Egypt has to respect International conventions concerning the Nile water share – by Asrat Birhanu

Egypt has to respect International conventions concerning the Nile water share

Here are some legal arguments that definitely support Ethiopia’s case against Egypt regarding the Nile water dispute:

1. The 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses (“the Watercourses Convention”) sets out principles for equitable and reasonable use, prevention of significant harm, and cooperation among states. Although neither Ethiopia nor Egypt are parties to this convention, some of its principles may have passed into customary international law, meaning they could still potentially apply to these nations​
2. Ethiopia has consistently objected to treaties regarding the Nile to which it was not a party, such as the 1929 Anglo-Egyptian Treaty and the 1959 Egypt-Sudan Treaty. Under international law, a treaty cannot bind a third party that did not give its consent, strengthening Ethiopia’s legal position​.
3. The 1902 Anglo-Ethiopian Treaty, which Ethiopia did sign, merely prohibits completely stopping the flow of the Nile’s tributaries. It does not prevent Ethiopia from constructing works that may reduce the flow. This fact further supports Ethiopia’s right to construct the Grand Ethiopian Renaissance Dam (GERD)​.
4. Ethiopia could argue that the circumstances have fundamentally changed since the Nile Water Treaties were concluded, particularly due to the decolonisation of Africa. This argument could potentially be used to terminate these treaties under the Vienna Convention on the Law of Treaties, which allows for treaty termination due to significant changes in circumstances​.
5. Ethiopia could assert that the operation of the GERD aligns with the principles of equitable utilisation and no significant harm, which are core principles of international water law. Ethiopia contributes the majority of the water to the Nile, and the GERD is to be used for electricity generation, not irrigation, meaning the water is eventually released downstream. This could be seen as an equitable and reasonable sharing of the watercourse’s resources​.

Here are the expanding on the legal arguments Ethiopia can draw from additional principles and recent interpretations of international water law:

1. Limited Role of the Watercourses Convention: While the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses provides key principles for the use and conservation of transboundary waters, neither Egypt nor Ethiopia are parties to this convention. Therefore, they are not strictly bound by its terms. However, some of its provisions may have passed into customary international law, including the principles of equitable and reasonable utilization, the duty to prevent significant harm to other states, and the obligation to cooperate on the basis of sovereign equality, territorial integrity, mutual benefit, and good faith. These principles could bolster Ethiopia’s case, even if the convention itself is not directly applicable​.
2. Refutation of the Nile Water Treaties: Ethiopia was not a party to the 1929 Anglo-Egyptian Treaty or the 1959 Egypt-Sudan Treaty, and it has consistently rejected their terms. Under the principle of pacta tertiis nec nocent nec prosunt, these treaties cannot bind Ethiopia, as it did not give its consent. Additionally, the 1902 Anglo-Ethiopian Treaty, which Ethiopia did sign, merely states that Ethiopia will not completely stop the flow of the Nile’s tributaries. It does not preclude Ethiopia from reducing the flow. This interpretation could further solidify Ethiopia’s legal position​.
3. Change of Circumstances (Rebus Sic Stantibus): Ethiopia could argue that there has been a fundamental change of circumstances since the Nile Water Treaties were concluded, which could justify their termination under Article 62(1) of the Vienna Convention on the Law of Treaties. Decolonization of Africa and the withdrawal of colonial powers that originally controlled the Nile could be seen as such a change. The International Court of Justice (ICJ) has previously taken an expansionist view towards decolonization, which could lend support to this argument​.
4. Equitable Utilization and No Significant Harm: The principles of “equitable utilization” and “no significant harm,” found in Articles 5 and 7 of the Watercourses Convention and arguably part of customary international law, could be invoked by Ethiopia. The ICJ has confirmed that all riparian states have a basic right to an equitable and reasonable sharing of watercourse resources. Ethiopia, which contributes 86% of the Nile’s water, could argue that it has an equitable claim to use these waters, particularly to foster growth in its economy. As the Grand Ethiopian Renaissance Dam is intended for electricity generation rather than irrigation, it doesn’t lead to a net loss of water downstream. In fact, it can smooth out the flow and mitigate the risk of both droughts and floods. Therefore, it can be argued that the dam’s operation aligns with the principle of “no significant harm”​.

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