Is Egypt’s Stance on the Blue Nile Dam Legally Justified?

By Dr Zeray Yihdego

Dr. Zeray Yihdego

Egypt and Ethiopia are in a war of
words concerning the damming of the Blue Nile. Ethiopia intends,
and has already completed twenty-one percent of the construction of the dam, to
generate 6000 megawatts of electricity, which is equivalent to six nuclear
power plants, in order to support and improve its sustainable development
standing, thereby increasing the living standards of millions of its citizens.

Egypt opposes the project, fearing that the dam will reduce the flow of the
water. Interestingly, Sudan sees the dam as beneficial to all downstream and
upstream Nile Basin countries. Egypt has declared that “all options are open” to
stop a reduction of “even one drop of Nile water” as a result of the
construction of the dam, including involving the military, arming opposition
groups and sabotaging the dam, although it says that it does not want to go to
war with Ethiopia. This controversy poses several critical legal issues.

The first
concerns the legal basis of both sides for using Nile waters and resources.
Egypt argues on the basis of “inherent” or “historic”
title, as enacted in colonial treaties, including in the 1929 and 1959 Nile
Water Treaties between Egypt and Sudan. The latter treaty entitles
Egypt to use eighty-seven percent of the Nile which amounts to 55 billion cubic
meters of water per annum, while Sudan is entitled only to eighteen and a half
percent. The rest evaporates into the air. Ethiopia and other upstream riparian
counties including Kenya, Tanzania, Burundi, Uganda, Rwanda, the Democratic
Republic of the Congo rely on the principle of “equitable and reasonable
use and utilization” of the Nile River waters and resources. This
principle has been codified in Article 5 [PDF] of the 1997 Convention on the Law of
Non-Navigational Uses of International Water Courses, which is considered a
codification of customary principles. In the River Oder Case of 1929 [PDF], the Permanent Court of
International Justice (PCIJ) explicitly proclaimed that the “community of
interest of riparian States” forms the “basis of a common legal
right…of all riparian States…” It must be noted that Ethiopia had
opposed the colonial treaties on the Nile since their inception, and all
upstream countries are oppose relying on colonial treaties, considering them
unfair and discriminatory.

Egypt
might argue, however, that colonial treaties must be honored, which includes
those agreements entered into between the British colony and most upstream
countries not to use or “arrest” the Nile waters without receiving
permission from Egypt and Sudan. This argument is rather weak, as Ethiopia had
persistently objected to the treaties, and all upstream (and downstream) countries
were under colonial rule and thus not legally bound by such treaties as newly
independent countries. The “clean state” doctrine, as codified under Article 16 [PDF] of the Vienna Convention on
Succession of States in Respect of Treaties of 1978, submits that countries
that gain independence are not obliged to succeed to colonial treaties
excepting boundary issues.

The
exception of “special regimes” such as Article
13 of Rome Statute of the ICC, which imposes obligations on non-party
states, is less likely to apply to these colonial treaties which were created
to pursue self-interest rather than common values and shared interest among the
Nile Basin states. This is why most Nile riparian countries have entered in to
the Nile
Basin Cooperative Framework Agreement in 2010 which is based upon
equality, and cooperation, rather than the status quo ante; it will also
establish a joint Commission to oversee the River’s management. From this, it
can fairly be argued that contemporary international law does not recognize the
“inherent” or “historic” use “principle” to
exclusively utilize a water course without ensuring the fair share of other
riparian states. For that matter the 1997 UN Convention expressly rejects the
“inherent” use claim as a bar to the equitable and reasonable use of
international waters.

However,
as a second legal issue, upstream countries must not inflict a significant harm
upon downstream states in their use of an international river like the Nile as
stated in Article 7 of the UN Convention 1997 and Article 12 of the Berlin Rules [PDF]. For example, the “minimum individual water requirements” of the people in downstream countries must not be jeopardized by a dam or other projects in upstream countries. Ethiopia
insists that its Blue Nile mega dam project will not
affect the flow of the water, and thus not only that it will not significantly
affect Egypt or Sudanese interests but also that will be beneficial to most
riparian countries, including Sudan and Egypt. The electricity generated will
be exported to neighboring countries and the project will increase the flow of
water to both countries. Conversely, Egypt argues that Ethiopia has not done enough studies on
the impact of the dam on downstream nations, especially on fishing, crops and
developing new and major hydro-electric power plants in Egypt.

This
problem seems to be related to the first legal controversy; Egypt is not
willing to risk a reduction of “a drop of water” from the Nile as
that is contrary to its “inherent” or “historic” title to
fully use and utilize the Nile waters. However, the duty not to inflict a
significant harm is founded on the principle of “equitable and reasonable
use” of a trans-boundary river and thus does not rely on the prior will or
permission of one concerned party. It does not allow one party to expand its
projects while denying others to use the water for their sustainable
development and poverty reduction endeavors. Of course, establishing “a
significant harm” is a technical matter, but what seems to be clear is
that Ethiopia is vindicated by the Tripartite Commission’s findings in that its
project will not harm Egypt and Sudan significantly.

However,
this poses a third legal issue. Egypt appears to call upon Ethiopia to halt its
project, without providing a legal ground. It may well be justified to urge
halting a significantly harmful project based upon evidence and reason but not
based on a threat of violence and intervention. Even if the project will
significantly harm Egypt, according to the 1997 UN Convention, Ethiopia might
only be required to: “take all appropriate measures…, in consultation
with the affected State, to eliminate or mitigate such harm and, where
appropriate, to discuss the question of compensation.”

Finally
but most importantly, Egypt vows to use all available options including
military force, intervention, sabotage, etc. As the country’s economy and
livelihood is dependent on the Nile, it may argue, even if remotely, that the
Blue Nile dam is a threat to its survival and thus entitled to defend itself
under Article 51 of the UN Charter. In light of Article
2 of the UN Charter, however, states can only use force to defend
themselves if and when they are militarily attacked. Moreover, using force as a
means of national policy including to secure water interests is totally banned
under current international law.

However,
whether Egypt has violated its Charter (or African Union) legal duties is not
entirely clear. It may be said that Egypt threatened to use military force in
violation of Article 2 of the Charter and Article 4 [PDF] of the AU Constitutive Act, and thus
responsible for such persistent military threats against Ethiopia, in
accordance with Articles 1, 40, 41, and 42 of the International Law Commission Draft Articles on the
Responsibility of States 2001 [PDF].

The
opposing, and may be a more sound argument, is that what (some) Egyptian
politicians have done, and are doing, is a sheer propaganda to intimidate and
frightened Ethiopia, and thus no concrete breach is committed by Egypt of its
duty owed to Ethiopia and the International Community at large. In fact, The
Egyptian Nobel Peace Laureate Mohamed ElBaradei called upon the President to make an apology to
Ethiopia and Sudan for “the irresponsible utterances” made against
them. It cannot be concluded at this point therefore that Egypt has, or has
not, violated international law, as this will depend on how the situation
progresses.

As the
African Union and the USA rightly urged, and as codified in Article 13 of the 1997 UN
Convention and related rules, the way forward is to settle all problems peacefully,
and to work together to maximize the benefits to all and minimize any possible
harm of the dam on downstream nations and peoples. The solution lies on Egypt
accepting the rights and entitlements of riparian countries in accordance with
twenty first century international law, while Ethiopia making sure that its dam
does not significantly impact Egypt and Sudan; if diplomacy fails both parties
must opt for judicial or arbitral settlement.

Zeray Yihdego is
a Senior Lecturer In Public International Law at the
University of Aberdeen, Scotland where he teaches various postgraduate and
undergraduate courses of public international law. He is the author of The Arms
Trade and International Law (Hart; Oxford, 2007) and other peer-reviewed
journal articles on peace and security, humanitarian law,
arms control law and democratic governance and sustainable development issues.
He serves as a member of the UN Expert Group on global firearms control and as
a Consultant to the United Nations in his area of legal expertise.