Sink or Swim: Abrogating the Nile Treaties While Upholding the Rule of Law
| Date | 01 September 2013 |
| Author |
43 ELR 10786 ENVIRONMENTAL LAW REPORTER 9-2013
Sink or Swim:
Abrogating the
Nile Treaties
While Upholding
the Rule of Law
by Alice Shih and Trevor Stutz
Alice Shih is a 2012 Yale Law School graduate, currently
clerking on the U.S. Court of Appeals for the Fifth Circuit.
Trevor Stutz is a 2012 Yale Law School graduate, currently
clerking on the U.S. Court of Appeals for the Ninth Circuit.
Summary
A shocking 80% of the Nile’s water is consumed by
one country: Egypt. e upstream riparian coun-
tries threaten to encroach on Egypt’s share of water
as recordbreaking populations, droughts, and famines
generate ever-greater need. Indeed, the increasingly
dire ght over the Nile stands to be one of the most
signicant global crises and potential armed con-
icts of this century. Egypt maintains the rights to
a vast majority of the Nile’s waters based on colonial-
era treaties. Following state succession, new riparian
States have disavowed these treaties, but the inequi-
table colonial treaties survived the process of decoloni-
zation. Nevertheless, current events demonstrate that
this inequitable water allocation cannot persist with-
out violating human rights.
Water is the foundation of life. Water enables food
and energy production, transportation, and
development. e unique transboundary nature
of water, and specically of the Nile River, creates tension
among riparian States, which argue over how to allocate
this limited resource. e Nile’s 6,695 kilometers (km)-
long path ows through one of the most water-decient
parts of the world.1 ough the Nile is the world’s longest
river, its water volume is much lower compared to other
rivers of similar length, making it even more precious for
its 10 riparian countries.2
With the East African region stirred by political tumult
and new foreign development dollars owing into Nile
projects, the threat of catastrophic conict over the Nile is
heightened. While the World Bank has consistently with-
held funding from projects on the Nile that lack Egypt’s
consent, new foreign investment has proceeded despite
Egypt’s opposition.3 As China and other foreign powers
pursue food security through investments in foreign agri-
culture, water rights are increasingly valuable. Simultane-
ously, the population of the Nile Basin continues to grow
at breakneck speed, increasing the local demand for food
and water. ere are more lives and more dollars at stake
now than ever.
e inequitable allocation of the Nile’s waters has raised
serious concerns throughout the region for half a century.
A legal solution is necessary. Eg ypt has repeatedly shown
that it will not freely renounce its claimed historic right
to the lion’s share of the Nile’s waters. Upstream States’
threats to dam the Nile or otherwise utilize its waters have
been met with Egyptian threats to wage war.4 e dispute
1. Lisa Jacobs, Sharing the Gift of the Nile: Establishment of a Legal Regime for
Nile Waters Management, 7 T. I’ C. L.J. 95, 95 (1993).
2. e riparian countries are Burundi, Democratic Republic of Congo, Egypt,
Eritrea, Ethiopia, Kenya, Rwanda, Sudan, Tanzania, and Uganda. Eritrea
has a more distant relationship to the Nile and only has observer status in
the NBI. G S, R D: I W
D M E 57 (1997).
3. See Mike Panz, Egypt, Sudan Lock Horns With Lower Africa Over Control of
Nile River, C S. M, June 4, 2010, http://www.csmonitor.
com/World/Africa/2010/0604/Egypt-Sudan-lock-horns-with-lower-Africa-
over-control-of-Nile-River/%28page%29/2.
“No donor or bank is going to agree to give money for a dam or an
irrigation scheme if they know it’s illegal in international law and
does not have the backing of all the Nile nations, especially Egypt,”
says Salif Diop, an expert in international water conicts at the
United Nations Environment Program in Nairobi.
Prof. Ashok Swain notes that Ethiopia “‘has shown recently that it is not
prepared to wait for basin-wide agreements to go ahead with large scale
projects. What’s changed to give them that condence? China.’”).
4. See Fasil Amdetsion, Scrutinizing the Scorpion Problematique: Arguments in
Favor of the Continued Relevance of International Law and a Multidisciplinary
Approach to Resolving the Nile Dispute, 44 T. I’ L.J. 1, 41 (2008) (“Fol-
Authors’ Note: Special thanks to Prof. Lea Brilmayer, Howard M.
Holtzmann Professor of International Law at Yale Law School, for
her invaluable insights and guidance without which this Article
would not be possible.
Copyright © 2013 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2013 NEWS & ANALYSIS 43 ELR 10787
has always been an ex istential one for Egypt, a State that
relies on the Nile for 90% of its water. Now, with growing
populations and recurrent famines, the crisis has become
existential for Ethiopia and the other upstream States.5
e deference to Egypt and the existing legal framework
has eroded. After a decade of negotiations, six Nile ripar-
ian States recently signed a new Cooperative Framework
Agreement (CFA) to govern the management of the Nile
Basin.6 Egypt and Sudan stridently condemned the CFA.
Meanwhile, over Egypt’s vigorous threats, Ethiopia has
begun construction on a massive dam on the Blue Nile
that will create a lake twice the size of the river’s source,
Lake Tana.7
Yet, the CFA and the new Nile construction have failed
to confront Egypt’s central claim to its Nile water rights—
a legal claim of right to the water ba sed on colonial-era
treaties. Only by answering the underlying legal claim can
the upstream States justify their actions on the world stage,
bring long-term stability to the region, and provide inves-
tors and international actors with condence that the rule
of law will be upheld.
South Sudan’s recent secession and the Arab Spring—a
series of uprisings and government transitions throughout
East Africa and the Middle East—have only heightened
the need for a legal resolution to manage the Nile waters.
New questions of state succession and shif ting political
alliances are inevitable in the coming years, necessitating
a na l legal solution that resolves both questions of state
succession and political impasses.
Ultimately, a new framework for managing the Nile’s
waters is necessary to address water and food scarcity.
While scholars and observers have long harbored hopes
that some teleological process would lead to a peace-
ful resolution,8 Eg ypt has continued to oppose any legal
lowing an assessment of an unpublished report by Hami el-Taheri, deal-
ing with issues relating to the Nile, the Egyptian Parliament was adjourned
amidst shouts of ‘when are we going to invade Sudan?’ and ‘why doesn’t the
air force bomb the Ethiopian dams?’”).
5. See id. at 41:
Ethiopia’s Minister of Foreign Aairs, Seyoum Mesn, for instance,
declared that Egyptian threats were an “irresponsible instance of
jingoism that will not get us anywhere near the solution of the
problem” and that “there is no earthly force that can stop Ethiopia
from beneting from the Nile.” Ethiopia’s Minister of State for For-
eign Aairs has also made it clear that “talks or no talks, Ethiopia
will exercise its rights to utilize its own water for its development.”
6. Burundi Signs the Nile Cooperative Framework Agreement, N B
I (Feb. 28, 2011), http://www.nilebasin.org/newsite/index.
php?option= com_content&view =article&id=70:b urundi-signs-the -nile-
cooperative -framework-agreeme nt-pdf&catid=40: latest-news&Itemid =
84&lang=fr.
7. See Great Millennium Dam Move Ethiopia, G M D
(Apr. 11, 2011), http://grandmillenniumdam.net/great-millennium-dam-
moves-ethiopia/.
8. See, e.g., Jutta Brunnée & Stephen J. Toope, e Changing Nile Basin Re-
gime: Does Law Matter?, 43 H. I’ L.J. 105 (2002).
framework that diminishes her current water allocation.9
Even in the face of Egyptian opposition and military
threats, upstream riparian countries may move to exploit
the Nile. is would be an unfortunate and unnecessary
result to decades of negotiations, and emerging projects
may unravel as politics shift or investment dries up due
to the uncertainty of water rights. International law and
international courts oer an alternative solution to meet
multiple aims of upholding the rule of law, legitimizing
new water allocations, stabilizing regional expectations,
and equitably allocating the Nile’s waters.
Internationa l transboundary watercourse law has a
lengthy and robust history developed through interna-
tional agreements, conventions, and judicial decisions.
Indeed, “a clear view of the requirements of interna-
tional law can provide States with a reference point from
which to assimilate the diverse inuences that shape their
actions and interactions with t heir riparian neighbors.”10
With the colonia l-era treaties complicating the picture in
the Nile Basin, there is all the more reason for a legally
binding decision that adjudicates the contested statu s of
prior agreements.
While a legally binding decision is necessary, it will not
be sucient. As Ethiopia’s unilateral actions demonstrate,
sovereign States may act in their own perceived self-interest
despite international law. Enforcing international agree-
ments against sovereign States can prove dicult and may
be laden with geopolitics. Yet, as Louis Henkin asserted,
“almost a ll nations obser ve a lmost a ll principles of inter-
national law and almost all of their obligations almost all
of the time.”11 Indeed, “empirical work since then seems
largely to have conrmed this hedged but optimistic
description.”12 While a Nile riparian may face an uphill
battle enforcing a judgment against another riparian who
has violated international law, a legal framework still “pro-
vides a way to engage complex political issues in a more
neutral, less overtly power-laden, and perhaps more pre-
dictable manner.”13
Part I introduces the Nile and reviews the history of
treaties that have governed the Nile Basin for more than
100 years. Part II confronts upstream riparians’ arguments
that the colonial-era treaties are void after independence.
9. See Dereje Zeleke Mekonnen, e Nile Basin Cooperative Framework Agree-
ment Negotiations and the Adoption of a “Water Security” Paradigm: Flight
Into Obscurity or a Logical Cul-de-Sac?, 21 E. J. I’ L. 421 (2010) (argu-
ing that Egypt’s inclusion of “water security” in the CFA is another ploy to
mandate current water allocations).
10. Keith Hayward, Supplying Basin-Wide Reforms With an Independent Assess-
ment Applying International Water Law: Case Study of the Dnieper River, 18
C. J. I’ E. L. P’ 633, 633 (2007).
11. L H, H N B 47 (2d ed. 1979).
12. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Y
L.J. 2599, 2599 (1997).
13. Kal Raustiala & Anne-Marie Slaughter, International Law, International Re-
lations, and Compliance, H I’ R. 538, 541 (2002).
Copyright © 2013 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
43 ELR 10788 ENVIRONMENTAL LAW REPORTER 9-2013
We argue that despite independence, the laws of state suc-
cession uphold territorial treaties such as those governing
the use of the Nile. We then lay out the concepts of rebus
sic stantibus and jus cogens to foreshadow their application
to the Nile Basin. Part III applies the doctrines of rebus sic
stantibus and jus cogens to the current food and water scar-
city in the region and compares the relative development of
the various Nile riparians to conclude that the stark depri-
vation of vital human needs in the upstream countries suf-
ciently voids the colonial-era treaties. Part IV reviews the
international transboundary watercourse law that would
govern the Nile Basin in the absence of treaties and that
would guide a court in adjudicating water rights. Part V
then proposes that the International Court of Justice (ICJ)
be charged with resolving the dispute over the validity of
the treaties and the allocation of water rights in order to
overcome the current political impasse.
I. The Nile and the Treaties Governing
the Nile Basin
A. The Nile River
As the world’s longest river, the Nile ows through states
whose populations total more than 400 million.14 is
region of East Africa is one of the most water-decient
parts of the world.15 e Nile’s irregular ow and relatively
low volume makes its management and control even more
critical for its 10 riparian countries.16
e tributaries that feed into the Nile are complex. e
White Nile originates in the Great Lakes region, where
the Kagera R iver from Rwanda and Burundi empties into
Lake Victoria, along with other rivers from Tanzania and
Kenya.17 Out of Lake Victoria, which is situated in Kenya,
Tanzania, and Uganda, the White Nile ows through the
Owen Falls Dam to Lake Albert, where the Semliki R iver
from the Congo joins.18 As the White Nile enters south-
ern Sudan, the ow is greatly reduced by evaporation and
transpiration in the Sudd region’s marshes.19 e White
Nile is then joined by the Sobat River from Ethiopia. e
resulting ow unites in Khartoum with the Nile’s other
principal tributary, the Blue Nile from Ethiopia.20 From
thereon, the river is known as t he Nile River and is joined
14. See infra Table 6.
15. Jacobs, supra note 1, at 95.
16. G S, R D: I W D
M E 57 (1997).
17. Jacobs, supra note 1, at 97.
18. Id.
19. Fred Pearce, High and Dry in Aswan, N S, May 7, 1994, at 28;
Zewde Gabre-Sellassie, e Blue Nile and Its Basins: An Issue of Interna-
tional Concern, in F P D: I
T K, IGTK Consultation Paper Series No. 2 pp. 2-3
(Shiferaw Bekele ed., 2006).
20. Christophe C.S. Morhange, Reviews: Africa: e Nile, 28 G J.
387, 389-90 (1906) (reviewing C H.G. L, T P
N I B (1906)); M M, M
W P M E 55-57 (1995).
by one more river, the Atbara from Ethiopia.21 Ultimately,
the Nile empties into the Mediterranean Sea.
ough mean ows for the Nile and its tributaries are
constantly in ux, the following are reasonable volume
estimates (measured at a particular city)22:
White Nile ( Malakal) 19.6 billion cubic meters ( m³) of water
Blue Nile (K hartoum) 49.7 billion m³ of water
Atbara (Atb ara) 11.7 billion m³ of water
Main Nile (As wan) 84.0 billion m³ o f water
e main Nile mean volume is calculated after evapora-
tion and water losses. Without the water losses, the main
Nile would contain approximately 90 billion m³ of water.
Evaporation and water losses also have signicant impacts
on other sources of the Nile. Lake Victoria loses approxi-
mately 3.5 billion m³ of water annually, and Lake A lbert
loses 2.5 billion m³ of water annually. e greatest water
loss occurs in the Sudd, where 12 to 30 billion m³ of water
is lost each year.23
1. Climate
e Basin spans ve vastly dierent climate regions.
Downstream, Egypt and parts of Sudan have a dry, des-
ert-like climate with precipitation of less than 200 milli-
meters (mm) per year. Sudan and small parts of Ethiopia
have a steppe climate with rainfall ranging between 200
and 400 mm a year. e precipitation from these two cli-
matic regions does not contribute any water to the Nile.
Upstream, the Nile Basin contains the tropical ra inforest
climate, the tropical savannah climate, and the highland
(tropical) climate. ese climates serve as the source of the
Nile, receiving 1,400 to 1,800 mm of rainfall per year.24
2. Environmental Changes
Environmental changes in the Nile Basin signicantly
aect the amount of available water. Scientists have found
that climate change indicates warming in the future.
However, this warming eect on the Nile is unclear. Some
experts estimate that t he Nile’s ow will increase by as
much as 30%, while others estimate a decrease of up to
78%.25 e uncertainty of future water ows creates even
more anxiety over the existing water.
21. Sohair S. Zaghloul et al., e International Congress on River Basin Manage-
ment, in T H I B A R
M N C A, 787-90 (2007), http://www.
dsi.gov.tr/english/congress2007/chapter_2/63.pdf.
22. N K, W R C M E 27
(1994).
23. Id. at 27.
24. Id. at 22.
25. W S M S, W M
E: P C P C 146
(Springer 1998).
Copyright © 2013 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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