The Nile, Ethiopia, Egypt and International Law

33 mins read

By Taye Alemayehu, LLM

The Nile is the longest river in the world, 6,650 kilometres, head to mouth, with a drainage basin that includes parts of ten African countries, viz, Tanzania, Burundi, Rwanda, the Democratic Republic of the Congo, Kenya, Uganda, South Sudan, Ethiopia, Sudan and of Egypt.  Its Basin covers an area of about 3.2 million square kilometres and constitutes 10 % of the African Continent.

The Nile is the only major river that flows northward. For long it continued to be mythical, among ancient Egyptians who believed their gods Hapi and Isis had powers over the flow of the water and the harvest that fed the people.  Its main source Lake Tana, in Ethiopia, is a heart-shaped body of water on which there are over 37 islands that house more than an equal number of ancient monasteries and churches most remarkably noted for being custodians for priceless religious artefacts as well as secular books etc.  Saint Mary and Jesus are believed to have stayed on one of these islands for some time when they fled from King Herod. The other source is Lake Victoria, the  largest lake in  Africa. (In this respect I am also mindful of the rivers Gilgel Abay and Kagera).

The Abay, as the Nile is called in Ethiopia, is a theme for many romantic as well as nostalgic lyrics of Amharic songs and it may have highly likely evoked similar feelings in other regions.  Even,   Pink Floyd, the English band had sung one, The Nile, in 1969.

A significant proportion of the Nile Water (over 85% ) and nearly all of the fertile  alluvial soil it carries down stream comes from the Abay, Blue Nile,  and its other tributaries in  of Ethiopia. Both the water and the fertile soil it transports down feed Egypt.  Although the Blue Nile contribution of the overall Nile discharge is of very high proportions, Egyptian politicians had in the past made every possible attempt to deny or unsuccessfully down play this fact.   Egypt gets almost all its water and agricultural produce from this river and hence the Nile is called the blood line of Egypt. This blood line has its origin in the heart- shaped Lake Tana in Ethiopia.

Both Ethiopia and Egypt are ancient countries connected not only by this river but by numerous historical events, common religions of the Orthodox Christianity and Islam which their citizens share as well as being the original signatories of the Organization of the African Union Charter (now AU). They were important actors in what used be the Non Aligned Movement.

Egypt has always had a sense of insecurity over the use of the Nile water and in that not only it wants to use the water to the exclusion of all upper riparian countries but undertake all efforts to prevent or even subvert Ethiopia’s plans of the utilization of the water of which 90%  originates.

This has been unambiguously obvious since Ethiopia’s decision to construct the Grand Ethiopian Renascence Dam (GERD) in 2011.  The three riparian countries, Ethiopia, Sudan and Egypt have been in a continuous engagement to resolve the issues that are mainly raised by Egypt.  Egypt’s unfounded fear that the dam will drastically   decrease the amount  of water reaching its Nasser Lake Dam and thereby  pose a risk to   its national security could not be allayed by Ethiopia’s  firm assurances that the GERD’s purpose is for the hydropower,   a source of generating  electric  power  and that  the inflow of the amount of  water into the dam and the outflow  would be more or less equal  and that Ethiopia only wishes to exploit this water resource without any significant  harm  to the lower riparian countries. This could not persuade Egypt’s confidence.  At the heart of this all is Egypt’s reliance on the colonial treaties signed in 1929 and 1959, both of which made no attempt to consider or with total disregard of the rights of the upper riparian states,  particularly Ethiopia, but strangely grant Egypt nearly the exclusive right of the use of the Nile Water.  Involved in these treaties was Great Britain, a colonial power of the time and with vested interests in the Egyptian good quality cotton cultivation watered by Nile to continue for its textile industries.  Now the world has moved but Egypt is adamantly pegged down in that era.

There is no principle of public international law, as we will see below, that deters Ethiopia from using the Abay waters. Ethiopia shall not be persuaded to abandon its project of the construction of the GERD simply because the Blue Nile is its God given water resource that flows from within its territory and finally empties in the Mediterranean Sea. The source of the Nile is in Ethiopia and the GERD is within the its sovereign territory. Sovereignty of a state is one of the pillars of international law.

Egypt’s stance to stop this development is coated with its claim that the dam would significantly decrease the water flow downstream, and that therefore, Ethiopia should accept Egypt’s proposal of a   longer duration for filling of the GERD dam reservoir, including the continuance of the same level of water that should leave the dam during period of drought. Egypt also blatantly requires Ethiopia to allow a permanent presence of Egyptian technicians to ‘supervise’ or monitor the flow of the amount of water from the reservoir. Mind you this is in the sovereign territory of Ethiopia and Egypt’s demand, in very simplified terms, is akin to a nude neighbour from the down stairs apartment saying “I will keep someone in your house to check how you use water in your place because I suspect you may cause water shortage by taking too long washing dishes”.

To bolster its claim Egypt first rallied the Arab League countries to support its cause and the latter with the exception of the Sudan, just did that without any examination of the issues.  You cannot exaggerate Arab sympathy on two things; any issue that a member may have against Ethiopia or Israeli human rights violations against Palestinians.

The defunct treaties that Ethiopia consistently objected to were framed, as mentioned above, by colonial forces.  Ethiopia had not consented to any of those agreements. Some of these agreements were made when Egypt was under the suzerainty of foreign powers.  On the contrary, Ethiopia never submitted to any colonial power but crushed all that attempted to come to its borders.

Ethiopia is deeply convinced and believes that the issues pertaining to the utilization of the Nile water could be resolved by Ethiopia, Sudan and Egypt, for the mutual benefits of the people of the three countries.  Egypt always sought the assistance of third countries to interfere and resolve the impasse it actually created.  Thus, Egypt chose Donald Trump’s involvement to bring the three states for negotiations under his guide and the World Bank to sit as an observer. It has not been uncommon for states to use the good offices of third states or bodies to conduct negotiations with an aim to reach an amicable settlement of disputes or conflicts.  Those chosen for such objective are also expected to show neutrality and good faith. We all know that the two bodies mentioned above have been known to have used  their economic muscle in the world diplomacy. We also know that Ethiopia heavily relies on loans and assistance from them.  Egypt does the same but currently among other factors Egypt has a unique role to play in US relations with the Middles East.

In any case, as the tri partite dispute among Ethiopia, Egypt and Sudan over the sharing of the Nile waters reached deadlock, Ethiopia saw, in good faith, the use of the above-mentioned good offices to bring about a peaceful resolution of the problems. Delegations of the three countries met to discuss the issues in the presence of US officials, including President D. Trump.

They often say Trump is predictably unpredictable. What happened at a certain stage of the negotiations is something extraordinary in today’s international law and diplomacy.  The state that offered its good offices to mediate the parties to resolve their differences came up with its own draft agreement requiring Ethiopia to bend to all demands of Egypt and more.

Here, to the dismay of Trump and Egypt, the Black Lion gently got up, unruffled its mane   and moved out of the negotiation. Trump, when confronted by a different species, as usual growled and threatened, no loan, no assistance to Ethiopia. (And if you readers allow me, I personally say, “Keep your money and we keep our sovereign rights, and if you can, read a bit of history.”)

Ethiopia is more determined to complete the dam.   Trump or no trump.

Egypt has always resorted to use two ways to create obstructions to Ethiopia’s desire to exploit the water resources of Abay, the Blue Nile.  Diplomacy and the threat of use of force.

Its diplomacy sometimes goes to ad absurdum and in that it seeks assistance either from the middle east or the western powers.  None of these have any connection to the geographic zone of the river, not to question their neutrality. Is this the same colonial mentality that Egypt suffers from, noting that it was under the Greeks, the Romans, the Turks, the French and the British until mid 20th century?  President Museveni’s comment that while the Nile is in Africa, why does Egypt  fly to far away places for negotiations seems  to prick on this point.

Secondly, Egypt has used the threat to the use of force and even tried a few times in the past. This is what happened, also to remind our Egyptian brothers in case, it has been forgotten.

The decline of the Ottoman Empire in the second half of the 19th c gave rise to the emergence of Egypt as a force in the region.   That was  also a period was when Ethiopia was trying reunite and recover after a long era of division and internal conflict among provincial princes and war lords.

Khedive Ismael of Egypt recruited a large number of European and American military officers and built a large army with a huge quantity of arms, modern at the time.

The Khedive drew a battled plan to attack Ethiopia from four different direction.

The eastern front led by Munzinger Pasha, a Swiss adventurer believed to have good knowledge of the customs of the region and local languages progressed westwards from Tadjura Port in the east to central Ethiopia in December 1874.  His army after travelling a significant distance to the  hinterland was surrounded and ambushed by the army of Sultan Hanfare of Awsa, composed of the Afar people, widely known for their bravery in battle.  The entire army including the commander were annihilated and no one survived to tell the final fate of Munzinger.

The main front of the attack was the norther front, coming from Massawa port. The Egyptian forces led by European and American military officers proceeded until they reached the highlands in Akele Guzay (now in Eritrea)  without any serious  resistance.  The Egyptian army was commanded by Colonel Arhendrup, brought from Denmark.  He had a number of European and American officers and a large army under his command with a tremendous superiority in the quality and quantity of arms.

Thus the second encounter between the Ethiopian and Egyptian armies took place at Gundet on November 16, 1875. The Ethiopian army was led by Emperor Yohanes IV and his most distinguished military strategist general, Ras Alula.  Despite the Egyptian advantages in fire power, the valour of the Ethiopian army quickly overwhelmed and destroyed the Egyptian forces. Colonel Ahrendrup and all the high-ranking commanders including the Austrian prince Count Zichy, were captured. Only a few lucky men survived the battlefield and fled.

Again Khedive Ismael made a third attempt and sent this time even a larger army led by Mulay Hassan Pasha, a prince who had high level military training in Germany. The Egyptian army dug a labyrinth of trenches in Gura where the battle took place in March 1876.  The Ethiopian army under Alula drew their battle plans too and delayed engaging the enemy.  But on the fateful day of the fighting one wing of the enemy came out from its trenches. That gave the Ethiopian army the opportunity to jump into the enemy trenches with swords drawn and shining in the bright sun.   What followed was a shock and confusion among the Egyptians.  Most were routed and their surviving commanders were again captured.  The captive prince, the Pasha, was brought to the Emperor’s tent and the latter is said to have instructed two crosses be tattooed on the arms of the Egyptian prince (some say he was the son was the Khedive himself.)

That brought about the end of the Egyptian military adventure against Ethiopia.  Thousands of Egyptians perished in those battle fields and the ambition to occupy the source  of the Nile by use of force was decisively nullified by Ethiopia’s  victory  in the war.

Since the announcement of the GERD project Egyptian politicians and media outlets have displayed a continued stance of belligerency suggesting actions such as sabotaging the construction, air bombing the dam, assisting groups to arm and destabilise the Country etc. Notwithstanding all this Ethiopia has maintained that it would implement the Project in accordance with the requirements of international law and that the GERD will be utilising the Nile water in its sovereign territory in an equitable and reasonable manner without causing harm to lower riparian states, primarily Egypt, Sudan actually being a net beneficiary of the project in a number of ways.

                                   The Nile Dispute and International Law.

Public international law pertaining to rivers that cross international boundaries and the utilization of their water resources is a relatively young body of law.  The Convention on the Law of Non-Navigational Uses of International Watercourses,  adopted by the United Nations on 21 May 1997 is not only recent but has not  yet been enriched by precedents and practice.  However, it is an important international instrument to settle disputes and may provide for riparian states the basis upon which they can frame treaties on the development and utilisation such waters for their mutual benefits.

The general principles of the Convention are contained in its Part II and provide as follow:

  1. Equitable and reasonable utilisation of the water course by states Art 5(1).   This provides that riparian states can utilise the water of an international river  within their respective territories to attain sustainable optimal use at the same time taking into account the interests of other riparian states.  In doing so, the convention requires the state to consider a list factors contained in Article 6 (1a to  1g). Ethiopia has carefully taken into account these factors at the outset of planning the GERD project. The planning and the construction of the GERD complies to all requirements of the Convention.

 

  1. The obligation of a state using the water in its own territory not to cause significant harm to other riparian states (Article 7). As stated above Ethiopia’s project uses the water in its territory and is shown to cause no harm to Egypt.

 

  1. Sovereignty, territorial integrity and equality of states. This principle is the fundamental basis upon which states interact or transact among themselves, and is a right that each state jealously guards.  The convention states that watercourse states “shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.” (Article 8 (1) ).  Suffice it to say that Ethiopia has no hidden desire other than to develop the waters of Abay for the mutual benefits of all concerned states, unlike Egypt who maintained a policy of using it to the exclusion of others.

 

  1. The convention further provides under its Article 10 that no use of an international watercourse enjoys inherent priority over other uses, unless provided for in an existing agreement or customs.  This simply means that the uses of the water for irrigation cannot override its development, for instance in the Case of GERD for hydropower, despite an existing utilisation of the water by a lower riparian for agricultural cultivation.

 

The main purpose of an international convention is to avail states of a legal frame work under which to resolve disputes.  In this regard Article 10 (2) of the Convention further states that:

 

“2. In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.)”

 

The mechanisms of resolving the disputes may take the following forms.

  1. The states parties to the dispute take positive measures to hold dialogues in good faith and iron out differences. In the case at hand, that failed due to Egypt’s unreasonable position.
  2. Mediation by using other bodies that are neutral, impartial and mutually acceptable by all parties.

 

In this respect the African Union (AU) seems the ideal organ for mediation for many reasons such as  both Ethiopia and Egypt are  members, both  are  geographically with the continent, the Nile is an African river whose basin includes ten African Countries.

 

Another reason that would make the AU the most eligible candidate is that it has an established organ for this purpose, that is, the AU Commission of Mediation, Conciliation and Arbitration.  To achieve this The OAU Charter provides under Article XIX as follows:

 

“The (member)  States pledge to settle all disputes among themselves by peaceful means and, to this end decide to establish a Commission of Mediation, Conciliation and Arbitration, the composition of which and conditions of service shall be defined by a separate Protocol…”  Underlying this is also the cardinal principle that the AU Charter affirms- the sovereign equality of all member states and respect for the sovereignty and territorial integrity of each state. Egypt is a signatory of the Charter and is bound by its provisions.  So why Egypt chose the Arab League or Trump for support is an intriguing question.

When Ethiopia  unequivocally rejected the draft text that the Donald Trump administration prepared to put Ethiopia under onerous obligations in favour of Egypt, and further when Ethiopia remained firm in her position, despite the US threat to refuse to give loan or assistance, Egypt seemed to have seen the futility of this line of her diplomacy.

 

So, the next port of call was the UN Security Council (UNSC).  Egypt submitted a petition to the UNSC for the latter to intervene with Ethiopia’s plan to implement the GERD construction and the manner of filling the reservoir,  claiming that the construction of  the GERD would inflict a significant harm, thereby posing a threat to her  peace and security.

 

The main objective of the establishment of the UNO was for the maintenance of international peace and security (Art 1 of the Charter) and one of its six organs, the Security Council was given the responsibility to ensure that this objective fulfilled (Art. 24 (1p)).

 

When a dispute between state parties arises the UNSC employs a mechanism of two stages.  The first is, when the Security Council deems it necessary to call upon the parties to dispute to ‘seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’ (Art 33(1 &2)).   The regional agency cited here fits exactly what was mentioned above as the  AU organ – Commission of Mediation, Conciliation and Arbitration.  The reader can now note that Egypt always took a long flight to far way bodies disregarding what is available next door.

 

The second mechanism, employed presumably when the first fails, is where the UNSC undertakes to investigate the dispute and circumstances surrounding it to determine whether the dispute would likely endanger international peace and security (Art 34).

 

Ethiopia has consistently maintained its position of using the water of the Nile without any risk of posing any significant harm to any lower riparian.  Egypt had threatened with the use of force if the construction of the dam goes ahead.  Ethiopia in her long history never attacked any other country but is widely known for fiercely defending its independence from foreign aggression.  In this regard,

Ethiopia holds a unique position in world history.

 

Some hold the suspicion that Egypt’s attempts to prevent Ethiopia from using the GERD Dam  or any other similar project is nothing to do with the concern that the dam would reduce the flow of the water but rather a sinister motive to block Ethiopia from utilising its resources to achieve a higher level of development.  It is based on a policy of keeping Ethiopia weak and incapable of posing any challenge. To this end Egypt has a long history of organising and supporting dissident groups to foment internal conflicts.  Some further believe that the unanimity of members of the Arab League in supporting the cause of Egypt has less to do with the water issue but is bounded by their collectively held  misguided concept of the Habesha.

 

One other obstacle to arriving at a mutually acceptable resolution of the dispute is Egypt’s reliance and insistence on what it calls historic rights to the use of the water.  As the reader may have noted there is no such principle or provision in the UN Convention on the Law of Non-Navigational Uses of International Watercourses.

 

It has been reported that the UN Secretary General had spoken to the Ethiopian Prime Minister and suggested the use of the first mechanism, mentioned above, that the UNSC recommends for dispute resolution.  A similar call would have gone to Cairo.

 

This would mean that the halted negotiations would resume and Egypt, after all those endeavours to gang up the Arab League and Trump against Ethiopia, in her effort to delay the GERD Project would come back to the dialogue.   The Sudan showed some vacillation on US proposed text but stood firm against the Arab League position. National interest would dictate that Sudan is fully aware of the benefits she harvests from the Ethiopian GERD Dam Project and accordingly support the completion of the filling of the waters of the dam.  Some third states and the European Union have expressed their interest in the resolution of the dispute through a dialogue among the three states. In this they have also showed  a clear expression of support for Ethiopia’s right to develop the project.

 

Now that the rapprochement resumption seemed a reality, as Egypt has agreed to come back to the negotiation, the outcome for  the tri partite agreement must be negotiated with good faith based only on the principles and provisions contained in the UN Convention on the Law of Non-Navigational Uses of International Watercourses and any other pertinent international instruments.   To do so the following may assist the process.

 

  1. Egypt must show a firm express commitment to the renunciation of any belligerency including any propaganda on the threat to the use of force by organs of the state sponsored media.
  2. Ethiopia must show her commitment to full co-operation, as before, on how the project is designed to function without any significant harm to Egypt’s water needs and the future continuance of implementation of the project in a reasonable manner.
  3. The parties must agree that in the event of a dispute arising out of the negotiations or future disagreements such disputes be resolved with reference to articles 5 to 7 of the UN Convention on the Law of Non-Navigational Uses of International Watercourses and, with special regard being given to the requirements of vital human needs in the concerned countries.
  4. The parties, if necessary, must agree to use the AU Commission for Mediation or another body it may appoint with the full consent of the three states.

 

In conclusion, the successful completion of the GERD and the benefits to be reaped from it   are believed to be available to the citizens of the three countries.  If wisely used it may lead to the creation of a platform for future for the formation of some kind of cooperation or even a better regional economic integration.

 

Taye Alemayehu,
LLM in International Law, Notts.
London.

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