Op-ed: Nile Dispute: Taming the elephant in the room

Mahemud  Tekuya (@MTekuya) for Addis standard

Addis Abeba, March 12/2020 – Disputes over the filling and operation of the Grand Ethiopian Renaissance Dam (GERD) have, once again, threatened to provoke water-induced conflict in North-East Africa.

Since November 2019, Ethiopia, Sudan, and Egypt had dozens of trilateral talks on the filling and operation of the GERD which were supported and attended by the U.S. and the World Bank as “observers.”

In the latest round of talks, the US and World Bank went beyond their observer status, and according to Davison, a Senior Analyst for Ethiopia at the International Crisis Group, “involved in drafting an agreement.” Ethiopia rejected the draft agreement and pulled out of the last (February 27 and 28) meeting held in Washington DC, stating that it did not finish the consultations with stakeholders.

In a statement issued on February 28, 2020, the US Treasury Department states that the U.S. sponsored negotiations have “resulted in an agreement that addresses all issues in a balanced and equitable manner” and cautioned Ethiopia not to start testing and filling the GERD without an agreement.

Ethiopia expressed its disappointment at the statement and stated it will commence the first filling of the GERD with or without an agreement. Egypt, on the other hand, signed the deal brokered by the U.S. and vowed to protect its interest over the Nile “by all available means.”

Diplomatic spats between Addis Abeba and Cairo are not new. Since the early 1990s, the two countries have been undertaking various talks on the Nile that ended in deadlock. Every time the talks reached in stalemate; Egypt threatened to use military recourse. Why these deadlocks? Because of the Nile Water Treaties.

Nile Water Treaties

The 1902 Anglo-Ethiopian Treaty was concluded between Great Britain, on behalf of Sudan, and Ethiopia. Although the main purpose of the treaty was to determine the boundary between Ethiopia and Sudan, it contains a provision relating to the waters of the Nile, in which Ethiopia undertook , in which Ethiopia undertook “not to construct or allow to be constructed, any work across the Blue Nile, Lake Tana, or the Sobat, which would arrest the flow of their waters into the Nile except in agreement with His Britannic Majesty’s Government of the Sudan.”

The 1929 Anglo-Egyptian Treaty is a bilateral treaty between Egypt and Britain, representing Sudan and its East African colonies (Kenya, Uganda, and Tanganyika). The Treaty, recognizing the historical and natural rights of Egypt, gave Egypt veto power over any construction projects along the Nile and its tributaries.

Egyptian officials, negotiators, scholars and media outlets have always considered the 1902, 1929 and 59 Treaties (Nile Water Treaties) as valid and insisted that upstream countries must respect the 55.5 BCM water share allocated to Egypt …

In 1959, Egypt and Sudan concluded an agreement that reinforces the 1929 Anglo-Egyptian Treaty. Although more favorable to Sudan than the 1929 Anglo-Egyptian Treaty, the 1959 Nile Treaty allocated the bulk of the Nile’s waters, 55.5 BCM, to Egypt (or 66% of the 84 BCM total water flow),18.5 BCM, (22%) to Sudan and left the remaindering 10 BCM (12%) for evaporation. The treaty did not recognize the rights of the upstream countries, including even Ethiopia, whose territory contributes 85 percent of the Nile waters that flow to Egypt

Egyptian officials, negotiators, scholars and media outlets have always considered the 1902, 1929 and 59 Treaties (Nile Water Treaties) as valid and insisted that upstream countries must respect the 55.5 BCM water share allocated to Egypt and that they must get prior approval from Cairo to undertake any construction project on the Nile River or any of its tributaries.

Upstream countries vehemently reject the Nile Water Treaties. Upon independence, Britain’s East Africa colonies rejected the validity of the Nile Water Treaties, arguing that they were not parties to it. They also argue that treaties are incompatible with their status as sovereign states, and thus null and void under Nyerere Doctrine or tabula rasa theory.

Ethiopia does not recognize the Nile Water Treaties and claims that there is no legal ground prohibiting Addis Abeba from equitably using the Nile waters. The obligation imposed in both the Amharic and English versions of the Anglo- Ethiopian Treaty does not prohibit Ethiopia from equitably using the Nile waters, even without the consent of Great Britain (now Sudan). What is prohibited in the Treaty is stopping up or total blockage of the entire flow of the Nile water, which is not in Ethiopia’s interest.

“A treaty does not create any obligation or right for a third party without its consent,” says pacta tertiis nec nocent nec prosunt rule of treaty law. Since Ethiopia did not sign or accede to the other Nile Water Treaties, they devoid of legal relevance. Therefore, Ethiopia is not required to respect the so-called “Egypt’s share of water” allocated in the 1959 Nile Treaty.

Naming the Elephant

Egypt’s desire to impose those unjust Nile Water Treaties on upstream countries and maintain its hydro-hegemonic status quo, on the one hand, and the quest for a new legal framework, called for by upstream countries, on the other, have jeopardized several efforts to reach an agreement applicable to all Nile basin countries.

 During the negotiations of the CFA, the fate of the Nile Water Treaties was the main sticking point. The upstream States believed that the purpose of the Cooperative Framework project was to produce an inclusive agreement that would replace and supersede the Nile Water Agreements.  Egypt insisted that the CFA must explicitly recognize the treaties and that they would continue to be binding against all riparian States.

The upstream States believed that the purpose of the Cooperative Framework project was to produce an inclusive agreement that would replace and supersede the Nile Water Agreements.  Egypt insisted that the CFA must explicitly recognize the treaties and that they would continue to be binding against all riparian States.

Later, the principle of water security, which obliges Nile Basin states not to significantly affect the water security of the other, was introduced as a means of inserting constructive ambiguity into the CFA to try and resolve the riparian states’ disputes over Nile Water Treaties. However, Egypt refused the principle and proposed the inclusion of a provision that will obligate all basin States “not to adversely affect the water security and current uses and rights of any other Nile Basin State.”

Upstream countries rejected Egypt’s proposal as it is a request for unequivocal recognition of the validity of the Nile Water Treaties and started signing the CFA. Egypt walked away from the cooperation, and began diplomatic belligerence, threatening to bomb Ethiopia. The late Prime Minister Meles Zenawi, in his part, dared Egypt to invade the country, warning that “[n]obody who has tried lived to tell the story.”

By 2011, Ethiopia decided to try and change the game and announced its plan to construct one of the world’s largest dams, the Grand Ethiopian Renaissance Dam (GERD). In 2015, after several war rhetoric and painstaking negotiations, Egypt, Sudan, and Ethiopia have signed the agreement on Agreement of Declarations of Principles (DoP) on GERD.  

The DoP, although unique in considering the interest of Ethiopia and reiterating the principle of equitable and reasonable utilization, did not resolve the three countries’ long-standing disputes over the Nile Water Treaties. After the DoP was signed, those accords have been adversely affecting the GERD negotiations, and currently, disguised in the filling and operation of GERD, Ethiopia, Sudan, and Egypt are disputing over the validity of the Nile Water Treaties.

The early disagreements as to the baseline for the GERD impact studies, the tension following Egypt’s outrages proposal in august 2019 and the current deadlock after the negotiations in DC all have direct or indirect relation with the Nile Water Treaties. In all of these circumstances, Cairo (and the U.S. when it drafted the last agreement) have tried to impose the Nile Water Treaties on Ethiopia either by giving veto power to Egypt and/ or unequivocal recognition to the water share allocated in the 1959 Nile Treaty.

No doubt that the Nile Water Treaties are the main sticking issues in the GERD negotiations. But, astonishingly, the parties are not openly discussing them, and yet to call them what they are, the elephant in the room. As demonstrated in my commentary in Ethiopia Insight, taming the elephant in the room is a must to resolving the Nile dispute.       

Taming the Elephant

As indicated above, Egypt’s current legal position defined through the Nile Water Treaties is not legally viable. The 1902 Anglo-Ethiopian Treaty neither prohibits Ethiopia from equitably using the Nile waters nor does it give veto power to Egypt. The other Nile Water Treaties are devoid of any effect vis-à-vis Ethiopia.  Egypt must understand this fact and stop attempting to impose those unjust treaties against Ethiopia.

Because of geopolitical reality (not out of a sense of “legal obligation”), Ethiopia has not been able to use the Nile and, for centuries, the country has relied on rain-fed agriculture. This heavy reliance on traditional farming left many Ethiopians vulnerable to hunger, and a series of droughts have long kept millions of families “on the ragged edge of starvation.” From 1983 to 1985, more than one million Ethiopians died prematurely from illness related to malnutrition.

According to the Food and Agriculture Organization of the United Nations (FAO), about 8.5 million people are currently facing severe food insecurity or crisis in Ethiopia. This rate is expected to be exacerbated in the future. Ethiopia must, therefore, use its transboundary waters, including the Nile, for irrigation to lift more than one hundred million people out of poverty and ensure food security. As World Bank’s senior water advisor, David Grey, states “[t]here is no precedent for a country developing without harnessing its rivers and utilizing its water resources.”

Ethiopia should make it abundantly clear that it will and should use the Nile waters for consumptive purposes, including irrigation, and that the scope of the forthcoming treaty should be restricted on the GERD

Egypt should understand that the anachronistic status quo, established in the 1959 Nile Treaty, is no more sustainable. Egypt should be resourceful, and “plan to invest in desalination plants, water conservation, and less water-intensive agriculture. It should develop nuclear energy. It should divert its huge military spending to civilian infrastructure projects.” Egypt has several huge aquifers and should start using them. For instance, one of the aquifers, the Nubian Sandstone, “contains more than 150,000 cubic kilometers of groundwater—more water than the Nile River discharges in 500 years.” 

Ethiopia should make it abundantly clear that it will and should use the Nile waters for consumptive purposes, including irrigation, and that the scope of the forthcoming treaty should be restricted on the GERD. In particular,  Ethiopia should avoid any treaty that will give recognition to the Nile Water Treaties and lead to allocation of waters between the three countries. AS

Editor’s Note: Mahemud is a former Dire Dawa University lecturer. He is a Ph.D./JSD candidate in international legal studies at the University of the Pacific, McGeorge School of Law. He does his dissertation on transboundary water resource issues under the supervision of Professor Stephen C.

He can be reached at:mahmudeshetu@gmail.com