JURIST Guest Columnist Zeray Yihdego
of the University of Aberdeen Law School examines several legal issues
arising from the dispute over the Blue Nile Dam between Egypt and
Ethiopia...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 threaded
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.
http://www.jurist.org
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