoir and the regulation of water flow, these negotiations were largely unsuccessful. (5) Tensions have escalated to the point that international resolution mechanisms, such as the United Nations International Court of Justice (ICJ), may be necessary to settle the dispute. (6)

A major obstacle in the Egypt-Ethiopia Nile dispute is rooted in two colonial era treaties. In 1929 and 1959, Egypt entered treaties apportioning water rights over the Nile; both of which were very favorable to Egypt. (7) Ethiopia, however, never participated in these treaties and does not view them as binding on its construction or management of the GERD--while, in Egypt's eyes, these treaties reflect settled water rights over the Nile. (8)

This article will analyze Egypt's claim under international law to preserve its water rights as established by the 1929 and 1959 treaties (Egypt's contended water rights), concluding that these contended water rights lie on tenuous ground. Egypt's contended water rights likely do not explicitly bind Ethiopia through any treaty. This will result in some of Egypt's contended water rights being lost, such as its power to veto upstream dam projects. However, treaties and customary international law do provide an alternative foundation to Egypt's contended water rights by supporting Egypt's right to a level of water usage potentially equivalent to that of its contended water rights. The problem is that this alternate foundation rests on conceptions of "harm" and "equity" that necessitate a factual basis, and current empirical studies suggest that Egypt could subsist without substantial harm even if its Nile water usage is reduced from its current rate. If this is true, then Egypt's contended water rights are unfounded. None of this is to say that Egypt does not have significant water usage rights over the Nile, or that Ethiopia has free reign to construct and operate the GERD in a manner that significantly harms Egypt. Rather, this article merely concludes that international law does not support the continuance of Egypt's contended water rights as established by the 1929 and 1959 treaties.

Section I of this article discusses the historical background of the Egypt-Ethiopia Nile conflict and its development to the present day, noting that Egypt's previous actions and statements indicate its intent to preserve its water rights as established by the 1929 and 1959 treaties. Section II discusses the treaties and conventions relevant to the dispute and whether any of these agreements require the recognition of Egypt's contended water rights. Section III analyzes two doctrines of customary international law to determine whether any other legal support exists for Egypt's claim to preserve its contended water rights; ultimately concluding that such support is possible but tenuous under current empirical studies.

1. History & Development of the Egyptian-Ethiopian Nile Conflict

   In 2011, Ethiopia began construction of the GERD, which is now the largest dam in Africa and is expected to generate approximately 15,000 GWh of electricity per year. (9) This is 50% more than the average yearly electricity generated by the Aswan High Dam, Egypt's own hydroelectric dam built downstream. (10) Although this quantity of electricity surpasses what Ethiopia's infrastructure can currently handle, Ethiopia plans to sell the excess power to nearby nations, such as Sudan, and to eventually develop the infrastructure to provide 65 million Ethiopians with power. (11) Currently, the GERD is nearly completed and has begun accumulating a reservoir that, once filled, could exceed the surface area of urban London. (12) Given that the 4.8 USD billion dam involved thousands of local laborers and promises to lift millions of Ethiopians out of poverty, the GERD is a point of national Ethiopian pride. (13)

   Egypt views the GERD differently. Egypt lies downstream from the GERD and relies on the Nile for 96% of its freshwater inflow. (14) Additionally, over 95% of Egypt's population lives within the Nile basin, and thus the damming of the Blue Nile could significantly alter millions of Egyptians' access to water as well as their daily lives. (15) The GERD also could reduce Egypt's ability to generate its own power from the Aswan High Dam by as much as 30%. (16) Hence, it was not an exaggeration when Egypt's Foreign Minister, Sameh Shukry, labeled the GERD an "existential threat." (17)

   While Egypt now finds itself in a vulnerable position with regards to the Nile, this is a stark departure from the historical dominance it has held over the watershed. For thousands of years Egypt existed as a powerful civilization sustained by the Nile, and this legacy manifested itself in modern international law in the twentieth century. (18) First, in 1929, Egypt and Britain, acting as the colonizers of Sudan, exchanged letters and entered into agreements regarding the Nile (1929 Treaty). (19) This treaty recognized Egypt's "natural and historical rights" over the Nile, without explicitly determining what those rights entailed as far as water usage measurements. (20) Further, this treaty effectively gave Egypt veto power over any "irrigation or power works ... constructed or taken on the River Nile and its branches ... which would ... reduce the quantity of water arriving in Egypt...." (21) While the 1929 Treaty contains clear terms regarding electric generators and Egypt's rights over the Nile, Ethiopia was not a party to the treaty.

   Thirty years later, Egypt signed another treaty governing the Nile, this time with an independent Sudan (1959 Treaty). (22) The 1959 Treaty recognized Egypt's water rights in a more precise manner, allocating Egypt a right to 48 billion cubic meters (BCM) of water per year at Aswan and 4 billion cubic meters per year to Sudan. (23) The treaty also covered the Aswan High Dam and its reservoir, which apportioned 7.5 BCM to Egypt and 14.5 billion to Sudan. (24) In total, the 1959 Treaty allocated 55.5 BCM of Nile water per year to Egypt, 18.5 BCM per year to Sudan, and gave no consideration to upstream riparian nations, such as Ethiopia. (25)

   While Ethiopia was entirely absent from the 1929 and 1959 treaties, it was a party to a 1902 agreement that briefly touched on the Nile. (26) The 1902 Anglo-Ethiopian treaty (1902 Treaty) was a bilateral treaty between Britain, acting as colonizer of Sudan, and Ethiopia, which generally intended to set the borders between Ethiopia, Sudan, and Eritrea. (27) Relevant to this discussion, the treaty stated that Ethiopia was "not to construct ... any work across the Blue Nile ... which would arrest the flow of their waters into the Nile except in agreement with His Britannic Majesty's Government and the Government of the Soudan." (28) This treaty is controversial for many reasons, and the discussion of whether it is binding occurs below in section II.

   Although for most of the twentieth century Ethiopia and Egypt did not engage in negotiations over the Nile, this changed in the 1990s with the Nile Basin Cooperative Framework Agreement (CFA). (29) The CFA attempted to create an institutional mechanism for the "integrated management, sustainable development, and harmonious utilization of the water resources of the [Nile] Basin." (30) The CFA initially was promising, receiving financial and technical support from the United Nations Development Fund and comprising every riparian Nile state except for Eritrea. (31) However, negotiations on the CFA became contentious regarding the issue of 'water security' between upper riparian nations such as Ethiopia, and lower riparian nations, such as Egypt and Sudan. (32) It became apparent that Egypt would not accept any provisions that altered its contended water rights as stipulated in the 1929 and 1959 treaties. (33) Ultimately, Ethiopia and three other states ratified the CFA while Egypt abstained. (34)

   The CFA lost steam around 2010, (35) the GERD began construction in 2011, (36) and then in 2015, Egypt, Ethiopia, and Sudan signed the Declaration of Principles (DOP). (37) The DOP is largely an aspirational document meant to facilitate cooperation over the Nile between the three riparian nations. (38) While the DOP is silent on specific allocations of water usage rights, it does adopt some important principles. For one, the DOP requires upstream nations, such as Ethiopia, to "take all appropriate measures to prevent the causing of significant harm" to downstream nations. (39) Additionally, the DOP allows the three riparian nations to "utilize their shared water resources in their respective territories in an equitable and reasonable manner," taking into account factors such as natural characteristics of the Nile, social and economic needs, and the "existing" and "potential" uses of the Nile waters. (40) However, the DOP does not take a position on the existing uses of the Nile waters and is silent on whether Egypt's contended water rights under the 1929 and 1959 treaties are binding. (41)

   Because the DOP did not come to specific conclusions on the allocation of water rights, negotiations continued. In 2019, Egypt proposed the following, which effectively would allow Egypt to retain its contended water rights under the 1929 and 1959 treaties:

   (1) [T]hat Ethiopia fill the GERD slowly while releasing forty BCM of water every year; (2) that Egypt maintain its water surplus in the [Aswan High Dam] reservoir (165 meters above...